Founding Editor
Bernard Weiss
Edited by
Ruud Peters and A. Kevin Reinhart
VOLUME
38
The titles published in this series are listed at brill.com/sils
The
Zahiri Madhhab
(3rd/gth-i0th/i6th Century)
A
Textualist Theory of Islamic Law
By
Amr Osman
BRILL
LEIDEN | BOSTON
Library
of Congress Cataloging-in-Publication Data
Osman,
Amr, 1978- author.
The
Zahiri Madhhab (3rd/9th-10th/16th century) : a textualist theory of Islamic law
/ by Amr Osman.
pages
cm. — (Studies in Islamic law and society)
Revised
version of the author’s doctoral thesis—Princeton University, 2010.
Includes
bibliographical references and index.
2.
Zahirites—History. 3. Islamic sects. I. Title.
Acknowledgements vii
Introduction 1
PART 1
The History of the Zahiri Madhhab
1
Dawüd al-Zahiri and the Beginnings of
the Zahiri Madhhab 11
3
Muhammad, Son and Student 35
2
The Spread and Retreat of the Zahiri Madhhab 48
1
Third/Ninth- and Fourth/Tenth-Century
Zâhirïs 49
2
Fifth/Eleventh-Century Zâhirïs 60
3
Sixth/Twelfth- and
Seventh/Thirteenth-Century Zâhirïs 65
4
Zâhirïs after the Seventh/Thirteenth
Century 73
5
Ibn Hazm
al-Andalusï (456/1064) 77
5.2
The Ibn Hazm Influence: A Mixed
Blessing? 83
PART 2
Zahirism: A Critical
Review
3
Jurisprudence in
Third/Ninth-Century Baghdad 91
1
The Ahl al-Ra’y and the
Ahl al-Hadlth 91
1.1
Medieval and Modern Literature 92
2
The Ahl al-Ra’y and the
Ahl al-Hadlth
Revisited 105
3
Dâwüd between the Ahl al-Ra’y and the
Ahl al-Hadlth 117
4
Zahirism between
the Ahl
al-Ra’y and the Ahl al-Hadlth 124
1
Zahir in the Muslim
Tradition 125
1.3
2
Zâhirism between the Ahl al-Ra’y
and the Ahl al-Hadlth
Revisited 148
2.1
Zâhirism and the Ahl al-Ra’y 148
2.2
Zâhirism and the Ahl al-Hadith 161
5
Zâhirism, Literalism and Textualism 171
1.1
Textualism and Zâhirism 173
2.1
Literalism in Religion and Law 200
2.2
Literalism in Linguistics 205
3
Zâhirism between Literalism and
(Con)Textualism 212
1.1
“Touching” Women and Men’s Ritual
Purity 226
1.2
Breastfeeding and Foster
Relationships 244
2.1
The Status of Imra’at al-Mafqüd 256
Conclusions 263
Bibliography
Index 296
283
I was
more than fortunate to work with four great scholars in the course of
completing this study, which is based on my doctoral dissertation that I
completed at Princeton University in 2010. I cannot find words that would do
justice to Michael Cook’s professionalism, dedication, and conscientiousness,
and I cannot thank him enough for all his support during and even after the
time I spent at Princeton. I have learned a lot from Hossein Modarressi’s
knowledge of Islamic thought and from Muhammad Qasim Zaman’s scholarship and
experience. I still seek their advice and they remain generous with their
support. My debt to Muhammad Shahab Ahmed has been accumulating since he taught
me at the American University in Cairo in 1999-2000, and I have since realized
that my attempts to repay it are simply futile.
In the course of writing my dissertation, I benefited from
comments on some parts of it by Kecia Ali, Aaron Zysow, David Powers, Susan
Spectorsky, Noah Feldman, Muhammad Fadel, and Tony Lang. Similarly, Lena
Salaymeh, George Hatke, Dan Stoltz, Jack Tannous, and Sarah Kistler read and
commented on parts of it. Luke Yarbrough, however, read the entire dissertation
with the care and dedication that he would give to his own writing.
Having said this, I have to emphasize that any weakness or
mistakes in his dissertation are my sole responsibility.
I also thank the editorial staff at Brill’s Studies in
Islamic Law and Society Series— particularly Kevin Reinhart, Ruud Peters,
Nicolette van der Hoek, Nienke Brienen- Moolenaar, and Ingrid
Heijckers-Velt—for their enthusiasm for this study and their patience with me
when Egypt’s gloomy events in 2013 made it impossible for me to submit the
manuscript at the agreed time. Also, I had the opportunity to fully concentrate
on revising this manuscript when I was awarded a generous “Zukunftsphilologie”
post-doctoral fellowship at the Forum Transregionale Studien in Berlin
(2013-2014). My thanks are due to Islam Dayeh, Angelika Neuwirth, and Georges
Khalil.
Last but not least, my wife, Marwa Fekry, supported me during
my years at Princeton when she was working on her own dissertation and blessed
me with two truly precious children, Fayruz and Yusuf. To Marwa I dedicate this
book.
It is reported that when the Prophet
Muhammad decided to fight the Jewish tribe of the Banü Qurayzah, he said to his
Companions: “Do not pray the afternoon prayer except in the abode of the Banü
Qurayzah.”[1] The
Companions understood this command variously. Some of them took it to mean that
they should pray the afternoon prayer only when they reached the Banü Qurayzah,
even if this meant praying it after its prescribed time. Others inferred that
what the Prophet actually meant was that they should not waste any time in
setting off to the battlefield. According to this understanding, the Companions
were being requested to hurry, but they were nonetheless supposed to pray the
afternoon prayer at its due time. The Prophet, it is reported, was silent on
the matter. He did not reprimand either group, nor did he endorse one understanding
over the other. Surprisingly, or perhaps unsurprisingly, the report does not
mention the time at which the Prophet himself prayed.[2]
This report is in fact a classical
example to which medieval Muslim scholars have regularly referred to
demonstrate two points. The first is that differing conclusions could ensue
from sound ijtihad, the effort made by jurists to discover God’s law in
a given case. Since the Prophet did not tell either group that they were wrong,
it must have been the case that neither was. Secondly, this report illustrates
the difference between “literalists,” viz. those who adhere to the “letter” of
written or verbal commands, and those who pay more attention to the objectives (maqasid)
which commands, and laws in general, seek to realize. Arguably, the latter
understanding fared much better in Islamic legal history than the former;
however, the former has not been categorically dismissed, for a report like the
one mentioned above lends credence to this mode of thinking. Just as some
Companions were more interested in the objectives of the Prophet’s command,
others were more interested in obeying its letter. Both groups were sincere,
even if they proceeded along differing lines.
For a Zâhiri scholar like Ibn Hazm al-Andalusi
(d. 456/1064), however, this report does not support either of the two views
that other scholars sought to prove. In his view, all other scholars erred when
they thought that the difference between the two groups was due to the way in
which they construed the Prophet’s command. They also erred when they thought
that the Prophet’s reported silence meant that both groups were right. How is
that so? Ibn Hazm argues that what the Prophet’s Companions were dealing with
here was a case of ta'arud al-adillah, when conflicting evidence exists
as to a specific issue.[3]
The Companions knew that there was a general, unqualified command that
prayers must be said at their prescribed times. That day, the Prophet gave them
a command that could not be reconciled with the general command. A group of
them decided to adhere to the original general command, preferring to pray the
afternoon prayers at their prescribed time. The other group, however, followed
the Prophet’s new command and prayed after sunset when they had reached the
Banü Qurayzah. Both, Ibn Hazm stresses, were following religious commands.
Furthermore, the fact that the Prophet did not reprimand either group only
indicates that whereas one of them was right and the other wrong, both were
sincerely seeking to obey the Prophet and did not intend to disobey him, for
which reason he did not need to reprimand either of them. Those Companions who
understood his command rightly, therefore, were rewarded twice, once for
practicing ijtihad and again for reaching the right conclusion; those
who got it wrong were rewarded only once for practicing ijtihad.
Ibn Hazm points out that had he been
among the Prophet’s Companions that day, he would have prayed in the abode of
the Banü Qurayzah, for the Prophet’s command on that specific day indicates
that it was a special case. In other words, had the Prophet wanted his
Companions to pray at the prescribed time of the afternoon prayers, he would
not have needed to say anything to them and they would have prayed at the appointed
time as they normally did. The fact that he said something must indicate that
he intended to say something exceptional for that particular day. When making
this argument, Ibn Hazm had three objectives. He was obviously seeking to
resist understanding this disagreement between the Companions in terms of their
hermeneutics, a view that would legitimize multiple readings of a single text.
He was also seeking to demonstrate his view that religious commands, in the
absence of valid evidence to the contrary, must be taken to indicate absolute
obligation. Thirdly, he was dismissing the validity of using this report to
demonstrate that legal diversity was tolerated by no less a religious authority
than the Prophet Muhammad himself. The beliefs that only one legal view on any
issue is correct, that only one reading of any text is valid, and that
commands are to be taken to indicate absolute obligation are all pillars of
Zâhirism, as will be discussed later.[4]
This controversy over the Banü
Qurayzah report also illustrates medieval Muslim scholars’ understanding of
Zâhirism, the legal theory of the Zâhirï madhhab. For them, it only
meant the blind following of the letter of the law without attempting to grasp
what it seeks to accomplish. In this respect, it indicates not only
superficiality and narrow-mindedness, but also a true mental deficiency in
failing to determine and appreciate what is intended by the law. Yet these
scholars may concede the sincerity of the advocates of this approach and
perhaps admire their keenness to rid jurisprudence of subjectivity and the
personal preferences that usually result from appealing to the “spirit” rather
than the “letter” of the law. It was particularly this belief in and admiration
of their sincerity that generated my interest in the Zâhirï madhhab.[5]
Yet it was the many unanswered questions about its history and doctrines that
prompted me to seek to fill some of what I regarded as important gaps in our
knowledge and understanding of this particular madhhab and perhaps of
Islamic legal history and theory in general.
Arguably, the Zâhirï madhhab
was the most important of the “defunct” medieval madhhabs, for despite
the fact that it ended up disappearing from the legal scene, the ongoing
interest that it has attracted in medieval and modern Muslim scholarship
testifies to its importance and distinctiveness. This interest is
understandable given that the Zâhirï madhhab produced far more
literature than any other defunct madhhab. Ibn Hazm—the only Zâhirï
scholar whose legal works have survived (to our knowledge)—was among the most
prolific thinkers in the history of Islam. But it was not only that. Ibn Hazm
was arguably among the most ingenious of medieval Muslim scholars, and it may
have been precisely because of this—and perhaps because of a hidden admiration
similar to the one mentioned above—that other medieval scholars felt that the
Zâhirï challenge was too serious to be disregarded.
Probably for similar reasons, some
modern scholars (Muslim and nonMuslim) have showed great interest in the
Zâhirï madhhab. As early as the end of the 19 th century CE, Ignaz
Goldziher examined the place of Zâhirism among the legal trends of the 3rd/9th
century and vis-à-vis other legal schools that developed later.[6]
[7]
Goldziher’s study, it must be acknowledged, was an excellent achievement given
the limited sources that were available to him at that time. Yet while
Goldziher showed an obvious interest in the history of the Zâhirïs, most
later Western scholars maintained only his interest in Ibn Hazm and did not
build on his effort to place him within the larger framework of the historical
development of the Zâhirï madhhab.1 The result was that Ibn
Hazm became the focus of almost all studies on the Zâhirïs. This fixation on
Ibn Hazm, however, is justifiable only if sustained effort is made to study
Zâhirism without complete reliance on his works. Indeed, this fixation on him
seems to have perpetuated the belief that we can hardly know much about other
Zâhirï scholars, including Dâwüd ibn ‘Alï ibn Khalaf al-Isbahânï (d.
270/884)—widely known as Dâwüd al-Zâhirï—the scholar credited with
single-handedly establishing the Zâhirï madhhab.[8]
Thus, apart from Ibn Hazm, the larger history of the Zâhirï madhhab
remains largely unexplored, and hasty conclusions about it are not lacking.[9]
This fixation on Ibn Hazm is at odds
with the fact that he belonged to a madhhab that he did not himself
establish. In fact, it contradicts the very notion that he belonged to a madhhab
at all, no matter how we define it. Accordingly, two questions present
themselves at the beginning of this study. If we assume for the sake of
argument that Ibn Hazm had not existed, how much could we actually know about
the Zâhirï madhhab? In other words, is Ibn Hazm the best-documented representative
of the madhhab, or is he our only source of any meaningful
knowledge about it? What do we know about the life and doctrines of Dâwüd
al-Zâhirï himself? Accordingly, starting with Dâwüd (chapter one), part one of this study explores the scope of the
spread of the Zâhirï madhhab in various centers and corners of the
medieval Muslim world and discusses the information available on the political
and intellectual careers of scholars reported to have belonged to it, including
Ibn Hazm and his place in and influence on the Zâhirï madhhab (chapter two).
Furthermore, a fundamental question
about the history of the Zâhirï madhhab is arguably that of its failure.
What was it about the madhhab that made it perish while some other
schools that were perhaps less successful than it was at certain historical
moments (such as the Hanbalï school) survived? In recent years, Islamicist
legal historians have sought to account for the success of the four existing
Sunnï schools of law and the failure of others by either focusing on their
popularity among jurists or state patronage as the main cause of their success.
Others have emphasized their ability to make adequate concessions to come to
terms with other schools and adapt to social realities as the main factor that
determined which schools survived and which perished. These concessions
included, for instance, abandoning either excessive rationalism or excessive
traditionalism. Scholars of every madhhab had to find a formula by which
they could combine elements of both. The ability of schools to develop
curricula or courses of study for their students is also among the factors
advanced to account for the success of some schools and the failure of others.[10]
Although these views are taken into consideration when studying the Zâhirï madhhab,
it is our findings here that would ultimately determine the conclusions made
apropos its failure. In fact, given the broad spatial and temporal scope of
the Zâhirï madhhab, it is not unlikely that it may have failed for
different reasons in different regions, a possibility that is entertained here.
10
In addition to these questions about
the history of the madhhab, there are questions related to its
doctrines, which are taken up in part
two. What exactly is Zâhirism, and what was Zâhirï about Dâwüd
al-Zâhirï? Most medieval and modern scholars writing on this subject have
implicitly or explicitly regarded Dâwüd as one of the Ahl al-Hadlth
scholars of his age. Judging on the basis of Dâwüd’s reported rejection of some
of the notions of the Ahl al-Ra’y (such as qiyas (analogy), istihsan
(equity), maslahah (interest), etc.), they conclude that Dâwüd cannot
have had any relation to them or to their juridical thinking. However, this
conclusion can only be sustained when we have collected and investigated
enough biographical and doctrinal evidence about Dâwüd’s life and
jurisprudence. This investigation is carried out in chapter one, whereas chapter
three and chapter four seek
to explore the characteristic features of the Ahl al-Ra’y and the Ahl
al-Hadlth to determine the group in which Dâwüd fits better and to which
side he may have been closer in terms of legal doctrine.
But what was it that distinguished
Dâwüd’s jurisprudence if he was already affiliated with one of these two groups
of scholars? Zâhirism is commonly regarded by modern, and possibly some
medieval Muslim scholars, as a “liter- alist” approach to reading religious and
legal texts. In other words, what distinguished Dâwüd and subsequent Zâhirï
scholars was their presumed “literal” reading of legal texts. Yet neither is
the meaning of “literalism” duly discussed, nor is the presumed literalism of
Zâhirism demonstrated. Therefore, chapter
four deals with the meaning of Zâhirism, whereas chapter five tackles the subject of literalism. It is then
argued on the basis of these two chapters that if we are to seek a modern
counterpart to Zâhirism, “textualism”—as presented by Justice Antonin Scalia, a
contemporary US constitutional judge—is the right candidate. This is not to say
that textualism is only a better candidate than literalism. Literalism, in
fact, is not a valid description, even if it shares with Zâhirism (and
textualism, for that matter) some basic views, as will be discussed.
In chapter
six, five case studies are presented, two extensive and three brief, for
further demonstration of some of the arguments made in this study on Dâwüd as
well as the nature of the Zâhirï juridical thought and its relation to the
legal thought of the Ahl al-Ra’y and the Ahl al-Hadlth. My hope
is that this study will contribute not only to our understanding of the history
and doctrines of the Zâhirï madhhab, but also to our understanding of
Islamic legal history more broadly by revisiting what was characteristic of
early Islamic legal trends and offering a new insight as to how the legal
theory of the madhhab under examination here relates to modern
linguistic, legal, and hermeneutical theories.
In the three-year period between the
completion of my doctoral dissertation in 2010 and the submission of the
manuscript of this book to Brill, a
number of works relevant to topics
discussed in this book have been published or come to my attention. This latter
category includes primarily scholarly articles published in Arabic
periodicals. The former category includes David R. Vishanoff’s The Formation
of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law
(2011), and Robert Gleave’s Islam and Literalism: Literal Meaning and
Interpretation in Islamic Legal Theory (2012). Readers will immediately
notice the similarities between topics discussed and conclusions reached in
this book and Gleave’s. Therefore, I will limit references to Islam and
Literalism, first to keep the flavor and originality of my treatment of the
subject (noting that tackling the issue of literalism is only one, although
very important, of many other issues that I deal with here); secondly, to avoid
unnecessary distraction for the purposes of this study by engaging with some of
Gleave’s conclusions; and thirdly, to give more space to Vishanoff’s original
work (and also Mohamed Yunis Ali’s Medieval Islamic Pragmatics: Sunni Legal
Theorists’ Models of Textual Communication), on which Gleave draws quite
heavily.[11]
11
Finally, the transliteration system
used here is that of Encyclopedia of Islam, the exceptions being j for
dj and q for k. I do not omit the short “a” in Allah when preceded by a vowel.
For Qur’an translation, I draw freely on the translations of M. Pickthall,
Yusuf ‘Ali, and M. H. Shakir, taking the liberty to amend them as need be.
The History of the Zâhirï Madhhab
CHAPTER 1
Dawud al-Zahiri and the
Beginnings of the Zahiri Madhhab
Biographies of Abü Sulayman Dawüd ibn
‘Ali ibn Khalaf al-Isbahani al-Zahiri pose a special historiographical
difficulty: statements made about his vast knowledge and prominence do not seem
to be consistent with the few pieces of information that his biographers report
about his life. For example, al-Khatib al-Baghdadi (d. 463/1071) mentions that
Dawüd lived most of his life in Baghdad,[12]
but he does not mention where he was born. Abü Ishaq al-Shirazi (d. 476/1083)
mentions that Dawüd was born in Kufa and grew up in Baghdad.[13]
Al-Sam‘ani (d. 562/1166) reports that he was from Qashan (a village near
Isfahan), but resided in Baghdad.[14] We
will see below that the majority of Dawüd’s teachers were either Basran by
birth or residents of Basra. It is therefore possible that Dawüd was born in
Kufa, traveled to Basra at an early age, and then possibly to the east where he
may have met with Ishaq ibn Rahawayh and other traditionists of the time, to
finally settle in Baghdad until the end of his life.
Another uncertainty about Dawüd’s
basic biographical information is his date of birth. Some of his biographers
mention that he was born in the year 200/815; others give the year 202/817.[15]
Disagreement over dates of birth of medieval scholars is not uncommon in
biographical dictionaries, but information about Dawüd’s death is also uncertain.
His biographers were uncertain about when exactly he died in the year 270/884,5
and, more importantly, where he was buried in Baghdad.[16]
[17]
Nothing seems to have been remembered about his funeral.[18]
Other basic biographical information
about Dâwüd is missing. For example, the only reference to his family is that
his father was a scribe of a certain ‘Abd Allah ibn Khâlid al-Küfï,[19] and
a follower of the Hanafï school of law.[20]
We do not know what Dâwüd himself did for a living. Only an isolated and ambiguous
account suggests that he may have worked as a judge for some time.[21] As
for his relationship with the rulers of his time, one report mentions that
Dâwüd was a mawla (client) of the Caliph al-Mahdi (r. 158/774-169/785).[22]
[23]
What is remarkable here is that Dâwüd grew up during the last years of the mihnat
khalq al-Qur’an (an inquisition over the createdness of the Qur’an) and
does not seem to have subscribed to the official state position on this issued2
This silence on Dâwüd’s relationship with the rulers of his time may indicate
that he was not a particularly notable scholar during his life.
Despite this lack of biographical
data, Dâwüd’s biographers portray him as a scholar who possessed vast
knowledge, excelled in reasoning and argumentation, and had many followers.
Al-Shirâzi states that “mastership of knowledge in Baghdad culminated in
Dâwüd.”i3 Al-Khatib al-Baghdâdi reports that Dâwüd was imam ahl
al-Zahir.u Later, Ibn Khallikân (d. 681/1282) mentions that
Dâwüd was a scholar with an “independent madhhab” that was followed by a
large group of people called al-Zahiriyyah^5 Nevertheless,
only a few accounts of Dâwüd can substantiate this image. For example, it is
reported that his circle of knowledge in Baghdad was attended by some 400
people wearing green taylasans.i6 Among the important people
reported to have frequented his circle is the famous Muhammad ibn Jarir
al-Tabari (d. 310/923).[24]
[25] In
his Fihrist, Ibn al-Nadim attributes to Dâwüd a large number of works,
among which are Kitab al-Masa’il al-Isfahaniyyat, Kitab al-Masffil
al-Basriyyat, and Kitab al-Masâ’il al-Khuwârizmiyyât}[26]
In the absence of evidence that Dâwüd traveled to these places himself, these
titles suggest that Muslims from various cities used to send questions to him,
pointing to reputation of a notable jurist.
As noted, this image of Dâwüd cannot
be easily reconciled with other facts reported about him. We know for example
that he did not distinguish himself as a Hadith scholar, at a time when Hadith
was becoming more and more the “knowledge” (al-cilm) that any
distinguished jurist must have. Dâwüd does not seem to have made any effort to
distinguish himself in the transmission of HadithJ[27]
indeed, he figures in only three isnads, two of which are regarded as
likely dubious.[28]
[29] Ibn
al-Jawzi (d. 597/1201) reports that Dâwüd contradicted many traditions.21 In
what could be his earliest biography, Ibn Abi Hâtim al-Râzi (d. 327/938)
mentions that Dâwüd used to ridicule and offend the Ahl al-Hadlth on
account of their obsessive interest in searching for traditions far and wide.[30]
[31] [32] [33] [34] [35]
Furthermore, if references to Dâwüd’s engagement in argumentation (see below)
are read against the backdrop of what we know about his knowledge, they could
also indicate that he was less interested in acquiring knowledge (al-mudhakarah)
and more interested in engaging in debates (al-munazarah).23
That attendees of Dâwüd’s circle were relatively few, therefore, is not
surprising; in fact, it is not clear what the subject of his lectures was in
the first place.
In light of all this, we have to
regard al-Shïrâzï’s statement about Dâwüd’s mastership of knowledge in Baghdad
as perhaps an innocent hyperbolic statement that only indicates that his
knowledge (probably of legal matters) was more than that of the average scholar
of his time. Al-Shïrâzï—who, notably, does not describe Dâwüd as Zâhiri and
mentions nothing about his Zâhirism or his rejection of qiyas—seems to
have been interested mainly in his admiration for Muhammad ibn Idris
al-Shâfi'ï (d. 204/820), a point that allowed later authors of Shâh'i
biographical dictionaries to include Dâwüd among early Shâfi'is.
Dâwüd is also described as having
been gifted in disputation and argumentation. The famous Hadith scholar Abü
Zur'ah al-Râzi (d. 264/878) is reported to have said that had he limited
himself to what people of knowledge do, Dâwüd would have suppressed people of
innovation with his argumentative skills.24 A famous contemporary of
Dâwüd—the grammarian Abü al-Abbâs Tha'lab (d. 291/904)—described him as having
had “greater reason than knowledge.’^5 In his Tabaqat
al-Shâfiiyyah al-Kubra, al-Subki mentions that he had a lengthy treatise
which Dâwüd had sent to al-Shâh'i’s student Müsâ ibn Abi al-Jârüd that
indicates Dâwüd’s mastery of argumentation and debate?6 Unfortunately,
although some sources refer to some of these debates, they do not preserve
sufficient, or even any, details of them. For example, some sources mention
that Dâwüd once had a disagreement with Ishâq ibn Râhawayh (d. 238/853), a
celebrated Hadith scholar of his time, on the subject of the cre- atedness of
the Qur’ân?7 It is also reported that Dâwüd had a debate with the
famous Shafi'i scholar Ibn Surayj (d. 306/918),[36]
[37] who
wrote a refutation of both the Ahl al-Ra’y and the Ahl al-Zahir™
Similarly, al-Zarkashi reports a debate where Dâwüd asks al-Shafi'i’s student
Isma'il ibn Yahya al-Muzani (d. 264/877) whether qiyas was a primary (asl)
or secondary (far?) source of law, to which al-Muzani gives a reply that
is difficult to construe.[38]
[39] [40] [41]
Dawüd is also reported to have had a
debate with a scholar of the Ahl al-Ra’y, Ibn al-Husayn al-Bardha'i (d. c.
3T7/92g),31 who reportedly decided to remain in Baghdad specifically
because of the “predominance” (ghalabah) of Zahiri scholars there. According
to al-Khatib al-Baghdadi’s account, al-Bardha'i once saw Dawüd debating with a
Hanafi scholar and overcoming him, which prompted al-Bardha'i to ask Dawüd
about a legal issue, obviously to refute his view.32 In addition to these,
al-Dhahabi mentions that Dawüd had a debate with the Mu'tazili theologian Abü
Mukhalid Ahmad ibn al-Husayn, in the presence of the Abbasid amir
al-Muwaffaq (d. 278/891), on the subject of khabar al-wahid, but
al-Dhahabi’s account suggests that the debate was probably on the subject of
“free will.”33 Muhyi al-Din al-Qurashi reports a debate between Dâwüd and a
certain Muhammad ibn ‘Ali ibn ‘Ammar al-Kurrini in the congregational mosque in
Baghdad also on the subject of the khabar al-wahid, which Dawüd argued,
apparently disrespectfully, was a basis for action (‘amal).[42]
Al-Qurashi does not report al-Kurrini’s view here, but he must have had the
opposite view on the issue[43]
[44] [45] [46]
This lack of details about the
debates that Dawüd reportedly engaged in does not necessarily indicate that he
was not interested in argumentation. It may suggest, however, that he was not
especially talented in argumentation— as al-Bardha‘i’s encounter with him may
indicate—or that his views were not significant enough for later generations to
memorize. In one report, one of Dawüd’s contemporaries used to argue that his
view on the question of khalq al-Qur’an—that the Qur’an of the
‘Preserved Tablet’ (al-lawh al-mahfüz) is primordial, whereas that
which is in the hands of people is created—was the view of a novice
theologian.36
Another reported characteristic of
Dawüd was his piety and asceticism. Although Dawüd’s integrity was generally
not questioned by the Hadith critics of the age,37 some reports
suggest otherwise. Ibn Abi Hatim al-Razi called him “deviant and heretical,’^8
and his father is reported to have described Dawüd in similar terms, describing
him as a “deviant who leads people astray” (dall mudill) and warning
people against listening to his foolish and absurd talk (khataratihi
wa-wasawisihi)[47]
After describing him as deviant, Ibn Abi Hâtim adds that he had seen Dâwüd and
listened to his views, of which his father and Abü Zur‘ah al-Râzi did not
approve, and mentions his attack on the activities of the Ahl al-Hadith.[48]
But even if Ibn Abi Hâtim or his father spoke ill of Dâwüd, their view seems to
be isolated and was probably motivated by their rejection of specific views
that he held. Generally speaking, however, Dâwüd, to my knowledge, is never
impugned on moral or personal grounds.
In brief, whereas the picture of
Dâwüd al-Zâhiri in medieval sources is that of a distinguished scholar and head
of a madhhab who had followers in Baghdad, what the same sources mention
about him is rather little. Consequently, we must deal with this picture with
caution, not necessarily because it cannot be historically true, but because it
cannot be corroborated by the sources that make it. What these sources do tell
us about Dâwüd is insufficient to allow for definite conclusions about his
life and career. While they do indicate that he was not an insignificant
scholar, they do not prove that he was regarded in his age as an exceptionally
distinguished scholar either.
It is remarkable, however, that if we
compare Dâwüd’s career with other leading scholars from the 2nd/8th or the
3rd/9th centuries, it appears that he was closer in profile to scholars like
Abü Hanifah al-Nu'mân (d. 150/767) and al-Shâfi'ï than to a scholar like Ahmad
ibn Hanbal or other Hadith transmitters or critics. Similar to him, Abü
Hanifah, and al-Shâfi'i to some extent, were not distinguished as Hadith
transmitters and were known for their engagement in argumentation. Dâwüd’s
father was reportedly Hanafi, and Dâwüd himself is reported to have been a
staunch admirer of al-Shâfi'i and the first to have compiled works on his
virtues (manaqib),[49]
a report that later Shâh'i scholars would make use of to claim that he was
Shâh'i notwithstanding his rejection of qiyas. Ibn Hanbal, in contrast,
distinguished himself as a leading Hadith transmitter and critic and was known
for his extreme abhorrence of argumentation and of those who engaged in it. In
fact, Dâwüd’s biographers consistently report that Ibn Hanbal refused to meet
Dâwüd.[50] And
whereas Abü Zur'ah al-Râzi admired his argumentative skills, he lamented the
fact that he did not do what “people of knowledge” used to do, namely,
transmitting traditions and abstaining from engaging in debates about issues
such as the createdness of the Qur’ân.
It is not uncommon for medieval legal
works to report Dâwüd’s views, either as a source of further support for a
particular legal view or as a target of refutation and even ridicule. More
often than not, these sources do not mention the bases on which Dâwüd held
those views. This problem is compounded by the fact that we do not possess any
of Dâwüd’s legal works or even any legal works from his immediate students.
This continues until Ibn Hazm al-Andalusi—writing almost two centuries after
Dâwüd’s death and thousands of miles away from the birthplace of Zâhirism—compiled
extensive works of Zâhiri legal theory, sources, and methodology (usül
al-fiqh) and substantive views (furü). How representative Ibn Hazm
is of Dâwüd’s legal heritage is a question that we attend to later.
As noted, al-Khatib al-Baghdâdi
states that Dâwüd was imam Ahl al-Zahir and reports that he was the
first to hold to zahir and reject qiyas. The meaning of zahir
is not explained here, nor is it explained in an explicit way in most medieval
sources. Ibn al-Jawzi, probably seeking to explain what this term means,
describes Dâwüd’s madhhab as “rigid” because it fixates on the texts (al-naql),
disregarding what could be understood from them (al-mafhüm) and focusing
only on their wording (sürat lajziht)[51]
Taj al-Din al-Subki (d. 771/1370)—who
seems keen to bolster Dâwüd’s image and defend him[52]
[53]—mentions
that he received a copy of one of Dawüd’s treatises, including some papers
entitled al-Usül. According to al-Subki, these treatises—contrary to
al-Subki’s father’s belief that Dawüd rejected only one kind of qiyas
(al-qiyas al-khafi)45—demonstrate that Dawüd rejected all kinds of qiyas
although he did not say so in an explicit and unambiguous way. In what seems
like a quote from Dawüd, he states that “judging on the basis of qiyas
is not sound, and adhering to istihsan is not permitted.” Dawüd goes on
to argue that we cannot declare licit what the Prophet had declared illicit and
vice versa unless the Prophet himself points out the ratio legis, or the
cause and rationale (‘illah) of a certain ruling. Other than this,
however, the undeclared ‘illah of a ruling falls into the category of
things that are permitted, or are not prohibited (‘ufiya ‘an-ha).
Furthermore, Dawüd rejected istihsan (generally translated as
“equity”), a rather ambiguous term that generally refers to the jurist’s
consideration of the circumstances of the case at hand when making a legal
decision[54]
[55] He
also believed in the principle of al-ibahah al-asliyyah, namely, the
original, “default” permissibility of whatever the law does not explicitly
forbid.47 Indecisive as this account may be as regards the kind of qiyas
that he rejected, it gives us first hand access to Dawüd’s writings. Al-Subki
argues for the authenticity of the treatise and speculates that it was written
in or before 300/912, which would mean that some of Dâwüd’s writings were still
available until the second half of the 8th/i4th century, at least in Egypt.
Another important account for our
purposes is Ibn al-Nadim’s list of Dâwüd’s works in his Fihrist. Ibn
al-Nadim (d. 438/1047) also reiterates that Dâwüd was the first to hold to the zahir
and that he relied (exclusively?) on the Qur’ân and the Sunnah and rejected ra’y
(opinion that is arbitrary in this view) and qiyas.[56]
Ibn al-Nadim attributes a long list of writings (kutub) to Dâwüd. This
list (which could include books, epistles, or chapters of books) is indicative
only of the scope of Dâwüd’s knowledge and the issues in which he was
interested, but not necessarily of the size of his written legal heritage. Most
of these works are obviously ones that tackled specific substantive legal questions
(which are likely to have been chapters in a single work), whereas some are
evidently works that dealt with specific theoretical subjects of usul
al-fiqh.. One of these is al-Usul, which—if read in view of
al-Subki’s statement—must have been a work of usul al-fiqh in which
Dâwüd dealt with issues like qiyas and istihsan.
After mentioning a few of Dâwüd’s
works, Ibn al-Nadim adds that his other works were apparently noted on a piece
of paper that had an old handwriting that possibly goes back to Dâwüd’s own
time.[57]
[58]
Later, Ibn al-Nadim mentions that the handwriting was that of a certain Mahmüd
al-Marwazi, whom he suspects may have been a follower of Dâwüd’s. Other than al-Usul,
Ibn al-Nadim attributes the following works to Dâwüd that probably also dealt
with theoretical legal subjects: Kitab al-Dhabb can al-Sunan
wa-l-Ahkam wa-l-Akhbar (which is said to have comprised 1000 folios), Kitab
al-Ijmac, Kitab Ibtal al-Taqlld, Kitab Ibtal al-Qiyas, Kitab Khabar
al-Wahid, Kitab al-Khabar al-Mujib li-l-cIlm, Kitab al-Khusus
wa-l-Umum, and Kitab al-Mufassar wa-l-Mujmal. To these, he adds one
work (the title of which is not mentioned) that dealt with two issues on which
Dâwüd disagreed with al-Shâh'i, and another in which Dâwüd apparently presented
some of al-Shâfi'ï’s views (Kitab al-Kafl fl Maqalat al-Muttalibí).5°
So far Dâwüd is reported to have held
what the sources call al-zahir, rejected qiyas, ra’y, istihsan,
and taqlld, and held the principle of al-ibahah al-asliyyah. He
is also reported to have written on a variety of usul al-fiqh issues,
including sunan and akhbar, khabar al-wahid and ijmac,
as well as two linguistic issues, namely, the issues of “generality and
restrictedness [of terms]” (al-cumum wa-l-khusus), and that
of “clarified and ambiguous [terms]” (al-mufassar wa-l-mujmal).
Remarkably, despite the regular
association between Dâwüd and al-zahir, there is no solid evidence that
he was called al-Zahiri by his contemporaries. However, some evidence suggests
that he was referred to as such only a few generations after his death. As
noted earlier, Ibn Surayj had written against the Ahl al-Ra’y and the Ahl
al-Zahir. ‘Ali ibn Ahmad ibn ‘Abd Allah al-Küfï (d. 352/963) is said to
have written a “Refutation of the Madhhab of Dawüd al-Zahiri,” a work
that is now probably lost but which explicitly refers to Dawüd as al-ZahirL[59]
While it is possible that al-Zahirl was added to the latter title by
later scholars (when it became customary to use it as a sobriquet for Dawüd),
it is unlikely that the second title would mention Dawüd without any sobriquet,
either to his father, place of origin, or legal affiliation. There is a good
chance, then, that al-Zahirl existed in the original title of ‘Ali ibn
Ahmad’s work and that Dawüd was known as such already in the first half of the
3rd century.
In the 3rd/9th century, Baghdad was a
vibrant place where competing theological, legal, and political views were
debated, and where plenty of scholars offered their knowledge to interested
students. Biographical dictionaries mention many scholars with whom Dawüd
studied. The following presentation of what is known about these scholars seeks
to investigate the influence that they may have had on Dawüd.
1. AbdAllah
ibn Maslamah ibn (ktnah al-()cinahlal-Harithl (d. c. 220/834) A resident of
Basra who was considered a reliable transmitter of traditions by the Hadith
critics of the time,[60]
[61]
al-Qa‘nabi transmitted from numerous scholars, including prominent jurists and
traditionists, such as Hammad ibn Salamah (d. 167/783), Hammad ibn Zayd (d.
179/795), Malik ibn Anas (d. 179/795)53—whose Muwatta’ al-Qa‘nabi
transmitted—al-Layth ibn Sa‘d (d. 175/791), Fudayl ibn ‘Iyad (187/803), and
Waki‘ ibn al-Jarrah (d. 197/812). Numerous traditionists transmitted from
al-Qa‘nabi, including al-Bukhari (d. 256/870), Muslim (d. 261/875), Abü Dâwüd
(d. 275/889), Abü Zur'ah al-Râzï (d. 264/878), and Abü Hâtim al-Râzï (d.
277/890). Al-Bukhârï is reported to have said that al-Qa'nabï died in either
220/834 or 221/835. Abü Dâwüd, however, mentioned that he died in 211/826-827,
perhaps in Mecca.[62]
[63] [64] [65]
Since some of al-Qa'nabï’s students died as late as the last quarter of the 3rd
century, it is unlikely that he died as early as the date that Abü Dâwüd gives.
2. Muhammadibn
Kathlr al-Abdl (d. 223/837)
Muhammad ibn Kathïr was a Basran
scholar who transmitted from, among others, Sufyân al-Thawrï (d. 161/777),
Shu'bah ibn al-Hajjâj (d. 160/776), and Abü 'Awânah al-Waddâh ibn 'Abd Allâh
(d. 176/792). Transmitters from al-'Abdï included al-Bukhârï, Abü Dâwüd,
al-Dârimï (d. 255/869), 'Alï ibn al-Madïnï (d. 234/848), Muhammad ibn Yahyâ
al-Dhuhlï (d. 258/871), Abü Zur'ah al-Râzï, and Abü Hâtim al-Râzï. Although
al-'Abdï’s reliability was questioned by Yahyâ ibn Ma'ïn (d. 233/847), his
integrity was vouched for by Abü Hâtim al-Râzï and Ibn Hibbân (354/965), who
reported that Muhammad died in 223/837 at the age of ninety.55
3. Amr
ibn Marzuq al-Bdhill (d. 224/838)
'Amr ibn Marzüq was a Basran scholar
who transmitted from Hammâd ibn Zayd, Hammâd ibn Salamah, Shu'bah ibn
al-Hajjâj, and Mâlik ibn Anas among many others. Al-Bukhârï, Abü Dâwüd, Abü
Zur'ah al-Râzï, Abü Hâtim al-Râzï and many other traditionists transmitted from
him. He was considered reliable by many Hadïth critics, including Yahyâ ibn
Ma'ïn and Ahmad ibn Hanbal (d. 241/855), who used to defend him against
allegations by 'Alï ibn al-Madïnï. Some of 'Amr’s contemporaries mention that
some 10,000 people or more used to attend his circle in Basra.56 He
is reported to have died in 224/838.
4. Sulayman
ibn Harb ibn Bajll al-Azdl al-Washihl (d. c. 224/838)
Sulaymân ibn Harb was a Basran
scholar who transmitted from Hammâd ibn Zayd, Shu'bah ibn al-Hajjâj, and Yazïd
ibn Ibrâhïm al-Tustarï (d. after 160/776) among many others. From him,
al-Bukhârï, Abü Dâwüd, Ahmad ibn Hanbal, Ishâq ibn Râhawayh, al-Dârimï, Ibn Abï
Shaybah (d. 235/849), Abü Zur'ah al-Râzï, Abü Hâtim al-Râzï, and Yahyâ ibn
Sa'ïd al-Qattân (d. 198/813), to mention but a few, transmitted traditions.57
Himself a Hadïth critic known for his stringency, Sulayman was trusted by the
Hadith critics of his time, and it is reported that some 40,000 students
attended his lectures.[66] In
214/829, he was appointed judge of Mecca by the Abbasid Caliph al-Ma’mün, an
appointment that lasted for five years.5[67]
He died between 223/837 and 227/841, probably in 224/838 in Basra.[68]
5. Musaddad
ibn Musarhad ibn Musarbal (and possibly, ibn Mustawrad, and ibn Murabal)
al-Asadl
(d. 228/842)
Musaddad ibn Musarhad was a Basran
scholar who transmitted from many traditionists, including Hammad ibn Zayd,
Sufyan ibn ‘Uyaynah (d. 198/813), Fudayl ibn ‘Iyad, Waki' ibn al-Jarrah, and
Yahya ibn Sa'id al-Qattan. Transmitters from him included al-Bukhari, Abü
Dawüd, al-Tirmidhi, al-Nasâ’i, Abü Zur'ah al-Razi, and Abü Hatim al-Razi.
Musaddad, who was considered reliable by the Hadith critics of his age,
reportedly died in 228/842[69]
6. Ahmad
ibn Yahya ibn Abd al-Azlz, Abu Abd al-Rahman al-Shafil (d. after 230/844)
According to al-Khatib al-Baghdadi,
Abü ‘Abd al-Rahman al-Shafi‘i was an associate of al-Shafi‘i and later a
follower of Ibn Abi Du’ad (d. 240/854), the famous Mu'tazili theologian and wazlr.6[70]
Although al-Khatib al-Baghdadi does not mention Dawüd among those who
transmitted from or studied with him, al-Dhahabi, remarkably, mentions Dawüd as
Abü ‘Abd al-Rahman’s only student[71]
7. Ishaq
ibn Ibrahlm ibn Makhlad al-Tamlml al-Marwazl, Ibn Rahawayh (d. 238/852)
A renowned scholar of Hadith and
jurisprudence in Nishabur, Ishaq ibn Rahawayh is probably the only teacher
whose encounters with Dawüd are
mentioned in the sources, although we
do not know where exactly they may have met.[72]
[73] [74] As
noted earlier, he had a debate with Dâwüd on the issue of the createdness of
the Qur’an, and is reported to have assaulted him for his view on this issue.
Other accounts indicate that Dawüd and Ibn Rahawayh were on good terms.65
8. Abd
Allah Ibn Kullab (d. after 240/854)
A controversial theologian from
Basra, Ibn Kullab’s views brought on him the wrath of theologians belonging to
various Islamic sects. According to al-Dhahabi, Ibn Kullab was Dawüd’s theology
teacher.66
9. Ibrahim
Ibn Khalid Ibn Ablal-Yaman, Abu Thawr al-Kalbl(d. 240/854)
Abü Thawr al-Kalbi was a jurist from
Baghdad who studied with Sufyan ibn ‘Uyaynah, ‘Abd al-Rahman ibn Mahdi (d.
198/813), Muhammad ibn Idris al-Shafi‘i, Waki‘ ibn al-Jarrah and many others.
Among those who transmitted from him are Abü Dawüd, Ibn Majah (d. 273/886), Abü
Hatim al-Razi, and Muslim[75] Abü
Thawr wrote a number of legal works that contained both Hadith and
jurisprudence[76]
Al-Khatib al-Baghdadi reports that he at first followed the way of the Ahl
al-Ra’y (more about whom later), preferring the madh- hab of the
Iraqis (the Hanafi scholar Muhammad ibn al-Hasan al-Shaybani (d. 189/805) in
particular, as Abü Thawr himself states) until al-Shafi‘i arrived in Baghdad.
According to this account, he abandoned ra’y and adhered to Hadith at
the hands of al-Shafi‘i. He is reported to have mentioned that he, along with
Ishaq ibn Rahawayh, al-Husayn ibn ‘Ali al-Karabisi (more about whom below) and
a number of Iraqi scholars, did not abandon their “innovation” (bidah,
used pejoratively here) until they met al-Shafi‘i. When al-Shafi‘i arrived in
Baghdad, al-Karabisi, who also used to frequent the Ashab al-Ra’y, went
to Abü Thawr and said: “One of the Ashab al-Hadlth has arrived and is
teaching jurisprudence (yatafaqqahu). Rise up and let us ridicule him.”
The rest of the anecdote has al-Shafi‘i respond to each of al-Karabisi’s
questions with a Prophetic report. As a result, both men had no choice but to
acknowledge his knowledge and follow him.[77]
Abü Thawr does not seem to have been
on good terms with the Hadith scholars of his time. Ahmad ibn Hanbal is
reported to have disliked his views, although he did not question his
reliability. He apparently regarded him as belonging to a group of scholars
different from his. When a man asked Ibn Hanbal about a legal matter, he
repeatedly refused to answer, saying to the man: “Ask the jurists, ask Abü
Thawr.”[78]
[79] [80] [81] In
another anecdote, a woman asked a group of Hadith scholars about a certain
issue, but they kept looking at each other and did not answer her. When they
saw Abü Thawr coming from afar, they instructed the woman to ask him. Abü Thawr
replied to her immediately, invoking a Prophetic tradition to support his view.
The scholars of Hadith confirmed the authenticity of the tradition and were
reportedly happy with Abü Thawr’s answer. The woman then looked angrily at them
and said: “Where have you been until now?”71
10. Al-Husayn
ibn al-Hasan ibn Harb (d. 246/860)
Al-Husayn ibn Harb was a competent
Hadith scholar and a reliable transmitter who transmitted from, among others,
‘Abd Allah ibn al-Mubarak (d. 181/797) and Sufyan ibn ‘Uyaynah, in addition to
transmitting from Ahmad ibn Hanbal his Kitab al-Zuhd. Many traditionists
transmitted from al-Husayn, including al-Tirmidhi, Ibn Majah, and Dawüd.
Al-Dhahabi mentions that he resided in Mecca,72 but based on what we
know about his teachers and students, there is a good chance that he lived in
Baghdad for some time.
11. Al-Junayd
ibn Muhammad ibn al-Junayd al-Qawarlrl (d. 298/910) Mentioned among Dawüd’s
teachers by al-Khatib al-Baghdadi and Abü Ishaq al-Shirazi, al-Junayd was a
famous Sufi in 3rd/9th-century Baghdad, where he was born to a family that came
from Nahawand?3 He studied Hadith with many scholars and
jurisprudence with Abü Thawr al-Kalbi, in whose circle he is reported to have
started giving fatwas when he was only 20 years old.[82]
[83] [84] Other
than that, all that is mentioned about al-Junayd are anecdotes showing his
standing as an ascetic and pious Sufi.
A remarkable observation about
Dâwüd’s teachers is that many of them were either Basrans or residents of
Basra. As noted, Dâwüd likely met these Basran teachers of his in Basra, for
their biographies do not indicate that they traveled to Baghdad. What is
perhaps more remarkable is that most of these teachers died while Dâwüd was
still relatively young in his twenties. The only exception is ‘Abd Allâh ibn
Kullâb, whom Dâwüd probably met during his possible visit to Basra in his
youth. Furthermore, whether Ibn Râhawayh was a teacher of Dâwüd in the strict
sense is uncertain, for we do not know how long Dâwüd stayed with him and we do
know that he used to argue with him (which is more typical of two scholars
regarding each other as peers). Al-Junayd was also probably one of Dâwüd’s
peers in legal matters, for—given that he died in 298/910—he cannot have been
much older than him. In addition, al-Junayd was himself a student of Abü Thawr.
Finally, the fact that Dâwüd was not interested in Hadith transmission
suggests that al-Husayn ibn Harb did not have much influence on him.
Furthermore, unlike his Baghdad
teachers whose interests were mainly in jurisprudence, a common feature among
Dâwüd’s Basran teachers—with the exception of ‘Abd Allâh ibn Kullâb—was their
interest in Hadith transmission and criticism, just like typical scholars of
their age. All of them seem to have been active in learning traditions from the
famous scholars of the time, and all of them transmitted to one or more of the
famous 3rd/9th-century compilers of Hadith works. Other than making Dâwüd’s
apparent lack of interest in transmitting traditions even more striking, this
observation suggests that his Basran teachers did not have much influence on
him/5 although the time that he spent there may have had some
influence on his thought, especially as far as language and hermeneutics are
concerned/6
This leaves us with Abü Thawr
al-Kalbi, who was probably Dâwüd’s most important teacher, and one who had the
longest and strongest influence on him. In fact, Dâwüd is described by some of
his contemporaries as one of Abü Thawr’s “disciples.”[85]
[86] [87]
Although Abü Thawr seems to have had
some interest in Hadith and reportedly abandoned ra’y for Hadith when
he met al-Shafr'i in Baghdad (when he was probably in his twenties or
thirties), anecdotes from a later stage in his life indicate that he was never
regarded as part of the Ahl al-Hadith of his time. References to Abü
Thawr’s works that included both Hadith and jurisprudence suggest that his
orientation was not like that of typical traditionists, whose works would
include only traditions?8 In fact, Ibn Hanbal’s reference to him as
a faqih suggests that he belonged to a different group of scholars, a
group that answered all questions put to them, unlike traditionists who would
refrain from answering some questions. Furthermore, Ibn al-Nadim mentions that
Abü Thawr studied with and transmitted from al-Shafr'i, but disagreed with him
on some issues and developed his own madhhab on the basis of
al-Shafi'i’s views. 79 He is also described as an independent
scholar who differed with the majority of the scholars on many issues. No
wonder, then, that Hadith scholars felt uneasy about Abü Thawr; Ibn Hanbal is
reported to have expressed his dislike of his views, and Abü Hâtim al-Râzï
described him as a scholar who relied on ra’y, thus arriving at right as
well as wrong conclusions, but who had no status in Hadith knowledge.[88]
Recall that when Abü Thawr and
al-Karâbisi went to al-Shâh'i to ridicule him, it was al-Karâbisi and not Abü
Thawr who tested him. Sources do not mention any relationship between Dâwüd and
al-Karâbisi, who died between 245/859 and 248/863. It is unlikely, however,
that the two did not meet, not only because al-Karâbisi was a close friend of
Abü Thawr, but also because he was well-known in Baghdad. Fortunately, there is
evidence that Dâwüd did meet al-Karâbisi; in one of al-Karâbisi’s biographies,
there is a transmission of a report by Dâwüd from him[89]
Similar to Abü Thawr, (Abü ‘Ali)
al-Karâbisi followed the methodology of the Ahl al-Ra’y until he met
al-Shâfi‘i,8[90] but
he too does not seem to have entirely abandoned ra’y when he met
al-Shâfi‘i and “converted” to Hadith. Al-Karâbisi was a knowledgeable jurist,
and one who wrote many works on both usül and furü that reveal
his “good comprehension and vast knowledge.’^[91]
Tâj al-Din al-Subki—who also included al-Karâbisi among al-Shâfiïs followers—
describes him as a leading scholar (imam) who combined the knowledge of
both jurisprudence and Hadith (just as he describes Abü Thawr)[92]
This notwithstanding, al-Karâbisi—again, similar to Abü Thawr, did not seem to
have much interest in Hadith transmission, which he rarely did[93]
[94]
More importantly, he was openly hostile to the Ahl al-Hadith, including
Ahmad ibn Hanbal who described him as an “innovator”—indeed, the successor of
the Murji’i heretic Bishr al-Marisi (d. 218/833) and one of those who abandoned
Hadith for their “books”86—and warned people against talking to him and to
those who talked to him. The reason for this harsh view is that al-Karâbisi was
of the opinion that whereas God’s speech was not created (i.e., the Qur’ân is
not created), our enunciation of the Qur’ân was. When this view reached Ibn
Hanbal, he spoke ill of al-Karâbisi, who reciprocated in kind. In one report,
when al-Karâbisi was told that Ibn Hanbal said that his views on the issue of khalq
al-Qur’an were heretical innovations, he said: “What should we do with this
lad?” When this happened, al-Khatib al-Baghdâdï reports, people (i.e., the
Hadith transmitters of the time) abstained from transmitting from al-Karabisi
and Ibn Hanbal’s associates began to malign him. One of them—Yahya ibn Ma'in—angrily
said: “Who is Husayn al-Karabisi? May God curse him! Only the equals of people
can speak about them.”[95]
[96] [97] The
Shafi'i scholar Muhammad ibn 'Abd Allah al-Sayrafi used to tell his students to
take lesson from al-Karabisi and Abü Thawr—the former possessed vast knowledge
but fell out of favor when Ibn Hanbal spoke unfavorably of him; the latter,
possessing only a fraction of al-Karabisi’s knowledge, rose in status because
Ibn Hanbal spoke favorably of him.88
It is remarkable that this view of khalq
al-Qur’an is almost identical to Dawüd’s view, which is also the case with
other views that both scholars held. In usul al-fiqh, for instance,
al-Karabisi, held that a report that is transmitted by a single transmitter (khabar
al-wahid) establishes apodictic knowledge,just like reports transmitted
through tawatur.89 Ibn Hazm attributes this view to al-Karabisi and
Dawüd, and adds that it differs from the view of Hanafi, Shafi'i, most Maliki,
Mu'tazili, and Khariji scholars.[98]
In sum, Dawüd’s Basran teachers
probably had a little influence on him, although the intellectual milieu in
Basra itself may have influenced him. If Dawüd was influenced by any of his
teachers, he must have been influenced by Abü Thawr al-Kalbi and probably also
by al-Husayn al-Karabisi[99]
Both men started their careers as scholars of the Ahl al-Ra’y, and
neither was ever part of the Ahl al-Hadlth even after they were said to
have abandoned ray. Although it is not clear how long Dawüd may have
studied with these two scholars, it can be surmised that this period was long
enough to make their influence on him possible.
The following scholars are reported
to have studied with Dawüd. Unless otherwise noted, these are the scholars
that Abü Ishaq al-Shirazi mentions in the first generation of Zahiri scholars
in his Tabaqat al-Fuqaha’.
1. Muhammad
ibn Ishaq al-Qasanl ( fl. c. second half of 3rd/gth century)[100]
[101] [102] [103] [104] Al-Qâsânï
(or al-Qashâni) does not figure in major biographical dictionaries, but
references to his views alongside those of Dâwüd in other sources indicate that
he was a scholar of considerable weight. Al-Shïrâzï mentions that al-Qâsânï
studied with Dâwüd and transmitted his knowledge, but also disagreed with him
on many theoretical and substantive legal issues. A later Zâhiri scholar— Abü
al-Hasan ibn al-Mughallis—responded to him in a book that he entitled al-Qàmï
li-l-Mutahamil al-Tamic.93 Ibn al-Nadim mentions that whereas he
started his career as a “Dâwüdi” scholar, al-Qâsâni later became a follower of
al-Shâfi‘i. He attributes to him two works on qiyas, in the first of
which al-Qâsâni refutes Dâwüd’s rejection of qiyas (Kitab al-Radd cala
Dawüd flIbtal al-Qiyas), and in the second he argued for its validity (Kitab
Ithbat al-Qiyas).94
2. Al-Hasan
ibn Ubayd al-Nahrabanl ( fl. c. second half of 3rd/gth century)95 Ibn
al-Nadim attributes to al-Nahrabâni (or al-Nahrawâni) a work entitled Ibtal
al-Qiyas,96 obviously a work against qiyas. Later sources make
reference to some of al-Nahrabâni’s views as a “Dâwüdi” scholar (see below).
3. Muhammad
ibn Ubayd Allah ibn Khalaf ( fl. c. second half of 3rd/gth century) Muhammad ibn
‘Ubayd Allâh was a student of Dâwüd who nonetheless disagreed with him on some
points[105]
4. Al-Husayn
ibn Abd Allah al-Samarqandl (fl. c. second half of 3rd/gth century)
According to al-Shirâzi, al-Husayn ibn ‘Abd Allâh transmitted Dâwüd’s books[106]
5. 'Abbas
ibn Ahmad. al-Mudhdhakkir (fl. c. second half of 3rd/gth century) ‘Abbas is mentioned
by al-Khatib al-Baghdâdï in Dâwüd’s biography as an unreliable transmitter from
him.[107]
Only one person transmitted from al-‘Abbas.[108]
[109] [110] [111] [112] [113] [114] [115] [116] [117] [118]
6. Zakariyya
ibn Yahya al-Sajl (d. 307/919)
Zakariyya al-Saji was a famous Basran
scholar of Hadith and jurisprudence.101 He is mentioned by al-Khatib
al-Baghdadi as one of Dawüd’s students.W2 Ibn al-Nadim, however,
mentions al-Saji among al-Shafi‘i’s followers. According to him, al-Saji
studied with the Shafi‘i scholars Isma‘il ibn Ibrahim al-Muzani and al-Rabi‘
ibn Sulayman al-Muradi (d. 270/884). Al-Saji’s reported works include one on
legal disagreement (Kitab al-Ikhtilaf fl al-Fiqh)w3 and
another on Hadith defects ('Ilal al-HadRhf W4
7. Yusuf
ibn Ya'qub ibn Mihran al-Dawüdl(d. c. 310/922)
Yüsuf ibn Ya‘qüb is described by
al-Khatib al-Baghdadi as afaqlhfo^ and by al-Dhahabi as a “Baghdadi mastür,”
an unknown (or perhaps unreliable) person from Baghdad.io6
Al-Khatib al-Baghdadi mentions only two scholars— one of whom is Dawüd—from
whom Yüsuf transmitted, and attributes to Yüsuf only one report that goes back
to ‘Ali ibn Abi Talib.107
8. Ibrahlm
ibn Muhammadibn Arafah, NiftawayhW8 (d. 323/935)
Niftawayh was better known as a
grammarian than a legal expert.w9 He is not listed among Dawüd’s
students by al-Khatib al-Baghdadi,110 but al-Dhahabi reports that he was a
leader (ra’s) in the madhhab of the Ahl al-Zahir,m
and al-Zarkashi mentions him as one of the most noble of Dâwüd’s associates.[119]
[120] [121] [122] [123] [124] [125]
The only other student of Dâwüd that
we know of is his own son Muhammad, whom we will discuss in more detail below.
But to these students we can add some other possible students of Dâwüd who are
not listed as such in his available biographies.
9. AbdAllah
ibn al-Qasim ibn Hilalal-cAbsl(d. 272/885)
Al-Dhahabi mentions that Ibn Hilâl
al-'Absi was active in seeking and transmitting traditions.113 ibn
Hilâl was admired by Ibn Hazm, who mentions that he was an associate of Dâwüd.n4
Ibn al-Faradi reports that Ibn Hilâl started his career as a Mâliki student,
but after studying with Dâwüd and learning his books, he adopted his madhhab
and traveled to Andalus where he actively spread it.n5
10. Kunayz
ibn Abd Allah (fl. c. 250/864)
In his Tarlkh Madlnat Dimashq,
Ibn Asâkir mentions that Kunayz transmitted from Dâwüd. Kunayz was born in
Baghdad, lived most of his life in Egypt as a client of Ahmad ibn Tülün (r.
254/868 to 270/884), and followed the Shâfi'i madhhab I6
11. Ahmadibn
Muhammadibn al-Ajannas al-Ajannasl(d. 290/903)
According to al-Sam'âni, al-'Ajannasi
was a scholar from Bukhara who traveled to Iraq and the Hijâz and studied with
many scholars. Al-Sam'ânï also reports that he met with Dâwüd, studied his
books with him, and followed his madhhab.117
12. Ruwaym
ibn Ahmad,
(d. c. late 3rd/gth century)
A story mentioned in most biographies
of Muhammad ibn Dâwüd evidently indicates that Ruwaym used to frequent Dâwüd,[126]
[127] [128] [129] [130] [131] [132]
and Ibn Hazm mentions him among Dâwüd’s associates.n9 Ruwaym was
also known for being a Sufi master who abandoned Sufism to work in the
judiciary and politics?20
13. Musa
ibn Abd al-Hamld ibn cIsam al-Jurjanl (d. 300/912)
Al-Dhahabi mentions Müsâ al-Jurjânï
as a person who studied with Dâwüd.121
14. Makhül
ibn al-Fadl, Abu Muff al-Nasafl (d. 308/920)
Al-Dhahabi mentions that Abü Muti'
al-Nasafi transmitted from Dâwüd.122
Mention also should be made here of
al-Mu'âfâ ibn Zakariyyâ al-Nahrawâni, whom al-Shirâzi includes among Dâwüd’s
students.123 However, Ibn al-Nadim mentions that al-Mu'âfâ was the
authority of his time in the madhhab of al-Tabari, and attributes to him
a work in which he evidently argued against Dâwüd (Kitab al-Radd calü
Düwüd.).™4 Apparently, al-Mu'âfâ was a student of Dâwüd for some
time but later joined al-Tabari’s circle and became one of his students.
Many of Dâwüd’s immediate students do
not figure in biographical dictionaries, and only one of them—Zakariyyâ
al-Sâji, whose relationship with Dâwüd is not even mentioned by
al-Dhahabi—seems to have had some significance as a scholar of Hadith and
jurisprudence. This is consistent with Dâwüd’s apparent lack of interest in
Hadith—which he seems to have passed on to his immediate associates. In
addition, none of these students were known as Zâhiris, and one of them—Yüsuf
ibn Ya'qüb—was known as “al-Dâwüdi.” Disagreements between Dâwüd and some of
his students and among these students do not indicate that they shared a fixed
doctrinal heritage or had a sense of belonging to one madhhab. Thus,
what we know about Dâwüd’s immediate students is hardly useful either in
identifying the main tenets of his legal thought or in indicating that he left
behind a coherent group of students. This leaves us with Dâwüd’s own son
Muhammad, to whom we now turn.
Born in 255/869,[133]
[134] [135] [136] [137] [138] [139]
Muhammad ibn Dâwüd (d. 297/909) was best known as a litterateur; al-Khatib
al-Baghdâdi introduces him as the author of the Kitab al- /ahrah,vu'
a work most of which he finished while he was very young and his father was
still alive.127 Ibn Dâwüd was a gifted poet, mainly writing about
love,i28 which was not always heterosexual. He is reported to have
been in love with a certain Muhammad ibn Jâmi' al-Saydalâni, also mentioned as
having been his benefactor.129 Ibn Dâwüd died in 297/909 at the age
of 42, leaving behind a son, named Sulaymân, who is reported to have followed
in the footsteps of his father and grandfather as a Zâhiri scholar?30
As a legal scholar, Ibn Dâwüd’s
biographers report that he succeeded his father in the latter’s circle while he
was still of young age. An oft-cited anecdote indicates that he proved that he
was up to the task and managed to fill his father’s position.00
People used to go to him with legal questions, and he used to give answers in a
way that not everyone could understand all the time.[140]
[141] [142] [143] [144] [145] [146] [147] According
to al-Dhahabi, Ibn Hazm greatly admired Ibn Dâwüd and spoke about his
knowledge, piety, and beauty. In this report, pointing out that 400 students
used to attend Ibn Dâwüd’s circle,i33 Ibn Hazm gives a list of titles of some
of his works. Some titles of these works are not indicative of their content,
but others refer explicitly to specific legal issues, such as pilgrimage rituals
(manasik) and laws of inheritance ( faraid). One work is
apparently devoted to refuting al-Tabari (al-Intisar min Muhammad ibn Jarir
al-Tabari), and another deals with differences between the various Qur’an
copies (mushafs) of the Companions (Ikhtilaf Masahif al-Sahabah)^34
Also attributed to Ibn Dawüd is a work entitled al-Wusül ila Ma'rifat
al-Usül^35 As a Hadith transmitter, al-Dhahabi describes Ibn Dawüd as
reliable and knowledgeable, despite the fact that he did not transmit much. He
is also described as having been an expert on the views of the Companions and
as an independent scholar who did not just follow anyone’s views.i36
There is evidence that Ibn Dawüd was
a public figure who engaged in the political and intellectual milieu of his
time. He is said to have been one of those who condemned al-Hallaj.i37 He also
used to engage in debates in public and in writing with the Shah'i Ibn
Surayj.i38 Al-Tabari is reported to have been a bitter enemy of Ibn
Dawüd, who was responsible for the suffering of al-Tabari’s family and
associates when they could not bury him on his death. Ibn Kathir mentions that
this tragedy took place because the Hanbali rabble (‘awamm al-Hanabilah)
of Baghdad had been told by Ibn Dawüd that al-Tabari was a Rafidi, among
other heinous things (‘aza’im).^
Some sources seem to have preserved
some of Ibn Dâwüd’s legal views.[148]
[149] Quotes
from and references to some of his works exist in al-Qadi al-Nu'man’s (d.
363/974) Ikhtilaf Usul al-Madhahib, where al-Nu'man refers to him by
name and mentions that he followed the doctrines of his father.141 In one
passage, al-Nu'man attributes to Ibn Dâwüd, his father and those who followed
him, the view that consensus (ijma^) must be based on an explicit
textual evidence from the Qur’an or Hadith. It is valid only when there is no
disagreement whatsoever among scholars on a certain issue. A means by which we
know that there is a valid consensus is when God makes something incumbent upon
us. “What He is properly shown to have made incumbent is obligatory, and what
He is not properly shown to have established as His religion is not valid,”
al-Qâdï al-Nu'mân explains.[150]
[151] [152] [153] [154] [155] [156] In
other words, there is ijma1 on what God has made incumbent on
us and disagreement indicates lack of obligation.
In another passage, al-Qâdï al-Nu'mân
presents the view of “one who rejected legal analogy (qiyas) and
professed inference (istidlal)" for things for which he did not
find textual evidence.^3 According to this assault on qiyas, those
who believe in and practice it often disagree on what they take to be the "illah
in the first case, and which they then use tojudge in new cases. Each group of
scholars that use qiyas only produce evidence that could easily be
contradicted by others, and none of them has a better claim to make.144 In
addition, those who accept the validity of qiyas justify it on the
grounds that God himself has used it, for one can notice that God has assigned
similar rulings to things that are similar. This argument is here dismissed as
being based on the faulty assumption that God gives similar rulings in similar
cases and dissimilar rulings in dissimilar cases. The fact of the matter,
however, is that God can and does give different rulings in similar cases, and
similar rulings in dissimilar cases. Therefore, since God has given different
rulings in similar cases, one can use the same logic as the proponents of qiyas
to assign different rulings in similar cases that have no textual basis.M5
Furthermore, qiyas is practiced only by someone who cannot find an
answer for a specific case. How, then, can it be attributed to God?M6
Qiyas, in this view, is based on another,
blasphemous assumption: God must rule in a certain way. A true believer,
however, would hold that God—exalted as He is—can rule in whatever way he
wishes. And this God does, for God has changed things that had been prescribed
in the early stages of the Prophet’s mission and also things that had been
prescribed for earlier nations and prophets,i47 an argument
attributed explicitly to Ibn Dâwüd and his father, both described by al-Nu'mân
as “Sunnï."i48 Finally, al-Nu'mân attributes to Ibn Dâwüd a
statement indicating that he did not question the validity of qiyas, but
only opposed using it in religious matters. “The rulings of faith are not to be
referred ultimately to the intellects of humans,” he explains, “instead, they
must be carried out as they were imposed.” As for things that God has not commanded
us we therefore remain silent.[157]
A subsequent section deals with the
refutation of ijtihad, which al-Qadi al-Nu'man defines as a methodology
of ruling in matters that are neither found in the Qur’an nor mentioned by the
Prophet. A piece of evidence adduced by those who use ijtihad is the
oft-cited report in which the Prophet asks his Companion Mu'adh ibn Jabal, who
was to serve as a judge in Yemen, how he would judge in each case. Mu'adh
replies that he would begin with the Qur’an, then the Prophet’s Sunnah, and
then exercise his own ijtihad, an answer with which the Prophet was
evidently pleased. In the refutation attributed by al-Nu'man to a Sunni jurist
who rejected ijtihad (possibly Ibn DâwüdjJ[158]
the jurist rejects this tradition on account of its disconnected (munqatij
chain of transmitters and the fact that some of its transmitters are unknown.
It is also possible, the jurist continues, that by ijtihad here Mu'adh
meant exerting effort in finding the answer in the Qur’an or Sunnah. For if
this was a valid methodology, “the truth would lie in two contradictory
answers at the same time” since people differ in their ijtihad^[159]
These are the views that al-Qadi
al-Nu'man attributes explicitly to Ibn Dawüd. In a section on istidlal
(inference), he attributes to “those who profess istidlal ” (who could
be Ibn Dawüd and possibly Dawüd himself) the view that while the Qur’an is the
ultimate source of authoritative evidence, some of its verses indicate rulings
in an implicit way, which requires us to use istidlal to discern them.
The same applies to Sunnah, which derives its authority from the Qur’an where
God enjoins believers to obey the Prophet?[160]
After giving an example of such istidlal,[161]—which
example is reminiscent of Ibn Hazm’s legal arguments and textual
inference—al-Nu'man notes: “[t]his [example] and the like of it are inferences.
This is the fundamental principle on which [possibly Dâwüd and his son]
built their doctrine.”[162]
Ibn Dâwüd is presented here as a
staunch critic of qiyas, seeking to demonstrate that it is
contradictory and based on faulty assumptions related to God (the view that God
behaves or must behave in a certain way) and reason (the notion that reason can
distinguish good from evil independently of revelation). He also rejected istihsan
and (possibly) ijtihadin issues on which the law is silent, for like qiyas,
they rely on faulty notions and lead to disagreement. What is common in this
attitude towards qiyas, istihsan and ijtihad is an obvious
desire for systematization and consistency that lead to agreement in legal
views. Disagreement is here regarded as evil, and a Prophetic tradition is used
to demonstrate that when people disagree, only one view is sound. Finally, in
the context of this discussion, Ibn Dâwüd refers implicitly to the issue of al-ibahah
al-asliyyah, when he argues that we should not compare what God has not
mentioned to what He has. The former category falls within the scope of what is
permitted as a general rule.
The view on ijmac
that al-Nu'man attributes to Ibn Dâwüd here conveys a circular understanding of
this concept that renders it virtually useless. What is agreed upon in this
understanding is incumbent upon Muslims, and what is incumbent upon Muslims is
what they agree upon. Furthermore, the insistence that valid jmâc
must be based on a text with an indisputable meaning puts into question the
very necessity of ijmac in the first place, for the source of
the law here becomes the text, not ijmah This argument was made later by
Ibn Hazm, who charged non-Zahiri scholars of inconsistency when they argue that
a certain consensus is based on the meaning of a text. Here, Ibn Hazm argues, ijmac
does not serve any purpose since the text itself provides the answer.
If al-Qâdï al-Nu'mân is referring to
Ibn Dâwüd and Zahiris when he mentions istidlal—a hermeneutical tool
that seeks to infer meaning from texts—it is indeed remarkable that he
describes this as the fundamental principles on which their doctrine is
based on. Our later discussion of Zahirism may support the possibility that he
was indeed referring to them.
In addition to al-Qâdï al-Nu'mân’s Ikhtilaf
Usul al-Madhahib, other sources attribute to early generations of Zâhirïs
views on similar and other issues.[163]
[164] [165] [166] [167] [168] For
example, whenever qiyas is discussed, Dâwüd’s and other Zâhirïs’ views
are regularly referred to, mostly to be refuted. Al-Shïrâzï mentions that Dâwüd
and the Ahl al-Zahir held that qiyas is not valid in religious
matters, which is also the view of the Mu'tazilï scholar al-Nazzâm and Imâmï
Shi'ïs.^6 However, disagreement is reported among Zâhirï scholars
concerning the question of whether qiyas is valid when the ‘illah
is explicitly mentioned. Whereas some Zâhirïs are said to have sanctioned qiyas
in such instances, others are reported to have rejected qiyas in toto.157
Considering him “ignorant,” al-Sarakhsï mentions that Dâwüd and other ashab
al-zawahir rejected qiyas by their uncritical reliance on bits and
pieces of what earlier scholars—such as Qatâdah ibn Di'âmah, Masrüq, and Ibn
Sïrïn—had said about the validity of using qiyas in religious matters.158
In his Taqwïm al-Adillah, al-Dabüsï mentions that they relied on reports
from the Prophet, his Companions, and some Successors to reject qiyas
and held that it was based on doubt and did not therefore qualify as evidence.
Furthermore, qiyas relies on human understanding of the worldly benefits
of God’s law when it is meant to serve other-worldly purposes that reason
cannot necessarily grasp.^9
Sources also attribute to Zâhirïs
the view that only the consensus of the Companions (ijma" al-sahabah)
is valid, a view attributed to Dâwüd himself?60 This is based on the
special status of the Companions—which the Qur’ân and Hadïth establish—and the
presumption that later generations of Muslims cannot become aware of a matter
of which the Companions were not.[169]
[170] [171] [172] [173] [174] [175] [176] [177] Furthermore,
some Zahiris held that if scholars of a certain period held two views with
regards to a specific question, this does not mean that later scholars are not
allowed to introduce a third view. 162 References are made here to instances in
which some earlier scholars—such as Sufyan al-Thawri and Muhammad ibn
Sirin—introduced views that differed from two views that earlier authorities
had held in specific questions.163 Also related to consensus is the
question of whether it can be valid on the basis of a less certain piece of evidence
(amarah, contrasted here with the more certain dalll). According
to Abü al-Husayn al-Basri, a group of Zahiris did not approve this kind of jmac}64
Al-Shirazi also attributes to Dawüd the view that qiyas cannot be
the object of consensus since the former is not a valid kind of evidence in the
first placed5 Additionally, if a Companion holds a certain opinion
that other Companions did not disagree with when they learned about it, this
does not necessarily indicates that they had an agreement on the issue (works
of usul al-fiqh refer to this as al-ijmac al-sukutt,
meaning consensus by implied consent or silent endorsement). Valid consensus
requires an explicit verbal approval by all Companions.166
As regards Hadith, some Zahiris are
said to have held, against the view of most scholars, that a report transmitted
by one or a few transmitters in one or more generations (khabar al-wahid)
establishes apodictic knowledge (yujibu ’l-’ilm)-^ The basis of this
view is that since God has commanded us to act on the basis of such reports and
instructed us at the same time to not attribute to him that of which we are not
certain, it follows that these reports establish knowledge that does not admit
of doubt.^8 Remarkably, al-Shirazi attributes to Muhammad ibn Dawüd
and al-Qasani the view that the khabar al-wahid is not a valid source of
camal (action), which can only make sense if they had not
seen it as a solid source of knowledge.169 Furthermore, Zahiris are
reported to have held that reports with disconnected chains of transmission did
not establish knowledge and consequently did not qualify to be a basis of
action.[178]
[179] [180] [181] [182] [183] Finally,
some Zâhirïs rejected a view attributed to Dâwüd according to which when a
Companion says that the Prophet has ordered or forbidden something, this does
not constitute evidence unless he mentions the exact words of the Prophet.171
Also against the view of the majority
of non-Zâhirï scholars, according to Abü al-Husayn al-Basrï, some Zâhirïs,
including Dâwüd himself and his son Muhammad, held that the Qur’ân did not
contain metaphorical or figurative expressions (majaz))12 jn
this view, metaphorical language is a degraded form of language that does not
befit God, for it indicates that He at times cannot use the language in the
proper manner (i.e., non-metaphorically). It also leads to ambiguity that does
not befit the Qur’ân.173 On the issue of naskh (abrogation, when a
ruling is either annulled or replaced with another), some Zâhirïs are reported
to have held that the Qur’ân could be abrogated by all kinds of Hadïth,
including traditions transmitted by one or a large number of individuals (al-ahadith
al-mutawatirah)™ Zâhirïs are also reported to have held that it is not
against both reason and revelation that a Qur’ânic ruling or one based on a mutawatir
report be abrogated by a tradition transmitted by a few people (ahad).
This group of Zâhirïs cite instances of abrogation of Qur’ânic rulings by ahad
traditions and argue that since these traditions are known by definite evidence
(dalil qat'i), the rulings that they establish are equal in authority to
Qur’ânic rulings and can abrogate them accordingly.^5 Additionally,
God can and does replace a duty with a heavier one, a view held by some Zâhirïs
and rejected by others.[184]
[185] [186] [187] [188] [189] [190] [191] [192]
Some Zâhirïs are also reported to
have held that transmitted texts cover all possible occurrences (al-hawadith)™
Some of them regarded the presumption of continuity (istishab al-hal)
as legal evidence,™ a principle that Dâwüd believed was based on consensus.™
Related to this is the all-important rule that only things that are statedly
forbidden are forbidden. Things that the law has kept silent on are not. For
example, things (al-acyan) that were used before the advent
of Islam remain permitted from the religious/legal perspective, a view that
Zâhirïs shared, remarkably, with the Ahl al-Ra’y and Mu'tazilïs.i80
Consequently, if a text says that utensils made of gold and silver are
forbidden to drink from, it follows that all their other uses remain permitted
according to the general rule that things are all presumably permitted.i8i
Other views include one according to which any term (unless it obviously refers
to a specific person or thing, such as proper names and pronouns, etc.)
indicates the entire genus of all possible referents (istighraq al-jins),
absent an indicator suggesting otherwise. Dâwüd reportedly shared this view
with, remarkably, Abü Thawr al-Kalbï and al-Husayn al-Karâbïsï, in addition to
some theologians, including the Mu'tazilï al-Jubbâ’ï.i82
Furthermore, according to Ibn Dâwüd and Niftawayh, women are included in
Qur’ânic or Prophetic statements that use the masculine form, meaning that
their rights and obligations are generally similar to men’s (unless the context
indicates otherwise, of course).™ Ibn Dâwüd is also reported to have argued
that the plural form (slghat al-jam^) can only be used with reference to
two or more persons.™ Finally, Niftawayh, as a Zâhirï, according to
al-Zarkashï, held that there existed no derivation (ishtiqaq) in language,
meaning that no word is derived from another to refer to different referent,[193] a
view that mirrors their rejection of qiyas, where a new rule is derived
from an existing one to make a judgment on a new case.
The previous survey has presented
what some medieval Muslim sources mention about the lives and doctrines of
Dâwüd al-Zâhiri, his teachers, and his immediate students, including his son.
Whereas there is much evidence that when he was alive Dâwüd was not
insignificant as a scholar, statements about his scholarly status cannot be
substantiated on the basis of the information given in the sources that make
them. This is hardly surprising: Dâwüd was not engaging in what would have
secured him a place among prominent scholars of his time. His was predominantly
an age of Hadith transmission and criticism, and those who distinguished
themselves in these activities were able to rise to the rank of notable and
influential scholars. Neither did Dâwüd do this, nor did he distinguish himself
in theology like some prominent theologians in 3rd/gth-century Baghdad.
Furthermore, Dâwüd was not on good terms with Hadith scholars who disliked him
and his teachers. This must have alienated many people from him and may explain
why his lectures were attended by only a relatively small number of students,
as well as why his death probably passed unnoticed.
Dâwüd’s teachers were mostly the same
kind of scholars as he was. Of all his teachers, Abü Thawr must have been the
most influential one, not only because he died when Dâwüd was in his forties,
but also because there are unmistakable similarities between the two scholars,
both in their personal profiles and their doctrines. Abü Thawr probably
continued to be regarded as a scholar of ra’y even after his meeting
with al-Shâfi'i and reported “conversion” to Hadith. Another scholar whose
career resembled Dâwüd’s is Abü ‘Ali al-Karâbisi, with whom Dâwüd likely
studied. These three scholars were independent, holding views that contradicted
those of the majority of scholars around them. They were not interested in
Hadith for its own sake, but were interested primarily in legal matters. They
used to engage in and seem to have enjoyed legal debates, for which reason they
were regarded with suspicion by Hadith scholars.
Dâwüd, however, was not simply
following Abü Thawr and al-Karâbisi. The fact that he was regarded as the
leader of the Zâhiris indicates that he had something more to say than these
two scholars, or that he was more vocal and unequivocal in defending views that
they also held. Unfortunately, what was Zâhirï about Dâwüd is a question that
our sources do not answer. Most medieval works emphasize Dâwüd’s rejection of qiyas
as the doctrine that distinguished him,[194]
[195] a
(mis)conception that the writings of some Zâhirïs on qiyas may have
confirmed. However, this does not explain why others who rejected qiyas
were not regarded as Zâhirïs. The same applies to the rejection of taqlld, also
taken as a hallmark of the Zâhirï madhhab. Zâhirism, therefore, must
have meant more than or other than the rejection of qiyas and taqlld.
The term zahir is key here. Adherence to it seem to have been common in
the 3rd/gth century, as suggested by al-Khatïb al-Baghdâdï’s reference to Dâwüd
as imam Ahl al-Zahir, and Ibn Surayj reported works against both the Ahl
al-Ra’y and the Ahl al-Zahir.
It has also been observed that
Dâwüd’s students and early followers disagreed on some issues. For instance,
although we know that Dâwüd and later Zâhirïs rejected qiyas, other
Zâhirïs (and possibly Dâwüd himself as well as his son) are reported to have
rejected only one kind of it, namely, when illah. is not explicitly
stated. Secondly, although we know that Zâhirïs held that the only valid
consensus was that of the Companions, al-Qâdï al-Nu'mân’s Ikhtilaf suggests
that Muhammad ibn Dâwüd was willing to acknowledge the validity of the
consensus of later generations.187 Some sources attribute to Dâwüd
the rejection of consensus based on implied consent. He is also reported to
have accepted the validity of consensus that is based on less decisive
evidence, a view with which his son, given his insistence on a solid textual
basis for consensus, may have disagreed. Zâhirïs also disagreed on khabar
al-wahid; whereas some accepted it as a source of confident knowledge,
others, including Ibn Dâwüd, rejected it as a source of knowledge and a basis
for camal. Nothing is attributed to Dâwüd himself with
regards to this issue. Although we know that he had two relevant works (one on khabar
al-wahid and another on the al- khabar al-mujib li-l-cilm,
i.e., the kind of reports that yields solid knowledge), these titles do not in
themselves indicate what the nature of the relationship (if any) between these
two kinds of reports may have been in Dâwüd’s view. Zâhirïs also apparently
disagreed on the use of figurative language (majaz) in the Qur’ân, on
some points related to the issue of abrogation (naskh), and even on the
principle of the presumption of continuity (istishab).
Medieval sources do not mention any
views of Zâhirï scholars with regard to some subjects on which Dâwüd reportedly
had written. For example, we know that Dâwüd had a work in which he evidently
refuted the blind following the views of other scholars (taqlld), and
others in which he tackled linguistic issues, such as the scope of application
of terms, or the clarity or ambiguity of terms and statements. No Zâhirï
scholar before Ibn Hazm is reported to have had an opinion on these issues.
This equally applies to Ibn Dâwüd’s rejection of reason as a valid basis for
distinguishing good from evil. Exceptionally, views of later Zâhirï scholars
(although still earlier than Ibn Hazm) on some issues— notably majaz and
naskh—are reported.
This exposition suggests that Dâwüd’s
madhhab was still in flux in the century and half after his death, as is
probably the case with other madhhabs to varying degrees. His immediate
students and early generations of Zâhirïs seem to have been at liberty to
disagree with him. But one important issue remains unresolved; that is, why
were Dâwüd and/or his later followers known as Zâhirï. In other words, what was
Zâhirï about Dâwüd’s madhhab? This question will be tackled in a later
chapter. Now the history of the Zâhirï madhhab continues.
CHAPTER 2
The Spread and Retreat of
the Zahiri Madhhab
In his Tabaqat
al-Fuqahd’, al-Shïrâzï lists the first six generations of Zahiri scholars,
the second of which has been presented in the previous chapter as Dâwüd’s
students. Al-Shirazi’s classification is not only the earliest, but also the
only available account of the legal history of early Zahiris. Mention should be
made here, however, of a now lost work by a judge named Muhammad ibn ‘Umar ibn
al-Akhdar (more about him below) entitled Tarikh Ahl al-Zahir. Given
that al-Shirazi apparently had a copy of this book at his disposal,[196] he must have relied on it for his own account. Remarkably,
later scholars, including Ibn Hazm, do not attempt a similar categorization of
Zahiris.
A goal of the following survey is to
examine how Dawüd’s madhhab fared after its founder and his students.[197]
Attention will be paid to the geographical distribution of Zahiris and to
whether they had any sense of belonging to a madhhab, as well as to
their scholarly activities and social standing, including government positions
that they held. There are two difficulties that must be pointed out at the
outset. The first is that the available sources are not always generous with
information, as the survey itself demonstrates. The second and perhaps more
important difficulty is that the epithet Zahiri was not used exclusively to
refer to scholars following the Zahiri madhhab (especially in the
8th/i4th and gth/i5th centuries), and it is generally difficult to determine
whether a given scholar was known to be Zahiri by his contemporaries or only so
described by his biographers. As will be noted below, some scholars were
thought to be Zâhirï only on the basis of specific views they held, notably
their rejection of qiyas or taqlld, and not because they accepted
the madhhab in toto.3
1
Third/Ninth- and Fourth/Tenth-Century Zâhirïs
1. Ahmad
ibn Amr ibn Muhammad ibn al-Dahhûk, Abu Bakr ibn Abl Âsim (d. 287/900)
A well-known Hadïth scholar and
jurist, Abü Bakr ibn Abï ‘Àsim was probably born in Basra, lived in Isfahan,
and traveled frequently. He was known for his rejection of qiyas, talent
in memorizing traditions,[198]
[199]
and Sufi leanings.[200] He
is reported to have written on many subjects and worked as a judge in Isfahan
for sixteen years after the death of its former judge, Salih ibn Ahmad ibn
Hanbal.[201]
Abü Bakr does not appear in al-Shïrâzï’s tabaqat and al-Dhahabi
questions his affiliation with Zahirism on the basis of a work that he is said
to have compiled against Dawüd’s acceptance of the authenticity of forty
reports.[202]
There is no evidence that Abü Bakr and Dawüd met each other, but he was a
student of one of Dawüd’s Basran teachers—‘Amr ibn Marzüq, and also a teacher
of the Zahiri scholar Ahmad ibn Bundar. Abü Bakr’s funeral in 287/900 is said
to have been attended by some 200,000 people.[203]
2. Ibrahim
ibn Jabir
(d. c. 310/922)
Ibn al-Nadim mentions that Ibrahim
was a notable “Dawüdi” Hadith scholar and jurist. He authored a large work on
(possibly legal) disagreements which other Dawüdi scholars admired.[204]
Ibrahim probably died in 310/922.[205]
[206] [207] [208]
3. Muhammad
ibn Musa al-Wasitl (d. 320/932)
Muhammad ibn Müsa was a Zahiri
scholar who became judge of Ramlah. He is reported to have been an expert in
jurisprudence and Qur’an exegesis.n
4. Abd
Allah ibn Ahmad ibn al-Mughallis (d. 324/935)
A student of Muhammad ibn Dawüd and a
transmitter from a number of well-known traditionists of the time—including
‘Abd Allah ibn Ahmad ibn Hanbal—‘Abd Allah ibn al-Mughallis (al-Dawüdi,
according to some scholars^2 is reported to have compiled several
works on Dawüd’s madhhab and is credited with spreading it in various
places.13 Al-Shirazi mentions him as the first in the third tabaqah
of Zahiri scholars.[209]
Many works (now lost) are attributed to Ibn al-Mughallis, including Ahkam
al-Qur’an, al-Mudahfl al-Fiqh, al-Mubhij, al-Damigh..[210]
Al-Mudah was apparently available to the Maliki scholar Ibn ‘Abd al-Barr
(d. 463/1071) in Andalus in the 5th/iith century. Ibn ‘Abd al-Barr refers to
it—with the title al-Mudah cala Madhhab Ahl al-Zahir—in which
Ibn al-Mughallis apparently reported views of Zahiri scholars?[211]
Apparently, Ibn al-Mughallis and al-Tabari were opponents, for Ibn al-Nadim
attributes to the latter a work in which he evidently refutes Ibn
al-Mughallis.1[212]
When he died in 324/935, Ibn al-Mughallis was succeeded in his circle by his
student Haydarah ibn ‘Umar al-Zanüdi. Among his other important students were
‘Abd Allah ibn Muhammad, a nephew of the Egyptian judge al-Walid?[213]
and Ahmad ibn ‘Abd Allah al-Bukhtari al-Dâwüdi.1[214]
5. Muhammad
ibn Sulayman ibn Mahmud al-Harranl (d. after 323/934) Muhammad ibn Sulayman was a
merchant from Harran, Iraq, whence he traveled to Andalus on business in
323/935 or 324/936.[215]
[216]
Muhammad was an accomplished Qur’an reciter and smart scholar who followed
Dawüd’s madh- hab and defended it fervently.21
6. Muhammadibn
Yüsuf ibn Ya’qüb (d. c. 325/936)
Possibly a son of Yüsuf ibn Ya‘qüb,
Dâwüd’s student, Muhammad ibn Yüsuf was an associate of Muhammad ibn Dâwüd. He
worked as a judge, probably in Baghdad.[217]
[218]
7. ’AUibn
Bundar ibn Ismü’îl al-Barmaki (fl. 337/948)
According to al-Maqqari, ‘Ali ibn
Bundâr was a student of ‘Abd Allah ibn al- Mughallis, whose legal works and
part of his Ahkam al-Qur’an he studied. He travelled to Andalus on
business in 337/948.23
8. Abd
al-Mu’min ibn Khalaf ibn Tufayl al-Nasafi(d. 340/951)
Al-Dhahabi mentions that ‘Abd
al-Mu’min al-Nasafi was a Zahiri scholar who studied with, among others,
Muhammad ibn Dawüd. Known for his piety and integrity, he was a staunch critic
of the proponents of qiyas as well as the Mu‘tazilis.2[219] He
admired Ahmad Ibn Hanbal and Ishaq ibn Rahawayh.2[220]
9. Ahmad
ibn Muhammad ibn Ziyad, Abu Sa’îd ibn al-A’rübî (d. 340/951 or 341/952)
Abü Sa‘id ibn al-A‘rabi was highly
regarded by the Hadith critics of his age. He transmitted from a certain ‘Ali
ibn ‘Abd al-‘Aziz from al-Qa‘nabi and was a friend of al-Junayd?[221] He
was known for his leaning towards the Zahiri madhhab2[222]
as well as the madhhab of the Ashab al-Hadith.[223]
[224]
[225]
10. ’AHibn
Muhammadal-Baghdadi (d. c. 350/960)
Mentioned by Abü Ishaq al-Shirazi in
the third tabaqah of Zahiri scholars, ‘Ali ibn Muhammad was a student of
Abü al-Hasan ibn al-Mughallis.29
11. Muhammadibn
al-Hasan ibn al-Sabbah al-Dâwüdï (d. c. 350/960) Muhammad ibn al-Hasan, who
probably lived in Baghdad, is reported to have transmitted from Yüsuf ibn
Ya‘qüb al-Dawüdi, Dawüd’s student.3°
12. Muhammad
ibn Ma'mar ibn Rashid (d. 350/965)
Muhammad ibn Ma'mar was said to have
been a Zâhirï scholar who transmitted from many people including the Zâhirï
judge Yüsuf ibn Ya'qüb. People of Isfahan, including Abü Nu'aym al-Isbahânï (d.
430/1038), transmitted from him.[226]
13. Bishr
ibn al-Husayn (d. after 350/960)
Bishr—mentioned in the fourth tabaqah
of Zâhirï scholars by al-Shïrâzï as a student of Alï ibn Muhammad
al-Baghdâdï—was a chief judge (qadl al-qudah) for the Büyid Adud al-Dawlah,3[227]
[228]
and master (imam) in the madhhab of Dâwüd. Bishr traveled to Fars
and his students are credited with spreading the madhhab to Shiraz and
Firozabad. His students included Abü Sa'd Bishr ibn al-Husayn (who may be his
brother),33 who was a Dâwüdï judge in Shiraz[229]
14. Mundhir
ibn Sa'ld al-Ballütl (d. 355/965)
Mundhir ibn Sa'ïd al-Ballütï was a
famousjudge in Cordoba known for his vast scholarly productivity, intelligence,
and argumentation skills[230]
[231] He
leaned towards Dâwüd’s madhhab and used to defend it, although it is not
clear with whom he studied it. 36 He was also a teacher of one of Ibn Hazm’s
teachers—Ahmad ibn Muhammad ibn al-Jasür[232]
[233]
Various works are attributed to Mundhir, including three works on the Qur’ân: al-Inbah
cala Istinbat al-Ahkam min Kitab Allah, Ahkam al-Qur’an,3s
and al-Nasikh wa-l-Mansukh.3 The first (and possibly the second too) of
these is obviously a work of legal hermeneutics.
15. YUsuf
ibn "Umar ibn Muhammadibn YUsuf ibn Ya‘qUb (d. 356/966)
Son of Yüsuf ibn Ya‘qüb—Zâhirï judge
of Baghdad and associate of Ibn Dâwüd—Yüsuf became a judge himself while his
father was still alive.[234]
[235] [236] According
to al-Dhahabï, Ibn Hazm had mentioned that Yüsuf converted from Mâlikism to
Zâhirism and compiled many works that defended the Zâhirï madhhab. Al-Shïrâzï
reports that he learned from Ibn al-Akhdar’s Akhbar Ahl al-Zahir and
finished a work by Ibn Dâwüd entitled al-ïjûz (now probably lost).41
Al-Dhahabï quotes a passage from an epistle attributed to Yüsuf where he
converts to Zâhirism[237]
[238] [239] In
a statement supposedly quoted from this work, Yüsuf states: “We do not hold
equal those who begin their writings and arguments with the saying of Sa‘ïd ibn
al-Musayyab, al-Zuhrï, and Zam‘ah, and those who begin theirs with the word of
God, his Prophet, and the consensus of the masters (imams).”43
16. Haydarah
ibn ‘Umar al-ZanUdl (d. 358/968)44
Mentioned by al-Shïrâzï in the third tabaqah
of Zâhirïs, Haydrah was a student of ‘Abd Allâh ibn al-Mughallis and is
credited with transmitting Dâwüd’s knowledge from Ibn al-Mughallis to his own
Baghdâdï fellows[240]
Ibn al-Nadïm praises Haydarah, who was his friend, and mentions that he had
written some works, the titles of which were apparently difficult to read in
the available manuscripts of al-Fihrist.46 Al-Qurashi mentions that
Haydarah wrote a compendium (mukhtasar), probably containing Zahiri
legal views.[241]
[242]
17. Ahmad,
ibn Bundar Ishaq, Abu Abd Allah al-Sha“ar (d. 359/969)
Abü ‘Abd Allah al-Sha‘‘ar was a
competent traditionist and jurist in Isfahan. He transmitted from a number of
scholars, including Abü Bakr ibn Abi ‘Àsim and was affiliated with the Zahiri madhhab?[243]
18. Ubayd
Allah ibn Ahmad ibn al-Husayn (d. 361/971)
‘Ubayd Allah was a student of Ibn
Dawüd and reportedly even of Dawüd himself, although al-Dhahabi, who describes
him as “Dawüdi Zahiri,” seems to have doubts about this[244]
19. Alïibn
Wasïf al-Nashi (d. 366/976)
According to Muhammad ibn al-Hasan
al-Tüsi, ‘Ali, who was a theologian and poet, followed the Zahiri madhhab
in legal matters.[245]
[246] [247] [248]
20. AbdAllah
ibn Ahmad ibn Rashid (d. 369/979)
Known as Ibn Ukht al-Walid, ‘Abd
Allah ibn Rashid was a student of Ibn al- Mughallis and a wealthy merchant who
became judge of Egypt several times between 329/940 and 334/945, and of
Damascus in 348/959. Despite his rather bad reputation and accusations of
accepting bribes (it is reported that he bribed Muhammad ibn Taghj
al-Ikhshid—Egypt’s Turkish ruler (r. 321/933 to 334/946)—to appoint him
asjudge), he is counted among the great Zahiri scholars,51 and reported to have
compiled many works.52 He traveled frequently between Syria and
Egypt where he settled until his death.53
21. Tahir
ibn Muhammad (d. 369/979)
Tahir ibn Muhammad was a judge in
Jurjan. He was counted among the Ahl al-Ra’y, but al-Sahmi mentions that
he was Zâhirï.[249]
22. Muhammad
ibn al-Husayn al-Basrl(d. c. 375/985)
Al-Khatib al-Baghdadi mentions
Muhammad ibn al-Husayn in his biography of Ibn Dâwüd as a transmitter of an
anecdote from Muhammad ibn al-Hasan ibn al-Sabbah al-Dawüdi al-Baghdadi, from
thejudge Muhammad ibn Yüsuf ibn Ya'qüb.[250]
According to Ibn Maküla, he was known as “al-Zahiri” because he followed
Dawüd’s madhhab.[251]
23. Ahmad
ibn Abd Allah ibn Ahmad al-Bukhtarl (d. before 384/994)
According to al-Tanükhi, Ahmad was
the head of the Zahiris of his age. He worked as a “Dawüdi” judge in Baghdad.
He is al-Tanükhi’s informant of a debate between Ibn Dawüd and Ibn Surayj.[252]
24. Muhammadibn
Musa ibn al-Muthanna (d. 385/995)
According to al-Sam‘ani, Muhammad ibn
al-Muthanna was a noble Dawüdi scholar who studied with many scholars and
taught many students.5[253]
Al-Safadi mentions that he was a “Baghdadi Zahiri Dawüdi” jurist and
traditionist.5[254]
25. Abd
al-Azlz ibn Ahmad al-Jazarl (d. 391/1000)
Mentioned by al-Shirazi in the fifth tabaqah
of Zahiri scholars, ‘Abd al-'Aziz al-Jazari (or al-Kharazi) was a judge in
Baghdad in 377/987.[255] He
followed Dawüd’s madhhab (which he studied with Bishr ibn al-Husayn)[256]
and was known for his argumentative skills[257]
[258]
Al-Dhahabi quotes the Hanafi scholar al-Saymari (d. 436/1044) that he never saw
ajurist who matched al-Jazari’s sharp intellect.63 Al-Dhahabi also
describes him as a leading Zahiri jurist (faqlh al-Zahiriyyah) who
taught students in Baghdad. His students included
Muhammad ibn ‘Umar al-Dawudi, Abu
‘All al-Dawudi, judge of Firozabad, and his son.[259]
Ibn al-Nadlm attributes to him a work on (legal?) disagreements.[260]
[261]
26. Muhammadibn
Banan (d.
after 400/1009):
Al-Shlrazl mentions Muhammad ibn
Banan in his fifth tabaqah of Zahirl scholars.66 To my knowledge, other
biographical dictionaries do not mention him.
These are twenty-six Zahirl scholars
who lived in the late 3rd/9th and 4th/i0th centuries. Almost half of these
lived in Baghdad. DawUd’s views were transmitted to Ibn al-Mughallis by DawUd’s
son Muhammad in Baghdad. Ibn al-Mughallis’ knowledge passed on to Haydarah al-ZanUdl,
the teacher of future generations of Baghdadi Zahirls. Bishr ibn al-Husayn
transmitted Ibn al-Mughallis’ teachings to ‘Abd al-‘Azlz al-Jazarl, after
whose students the madhhab is said to have disappeared from Baghdad,
around the mid-5th/iith century[262]
Furthermore, Iraq is the only region where connected chains of Zahirl teachers
and students can be found. One such chain is Muhammad ibn al-Husayn al-Basrl
al-Zahirl, from Muhammad ibn al-Hasan ibn al-Sabbah al-DawUdl al-Baghdadl, from
Muhammad ibn YUsuf ibn Ya‘qUb. After Muhammad ibn YUsuf, the chain can reach
DawUd through Muhammad’s father YUsuf ibn Ya‘qUb from DawUd directly or through
Muhammad ibn DawUd. A second chain is Muhammad ibn ‘Umar al-DawUdl and AbU ‘All
al-DawUdl from ‘Abd al-‘Azlz al-Jazarl, from Bishr ibn al-Husayn, from ‘All ibn
Muhammad al-Baghdadl, from Ibn al-Mughallis, from Muhammad ibn DawUd, from
DawUd. In other words, although another student of DawUd—YUsuf ibn Ya‘qUb—may
have transmitted DawUd’s knowledge to his (YUsuf’s) son who then transmitted
it to future generations of Iraqi scholars, the fact that we do not know much
about either YUsuf ibn Ya‘qUb or his son indicates that Muhammad ibn DawUd was
indeed DawUd’s most important student who preserved his father’s teachings. The
same can be said about Ibn al-Mughallis in relation to Ibn DawUd, for although
the latter’s knowledge was also transmitted by other students of his, it was
Ibn al- Mughallis’ chain from DawUd that established the madhhab in Iraq
(through Haydarah al-Zanüdï), and it was also Ibn al-Mughallis’ students who
spread the madhhab beyond Iraq.
Outside Iraq, six of these scholars
lived in the eastern part of the Muslim world. Dâwüd’s madhhab is
reported to have reached Fars through Bishr ibn al-Husayn, probably in the
first half of the 4th century AH. Bishr studied with 'Ali ibn Muhammad
al-Baghdâdï, who was an associate of Ibn al-Mughallis. We will see later that
it was also one of Bishr ibn al-Husayn’s students—called Abü al-Faraj
al-Fami—who took the madhhab to Shiraz in the 5th/iith century (if it
had already not reached it thanks to Abü Sa'd ibn al-Husayn). In fact,
al-Muqaddasi mentions that there were many lectures on the “Dawüdi” madhhab
in Fars at that time, and that Dawüdi scholars worked in the judiciary and
other professions.[263]
The madhhab also reached Isfahan at the hands of Muhammad ibn Ma'mar ibn
Rashid, and as far east as Jurjan at the hands of Tahir ibn Muhammad.
One Zahiri scholar is reported to
have lived in Egypt, another in Palestine, and a third in Damascus. The madhhab
probably reached Egypt through a slave manumitted by a certain Muhammad ibn
Salih al-Mansüri, probably in the mid-4th century AH. He went to Baghdad,
studied with Ibn al-Mughallis, went back to Egypt, and transmitted his
knowledge to Muhammad’s son, who then continued the tradition there. As for
Syria, al-Muqaddasi mentions that there were no Dawüdi scholars there in the
4th/ioth century[264]
This is consistent with our findings here. Only the Syrian Ahmad ibn Muhammad
ibn Ziyad, in the first half of the 4th century, was known for his Zahiri
leanings, but we do not know with whom he studied. Be this as it may, if
Dawüd’s madhhab ever existed in Syria, it must have reached it at the
hands of Ahmad ibn Muhammad ibn Ziyad, and probably in the first half of the
4th century.
Three of these twenty-six scholars
lived in or travelled to Andalus. We have seen earlier that a direct student of
Dawüd—Ibn Hilal—was credited with carrying his writings to Andalus and
spreading his madhhab there. Later, in the second quarter of the 4th
century, two other Zahiri scholars—Muhammad ibn Sulayman and 'Ali ibn
Bundar—are reported to have brought Dawüd’s teachings to Andalus. Although we
do not know with whom the former scholar studied, we know that 'Ali ibn Bundar
was a student of Ibn al-Mughallis. Furthermore, Mundhir ibn Sa'id al-Ballüti,
with his knowledge, social status, and argumentative skills, must have boosted
the status of the madhhab in Andalus around the mid-4th century AH. In
other words, although Iraq was the stronghold of Zahirism in the 4th/ioth
century, Andalus was one of the few places to which direct students of Dâwüd
and Ibn al-Mughallis traveled and settled.
More than half of these scholars—and
all scholars whose profession is actually reported—worked as judges, sometimes
rising to the rank of qadl al-qudah. Most of these judges lived and
worked in Baghdad. Since Hanafism was the official madhhab of the
Abbasid state at that time, it is safe to assume that these judges were trained
as Hanafi scholars (but also possibly as Maliki or Shafi'i).[265]
[266] It
is likely that these scholars kept their affiliation with Dawüd’s madhhab
a private matter, assuming affiliation with other madhhabs in public.
Whereas approximately six of these scholars are reported to have compiled
books, most of these books apparently dealt with specific legal issues, such as
refuting qiyas, or with exegesis or other Qur’ân-related subjects (such
as the case with the Andalusian Zahiri scholar Mundhir ibn Sa'id al-Ballüti). A
significant number of these scholars were known for defending Dawüd’s madhhab,
which suggests that early generations of Zahiri scholars were already on
the defensive and felt the need to legitimize their views. We do not know how
and against whom they did that, but the Zahiri rejection of qiyas and ra’y
could have caused harm to their relationship with other madhhabs.
Remarkably, less than a quarter of
these scholars were known for their contribution to Hadith transmission.
Whereas some of them were considered reliable, Hadith critics were critical of
some others. None of them, however, seem to have authored Hadith compilations
or works of Hadith criticism. It could be argued, then, that these scholars
seem to have inherited from earlier generations of Zahiris a general lack of
interest in the transmission and criticism of Hadith.
Finally, of these scholars, those who
were referred to as “Dawüdi” outnumber those known as “Zahiri.” In fact,
al-Muqaddasi mentions that the legal mad- hhabs that were followed in his
days (in the 4th/ioth century) were the Hanafi, Maliki, Shafi'i, and Dâwüdi?1
In one chain of transmission, a father is known as Dawüdi while his son is
known as Zahiri. This does not necessarily mean that these scholars were known
as Zahiri in their lifetime, for it is possible that this epithet was given to
them by their biographers later. For example, al-Safadi described Muhammad ibn
Müsa as “Dawüdi Zahiri” although al-Sam'ani had described him only as Dawüdi.
But if these were known as such during their lifetime, this could suggest that
scholars began to be called Zâhirï, rather than Dâwüdï, around the mid-4th
century AH. In all circumstances, however, sharing an eponym at a certain
point must have given these scholars a sense of belonging to a madhhab
and of sharing a common legal heritage. The nature of this legal heritage as
they understood it, however, is something that we cannot ascertain from their
biographies since the sources are generally silent about the works they may
have studied and the way they transmitted their knowledge to their students.
To summarize, at the end of the
4th/i0th century, Iraq remained the stronghold of Dâwüd’s madhhab, the
majority and most important of which scholars lived there. Andalus, however,
was emerging as Iraq’s competitor on the strength of hosting immediate students
of Dâwüd and Ibn al-Mughallis. A few generations after Dâwüd’s death, his madhhab
had already spread as far as Isfahan in the east and Andalus in the west, with
very few representatives in Egypt and possibly Syria. Most Zâhirï scholars in
Iraq, and some in the east and in Egypt, worked as judges, which suggests that
they were Hanafïs and on good terms with their rulers. A few of them were known
for being active in Hadïth transmission and a few of them are reported to have
compiled books.
2
Fifth/Eleventh-Century Zâhirïs
1. Dawüd
ibn Ahmad ibn Yahya ibn al-Khidr (d. 418/1027)
We do not know much about Dâwüd ibn
Ahmad except that he was a Zâhirï who died in Baghdad in 418/1027.[267]
[268]
2. Abü
al-Faraj al-Famlal-Shlrazl (fl. c. 425/1034)
Abü al-Faraj al-Fâmï is mentioned by
al-Shïrâzï in the fifth tabaqah of Zâhirï scholars. He studied with
Bishr ibn al-Husayn and was a master in Dâwüd’s madhhab as well as a
Mu'tazilï theologian. He is credited with spreading the madhhab in
Shiraz. Al-Shïrâzï does not reports Abü al-Faraj’s date of death, but mentions
that he used to engage in arguments with him when he was young, which suggests
that Abü al-Faraj died in the first quarter of the 5th century AH. At this
point, al-Shïrâzï states that Dâwüd’s madhhab died out in Baghdad and
that only a handful of Abü al-Faraj’s associates in Shiraz were still present?3
3. Dawüd
ibn Ibrahim ibn Yusuf al-Isbahanl (d. after 425/1033)
Dâwüd ibn Ibrahim was a knowledgeable
scholar and prolific Hadith transmitter who followed Dawüd’s madhhab.
He apparently lived in Seville.[269]
4. Muhammad
ibn Abd Allah ibn Talib (d. after 420/931)
Originally from Basra, Muhammad ibn
‘Abd Allah traveled frequently to the eastern parts of the Muslim world where
he studied with many notable scholars. Ibn Bashkuwal reports that he followed
Dawüd’s madhhab and traveled to Andalus on business in 420/931.7[270]
5. Masüd
ibn Sulayman ibn Muflit (d. 426/1035)
A teacher of Ibn Hazm, who included
him among the independent scholars (mujtahids) of his time/[271]
[272] [273] [274]
Ibn Muflit was known to be a “Dawüdi” scholar who rejected taqlid, chose
from different views, and adhered to zahir.77
6. Ibrahim
ibn Ahmad ibn al-Hasan al-Rubacl ( fl. c. 438/1046)
Ibrahim ibn Ahmad apparently died not
long before Ibn al-Nadim was writing his Fihrist. Ibn al-Nadim describes
him as a Dawüdi scholar who migrated from Baghdad to Egypt where he died. He
also reports that Ibrahim wrote a work against qiyas (Kitab al-Ktibâr
flIbtal al-Qiyâs').18
7. Ibn
al-Khallal (fl. c. 438/1046)
Ibn al-Nadim mentions Ibn al-Khallal
among Zahiri scholars and attributes to him a number of works, one of which is
a refutation of qiyas (Ibtal al-Qiyas), and another on usül al-Fiqh
(Nact al-Hikmahfl Usül al-Fiqh).79
8. Abü
Sacld al-Raqql ( fl. c. 438/1046)
According to Ibn al-Nadim, Abü Sa‘id
followed Dawüd’s madhhab and compiled many works, including one on usül
(most likely of al-fiqh) that contained chapters similar to Dawüd’s own
work on usül.[275]
9. Hisham
ibn Ghalib ibn Hisham (d. 438/1046)
Known for his knowledge and
intelligence, Hisham ibn Ghalib was a scholar from Granada who, according to
Ibn Bashkuwal, secretly followed Dâwüd’s madhhab[276]
10. Muhammad
ibn ‘Umar al-Dâwüd! (fl. before 450/1058)
Muhammad ibn ‘Umar al-Dâwüdï is
probably Abü Bakr ibn al-Akhdar whom al-Shïrâzï mentions in the fifth tabaqah
of Zahiri scholars and attributes Tarlkh Ahl al-Zahir to him. A judge
himself, Abü Bakr was among the witnesses of the chief judge of Baghdad.[277] He
appears in the Tarlkh Baghdad as al-Khatib al-Baghdadi’s source for the
dates of death of some Zahiri scholars, including Ibn al-Mughallis and Haydrah
al-Zanüdi[278]
Al-Shirazi does not report Abü Bakr’s date of death, but since he was a student
of ‘Abd al-‘Aziz al-Jazari, who died in the late 4th/i0th century and was an
informant of al-Khatib al-Baghdadi, he likely died before or during the first
half of the 5th/iith century.
11. Jabir
ibn Ghalib ibn Salim (d. before 456/1064)
A contemporary of Ibn Hazm who
apparently admired him, Jabir ibn Ghalib is reported to have been a Zahiri
scholar and traditionist from Seville[279]
12. Ibn
Hazm al-Andalusl (d. 456/1064)
Ibn Hazm’s status and influence in
the history of the Zahiri madhhab is discussed later in this chapter.
13. Salim
ibn Ahmad ibn Fath (d. 461/1068)
According to al-Marrakushi, Salim ibn
Ahmad, who was from Cordoba, was a friend of Ibn Hazm whose madhhab he
followed and many of whose works he transcribed[280]
14. Yüsuf
ibn ‘Abd Allah ibn Muhammad, Ibn ‘Abd al-Barr (d. 463/1070)
A famous and prolific Andalusian
scholar, Ibn ‘Abd al-Barr is reported to have changed his legal affiliation
frequently, starting his career as Zahiri to end up as Maliki. Ibn Hazm admired
him as an independent scholar[281]
15. Muhammad
ibn Ibrahim ibn Faris (d. 474/1081)
Muhammad ibn Ibrahim was a bookseller
in Baghdad who traveled to Egypt, Shiraz, and Damascus to learn traditions. He
was known to be “Dâwüdi Zahiri” and not highly regarded by the Hadith critics
of the time.[282]
[283] [284]
16. Abu
Alial-Dawüdl (d. before 476/1083)
Abü ‘Ali al-Dawüdi—whom al-Shirazi
mentions as his contemporary—was a judge in Firozabad who studied with ‘Abd
al-‘Aziz al-Jazari.88
17. Al-Fadl
ibn ‘Allibn Hazm (d. 479/1086)
As Ibn Hazm’s son, al-Fadl, who
resided in Cordoba, followed in the footsteps of his father as a Zahiri scholar
and completed his magnum opus in jurisprudence, al-Muhalla
hi-l-Alhar.^
18. Farh
ibn Hadldah (d. 480/1087)
A contemporary of Ibn Hazm, Farh ibn
Hadidah is reported to have been a Zahiri scholar and expert on Qur’an
recitation whom al-Mu‘tadid bi-Allah (the ruler of Seville from 433/1041 to
461/1068) appointed as Qur’an reciter in a mosque that he built for his mother.[285]
19. Muhammad
ibn Futüh ibn Humayd al-Humaydl (d. 488/1095)
A pious, reliable, and studious
scholar of Hadith, al-Humaydi studied and taught Hadith in many regions in the
Muslim world, including Andalus, Egypt, the Hijaz, Syria, and Iraq. He was
regarded as Ibn Hazm’s most important student (and also a student of Ibn ‘Abd
al-Barr)^[286]
but he apparently never openly admitted his Zahiri affiliation. Al-Humaydi is
reported to have authored works in various genres, including Hadith, usül
al-fiqh, history, and “mirrors for princes” (maraya ’l-umara’). He
died in Baghdad and was buried next to the Sufi Bishr al-Hafi in accordance
with his will[287]
20. ‘Allibn
Sa‘ldal-Abdarl(d. after 491/1097)
A notable student of Ibn Hazm who
came from Majorca and later traveled eastwards, al-‘Abdari is said to have
abandoned Zahirism for Shafi‘ism at the hands of the Shafi'i scholar Abu Bakr
al-Shashi (d. 507/1113). He was a teacher of the Maliki scholar Abu Bakr ibn
al-Arabi (d. 543/1148).[288]
21. Ahmad,
ibn Muhammad ibn Salih al-Mansürl (d. late 5th/uth century) It has been noted earlier
that Ahmad ibn Muhammad was a student of a slave that his father had manumitted
and who had studied with Ibn al-Mughallis. He also seems to have studied with
al-Qasim ibn Wahb al-DawUdi, another follower of DawUd.9[289]
According to Ibn Hajar al-Asqalani (d. 852/1449), he went to Bukhara in the
year 460/1067 when al-Hakim al-NaysabUri was there and was appointed judge of
Arjan[290]
[291] [292] [293]
Apparently, he also resided in Sind for some time.96 Ibn Hajar reports that he
was a master who followed DawUd’s madhhab, and he is reported to have
fabricated a Prophetic tradition supporting the Zahiri rejection of qiyasA1
Ibn al-Nadim attributes to him some works, the titles of which are not
indicative of their contents.98
Biographical dictionaries provide us
with these twenty-one Zahiri scholars from the 5th/11th century. It is
remarkable that what we know about many of them is very scanty; even their
dates of death are not reported at times. Additionally, despite al-Shirazi’s
statement about the extinction of DawUd’s madhhab in Baghdad after the
students of ‘Abd al-'Aziz al-Jazarï, more than one quarter of these scholars
still lived in or originated from Iraq (mostly Baghdad, but also Basra). More
Zâhirï scholars appear in the eastern part of the Muslim world than in the
previous century. In Egypt and Syria only two scholars are reported to have
followed Dâwüd’s madhhab. Working as judges remains the profession of
those scholars whose occupations are reported to us, and almost a quarter of
them were known as having been active in Hadïth transmission. Two scholars are
reported to have been secretly affiliated with the madhhab. And although
the eponym “Dâwüdï” continues to be used, the epithet “Zâhirï” begins to appear
more often. Finally, some of these scholars are reported to have authored some
legal works, most of which are about usul al-fiqh. and the refutation of
qiyas.
The increasing number of Zâhirï
scholars associated with Hadïth transmission and the displacement of the
sobriquet “Dâwüdï” by “Zâhirï” in reference to these scholars could be linked
to a significant development in the 5th/iith century: the proliferation of
Zâhirï scholars in Andalus and the advent of Ibn Hazm. Most of the Andalusian
Zâhirï scholars were associated with Ibn Hazm, either as friends or students.
Furthermore, there is solid evidence of a contact and possibly mutual influence
between Andalusian Zâhirïs and Iraqi Zâhirïs. Iraqi Zâhirïs traveled to
Andalus, while a student of Ibn Hazm—al-Humaydï— moved eastwards and resided in
Baghdad. In other words, we can now speak of an extended and connected network
of Zâhirïs.
Moreover, mention is made for the
first time to books that Zâhirïs copied and transmitted, including Ibn Hazm’s
substantial writings on various genres of religious studies. Unfortunately,
given the lack of any reference to attempt by Zâhirïs to present and transmit
their knowledge in a systematic and institutionalized way, we are left in the
dark regarding how they were transmitted to later generations (with the
exception of Ibn Hazm’s works, of course). This notwithstanding, the
distribution of Zâhirï scholars in the Muslim world at that time, and Ibn
Hazm’s stature and accomplishments, warrant regarding the 5th/iith century as
the golden age of the Zâhirï madhhab.
3
Sixth/Thwelfth- and Seventh/Thirteenth-Century Zâhirïs
1. Sulayman
ibn Sahl ibn Ishaq ( fl. before mid-6th/i2th century)
Nothing is reported about Sulaymân
ibn Sahl other than that he was Zâhirï.[294]
2. Bakr
ibn Khalaf ibn Sa'ld (d. after 505/1111)
Bakr ibn Khalaf was a Zahiri scholar
from Seville. He is reported to have rejected taqlld and ra’y and
adhered to Hadith.[295]
[296] [297] [298] [299] [300] [301]
3. Muhammad
ibn Tahir ibn ‘Allibn Ahmad, Ibn al-Qaysaram (d. 507/1113)
Ibn al-Qaysarani was from Jerusalem
and traveled to many centers of knowledge in the Muslim world in his time. He
was active in Hadith transmission and reported to have been “Dâwüdi” (kana
Dawüdl ’Tmadhhab).w1
4. AbdAllah
ibn Ahmad ibn Said ibn YarbiT (d. 522/1128)
Al-Dabbi, our source on ‘Abd Allah
ibn Ahmad, only mentions that he was a Zahiri jurist and traditionist.102
5. Muhammad
ibn Sa'dün ibn Muraja al-Abdarl (d. 524/1129)
Ibn Murajja al-‘Abdari was a great
Andalusian scholar of Hadith and jurisprudence. A student of Ibn Hazm’s
student al-Humaydi,W3 he followed Dawüd’s madhhab and was
known for his vast knowledge of Hadith and biting comments on earlier jurists.
He traveled eastwards, resided in Syria for a few years, and died in Baghdad.
According to Ibn ‘Asakir, he used to give fatwas according to Dawüd’s madhhab.104
6. AbdAllah
ibn Müsa
(d. 526/1131)
‘Abd Allah ibn Müsa was a Cordoban
scholar of Hadith reported to have been Zahiri.105
7. Muhammadibn
al-Husayn al-Ansarl, Ibn Ihda Ashrah (d. 532/1137)
Ibn Ihda ‘Ashrah was a Zahiri scholar
from Almería who was known for his knowledge of Hadith.W6
8. Muhammad
ibn al-Hasan [or ibn al-Husayn] ibn Ahmad (d. 537/1142) Originally from
Majorca, Muhammad ibn al-Hasan travelled to Egypt where he studied with many
scholars, then returned to Andalus and resided in Granada until his death.
Al-Maqqari mentions that out of fear of ‘Ali ibn Yüsuf ibn Tashfin (d.
499/1106) who was Maliki , Muhammad did not confess his affiliation with the
Zahiri madhhab and worked in teaching Hadith.[302]
[303] [304] [305] [306] [307] [308] [309]
Ibn al-Khatib describes him as “Zahiri Dâwüdi.”io8
9. Ahmadibn
Saidibn Hazm (d. 540/1145)
Grandson of Ibn Hazm, Ahmad ibn Sa‘id
was a staunch Zahiri like his own father and grandfather. Al-Dhahabi describes
him as an accomplished scholar who knew and defended the pillars and
fundamentals (usul) of Zahirism.W9 Following his ancestors,
he was active in politics, which brought upon him much hardship when he was
accused of coordinating a revolt against the ruler of Cordoba at his time.™
10. Ahmad
ibn Abdal-Malik ibn Muhammad, Ibn AblMarwan (d. 549/1154)
A distinguished scholar of Hadith,
Ibn Abi Marwan was a Zahiri scholar who resided in Niebla (Arabic Lablah, a
town not far from Seville) and followed the teachings of Ibn Hazm.m
He was killed in a revolt by the people of Niebla in 549/1154.112
11. Khidr
ibn Muhammad ibn Namir (d. 571/1175)
Khidr ibn Muhammad was a Zahiri
scholar from Seville who used to defend Zahirism.113 Among his
students was Muhammad ibn ‘Ali ibn ‘Usfür, another staunch Zahiri scholar from
Seville.n4
12. Abd
Allah ibn Muhammadibn Marzuq al-Yahsubl (d. before 576/1180)
‘Abd Allah ibn Muhammad was known as
a Zahiri scholar who studied with Ibn Biryal, a student of Ibn Hazm, and took
great interest in Ibn Hazm’s works.
‘Abd Allah was from Saragossa,
travelled to Egypt, and died in Damascus.[310]
[311] [312] [313] [314] [315] [316] [317] Al-Ghalbazürï
believes that it was ‘Abd Allah who spread Ibn Hazm’s views in the regions to
which he travelled.n6
13. Abdal-Rahman
ibn Yahya ibn al-Hasan (d. 580/1184)
‘Abd al-Rahman was a traditionist
from Seville who is reported to have followed Ibn Hazm’s madhhab .n7
14. Abd
Allah ibn Abï Amr ( fl. 580/1148)
A traditionist from Seville, ‘Abd
Allah was a Zahirï scholar and teacher of Sa‘d al-Su‘üd ibn Ahmad.n8
15. Su’d
al-Su.Tid ibn Ahmad ibn Hisham (d. 588/1192)
Sa‘d al-Su‘üd was known to be a
staunch Zâhirï who defended his madhhab. He was also known for his
interest in and adherence to Hadïth.n9
16. Abd
Allah ibn Bakr ibn Khalaf (d. c. 588/1192)
Son of Bakr ibn Khalaf ibn Sa‘ïd,
‘Abd Allah followed in the footsteps of his father as a Zahirï scholar. He was
also known for his transmission of Hadïthd20
17. Ahmad
ibn Tahir, Ibn Shubrïn (d. before 595/1198)
Ibn Shubrïn was a teacher of the
famous Malikï scholar and judge ‘Iyad ibn Müsa al-Yahsubï—widely known as
al-Qadï ‘Iyad (d. 544/1149)—who held Ahmad in high esteem and praised his
knowledge and competence in Hadïth transmission and criticism. Al-Qadï ‘Iyad
reports that Ahmad refused to serve as judge and was given to Zahirism in
jurisprudence. He does not attribute any works to him.121
18. Sultan
Abu Muhammad Ya’qub ibn Yusuf (d. 595/1198)
According to Ibn Kathïr, Ya‘qüb ibn
Yüsuf was a Malikï scholar who became “Zahirï Hazmï” and ended up as a
Shafi‘ï.122
19. Sufyan
ibn Ahmad, ibn Abd Allah, Ibn al-Imam (d. before 599/1202)
Ibn al-Imam was a traditionist who
was given to Zahirism and resided in Murcia.[318]
[319] [320] [321] [322] [323] [324]
Among his teachers was Abü al-Qasim ibn Hubaysh, a student of Muhammad ibn
al-Husayn al-Ansari.124
20. ‘Abd
al-Samad ibn Ahmad al-Maqbarl (d. late 6th/i2th century)
‘Abd al-Samad al-Maqbari was a Zahiri
scholar who resided in Granada. He was known for his interest in theology and
knowledge of Hadith and jurisprudence.125
21. Ibrahlm
ibn Khalaf ibn Mansur (fl. 605/1208)
A scholar of Egyptian origin (from
Sanhür, in northern Egypt) who traveled widely, Ibrahim ibn Khalaf had a very
bad reputation as a liar, charlatan, and drug user, although some Hadith
critics defended him. According to Ibn Hajar, he was Zahiri and followed the
teachings of Ibn Hazm.126
22. ‘Abd
Allah ibn Sulayman ibn Dawüd (d. 612/1215)
‘Abd Allah ibn Sulayman was a judge
in many cities in Andalus, including Cordoba, Seville, and Mersile. He was
given to Zahirism, studied with many prominent scholars, and was known for his
vast and diverse knowledge.127 Most of the works attributed to him
are on Hadith.
23. DawUd
ibn Ablal-Ghana’im (d. 615/1218)
Dawüd ibn Abi al-Ghana’im was a
Baghdadi scholar who was known for following Dawüd al-Zahiri in jurisprudence,
according to Ibn Hajar.m
24. ‘Abd
al-Azlz ibn ‘All, Ibn Sahib al-Radd (d. 621/1224)
Ibn Sahib al-Radd was a competent
Zahiri scholar from Seville. Al-Dhahabi mentions that he transmitted from
him.129
25. Ahmad,
ibn Yazld ibn Abd al-Rahman (d. 625/1228)
A descendant of the famous traditionist
Baqi ibn Makhlad (d. 276/889),[325]
[326] [327] [328] [329] [330] [331] [332] Ahmad
was an influential scholar and judge. He is reported to have inclined to
Zahirism.131
26. ‘All
ibn Abd Allah ibn Yusuf, Ibn Khattab al-Mucafm (d. 629/1231)
Known as a scholar who excelled in
Hadith and resided in Seville, Ibn Khattab al-Mu'âfirï is reported to have had
leanings toward Zahirism.i32
27. Ahmad
ibn Muhammad ibn ‘Umar (d. c. 630/1232)
Al-Marrakushi reports that Ahmad ibn
Muhammad was an Andalusian Zahiri scholar who traveled eastwards, studied with
several notable scholars, and returned to Andalus.133
28. ‘Umar
ibn al-Hasan, Abu al-Khattab ibn Dihyah (d. 633/1235)
Abü al-Khattab Ibn Dihyah was a
scholar of Hadith who was active mainly in North Africa and Andalus. Reportedly
born in Sabtah, Andalus, and perhaps worked as a judge there/'*4 Ibn
Hajar found his genealogy suspicious.^5 He was known to be Zahiri,
and one of his contemporaries also mentions that he used to speak ill of the “imams.’4*6
While in Egypt, Ibn Dihyah was a
mentor to al-Kamil, who later became ruler of Egypt from 615/1218 to 635/1238.
According to this report, Ibrahim ibn Khalaf, another Zahiri, told Andalusian
scholars that Ibn Dihyah was an amateur traditionist with dubious genealogy.
Ibn Dihyah complained to al-Kamil who then humiliated Ibrahim and expelled him
from Egypt. Later on, his relationship with al-Kamil deteriorated when it was
brought to the latter’s attention that Ibn Dihyah used to confuse traditions?*7
29. Ibrahim
ibn Muhammad, ibn Yusuf al-Ansarl(d. after 637/1239)
Ibrahim ibn Muhammad was a Zahiri
scholar who used to lead the prayers in Seville.[333]
[334] [335] [336] [337] [338] [339] [340]
30. "Umar
ibn Ahmad ibn ‘Umar ibn Musa (d. 637/1239)
Al-Marrakushi reports that ‘Umar, who
was also from Seville, was a Zahiri scholar who evidently had interests in the
Qur’an and Hadith.i39
31. Ahmad
ibn Muhammad ibn al-Rumiyyah, Abu al-Abbas al-Nabatl (d. 637/1239)
According to al-Dhahabi, Ibn
al-Rümiyyah began his career as a Maliki scholar and then became a staunch
“Hazmi Zahin.’940 He was a student of Ibrahim ibn Muhammad al-Ansari
and studied with Hadith scholars in Spain, the Hijaz, Iraq, and Egypt. In
addition to piety and uprightness, he was known for his religious knowledge
(especially in Hadith), and his vast knowledge of herbs (a‘shab; hence
his sobriquet, al-Nabati).i4i Many works are attributed to Ibn al-Rümiyyah in
various genres of religious and scientific knowledge.^2
32. ‘Umar
ibn Ahmad ibn ‘Umar (d. 637/1239)
A Zahiri scholar from Seville, ‘Umar
ibn Ahmad was a student of Ibn Buryal, Ibn Hazm’s student, and a teacher of Ibn
Sayyid al-Nas (see below). He was known for his knowledge of Hadith.i43
33. Muhammadibn
Ahmad ibn ‘Abd Allah, Ibn Sayyid al-Nas (d. 659/1260)
A famous Andalusian scholar who
received ijazahs to transmit Hadith compilations from scholars in
various regions of the Muslim world, Ibn Sayyid al-Nas was known for his vast
knowledge of Hadith. Al-Dhahabi, who studied with him, mentions that he was
Zahiri, following the method of Abü al-‘Abbas al-Nabati (Ibn al-Rümiyyah).i44
Al-Suyüti reports that he was the last great scholar of Hadith in the Maghrib.^5
34. Ahmad,
ibn Muhammad, Ibn Sabir al-Qaysl(d. 666/1267)
Ibn Sabir al-Qaysi is reported to
have begun his career as Zahiri but later abandoned Zahirism. He was also an
accomplished Hadith scholar who studied with many scholars in various regions,
until he died in Egypt.[341]
[342] [343]
35. Ahmadibn
Muhammad ibn Mufarrij (d. c. 666/1267)
Mentioned by Abü al-Hasan al-Ru'ayni
among his teachers, Ibn Mufarrij had interest in Hadith and adhered to zahiri
36. Abd
al-Muhaymin ibn Muhammad al-Ashjacl (d. 697/1297)
‘Abd al-Muhaymin was a Zahiri scholar
and poet who used to defend Ibn Hazm and Zahirism until his death in Fez.M8
In the 6th/i2th and 7th/i3th
centuries, there existed thirty-six Zahiri scholars, the majority of whom lived
in various cities of Andalus (notably Seville). Others were active in North
Africa and Egypt, with a few scholars in Syria and Iraq. Although the
professions of most of these scholars are not reported (with the exception of
two judges and a herbs seller), some of them were active participants in
politics and in direct contact with rulers.
Remarkably, the vast majority of
these scholars were known for their activity in Hadith transmission. Two of
them are referred to as “Dawüdi,” and one as “Dawüdi Zahiri.” Many are
described either as “Hazmi Zahiri” (but never “Dawüdi Hazmi”), or were students
of either Ibn Hazm or one of his students. Furthermore, chains of Zahiri
scholars begin to emerge again in these two centuries. Ibn Hazm’s knowledge
was passed on to al-Humaydi who passed it on to Ibn al-Murajja. Ibn Sayyid
al-Nas studied the madhhab with Ibn al-Rümiyyah and with a student of
one of Ibn Hazm’s students, and taught it to Ibn Sa‘d al-Ansari (more about him
below) who then taught it to a certain Ahmad al-Qasir. These scholars were not
confined to Andalus. Al-Humaydi moved to Baghdad, probably after Ibn Hazm’s
death, and his student Ibn al-Murajja traveled to Syria and Baghdad. ‘Amr ibn
Marzüq, who studied with Ibn Hazm’s student Ibn Buryal, traveled to Egypt and
Syria. Ibn al-Rümiyyah traveled to Egypt, the Hijaz and Iraq.[344]
[345] [346] [347] [348] In
other words, Ibn Hazm’s teachings reached the central and eastern parts of the
Muslim world almost immediately after his death, and influence of his students
continued to infiltrate these regions for some time after his death.
Furthermore, it is only at this point that we can speak of a homogeneous group
of Zahiri scholars who had a similar profile as transmitters and scholars of
Hadith and shared a connection with a common teacher, whose books they copied
and transmitted. Finally, cases of Zahiris hiding their true legal affiliation
are reported, together with a report about a Zahiri scholar givingfatwas
according to Dâwüd’s madhhab.
4
Zahiris after the Seventh/Thirteenth Century
1. Ahmad
ibn Muhammad ibn Hazm (d. before 703/1303)
Ahmad ibn Muhammad was a skillful
scholar of language from Seville who is reported to have authored a book to
defend Ibn Hazm against allegations made by Ibn al-Arabi.150
2. Mufarrij
ibn Sa’adah (d. before 703/1303)
According to al-Marrakushi, Mufarrij
ibn Sa‘adah was a Zahiri scholar of Hadith.151
3. Muhammad
ibn ‘All al-Bayasl, Abu Abd Allah al-Gharnatl (d. 703/1303) Reportedly a scholar
of Hadith who adhered to the Zahiri madhhab, Abü ‘Abd Allah al-Gharnati
traveled eastwards to study Hadith and died in Egypt.152
4. Muhammadibn
Muhammadibn Sahl (d. 730/1329)
Known as al-Wazir ibn Sahl, Muhammad
belonged to a famous family in Granada and traveled eastwards where he met with
notable scholars in various places, including Damascus and Cairo. He was
active in politics and known for his vast knowledge and social standing?53
5. Abd
al-Rahlm ibn al-Hasan al-Tinmall (d. 741/1340)
Ibrahim ibn al-Hasan was a Zahiri
scholar who used to defend Ibn Hazm. He died in Malaga.[349]
[350] [351] [352] [353] [354]
6. Muhammad
ibn Yusuf ibn ‘All Abu Hayyan, Abu Hayyan al-Nahwl (d. 745/ 1344)
A famous scholar from Granada, Abü
Hayyan al-Nahwi studied with many scholars in Andalus, the Maghrib, and Egypt,
where he contacted its rulers and became a teacher in several schools and
mosques. He taught many students and authored many books on Qur’an exegesis,
Hadith, language, history, and literature.155 Al-Maqqari mentions that he was
Zahiri but then abandoned Zahirism for Shafi'ism.^6
7. ‘Allibn
Ibrahlm ibn Sa‘d al-Ansarl (d. 774/1372)
'Ali ibn Ibrahim was a staunch Zahiri
scholar who vigorously defended his madhhab and is reported to have
copied most of Ibn Hazm’s works. He was a student of Ibn Sayyid al-Nas and a
teacher of a scholar named Ahmad al-Qasir, who studied the madhhab of
the Ahl al-Zahir with him.157
8. MUsa
ibn Alfafa
(d. 788/1386)
Müsa ibn Alfafa is reported to have
been a partisan of the Zahiris (kana yata‘assabu la-hum))38
9. Muhammad
ibn Muqbil al-Turkl (d. 796/1393)
According to Ibn Hajar, Muhammad ibn
Muqbil showed interest in legal matters from an early age and admired and
supported the Zahiri madhhab ^59
10. Ahmad,
ibn Tughan ibn Abd Allah al-Shaykhum (d. 808/1405)
Ibn Hajar reports that Ahmad ibn
Tüghân used to frequent the Ahl al-Zahir .[355]
[356] [357] [358] [359]
11. Ahmad
ibn Muhammad ibn Isma% Ibn al-Burhan al-Zahirl (d. 808/1405)
Ibn al-Burhân al-Zâhirï is reported
to have been Shâfi'ï until he met a Zâhirï who introduced him to Ibn Hazm’s
views, which he liked so much that he became Zâhirï himself. Later, he admired
Ibn Taymiyyah, so much so that he came to believe that nobody knew more than
Ibn Taymiyyah. Ibn Hajar, our source on Ibn al-Burhân, does not indicate his
final affiliation, but continues to categorize him as Zâhirï and mentions that
he was an authority on issues about which Zahirls disagreed with the
majority of scholars?®
An active participant in politics,
Ibn al-Burhân called for seeking a leader from the tribe of Quryash to rule the
Muslim world. He argued that this duty was “what Islam demands, and nothing else
is valid [as regards this issue].” As a result, together with his
religiously-minded followers who abhorred the corruption of the time, he was
flogged and jailed for three years. Ibn Hajar reports that Ibn al-Burhân was
far-sighted, for he once warned Ibn Hajar against saving cash, predicting that
money was going to lose its value. Shortly after his death, Ibn Hajar reports,
inflation struck Egypt?62
12. Muhammad
ibn Muhammad ibn Ya'qUb al-Jacbarl (d. 810/1407)
A scholar with good reputation who
leaned towards the Zâhirï madhhab, Muhammad was appointed to several
government posts in Syria, including the judiciary.163
13. Muhammad
ibn Ibrahlm ibn Ahmad (d. 832/1428)
Muhammad ibn Ibrâhïm was a Sufi who
worked as a hospital manager (nazir al-maristan), probably in Egypt. He
reportedly admired the Zâhirï madhhab.164
14. Ahmad,
ibn Sabir al-Qaysl (lived before 898/1492)
Ahmad ibn Sabir was a Zahiri scholar
who chose to leave Andalus to Egypt when the ruler tried to force him to pray
according to the Maliki madhhab. He remained in Egypt until his death.[360]
[361] [362]
15. Burhan
al-Dln ibn AblSharlf al-Maqdisl (d. 923/1517)
Burhan al-Din was a Damascene scholar
and Sufi with Zahiri leanings.166
From the 8th/14th to the 9th/15th
centuries, there existed fifteen Zahiri scholars. Andalus remained the
stronghold of Zahirism, although Zahiri scholars, including Andalusians, were
also active in North Africa and Egypt (and to a lesser extent, Syria). All
these scholars were referred to as “Zahiri” (and occasionally “Zahiri Hazmi”),
and the eponym “Dâwüdi” disappears completely. Many of those who were not so
described were connected to Ibn Hazm through some of his students or took great
interest in his views, so much so that they took it upon themselves to defend
him.
The little that we know about these
scholars indicates that they were public figures who had contacts with their
respective rulers, causing them serious troubles at times. They continued the
interest of previous generations of Zahiris in Hadith transmission.
Furthermore, many of these scholars are reported to have admired the Zahiri madhhab
or supported and frequented Zahiri scholars. This rather ambiguous way of
reporting their affiliation casts some doubt on their real legal affiliation,
for they may have belonged to other madhhabs, especially the Shafi'i madhhab
whose scholars, as has been noted earlier, seemed interested in promoting
Dawüd’s image as one of al-Shah'i’s early followers.
Mention should be made here of the
celebrated Sufi Ibn ‘Arabi (d. 638/1240). Whereas he is reported to have been
Zahiri in legal matters, there is little evidence that he had a significant
impact on the legal doctrine of the Zahiri madhhab.167 The
same holds true for the Almohads. They are believed to have adopted Zahirism as
the official madhhab of their dynasty (which lasted from 514/1120 to
667/1268), but what we actually know about that is rather scanty.[363]
[364] Finally,
also based on truly scanty evidence, the great historian al-Maqrïzï (d.
845/1442) is similarly believed to have been a Zahiri.169
This leaves us with Ibn Hazm,
generally regarded as the doyen of the Zâhirï madhhab and the only
Zâhirï scholar whose legal works have survived.
5
Ibn Hazm al-Andalusi (456/1064)
So much has been written about Abü
Muhammad ‘Alï ibn Ahmad ibn Sa‘ïd Ibn Hazm al-Andalusï (d. 456/1064) that we
need only to mention a few brief facts about him. Ibn Hazm was born in Liebla
in 384/994 to a father of Persian origin. He lived all his life in Andalus with
only a few months in Kairouan (al-Qayrawân) in North Africa. He witnessed the
fall of the Umayyad Caliphate in Spain—which he supported—in 422/1031 and the
subsequent establishment of local dynasties in various parts of Andalus. His
father was a wazir of some Umayyad Caliphs, and he himself served the
Umayyads as a wazir until their fall from power. While this involvement
in politics was a source of power and wealth for Ibn Hazm’s family in the first
part of his life, it later became a source of trouble and suffering for him.
Accordingly, he decided to stay away from politics and focus entirely on
scholarship. As a scholar, his stature and fame were known all over Andalus in
his lifetime and he used to engage in debates with notable scholars of the day.
He was seen by many scholars as a threat, not only to the Maliki madhhab
which was dominant in Andalus, but also to the entire known legal heritage.
This fear was motivated by the fact that Ibn Hazm was both prolific—writing
about numerous genres of religious and non-religious subjects[365]
[366] [367]—and
skillful in argumentation and disputation. His criticism of other scholars, and
more importantly the eponymous founders of other madhhabs, was so
bitter such that his tongue was compared to the sword of al-Hajjaj ibn Yüsuf
(d. 95/714), the famous general and governor who restored the Umayyad rule over
Iraq and the Hijaz in 72/691 and 73/692 by unrelenting brutality and force.
Andalusians were thus divided on Ibn Hazm: the majority regarded him as a
deviant scholar with pernicious teachings, whereas others admired him so much
that they believed that he tipped the balance to Andalus (rather than Iraq) as
the most prominent center of knowledge in the Muslim world.171
Ibn Hazm began his life as a Shafi'i
scholar before converting to Zahirism, which he spent the rest of his life
defending and spreading.^2 While Ibn Hazm’s biographies do not
indicate when this conversion took place, it must have been early enough in his
life to allow him the time to write those extensive works in which he
presented his Zahiri views. As for his legal affiliation, Ibn Hazm was explicit
about his admiration for and affiliation with Zâhirism. He speaks about the ashab
al-zahir as our fellow Zâhirïs (ashabuna),[368]
[369]
[370]
[371]
[372]
[373]
[374]
and praises their being the ones who followed God’s words, refrained from
asking Him about what did not concern them, and declared licit or illicit only
what He had so declared.™ Significantly, he seems to have held Dâwüd al-Zâhirï
in particularly high esteem. He lists Dâwüd among the early independent masters
of Islamic law,™ and maintains that he could not have been more knowledgeable
in the sources of the law and legal disagreements, more prolific in his Hadïth
transmission, or sharper in his intellect.™ In his Risalah al-Bahirah, he
goes so far as to argue that thanks to his adherence to the Sunnah and consensus,
refraining from using his ra’y, and insistence on remaining independent,
Dâwüd was more worthy of the title of jurist ( faqlh) than the eponymous
founders of the other madhhabs™ Whereas he does not refrain from
criticizing other Zâhiri scholars, aggressively at times, Ibn Hazm, to my
knowledge, does not disagree with Dâwüd’s views on theoretical legal views of
the usul al-fiqh. and only disagrees with him, quite respectfully, on
substantive views.
When disagreeing with Dâwüd on Juruc^78
Ibn Hazm either keeps silent or appears keen to not allow this to be a ground
for questioning Dâwüd’s knowledge as he would readily do with other scholars.™
When it happened that Ibn Hazm mentioned a view about which earlier Zâhirïs had
disagreed while his own view agreed with Dâwüd’s, he would highlight that the
other view was not the one held by Abü Sulaymân, Dâwüd’s kunyah)80
When attributing a view to earlier Zâhirïs, he would mention Dâwüd by name if
he knows that Dâwüd held it.181 In brief, not only did Ibn Hazm
regard Dâwüd as the master of the Zâhirï madhhab, but he also believed
himself to be connected to him through Andalusian scholars who had studied with
Dâwüd himself. As a result, Ibn Hazm was keen to connect Andalusian Zâhirïs to
Dâwüd himself. In his epistle on the merits of Andalus and its scholars^2—where
he seeks to show how Andalusian scholars in various fields of knowledge matched
or even excelled their counterparts in the east—he compares ‘Abd Allâh ibn
Qâsim ibn Hilâl and Mundhir ibn Sa‘ïd al-Ballütï to ‘Abd Allâh ibn
al-Mughallis, al-Khallâl, al-Dïbâjï,i83 and Ruwaym ibn Ahmad. He
adds that unlike these Zâhirïs from Iraq, Ibn Hilâl studied with Dâwüd
himself.184 All these points indicate that Zâhirism, from the point
of view of its most prolific and notable representative, was built on Dâwüd’s
legal thought. Indeed, the basic core of Zâhirism as it was understood by Ibn
Hazm (as presented below) seems to have been laid down by Dâwüd, except that
the textual body it dealt with (particularly Hadïth) expanded significantly in
the next few generation after his death until it reached its peak at the time
of Ibn Hazm.
It has been noted earlier that
Dâwüd’s views found their way to Andalus soon after his death, and that a
number of “Dâwüdï” scholars continued to travel between Andalus and other
regions of the Muslim world until Ibn Hazm’s time. Ibn ‘Abd al-Barr apparently
had at his disposal legal works by Zâhirï scholars in which Dâwüd’s views of as
well as agreements and disagreements among Zâhirïs were reported. It is very
likely, then, that Ibn Hazm had first-hand access to Dâwüd’s views, either
through teachers or through legal [375]
[376] [377] [378] [379]
works by Dâwüd and his students.[380]
[381] [382] [383] [384] [385] [386] [387] [388] [389] In
fact, Ibn Hazm seems to have been very familiar with matters of consensus and
disagreement among earlier Zâhirïs, and he does point out when only some of
them held a particular view.186 What, then, are the views that Ibn
Hazm believed all Zâhirïs shared? In other words, what, in his view, did it
mean to be Zâhirï? The following is a presentation of what Ibn Hazm thought all
Zâhirïs agreed upon on the basis of his seminal work on usul al-fiqh,
al-Ihkam fl Usul al-Ahkam^87
According to Ibn Hazm, all Zâhirïs
agreed on the supremacy of legal texts as the only sound basis of legal
rulings.188 They all agreed that every term is to be interpreted in its widest
possible extent unless it is particularized by a valid indicator (dalll).89
In other words, a term is always assumed to be unrestricted (’amm)
unless a valid piece of evidence indicates otherwise. They took commands and
interdictions (al-awamir wa-l-nawahl) to indicate absolute obligation (wujub)
unless a valid indicator suggests otherwise?90 They agreed that the
actions of the Prophet (al-sunnah al-camaliyyah) do not in
themselves establish obligation;00 only a Prophetic statement could
establish obligation or qualify a Qur’ânic injunction.
Additionally, Ibn Hazm states that
all Zâhirïs held that every statement tells us only what it says and does not
indicate anything beyond this.192 It may be for this reason that all
Zâhirïs agreed on the rejection of argumentum a contrario, which Ibn
Hazm takes to be the opposite of qiyas ^93 In his view, if this
principle is taken to its logical conclusion, “Zayd has died” would mean that
everybody other than Zayd has not.194 It may also be for the same
reason that all Zâhirïs rejected qiyas as well as the notion of ‘illah
on which it is based.[390]
Ibn Hazm mentions that some scholars affiliated with Zâhirism did think that
when God or the Prophet informs us of the rationale or cause of a certain
ruling, we can use it as a basis for qiyas. This, he asserts, was not
Dâwüd’s view or the view of any other Zâhirï scholar, but was the position of
people who did not in fact belong to the Zâhirïs, such as al-Qâsânï and his
likes.i9[391]
[392]
Furthermore, Zâhirïs were independent scholars who were farthest from the
uncritical acceptance of other scholars’ views (taqlld). Those among
them who were not independent did not belong to Zâhirïs and were more
blameworthy than scholars of other madhhabs.™ Ibn Hazm stresses the
centrality of independence and the rejection of taqlld to the extent
that he excuses the eponyms of other madh- habs and many early scholars
with whom he disagreed on the basis of their independent exercise of ijtihad.
Devoting a chapter in his Ihkam to refuting the notion of taqlld,
he argues that it was introduced after the age of these eponyms by lazy
students who could not exercise ijtihad themselves.^[393]
[394]
Ibn Hazm discusses some other
doctrines of earlier Zâhirïs without attributing them to all of them. For
example, Dâwüd and many Zâhirï scholars held that valid consensus was that of
the Companions only, for it was the Companions who witnessed what the Prophet
said and did, and consensus is only valid when it reflects this.199 Some
Zâhirïs held that if consensus contradicted a sound tradition transmitted by
one or a few transmitters, this indicates that the tradition has been
abrogated, a view that Ibn Hazm rejects.[395]
He also reports that some Zâhirï scholars held that a rule cannot be abrogated
by a stricter one,[396]
[397]
and that their majority held that if two traditions irreconcilably contradicted
each other, both traditions fall together and we proceed on the basis that no
traditions on the question at hand exist, a view that Ibn Hazm also rejects.202
These are the views that Ibn Hazm
attributed to earlier Zâhirï scholars. He notes disagreements and indicates the
views that he supports, at times refusing to acknowledge that scholars who
held other views were Zâhirïs in the first place. This is the case with the
issues of taqlld and qiyas, both of which are to be categorically
rejected by any scholar to qualify as Zâhirï, Ibn Hazm seems to have thought.
He also mentions that there are areas of agreement among Zâhirïs. Remarkably,
almost all of these views have to do with hermeneutics, and we know that Dâwüd
himself had an interest in them from the reported titles of his words. Adhering
to what a text “says” seems to be the pillar of the madhhab here, and
this adherence requires that conclusions are not drawn about anything a legal
statement does not explicitly refer to (which leads to the rejection of both qiyas
and dalll al-khitab), that terms are to be construed according to their
broadest possible range of potential referents, and that commands and
prohibitions are to be taken to indicate absolute and unrestricted obligation.
5.2
The Ibn Hazm Influence: A Mixed Blessing?
Despite the fact that Ibn Hazm does
not seem to have introduced new ideas into the Zâhirï madhhab, the
picture of the madhhab before and after him is not the same. Unlike
earlier eastern and Andalusian Zâhirïs who seem to have been interested in the
Qur’ân, its exegesis and rulings, Ibn Hazm’s students and later followers were
evidently interested in Hadïth study. This was a major shift in the attitude of
Zâhirï scholars, and it may be because of this that Zâhirism came to be
regarded as a radical offshoot of the Ahl al-Hadlth movement (as discussed
in chapter three). This interest
in Hadïth was an influence of the milieu in Andalus at that time, and we have
seen that some Zâhirïs before and during the time of Ibn Hazm were already
seriously interested in Hadïth transmission (such as Dâwüd ibn Ibrâhïm and
Jâbir ibn Ghâlib). However, the role that Ibn Hazm has granted to Hadïth in his
legal theory must have played a significant role in this respect, for Ibn
Hazm, like the Ahl al-Hadlth, treated both the Qur’ân and Hadïth as
authoritatively equal textual sources and accepted the entire body of Hadïth
literature that was available in his time (which does not mean that he did not
reject individual traditions).[398]
[399]
This understanding of the status of Hadith as a textual source seems to have
been established in the Zâhiri madhhab once and for all after Ibn Hazm.
Additionally, Ibn Hazm provided
Zâhiri scholars, probably for the first time, with an extensive and coherent
legal literature, one which they took great interest in preserving and
transmitting.204 Although he mentions earlier disagreements among
Zâhiris, he was able to make a coherent theory out of them and reject views
that did not fit in it. More importantly, he took much interest in authenticating
his legal theoretical views by attributing them to the founder of the madhhab
himself. In fact, Ibn Hazm’s evident interest in connecting himself to Dâwüd
and presenting his views as the authentic Zâhiri views that Dâwüd himself had
held must have confirmed Dâwüd’s status as an exceptional authority whose
legal theoretical (but not substantive) views must not be dealt with in the
same way that views of other Zâhiris were dealt with. (This notwithstanding,
Zâhiris after Ibn Hazm were now known for their affiliation with a certain
doctrine, Zâhirism, rather than with a certain scholar, Dâwüd— as used to be
the case earlier—or even Ibn Hazm himself.) After Ibn Hazm, whose teachings
reached the central parts of the Muslim world very quickly, there does not
exist any reference to disagreement among Zâhiri scholars, for whom his
views—which he had linked to Dâwüd and which do not contradict any theoretical
views attributed to him in medieval sources—seem to have been regarded as
authoritative and final. Ironically, it was after Ibn Hazm that rejection of taqlld
seems to have been established as the hallmark of Zâhirism, just as the
rejection of qiyas was before him.
Consequently, the absence of any
writings of Zâhirïs before Ibn Hazm, and his apparent possession of some of
Dâwüd’s writings and keenness to distinguish Dâwüd’s views from views of other
Zâhirï scholars indicate that while we have no option but to rely on his
writings for the study of Zâhirism, we can assume that they contain the views
of the founder of the madhhab as well as the views that ultimately
survived as genuinely Zâhirï thanks to his prolific and profound scholarship.
Despite the boost that Ibn Hazm gave
to the madhhab, Zâhirism appears to have remained a private choice, with
no trace of any attempt to institutionalize the transmission of its doctrines.
Remarkably, only a few Zâhirï fathers and sons or two Zâhirï brothers are
reported in medieval sources. There does not seem to have been entire families
following the Zâhirï madhhab, as was the case with other madhhabs.
A natural result of this lack of institutionalization was the gradual decrease
in both the quantity and quality of Zâhirï scholars. Our survey of Zâhirïs
after the 5th/iith century does demonstrate the gradual decrease of Zâhirïs and
their fixation, not on defending the madhhab itself, but on defending
Ibn Hazm. So what does this mean in terms of his influence on the madhhab?
Indeed, the changing picture of the
Zâhirï madhhab before and after Ibn Hazm may indicate something deeper
about his role in the history of the madhhab. His accomplishments
probably contributed to the failure of Zâhirism in various ways. One of these
ways was his unconditional conviction of the soundness of his methodology and
rulings, and the massive literature that he produced.[400]
This is not a reinstatement of the view that Ibn Hazm’s uncompromising and
offensive character—which brought on him the ire and hatred of scholars of his
time and afterwards—was behind the failure of his madhhab. It is an
argument about the effect of Ibn Hazm’s achievements on the development of
Zâhirï madhhab and how this may be among the reasons for its ultimate
demise.
Adam Sabra has argued that Ibn Hazm
was against the madhhabs because he sought to “assert the individual
responsibility of each Muslim to obey God’s law as it is clearly revealed in
the sacred texts of Islam.” Whether Ibn Hazm regarded Zahirism as a legal
school or was consciously attempting to make it such is difficult to say,
although it is worth noting that, to the best of my knowledge, he never speaks of
al-madhhab al-Zahirl (but rather of the Ahl or the Ashab
al-Zahir).[401]
[402]
[403]
Two things are certain, however. First, Ibn Hazm’s character and writings, if
anything, only assert his own individuality and scholarly independence as
jurist. He was intolerant of disagreement and always questioned the knowledge
and integrity of scholars who disagreed with him, including early scholars who
had been revered by his time (such as Malik and Abü Hanifah), which must have
been responsible for a great deal of the antagonism that other madhhabs
had toward Zahirism to the point of discussing whether their views should
count in consensus or not.207 Presenting one’s legal findings as
absolutely certain and not allowing a minimum degree of disagreement is,
arguably, tantamount to claiming possession of an esoteric kind of knowledge.
It is difficult to imagine how this attitude could lead to the assertion of
each Muslim’s individual responsibility to discern and obey God’s law.208
Secondly and more importantly, the
reception of Ibn Hazm’s legal heritage by later Zâhirï scholars was definitely
going to establish Zâhirism as a legal school. This, precisely, may have been
the beginning of the failure of the madhhab. Once a legal school is
established, ijtihad is restricted and taqlld sooner or later
becomes the norm. This seems to have happened in the case of the Zâhirï madhhab.
It has been noted that after Ibn Hazm, Zâhirïs took more interest in defending
him than in defending Zâhirism itself. It is indeed ironic that although rejection
of taqlld seems to have been the hallmark of Zâhirism after Ibn Hazm (as
evident in the fact that rejection of taqlld was taken to indicate
affiliation with Zâhirism),[404]
[405] [406] [407]
this rejection seems to have been restricted to following the other madhhabs,
not the madhhab to which Zâhirïs who rejected taqlld belonged. We
do not, of course, have positive evidence to support this point, but, to the
best of my knowledge, no disagreements among Zâhirïs after Ibn Hazm are ever
reported. The Almohads themselves are said to have tried to force Zâhirï views
on the scholars of the time without enough preparation of their methodology of
deducing legal rules from the authoritative texts.210
Ibn Hazm’s accomplishments, in other
words, froze Zâhirism?11 If he managed to do without legal analogy
and notions like istihsan and maslahah, he was able to do so
because he was a true mujtahid who was able to produce what he took to
be relevant and decisive textual evidence in each legal question. His
followers, however, were definitely less ingenious and more dependent on him
than he on earlier Zâhirï scholars. It is unlikely, therefore, that they would
have succeeded as jurists while remaining true to their madhhab. Arguing
that there is an inherent inconsistency between the rejection of taqlld
and the notion of a school of law, de Bellefonds writes: “Du moment que chaque
auteur Zâhirïte n’est pas lié par l’enseignement de ses prédécesseurs, it
serait préférable de parler d’enseignement Zâhirïte ou de méthode Zâhirïte, et
d’éviter l’expression d’Ecole Zâhirïte.”2i2 The view that Ibn Hazm’s doctrine
would rid Islam of “tout instrument d’adaptation et toute possibilité
d’évolution,”[408]
therefore, seems accurate, even if only because later Zâhirï scholars
“followed” him.
CHAPTER 3
Jurisprudence in
Third/Ninth-Century Baghdad
1
The Ahl al-Ra’y and the Ahl al-Hadith
Notable among the scholarly trends in
3rd/gth-century Baghdad, medieval Muslim sources report, are two, the Ahl
al-Ra’y and the Ahl al-Hadlth.[409]
[410]
Scholars, particularly jurists, belonged to either of these two
trends that had many significant disagreements on their understanding of the
law. Modern scholarship has accepted this distinction, regarding the two trends
as distinct and perhaps diametrically opposed to each other. The following
discussion of some medieval and modern treatments of these two trends seeks to
contribute to our understanding of the characteristic features of each.
1.1
Medieval and Modern Literature
More often than not, medieval
discussions of the difference between the Ahl al-Hadith and the Ahl
al-Ra’y are succinct and at times indeterminate.[411]
For example, seeking to defend the Ahl al-Hadith against their
detractors, the famous scholar Ibn Qutaybah al-Dïnawarï (d. 276/889) begins
with the Ahl al-Kalam (theologians, mostly Mu‘tazilïs). These accused
the Ahl al-Hadith of accepting traditions that contradicted reason,
revelation, and the consensus of the community, of arbitrariness in accepting
the reliability of transmitters, and of ignorance of the meaning of what they
transmitted.[412]
Ibn Qutaybah responds to this by pointing out that whereas the Ahl al-Hadith
had full agreement on the fundamentals of religion,[413]
the tools of reason (alat al-nazar) that the Ahl al-Kalam used (qiyas
in particular) did not save them from disagreement and contradiction on both
legal and theological issues, and from holding absurd interpretations of some
Qur’ânic passages.[414]
Similarly, the Ahl al-Ra’y,
the other enemy of the Ahl al-Hadith, disagreed among themselves, were
contradictory and inconsistent even in their use of qiyas, and used
(whimsical) istihsan in their constantly changing legal rulings, leading
at times to catastrophic results. This is what their foremost representative,
Abü Hanifah al-Nu‘man, used to do, Ibn Qutaybah explains. He changed his mind
about legal opinions that he had given to people, and ignored Prophetic
traditions and held views that contradicted them even when they were brought to
his attention.[415]
Ishaq ibn Rahawayh, the harshest critic of the Ahl al-Ra’y, according to
Ibn Qutaybah, believed that the Ahl al-Ra’y “abandoned the Qur’an and
Prophetic Sunnah and adhered to qiyâs” which led them to contradictions
and absurdities. In a revealing report, a discussion took place between Sa‘id
ibn al-Musayyab (d. c. 94/715) and Rabï'ah ibn Abi ‘Abd al-Rahman (known
as Rabi‘at al-Ra’y, d. 136/753) about the compensation that a woman gets if
someone causes her to lose her fingers. When Rabi‘ah asked Ibn al-Musayyab how
much she would get for a finger, he said ten camels; for two, twenty camels;
and for three, thirty. When Rabi‘ah asked about four fingers, Ibn al-Musayyab
replied that the compensation would be twenty camels. Rabi‘ah then wondered:
“When her injury is greater, and her calamity worse, her compensation
decreases?” Ibn al-Musayyab replied decisively: “It is the Sunnah, my brother.”[416]
On the other hand, the Ahl
al-Hadlth are those who followed the Sunnah of the Prophet, spent their
lives collecting and transmitting his Hadith, distinguished between sound and
unsound traditions, and kept an eye on jurists who contradicted and abandoned
the Sunnah for their own opinions and warned people against them. Thanks to
them, the truth became obvious, and those who were negligent and indifferent to
the Sunnah came back to it and judged on its basis and abandoned following the
opinions of so and so.[417]
It is remarkable that when defining the Ahl al-Hadlth, Ibn
Qutaybah focuses on a particular aspect of their career, that is, their great
interest in collecting, verifying, transmitting Hadith and reports in order to
follow the Prophet’s Sunnah, as well as warning people against those who
contradicted it. This focus on the Hadith-related activities of the Ahl
al-Hadlth echoes the contention of their enemies that they were primarily
Hadith transmitters but not competent jurists or theologians.
Ibn Qutaybah’s presentation
distinguishes explicitly (but not always carefully) between two enemies of the
Ahl al-Hadlth: the Ahl al-Kalam, and the Ahl al-Ra’y, the
most notorious representative of whom is Abü Hanifah. While the latter are
censured for a number of reasons, Ibn Qutaybah puts significant emphasis on
their use of qiyas. The problem that the Ahl al-Hadlth had with qiyas
was that it led to abandoning some traditions that obviously contradicted it.
The great Andalusian Ibn ‘Abd al-Barr
provides us with many early anecdotes and reports about disagreements among
early religious authorities, including the Prophet’s Companions, regarding the
use of ra’y and Hadith, the interpretation of some Qur’ânic verses and
Prophetic traditions, and the acceptance and rejection of traditions.[418]
[419] [420] [421] [422]
Reports about the Ahl al-Ra’y here generally refer to their use of ra’y,
but there is a special emphasis on qiyas. In one anecdote, ‘Àmir ibn
Sharahil al-Sha‘bi (d. c. 105/723) referring to some people in the
mosque in Baghdad, is reported to have once said, “By God, these people have
made the mosque abhorrent to me, such that it has become more repulsive to me
than the rubbish of my house.” When he was asked about whom he was talking, he
said: al-ara’ayyün, i.e., those used to saying ara’ayta (“what
if,” “consider”) in their deliberations. These people included Hammad ibn Abi
Sulayman (d. 120/737), a teacher of Abü Hanifah’s.n In another
report, al-Sha‘bi warns people against using qiyas, insisting that it
leads to permitting that which is not, as well as forbidding that which is
permissible?2 Shurayh (d. c. 178/794), a famous judge in
Kufa, argued with users of qiyas that because the Sunnah had preceded
their qiyas, they should follow it and abandon their “innovation,” for
no one would be led astray by following the reports from and about the
Prophet.13 Malik ibn Anas remarked that Islam was on the straight
path until Abü Hanifah appeared and spread the use of qiyas. A
similar statement is attributed to the famous traditionist Sufyan ibn ‘Uyaynah
(d. 198/814)?4
The excessive use of qiyas is
presented here again as the main feature of the jurisprudence of the Ahl
al-Ra’y. The Ahl al-Hadlth are those who avoided all forms of ray,
including qiyas, and relied exclusively on traditions. Ahmad ibn Hanbal
is reported to have said that for him, it did not matter whether the ray
was that of al-Awzâ'ï (d. c. 157/773), Malik, or Sufyan (al-Thawri), as
all this was merely ra’y. What mattered were the traditions (al-athar).[423]
This interest in Hadith is echoed more explicitly by al-Shahrastani (d.
548/1153) in his Milal wa-l-Nihal, where he presents a clear distinction
between the Ahl al-Ra’y and the Ahl al-Hadlth. The religious
leaders of the Muslim community (a’immat al-ummah), he points out, are
of two kinds: the Ashab al-Hadlth and the Ashab al-Ra’y. The
former are the people of the Hijaz, the companions of Malik, al-Shafi'i, Sufyan
al-Thawri, Ahmad ibn Hanbal, and Dawüd ibn Khalaf. They were called the Ahl
al-Hadlth because of the great care that they gave to learning and
transmitting Hadith, their relying on religious texts (al-nusüs) in
their jurisprudence, and their refraining from using qiyas when a
tradition is available.[424]
[425] On
the other hand, the Ashab al-Ra’y are the people of Iraq, Abü Hanifah’s
associates who used qiyas—at times giving one of its forms, al-qiyas
al-jalï, precedence over traditions—and relied on the “meaning that can be
deduced from legal rulings” (al-macna ’l-mustanbat min al-ahkam).11
In this account, qiyas and istinbat
(deduction) are presented as characteristic of the jurisprudence of the Ahl
al-Ra’y, who are explicitly and exclusively associated with Abü Hanifah and
his followers. However, it presents the Ahl al-Hadlth as a label that
referred to various and disparate scholars who perhaps had more differences
than similarities. Ibn Khaldün (d. 808/1406), however, is more precise in
identifying them as well as the origins of their differences. The Ahl
al-Hadlth, he says, were the Hijazis, particularly Malik and al-Shafi'i,
and the Ahl al-Ra’y wa-l-Qiyas were the Iraqis, particularly Abü
Hanifah, a jurist whose unmatched status in jurisprudence was acknowledged by
Malik, al-Shafi'i and others. The disagreement between these two groups was
old, for it had to do with 1) the nature of the language of the Arabs whose
terms (alfaz) can be construed in multiple ways, and 2) the differences
in the criteria used to test the authenticity of the Prophet’s and Companions’
reports. Furthermore, since the authoritative texts do not cover all new cases,
qiyas is indispensable, which inevitably produces disagreement. Later,
the Arabs mastered literacy and deduction, jurisprudence became a craft (sina'ah)
and a matter of knowledge (Vlm), and the jurists came to be divided
into the Ahl al-Ra’y wa-l-Qiyas and the Ahl al-Hadlth according
to their methodologies.
Possessing few traditions, the Ahl
al-Ra’y wa-l-Qiyas mastered qiyas and used it excessively, which
gave them their label. On the other hand, Malik was distinguished by his
consideration of the practice of the Medinese Qamal ahl al-Madlnah),
which he believed originated in the practice of the Prophet himself. Malik was
followed by al-Shafi'i, who went to Iraq after his death and met with Abü
Hanifah’s followers and learned from them. He then mixed the methodologies of
the two regions and developed his own madhhab. Then came Ahmad ibn
Hanbal, who was among the most notable traditionists (wa-kana min cllyat
al-muhaddlthln) whose followers learned from Abü Hanifah’s students
despite their large stock of traditions.[426]
Ibn Hanbal’s madhhab, however, had few followers, for it was far from
the use of ljtlhad and was dependent on his originality in weighing
traditions against each other.1[427]
His followers thus learned traditions more than anybody else, but were the
least inclined to using qlyas.[428]
[429]
Remarkably, Ibn Khaldün does not seem
to have regarded Ibn Hanbal as a jurist. He attributes the formation of his madhhab
to his students, who actually learned from Abü Hanifah’s students. But because
they were rigid in rejecting qlyas altogether, they failed relative to
other madhhabs. Earlier, Ibn Khaldün had mentioned another group of
scholars who also rejected qlyas, considered all understandings (madarlk)
to be “restricted to the texts and consensus,” and related the qlyas jall
and the "lllah that has a textual basis (al-clllah
al-mansusah) to the text from which it is derived on the ground that
stating it is nothing other than a statement of the ruling itself. The leader
of this madh- hab was Dâwüd ibn ‘Ali, followed by his son and their
disciples. Their Zahiri madhhab, Ibn Khaldün reports, perished, except
for some books in which some students developed an occasional interest,
bringing on themselves the animosity of the rest of the Muslim community. One
of these students was Ibn Hazm in Andalus; despite his stature as a Hadith
expert, he excelled in the Zahlrlmadhhab and ridiculed many of the
“masters,” which brought upon him widespread resentment and caused his books to
be neglected and banned?i
Medieval Muslim scholars do not thus
present coherent views on the identity and distinctive features of the Ahl
al-Ra’y and the Ahl al-Hadlth. Generally speaking, the Ahl
al-Hadlth are presented as having been, first and foremost, Hadith
scholars, such that there is some reluctance on the part of some medieval
scholars to regard them as jurists. However, this reluctance appears to apply
primarily to a particular group of the Ahl al-Hadlth that included Ahmad
ibn Hanbal and similar traditionists. Their other members included scholars
like Malik ibn Anas, whose interest injurisprudence was certainly no less than
his interest in Sunnah. Malik’s legal interests notwithstanding, medieval
accounts of the Ahl al-Hadlth are obviously especially interested in
highlighting a particular aspect of their career when contrasting them
with the Ahl al-Ra’y. It is probably in this context that the attitude
of the Ahl al-Ra’y toward Hadith is emphasized. Not only were they not
active in transmitting traditions, but they also ignored or rejected some of
them on various grounds.
If the Ahl al-Hadlth engaged
in something—learning and transmitting Hadith—that the Ahl al-Ra’y were
not interested in, the Ahl al-Ra’y in their turn engaged in something
that the Ahl al-Hadlth avoided, that is, the use of qiyas. It is
particularly this rejection of qiyas that made it possible for
al-Shahrastani to include Dâwüd among the Ahl al-al-Hadlth. Al-Shafi'i
is included here because he is believed to have used qiyas only when no
textual evidence existed in a given case. Ibn Khaldün explicitly links the use
of qiyas to the shortage of the texts that the Ahl al-Ra’y either
had or accepted as authentic. As noted earlier, however, the use of qiyas,
no matter how it is defined, seems to have aimed to produce coherent
jurisprudence where new rulings are consistent with established ones. This
interest in consistency and coherence is evident in the interlocution between
Rabi'at al-Ra’y and Ibn al-Musayyab. Ibn al-Musayyab did not argue that what
Rabi'at al-Ra’y said about the correlation between the extent of the injury and
the compensation did not make sense. However, he ended the discussion by just
asserting that that was how the Sunnah was, meaning that it should be followed
irrespective of what “reason” has to say.
It is possible to conclude,
therefore, that the underlying feature of the jurisprudence of the Ahl
al-Ra’y was their keenness to be consistent and for their jurisprudence to
be coherent, whereas for the Ahl al-Hadlth, following traditions
(contradictory as they may be) was crucial.
Modern scholarship that tackled the
subject of the origins of and differences between the Ahl al-Ra’y and
the Ahl al-Hadlth have generally tended to accept one of the views of
medieval scholars. Ahmad Amin, for example, accepts the regional dichotomy (the
Hijaz vs. Iraq) that some sources made and accounts for it on the basis of the
cultural differences between the two regions and the Companions who happened to
reside there. The Ahl al-Ra’y, for instance, thrived in Iraq where 'Abd
Allah ibn Mas'üd (d. 32/653) lived. Ibn Mas'üd did not refrain from using his
opinion in the absence of relevant textual evidence. He also abstained from
transmitting much Hadith “out of piety.” Therefore, the Iraqis inherited a fear
of fabricating Hadith, which led them to lay down very stringent conditions for
the acceptance of traditions, resulting in accepting only very few of them.
The relatively sophisticated life in Iraq, however, required solutions that
this limited stock of traditions could not provide. This generated their
interest in debating even hypothetical cases that were unrealistic (in the
sense of being highly unlikely to take place) at times. On the other hand, the
Hijaz was the stronghold of the school of the Ahl al-Hadlth (who also
had some representatives in Iraq) because of the abundance of traditions there,
which were sufficient for the simple life of the Hijazis. Therefore, the Ahl
al-Hadlth relied on Prophetic traditions, including ones that were deemed
“weak,” and abhorred dealing with hypothetical questions. Some of them went to
such an extreme as to give Hadith and Sunnah precedence over the Qur’an itself,
Amin notes.[430]
[431] [432]
Similarly, the Moroccan scholar
Muhammad al-Hijwi holds that the legal thought in the Hijaz and Iraq was
colored by the views of the Companions who happened to live there, especially
after the death of ‘Umar ibn al-Khattab (d. 23/644), when ‘Uthman ibn ‘Allan
(d. 35/656) allowed the Companions to “disperse” to various regions. Later,
each group of students of these Companions in Iraq and the Hijaz insisted that
what they learned represented the true (Prophetic?) Sunnah. As early as the
second half of the 1st century AH, scholars of both regions were already split.
The Ahl al-Hadlth were led by Sa‘id ibn al- Musayyab in the Hijaz,
whereas the Ahl al-Ra’y were led by Ibrahim al-Nakha‘i in Iraq. From the
former group originated the Malikis, Shafi‘is, Hanbalis, Zahiris, and
others. The latter were mainly represented by the school of Abü Hanïfah.23
Comparing Sa‘id ibn al-Musayyab and Ibrahim al-Nakha‘i, al-Hijwi argues that
the latter maintained that legal rulings were based on fixed rules and
rationales (qawâhdwa-jlalthabitah) that were meant to serve the
interests of the people. These rationales were discernible from the Qur’an and
Sunnah, in addition to “reason” which is able to distinguish between good and
evil. In contrast, Sa‘id ibn al-Musayyab was searching more for texts and less
for their underlying rationales. He used ‘illah only where there existed
no relevant text.24
Salim al-Thaqafi, notably a
contemporary Saudi scholar, reiterates Ibn ‘Abd al-Barr’s contention that while
it is true that the Ahl al-Ra’y contradicted some Prophetic traditions
that reached them, they were not the only group of scholars who did that. Even
among the Companions there were those who contradicted Prophetic traditions,
and there is hardly any legal school of law which, in one instance or another,
did not act in disagreement with one or more Prophetic tradition.[433]
[434] [435] [436]
Apart from making such a sweeping generalization about the Companions and
early Muslim scholars, al-Thaqafi does not appear to think that the rejection
of Prophetic traditions is a valid criterion on the basis of which we can
distinguish between the early madhhabs. We shall return to this point in
a later context.
When discussing the views presented
in medieval Muslim sources about the two legal trends of the Ahl al-Ra’y
and the Ahl al-Hadith, Western treatments of this subject displays some
hesitancy. Goldziher, for example, holds that whereas the Ahl al-Hadlth
were “concerned with the study of transmitted sources,” the Ahl al-Ra’y
were concerned with “the practical aspects of the law.” In the same breath,
however, he seems to agree that both designations “referred to branches of
legists occupied with the investigation of Islamic law.” The Ahl al-Ra’y
had a “method of dealing with Islamic jurisprudence [that was based on the
belief that] . . . not only the written and orally transmitted sources are
authoritative—namely, the Koran and the traditions of Muhammad and his
companions—but also . . . what is valid according to the principles of
Islam, what the individual insight of a legist or judge, in real or
apparent dependence on those indisputable sources, recognizes as the truth
emanating from their spirit.”26 In other words, he agrees
that the Ahl al-Ra’y paid some attention to the “orally transmitted
sources,” but also holds that much subjectivity was involved in their legal
thinking in general and their treatment of the transmitted materials in
particular. “The exponents of ra’y derived the legal basis for the
introduction of subjective motives in the deduction of law from the spirit
of the transmitted divine law,” he states?7 This understanding is
based on Goldziher’s view that early Muslimjurists differed from one another
“in the extent to which they permit ra’y to be a determining factor in
establishing Islamic law in a given case.”28 Thus, while there may
not have been sharp dichotomy between ra’y and tradition in early Islam,
each scholar was more given towards one of them. In other words, there was a
continuum, at one end of which was ra’y; at the other traditions. On
this continuum, Goldziher places
Abü Hanifah and Dâwüd at two opposite
ends; the former made “considerable concessions” to the use of ra’y,
whereas the latter completely shunned it.[437]
While this seems to be a balanced
view of the relation between ra’y and traditions in early Islam, the
contrast that Goldziher draws between the Ahl al-Hadlth’s concern for
the study of traditions and the Ahl al-Ra’y’s interest in the “practical
aspects” of the law suggests that he did not regard the former as full-fledged
jurists like the latter.[438]
[439] [440] [441]
Furthermore, he associates the “spirit of the law” and the “principles of
Islam” with the Ahl al-Ra’y, which suggests that these were not among
the tools of the Ahl al-Hadlth. Making legal judgments according to the
“spirit” and “principles” of Islam was thus a criterion on the basis of which
Goldziher believes that we can distinguish between the two trends.
Joseph Schacht’s discussion of this
subject is more nuanced. He pays attention to how polemics between the two
trends may have shaped some of our information on them. He argues that the
distinction between the Ahl al-Ra ’y and the Ahl al-Hadlth was
“to a great extent artificial” since the Ahl al-Ra’y was coined and used
pejoratively by the Ahl al-Hadlth to defame their opponents.31 Yet,
he too seems hesitant to accept the Ahl al-Hadlth as legal scholars.
They were “naturally specialists in the transmission and study of traditions
and in the criticism of their lsnads”32 and only “occasionally
interested in purely legal issues.”33 Their “most important activity [was] the
creation and putting into circulation of traditions from the Prophet,” he says.
Nonetheless, because of the traditions they “created and put into circulation”
to replace the “living tradition” used by the ancient madhhabs,
“[t]heir activity [was] an integral part of the development of legal theory and
positive legal doctrine during the first half of the second century A.H.”[442]
So, unlike the early madhhabs
and their “extensive use of human reasoning and personal opinion,” Schacht
argues, the Ahl al-Hadlth sought to establish the Prophetic Sunnah as
the only valid source of law (besides the Qur’an, of course) and detested all
forms of human reasoning and personal opinion[443]
This approach was accepted later by the other madhhabs which also
maintained their inherited legal doctrine[444]
Furthermore, “[t]he main material aim of the traditionists,” he adds, “was the
same as that of the ancient schools, that is, to subordinate the legal subject-matter
to religious and ethical considerations.’^[445]
Schacht seems to regard religiosity and morality (which could be “strict
and rigid”) as having been characteristic of the Ahl al-Hadlth, if not
their raison d’être: “The movement of the traditionists was the natural
outcome and continuation of a movement of religiously and ethically
inspired opposition to the ancient schools of law,” which schools
“represented, in one aspect, an Islamic opposition to popular and
administrative practice under the later Umayyads.”3[446]
Alluding to al-Shâh'ï’s reference to the traditionists’ “lack of
systematic reasoning,” he argues that their “standards of reasoning” were
generally inferior to the early madhhabs[447]
Accordingly, Schacht—for whom the only doctrine that was “purely traditionist”
remained that of Ahmad ibn Hanbal’s—was hesitant to regard them as jurists, for
they were concerned with law only to the extent to which it served their
religious and moral agenda.
For his part, G. H. A. Juynboll
builds his discussion of this subject on a sharp distinction that he thinks has
afflicted Islam from the very beginning between ra’y (individual
judgment or “common sense,” in his understanding), and cilm, namely,
knowledge of the Tradition (in a wide sense that includes views of people other
than the Prophet). To illustrate the difference, he argues that when a
Companion was asked about an issue and gave his view, he was acting like a
jurist (faqih) who exercised ra’y. However, when he mentioned the
view of another Companion or a precedent of the Prophet,[448]
he was acting as a learned man (calim) who knew precedents
and refrained from expressing his own view. “[D]uring the earliest years, say
the first century of the Hijra,” Juynboll contends, “fiqh and cilm
were only occasionally combined in one and the same person.’^[449]
Elsewhere, he concedes that some figures were able to combine fiqh and “dm:
“It is a generally accepted fact that the first four caliphs set their
own standards. They ruled the community in the spirit of the prophet, thinking
of their own solutions to problems rather than meticulously copying his
actions.”4[450]
Juynboll carries the same dichotomy to the second century. Speaking of Abü
Hanifah, he suggests that most of the traditions in whose isnad he
figures, and all the accounts that mention a relationship between him and
Hadith, were later fabrications by his followers aiming to bolster his image
that was tainted by Hadith scholars[451]
At that time, much of the ra’y of the early jurists was already assuming
the shape of cilm, which, in its turn, would echo what used
to be the personal views of early scholars.[452]
Juynboll’s sharp and arguably
exaggerated distinction between ra’y and “dm is problematic, both
historically and theoretically?[453]
For our purposes here, it suggests that we cannot compare the Ahl al-Ra’y
and the Ahl al-Hadlth who represented two completely distinct categories
of people who did not have much in common[454]
[455] [456] [457] [458] [459] [460]
In Christopher Melchert’s view,
starting from the late 8th and throughout the 9th centuries CE, there was a
heated controversy between “those who would found theirjurisprudence
exclusively on Hadïth, Ashab al-Hadlth or traditionalists, and those
who reserved a leading place for common sense, Ashab al-Ra’y.”47 The
former group of scholars “defined itself by its loyalty to the Sunnah;
that is, to normative precedent’^8 and condemned qiyas
because it “could evidently be used to evade the strict requirements indicated
by Hadïth”49 They refrained from privileging some of the traditions
(Prophetic and otherwise) that they collected. Ahmad ibn Hanbal, for instance,
relied on reports from the Prophet as well as from Companions and Successors?0
When he did not give his personal opinion, he “adduced a great many different
sorts of evidence in support of his opinions, including examples and dicta from
Followers, Companions, the Right-Guided Caliphs and the Prophet.’^1
Melchert compares Abü Hanifah, as representative of the Ahl al-Ra’y,
with Sufyan al-Thawri (d. 161/778), a representative of the Ahl al-Hadïth,
to demonstrate that the “conscious enmity” between the two groups dates to the
2nd/8th century. Remarkably, however, he notes that the distinction between the
two groups was not as sharp as is assumed, for there were occasions when they
agreed with each other, and even had followers in common.52
Finally, Wael Hallaq distinguishes
between the rationalists (the Ahl al-Ra’y) and the traditionalists (the Ahl
al-Hadlth) on the basis of how they came to their legal conclusions.
“Rationalism,” he argues, “signifies a perception of an attitude toward legal
issues that is dictated by rational, pragmatic, and practical considerations.”
It is “a substantial legal reasoning that, for the most part, does not directly
ground itself in what came later to be recognized as the valid textual
sources.” In contrast, traditionalists “held that law must rest squarely on
Prophetic Hadith, the Qur’an being taken for granted by both rationalists...
and traditionists.” This, however, does not tell us much about “the methodology”
of the Ahl al-Hadlth which Hallaq believes crystallized in the second
half of 2nd century AH;[461]
[462]
however, the attention that he gives to the process of reasoning by each
group is indeed useful
2
The Ahl al-Ra’y and the Ahl al-Hadlth Revisited
Probably due to the varied reports
that medieval sources mention about the Ahl al-Ra’y and the Ahl
al-Hadlth, modern discussions of the origins of and differences between
them exhibit some problems. There is a latent assumption that both trends were
represented by two coherent groups of scholars, the line of demarcation between
whom was their attitude toward the traditions. Whereas the Ahl al-Hadlth
relied exclusively on them, the Ahl al-Ra ’y relied instead on qiyas.
Historically, the situation seems more complex. The Ahl al-Ra’y never
made a formal statement about their rejection of any textual evidence when
they accepted its authenticity. There is, in fact, evidence that it
was not the outright rejection of traditions that they were mostly accused of
(although this accusation was made by a few scholars, such as al-Awzâ'ï); it
was primarily their inconsistency in accepting some traditions and
rejecting others for no obvious or good reasons (from the point of view of
their detractors, of course). For instance, to prove his inconsistency (rather
than his presumptuous rejection of Hadith), some of his Hadith detractors
accused Abü Hanifah of accepting traditions that they considered “weak.”54
There is no reason to believe that Abü Hanifah would use a tradition that he did
not believe was authentic, or reject another that he thought was. The fact that
he used traditions at all indicates that he regarded them as the most
authentic textual evidence that existed on certain issues, let alone that he
accepted the authority of Hadith in principle. The rejection of traditions, as
Ibn ‘Abd al-Barr notes, was not specific to the Ahl al-Ra’y.
Furthermore, the use of qiyas, presented in all medieval accounts as
having been characteristic of the Ahl al-Ra’y, actually indicates that
they sought to relate their legal views to textual evidence, even if
indirectly. Al-Thaqafi, therefore, has good reasons to hold that the acceptance
and rejection of Hadith should not be taken as the criterion by which we
characterize any of the early legal schools, even if they differed on the
degree to which they did that. Likewise, Motzki is right in asserting that
“[i]t is not reference to traditions of the Prophet which is the innovation [of
the Ahl al-Hadlth], but their demand for recognition,” adding that
“[t]he enmity toward newly appearing hadlths which were not compatible
with the existing doctrines says nothing about the role which hadtths
per se played in the schools of law.”[463]
[464] [465]
Some scholars have rightly questioned
the link that some medieval and modern discussions make between the Ahl
al-Hadlth and the Hijaz, on the one hand, and the Ahl al-Ra’y and
Iraq, on the other hand. They note that the Companions who are thought to have
laid the foundations of the Hijazi jurisprudence and their followers who
developed and spread it were also jurists as well as traditionists.56
Malik used ra’y no less than Abü Hanifah and his predecessors,57
however different the underlying principles that governed their use of ra’y
were.[466]
Some Iraqi scholars, on the other hand, were known for their hatred of ra’y
and qiyas. This means that what existed in the first two or three
centuries of the Islamic history were “personal” scholarly circles that
differed on their willingness to use their own discretionary views and the traditions
available to them.5[467]
Consequently, instead of focusing on what legal evidence each side used,
it would perhaps be more useful if discussions focus on how they used
it. This will be dealt with in chapter
four.
The following is a presentation of
the views of two other modern scholars whose critical treatment of the issues
discussed in this chapter is noteworthy. These are the Sudanese Khalifah Babakr
al-Hasan and the Egyptian ‘Abd al-Majid Mahmüd ‘Abd al-Majid. Seeking to take
into consideration most of what medieval sources mention about them, al-Hasan’s
and ‘Abd al-Majid’s historical investigation of the origins of the Ahl
al-Ra’y and the Ahl al-Hadlth has avoided the harmful assumption
that each of these two terms referred a coherent group of the scholars, or
referred to any one group in one particular time. They have also entertained
the possibility that the thought and activities of each group may have changed
over time.[468]
In his Ijtihad bi-l-Ra’yfl
Madrasat al-Hijaz al-Fiqhiyyah, al-Hasan accepts the view that the Hijaz
and Iraq were the stronghold of the Ahl al-Hadlth and the Ahl al-Ra’y
respectively. However, he rejects the argument that this was “natural” for both
regions. Jurisprudence in each region depended on the Companions who resided
there and on their personal views which their followers adopted, expanded and
handed over to next generations[469] At
this stage, the difference was not between two distinct trends or disagreement
over the use of ra’y and traditions as such. It only had to do with
different teachers who were active as both jurists and Hadith transmitters
(such as ‘Abd Allah ibn ‘Umar in Medina and ‘Abd Allah ibn Mas‘üd in Iraq), but
had different doctrines and knew different traditions.[470]
The Companions who went to Iraq happened to be more disposed to issuing fatwas
than those who remained in Medina[471]
Because these Companions were themselves competing with each others[472]
competition between the two regions was natural and did occur at a very early
stage when each region took much pride in its Companions and adhered to their
legal doctrines [473]
[474]
At the time of Abü Hanifah, the Ahl
al-Ra’y emerged as a distinct group with a distinct
methodology, al-Hasan argues. Almost concomitant with that was the
emergence of the “movement” of the Ahl al-Hadlth in several regions of
the Muslim state at the hands of people like Malik ibn Anas, al-Awza‘i, ‘Abd
Allah ibn al-Mubarak, and Sufyan al-Thawri.66 It so happened, however, that the
leadership of that movement passed into the hands of scholars who were taught
by Hijazi teachers (such as al-Shafi‘i, Ibn Hanbal, Ishaq ibn Rahawayh, and Abü
Thawr), whereas the movement of the Ahl al-Ra’y passed from Abü Hanifah
to his students and thus remained in Iraqi hands.6[475]
In Iraq, the Ahl al-Hadlth were basically those scholars who rejected
the juridical thought and practice of Abü Hanifah and his likes[476]
[477]
Additionally, while in their early career in the Hijaz the Ahl al-Hadlth
were suspicious of the traditions of the Iraqis, in a later stage they
developed criteria by which they assessed the reliability of transmitters and
the authenticity of traditions regardless of their provenance.69
At this point, the basis of the
competition ceased to be regional. Instead, there existed two distinct trends
side by side in the same region, Iraq. Only then, in the second half of the 2nd
and throughout the 3rd centuries AH, did the two camps begin to attack each
other with accusations regarding the use of ra’y and traditions. The Ahl
al-Hadlth accused the Ahl al-Ra’y of being ignorant of Hadith and
giving their own opinions precedence over it. The Ahl al-Ra ’y reciprocated
by accusing them of rigidity and mental deficiency.[478]
[479] [480] [481] [482] [483] [484]
During the Mihnah in the first decades of the 3rd century AH, however,
the struggle between the two groups reached its peak. The Ahl al-Hadlth,
who relied only on reports from the Prophet and his Companions, fought on two
fronts: against the theologians (al-mutakallimun, the Ahl al-Kalam)
who used ra’y in theology, and the Iraqi jurists (al-fuqahff) who
used it in jurisprudence?1
The Ahl al-Ra’y, then, were
the Iraqis, notably Abü Hanifah and his followers. They adhered to the
doctrines of the Companions who had moved to Iraq in the early decades of Islam
and made a practice of issuing fatwas™ Their distinguishing feature was
their largescale and frequent use of qiyas and their giving it
precedence over traditions transmitted by single transmitters. The term Ahl
al-Ra’y, al-Hasan argues, was invented by the Ahl al-Hadlth to refer
to scholars who had these particular features, as evinced by al-Awzâ'ï’s statement
that the problem with Abü Hanifah was not his use of ra’y per se, but
rather his abandoning Prophetic traditions brought to his attention for it. Ibn
Abi Shaybah devoted a long chapter in his Musnad to listing more than a
hundred cases in which Abü Hanifah gave opinions that contradicted what the Ahl
al-Hadlth considered sound traditions?3 Al-Hasan rejects this
accusation, arguing that Abü Hanifah’s criteria for accepting traditions were simply
more stringent than required by the Ahl al-Hadlth™ In reality, he
contends, Hanafis were the target of the Ahl al-Hadlth for a number of
reasons in addition to the use of qiyas. These included their excessive
engagement in hypothetical jurisprudence and use of legal stratagems (hiyal),
their holding theological views that the Ahl al-Hadlth found heretical,
and their maintaining strong ties with rulers?5 By contrast, the Ahl
al-Hadlth, both in the Hijaz and in Iraq, were more reluctant to give fatwas
and preferred to remain silent when they did not have a relevant text to rely
on in a particular case. In the second stage of their development, however,
they developed technical skills that dealt with the verification of Hadith and
its status vis-à-vis the Qur’an?6
Making a similar effort to situate
the subject in its historical context, ‘Abd al-Majid notes that the confusion
about the identity of the Ahl al-Ra’y and the Ahl al-Hadlth is
old. Examining a large number of reports from and about the Companions as well
as the Successors and their followers,[485]
he argues that we can speak meaningfully about a distinction between the Ahl
al-Ra’y and the Ahl al-Hadlth as two distinct legal trends only in
the 3rd/9th century. He begins by narrowing down the focus of the two regions
which these two trends are believed, erroneously in his view, to have emerged
in the early decades of Islam. The discussion should be about Medina and Kufa.
These two cities figured more than any others in early Islam. Medina was the
city of the Prophet and the capital of the Muslim state where most of the
Prophet’s Companions spent their lives. Kufa was the pure Islamic establishment
par excellence which many Companions built and settled therein?[486]
The problem of regarding the Ahl
al-Hadlth and the Ahl al-Ra’y as having emerged and developed in
Medina and Kufa respectively is that this assumes that there was no
communication between the two cities, ‘Abd al-Majid points out. This is
historically not true, for people used to go back and forth between the two
cities (if only to make the pilgrimage) and their scholars had in common many
teachers from among the Companions?[487]
Scholars in both cities used both Hadith and ra’y almost equally. In
Medina, there were scholars who were more given to the use of ra’y, such
as Sa‘id ibn al-Musayyab—who was influenced by ‘Umar ibn al-Khattab and Zayd
ibn Thâbit, in whosejuridical thought ra’y played an important role—and
Rabi‘at al-Ra’y, Malik’s teacher[488]
In Iraq, some scholars were less inclined to use ra’y, such as
al-Sha‘bi who was very critical of some fellow Iraqis—such as Hammad ibn Abi
Sulayman—on account of their extensive use of it[489]
Yet even those scholars of Medina who were known for their detestation of ra
’y did not fully refrain from using it. Similarly, Iraqi scholars who used ra’y
detested the unrestrained use of it in religion and did use traditions in their
jurisprudence[490] In
both cities, there existed controversies between those who were more and those
who were less disposed to using ra’y and issuing_/atwñs[491]
The main difference between the two
cities in ‘Abd al-Majid’s view had mostly to do with the cultural requirements
of each. What turned these differences into open rivalry was the excessive
zeal to defend the teachings of the particular Companions from whom they
learned.[492]
For personal, psychological, and intellectual reasons, the Companions differed
on the weight that each of them gave to ra’y and to traditions[493]
[494]
For example, among the most prolific Companions in the transmission of Hadith
are ‘À’ishah (d. 57/676), the Prophet’s widow; ‘Abd Allah ibn ‘Abbas (d.
68/687), his cousin; ‘Abd Allah ibn ‘Umar (d. c. 73/693) and Abü
Hurayrah (d. 57/676), two of his famous Companions. Nonetheless, they were
significantly different. ‘À’ishah and Ibn ‘Abbas were critical, rejected some
traditions that reached them, and did not take reports at face value. On the
other hand, Ibn ‘Umar and Abü Hurayrah accepted all the traditions that they
heard and were hesitant to use reason to interpret them in a way that changed
their apparent meaning. Ibn ‘Umar, for instance, was so scrupulous that he
would still act on the basis of a tradition even if he had doubts about its
authenticity.86 Additionally, there existed a “natural” competition between the
scholars of the Hijaz and Iraq and between the Arabs and non-Arabs in each
region, but predominantly in Iraq[495]
[496] [497]
Their loyalty to their teachers intensified with the passage of time and
continued until the late 2nd century AH, when the madhhabs began to
crystallize and distinguish themselves from others. It was this regional
competition and not doctrinal differences that led to the split between the
two regions at this stage. This also holds true as far as the second half of
the 2nd century AH is concerned, when the Hanafi and Maliki madhhabs—which
inherited the old regional rivalry between Medina/the Hijaz and Kufa/Iraq—were
taking shape.88 While both madhhabs used ra’y equally, the
Hanafis tended to use qiyas as the basis for ra’y (which led them
to increasingly pose hypothetical questions to test what they identified as rillah
in each case),89 whereas the Malikis were more inclined to search
for the interest (maslahah) in each case and establish their opinion on
its basis.[498]
When the process of collecting
Prophetic traditions from various regions in the early 2nd century AH began, a
group of traditionists emerged. Because of their limited argumentation skills,
they accused the Hanafis of ignorance and of rejection of traditions[499]
The situation was exacerbated by the emergence and popularity of the Mu'tazilis
in Iraq, some of whom happened to be Hanafis in jurisprudence[500]
Abü Hanifah himself held theological views that the traditionists regarded as
deviant. This intensified the suspicion of the Ahl al-Hadlth who began to
be conscious of themselves as a distinct group, although not yet as
legal experts. Thus, it is only in the second half of the 2nd century AH that
we can speak of the Ahl al-Hadlth vis-à-vis the Ahl al-Ra’y?[501]
although the former had not yet developed legal thought and followed the madhhabs
of the Hijazis (like IbnJurayj) or the Kufis (like Sufyan al-Thawri, Yahya ibn
Sa'id al-Qattan, and others[502]
In the 3rd/gth century two
developments took place. The first was the attack on the use of qiyas in
jurisprudence. Significantly, this attack was led by, not only the
traditionists, but also by theologians who held that rituals (al-cibadat)
were not the domain of reason. The second development was the power that
the Mu'tazilis acquired and their attempts to impose their views on people
either through argumentation or by force if necessary[503]
This brought the hostility between the Ahl al-Hadlth and the Mu'tazilis
into the open, and the popularity that some traditionists—notably Ibn
Hanbal—gained for their refusal to submit to the government that backed the
Mu'tazilis increased their consciousness of their distinct identity as well as
their confidence in their understanding of Islam, including its law.
Therefore, while Ibn Hanbal was willing to accept some opinions of scholars
like Malik and al-Shafi'i before the Mihnah, he totally rejected all ra’y
after it and adhered only to Hadith.[504]
He thus paved the way for his fellow traditionists to develop their own legal
school. Hadith collections and works of Hadith criticism produced at that time
were all due to these events, and so was the total rejection of ra’y by
the traditionists who did not distinguish between the use of ra’y in
jurisprudence and its use in theology, or between sound ra’y and bad ra’y?[505]
This development forced the Ahl al-Ra’y, for their part, to pay more
attention to Hadith[506]
[507]
Next, ‘Abd al-Majid embarks on
studying the Ahl al-Hadlth’s works (such as their Hadith compilations)
with the aim of uncovering the characteristics and underlying principles of
their jurisprudence,99 of which the very arrangement of these works can be
indicative.[508]
His research on their legal methodology[509]
led him to determine two important aspects of their jurisprudence: their
strong tendency toward comprehensiveness—in the sense of using all available
textual evidence in each case, including evidence on which authenticity they
had some doubt[510]
[511] [512] [513] [514] [515]—and
their “moral-psychological bent” (al-ittijah al-khuluqlal-nafsl). This
latter aspect is the key to understanding their thought and activities as
Hadith scholars as well as jurists. The Ahl al-Hadlth proceeded on the
basis of a moral and religious worldview regarding the nature of human beings,
the rules that govern their behavior, and the final judgment of their deeds.W3
This worldview led them to give much weight to intentions and have more
interest in the practical aspects of religious knowledge.104 Their
focus, therefore, was on moral (rather than purely legal) traditions that
epitomized the “spirit” of Islam.W5 It is this moral worldview that
explains their total abhorrence of notions like legal stratagems,W6
as well as their adherence to principles like sadd al-dharaT, according
to which they would avoid something, not because it is forbidden in itself, but
only because it may lead to something that is.W7
‘Abd al-Majid’s views can give a lead
in search for the underlying principles and characteristic features of the Ahl
al-Hadlth. Most of the misgivings that the Ahl al-Hadlth reportedly
had against the Ahl al-Ra’y can be seen as moral and religious in
nature, such as their relationship with rulers (whom they did not consider
pious enough), their holding “heretical” views, as well as their use of legal
stratagems (which they regarded as deceitful) and excessive confidence in
reason (which should only follow revelation). Likewise, the main feature that
distinguished them could also be seen as moral in nature, namely, their
excessive scrupulous fear that they may inadvertently attribute to religious
law what did not belong to it. It is for this reason that they abstained from
giving opinions in the absence of relevant textual evidence. In ‘Abd al-Majid’s
view, it was this moral bent that shaped the Ahl al-Hadlth’s
jurisprudence and distinguished them from others.
Other modern scholars have come to a
similar conclusion. Commenting on Ibn Hanbal’s views concerning issues like
marriage and divorce, Susan Spectorsky writes:
It . . . becomes clear, despite
inconsistencies, that there is a moral dimension to Ibn Hanbal’s responses: he
gives preference to doctrines that protect women from exploitation, condemns
the use of hiyal (legal stratagems), and requires actions and words to
have consequences for which the doers and speakers are responsible.[516]
[517] [518] [519]
For example, according to the Qur’an,
a man cannot marry a woman that his father has once married,W9 but
it is not clear if this prohibition covers women with whom the father had only
an illicit sexual relationship. Most scholars, including Ishaq ibn Rahawayh,
held that, regardless of whether he should do that or not, a son can
legally marry a woman with whom his father had fornicated. Ibn Hanbal,
however, argued that for that purpose, “illicit sexual relations equal
marriage.”™ In fact, even lustful behavior suffices “to produce an affinity
between a man and a woman that acts as an impediment to future sexual relations
between either of them and the other’s lateral descendants.”™ An obvious way to
explain this view is to relate it to Ibn Hanbal’s moral orientation that
always—but not without exceptions as Spectorsky rightly observes— governed his
legal thought. In agreement with this, Melchert argues that “[f]or the most
part, the pious concern to do right and not impose his own reasoning shines
through Ahmad [Ibn Hanbal]’s doctrine more than almost any comparable body of
quotations from any other early Muslim jurisprudent.”[520]
[521] [522]
There is indeed plenty of references in medieval sources to the Ahl
al-Hadlth’s—and particularly Ibn Hanbal’sn3—piety and morality.n4
It is noteworthy that when Spectorsky
discusses Ibn Hanbal’s juridical thought, shejudged it in terms of two
elements: consistency and morality. There is no attempt here to suggest that a
jurist had to choose between morality and consistency, for it is obviously
possible for a jurist to be “consistently moral” (or “morally consistent”) in
his legal thinking. However, jurists may frequently be compelled to privilege
one element over the other in a particular case, or be consistent in
privileging this particular element every time he has to. Elements that jurists
take into consideration are numerous, including morality, individual and social
interests, consistency etc. Whereas the particular consideration that
influences a certain legal view is not always easy to discern, in the kind of
jurisprudence that seeks to enforce moral principles, we can expect a natural
emphasis on the actual outcome of legal rulings rather than on how
this outcome is achieved. For example, in the case of his rejection of a
marriage between a man and a woman with whom his father had an affair without
an obvious textual basis, the immediate concern that appears to have triggered
this view is Ibn Hanbal’s moral bent, and he would maintain this view even if
he failed to substantiate it on the basis of the available textual evidence. On
the other hand, jurists for whom consistency is important seek to apply the
same principles and methodology consistently irrespective of the final outcome.
The excessive use of qiyds by the Ahl al-Ra’y is indicative of
their concern for consistency, whereas Ibn Hanbal’s concern for morality would
lead him to abandon consistency if need be. This point, among others, will be
taken up in CHAPTER FOUR.
3
Dawud’s Zahirism between the Ahl al-Ra’y and the Ahl
al-Hadith
Naturally, the way modern scholars
understand the nature of the Ahl al-Ra’y and the Ahl al-Hadlth
has shaped the way they conceive of Dâwüd and his Zahirism in relation to them.
Most of these scholars tend to regard Dâwüdism as a radical form of the thesis
of the Ahl al-Hadlth who flourished in the 3rd/gth century. “In the
rigorous interpretation of the judicial sources,” Goldziher argues, “Ahmad ibn
Hanbal’s school approaches most closely the method of the Zahirite school.” He
made this argument on the basis of some cases which he discusses in an earlier
chapter in his work on the Zâhirïs, which cases demonstrated to him that “the
founder of the Hanbalite school decides according to the same principles
which guide the Zahirite school.”[523]
[524] [525] [526] [527] In
this view, Zâhirïs and Hanafïs, the rivals of Hanbalïs, stood at two opposite
extremes in Islamic law.Joseph Schacht followed suit, describing Dâwüd as “an
extreme representative of the tendency hostile to human reasoning and relying
exclusively on Kur’ân and Hadïth.”n6 He believed that Dâwüd was a
“traditionalist,” one whose “doctrine represents a one-sided elaboration and
development of that of al-Shâfi'ï and his school.” Despite his total rejection
of qiyas which al-Shâfi'ï endorsed, Dâwüd admired al-Shâfi'ï—who was a
traditionalist himself 117—and agreed with many of his doctrines.n8
Noel Coulson unequivocally regarded Hanbalism and Zâhirism as two schools of
law that originated as extremist advocates of the traditions.n9
Likewise, in Wael Hallaq’s view, Ahmad ibn Hanbal and Dâwüd al-Zâhiri belonged
to the same camp and held the same doctrine, which he describes as “restrictive
and rigid.” The only difference between them is that whereas the former
detested qiyas and only used it in exceptional circumstances, the latter
rejected it categorically as arbitrary and flawed. Among other things, this
attitude toward qiyas accounts for the failure of Zâhiris and the
subsequent success of Hanbalis. The former remained unwilling to join the
“Great Synthesis” (i.e., adopting a middle stance between extreme “rationalism”
and extreme “traditionalism,” which original Hanbalism represented), whereas
the latter managed to “meet rationalism halfway,” Hallaq argues.[528]
[529] [530] [531] [532]
Abdel Magid Turki places Zâhirism “at
the furthest limit of orthodoxy.”i2i He describes Dâwüd as a “disciple of
al-Shâfi'ï, albeit an indirect one”™ Turki does not associate Dâwüd’s
legal thought with the Ahl al-Hadlth explicitly, but he argues that
“opposing the free use of opinion (ra’y) and hence the imitation of
those who practised it,” Zahiris “called for an effort of search (idjtihad)
which, far from being identified with Hanafi ra’y or with Shâh'ï
reasoning by analogy (kiyas), could only be involved with the search for
a text.” Furthermore, they followed a methodology that “sought to rid fikh,
as far as is possible, of any trace of subjectivity, confining it within the
narrow limits of the evident meaning of the sacred text.”i23 In
this view, Dâwüd’s acceptance of the general consensus of the Muslim community
while rejecting the consensus of the ancient schools of law is revealing, for
this acceptance “could only be realized on the basis of a body of Tradition
which could not be overlooked by everybody.”^4 When read together,
these statements indicate that the Zâhiris in Turki’s view were only interested
in texts and opposed the use of other sources, primarily reason, in religious
matters, an attitude characteristic of the Ahl al-Hadïth as most
scholars understand them.[533]
[534] [535] [536] [537]
The i4th/20th-century Hanbali scholar
Muhammad al-Shatti counts Ibn Hanbal among the imams of the Zâhirïs,
alongside Dâwüd and Ibn Hazm, as evinced by the commitment of some early
Hanbalis to report Dâwüd’s views in their legal works.126 Al-Shatti
himself collected Dâwüd’s legal views and pointed out instances in which he
agreed with Ibn Hanbal and other prominent Hanbalis like Ibn Taymiyyah.
Similarly, Muhammad Abü Zahrah stresses Dâwüd’s early admiration of
al-Shâfi'ï—the upholder of the cause of the Prophetic Sunnah (nasir
al-sunnah)—and his studying with some scholars of the Ahl al-Hadïth.
Dâwüd’s was “transmitted jurisprudence” (fiqh marwï) that was based
primarily on transmitted traditions. He did not use ra’y in his jurisprudence,
and in the few instances that he did, he did not do this on the same basis of
the Ahl al-Ra’y who used to search for ‘illahs and used them in
new cases. Dâwüd’s jurisprudence, Abü Zahrah concludes, was the jurisprudence
of texts in general, and of Hadith in particular.127
In his doctoral dissertation on
Dâwüd, Abü 'Id subscribes fully and rather uncritically to these views. He too
emphasizes Dâwüd’s admiration for al-Shâfi'ï as well as his adherence to Hadith
and avoidance of ra’y^28 His studying with al-Shâfi'i’s students and
other famous traditionists like Ishâq ibn Râhawayh were all factors that lead
him to think in the same fashion as the Ashab al-Hadïth. He became a
Hadith student himself, and spent his life opposing the use of ra’y in
religion.129 Even 'Abd al-Majid—despite his originality in
understanding the origins of the Ahl al-Ra’y and the Ahl al-Hadlth and
the features of the latter’s jurisprudence—argues that all Zâhirïs belonged to
the Ahl al-Hadlth, but the opposite was not necessarily true. It was
from the Ahl al-Hadlth, who were inclined to adhere to the “apparent”
meaning of the words and texts, that Zâhirism emerged and distinguished itself,
for Zâhirïs admired traditionists and learned from them to respect texts and
not neglect any of them without solid evidence. Furthermore, the Ahl
al-Hadlth provided Zâhirïs with their raw materials, and Zâhirïs built on
their offense against qlyas to exclude it completely from their
jurisprudence. This notwithstanding, Zâhirïs had their own distinct identity
and jurisprudence. They made a coherent madhhab out of the Ahl
al-Hadlth’s general approach and followed it to the letter, even when this
led them into absurdities (lghrab wa-shudhudh). Unlike the Ahl
al-Hadlth, they refused to accept the opinions of the Companions (unless
they all agreed on one thing) and the Successors as authoritative and binding.[538]
[539] [540]
They categorically rejected qlyas, lstlhsan, and the consideration of maslahah
in jurisprudence, whereas the Ahl al-Hadlth only detested but occasionally
used them.131
Remarkably, however, other
differences that ‘Abd al-Majïd notes between Dâwüd and the Ahl al-Hadlth
also constitute similarities between him and the Ahl al-Ra’y. Whereas
the Ahl al-Hadlth, due to their scrupulousness, were generally
reluctant to give fatwas, Zâhirïs and the Ahl al-Ra’y never abstained
from giving opinions when asked. Unlike the Ahl al-Hadlth who avoided
stating that something was categorically religiously permitted or forbidden/12
Zâhirïs and the Ahl al-Ra ’y used to do this. Furthermore, unlike the Ahl
al-Hadlth, both groups of scholars agreed that “intention” (nlyyah)
had no legal use or
relevance.[541]
[542] [543] [544]
Both agreed that nothing should be prohibited only because it could lead to
something that is. Thus, the principle of sadd al-dharaT, a main
features of the jurisprudence of the Ahl al-Hadlth, had no place in the
jurisprudence of both Zâhiris and the Ahl al-Ra’y. Finally, juridical
coherence and consistency were two obvious goals of the two groups, although
they were at two opposite ends of the spectrum, ‘Abd al-Majid notes.134
In a thoughtful discussion of Dâwüd’s
place in 3rd/gth-century jurisprudence, however, Christopher Melchert begins
to entertain other possibilities. He follows the useful distinction between a
“traditionist” who transmits Hadith, and a “traditionalist” who holds certain
beliefs antagonistic to the use of personal opinion, as represented by people
like Ibn Hanbal. Despite his similarities with the traditionalists—such as
their rejection of ra’y, qiyas, and taqlld, acceptance of the khabar
al-wahid, and understanding of ijma1—Melchert seems to
have some discomfort with considering Dâwüd one of them.i35 In fact, he is even
able to entertain the possibility that, as least in some aspects of his career,
Dâwüd was closer to the Ahl al-Ra’y. He observes that Dâwüd does not
figure as a prominent traditionist and may even have a bad reputation in some
biographical dictionaries. Furthermore, Dâwüd had little interest in mudhakarah
(Hadith memorization and transmission), an activity that characterized the Ahl
al-Hadlth, and engaged in munazarah (disputation), a common
practice of the Ahl al-Ra’y. In addition to this personal profile,
“Dâwüd’s position concerning Hadith was in some respects... very far from
Ahmad’s, much closer [to] the position of the rationalistic adherents of ra’y.”
He was close to al-Shâfi‘ï’s legal thought, which sets him apart from “the main
body of Iraqi traditionalists,” Melchert argues. Finally, Dâwüd disagreed with
some of the fundamental theological doctrines of the Ahl al-Hadlth, as
in the case of the nature of the Qur’ân.i36 In short, Dâwüd’s
jurisprudence was not traditionalist and may have been similar to the Ahl
al-Ra ’y’s.
Speaking of “Scripturalists,”
Vishanoff has recently argued that unlike traditionalists who relied only on Prophetic
traditions, they “limited law to the dictates of the Qur’an, literally
interpreted, and left unregulated other aspects of life that were not directly
addressed by the Qur’an.”[545]
[546] [547] [548]
These Scripturalists included Mu'tazilis and Zahiris.i38 Based on this,
Vishanoff is able to argue that “[t]he vision characteristic of the
preclassical Zahiriyya had its roots primarily in early Muslim scripturalism, not
in traditionalism.”^9 As noted earlier, there is indeed strong
evidence that Dâwüd and other early Zahiris had little interest in the study
and transmission of Hadith. However, this does not necessarily mean that they
ignored Hadith in principle as a source of legal and theological views, just as
was the case with Hanafis. In fact, we have seen that some of the works
attribute to him suggests that Dawüd was interested in Hadith, and it is indeed
remarkable that despite all the reported disagreements among early Zahiris,
there is no reference to any disagreement over the authoritativeness of Hadith.
This notwithstanding, Vishanoff is confident that the Zahiris were not
“traditionalists” and even notes that most of Dawüd’s and Zahiri views in many
hermeneutical issues are similar to the views of Mu'tazilis and Hanafis,
although he asserts in the same breath that they “were indeed opposed to the
rationalist jurisprudence of the Hanahyya.’940
With the exception of Melchert and
Vishanoff, there seems to be an agreement among scholars of Islam’s legal
history that Dawüd and Zahirism originated within the camp of the Ahl
al-Hadith. Admittedly, Goldziher, Schacht, and Turki appear to have had
some doubt about this, but they never spelled it out. They noted some
differences between Dawüdism and traditionalism, but failed to note any
similarities between Dawüdism and legal “rationalism” that is associated with
the Ahl al-Ra’y. They do not therefore entertain the possibility that
Dawüd may have been more influenced by the Ahl al-Ra’y and perhaps one
of them.
In her discussion of some views of
Ibn Hanbal and Ishaq ibn Rahawayh, the famous traditionist and Ibn Hanbal’s
associate (and a possible teacher of Dawüd’s, as noted in chapter one), Spectorsky has noted that
there were particular differences between both of them. While the moral aspect
in Ibn Hanbal’s thought is evident, Ibn Rahawayh’s jurisprudence reveals a “concern
for consistency and systematic thinking and exhibits little interest in
the human or moral dimensions of a particular problem.”[549]
[550] [551] [552] On
the question of marriage with a women that a man’s father had sexual
relationship with, for instance, Ibn Rahawayh did not share Ibn Hanbal’s view
that illicit sexual relationships had the same effect of marriage.
Consequently, a man can perfectly marry a woman with whom his father had
illicit sexual relationship.^2 Remarkably, Ibn Rahawayh’s
jurisprudence manifests many of the features of the Ahl al-Zahir, and
some of his views could only come from a staunch Zahiri, as ‘Abd al-Majid
notes.143 This does not necessarily mean that he was a Zahiri
(although the possibility that he was should not be dismissed out of hand),i44
but it does suggest that if Ibn Hanbal was representative of the Ahl
al-Hadlth (which we will assume here), we have to either accept that the Ahl
al-Hadlth never developed into a coherent trend, or that some scholars
regularly assumed as having belonged to them did actually not. Both Ibn
Rahawayh and Dâwüd may have been among these. We will now discuss this
possibility apropos the latter.
CHAPTER 4
Zahirism between the Ahl
al-Ra’y and the
It has been noted earlier
that medieval sources are not clear on why Dâwüd was referred to as al-Zahirl,
focusing primarily on his rejection of qiyas} Likewise, modern scholars
assume that zahir is the “literal,” “apparent,” “plain” or “evident”
meaning.[553] [554] This chapter seeks to investigate what zahir may have
meant in the 3rd/9th century. In conjunction with what the biographical evidence
suggests about Dâwüd’s affiliation (chapter
one), the question of the relationship between his Zahirism and the two
legal trends of the Ahl al-Ra’y and the Ahl al-Hadlth (chapter four) will be revisited. It
will be argued that, contrary to what has been assumed about him, both the
biographical and doctrinal evidence strongly indicates that Dâwüd was closer
to the Ahl al-Ra’y than to the Ahl al-Hadlth.
1
Zahir in the
Muslim Tradition
The root z-h-r, from which zahir
is derived, is quite rich in meaning. Its first and basic meaning is “[i]t was,
or became, outward, exterior, external, extrinsic, or exoteric; and hence, it
appeared; became apparent, overt, open, perceptible or perceived, manifest,
plain or evident.”[555] Zahir
al-jabal, thus, refers to a mountain peak,[556]
and zuhur, the verbal noun of zahara, means for something hidden
to become apparent. This basic meaning of z-h-r is always contrasted
with b-t-n, which refers to what is hidden. Ibn Manzür mentions a
tradition in which the Prophet is reported to have said that every verse in the
Qur’an has a zahr and a batn, which some scholars took to mean
the verbal expression of the Qur’an (lafz) and its interpretation
respectively. Other scholars held that zahr referred to what is
“apparent” of the meaning of the Qur’an, and batn to what is hidden of
its interpretation. According to this view, the zahir of Qur’anic
stories, for example, are the records of their events; their batin is
the lessons that they seek to convey.[557]
Other senses of z-h-r denote dominance, such as in zahara cala,
meaning for a person to have dominated or subdued another, or for something to
have prevailed. Tazaharat al-akhbar, thus, means that numerous accounts
have reported such and such. Additionally, zahara cala can
mean to become cognizant or knowledgeable of something.[558]
Thus, zahara cala ’l-shay’ means for someone to become aware
or knowledgeable of something, and azharahu cala ’l-shay’
means for a person to have informed another or made him aware of something.[559]
Paradoxically, zahara, when
used in certain contexts and expressions, can mean the opposite of what is
presented as its basic senses. For instance, al-zahr refers to what is
hidden from one or of something.8 Takallama bi-l-shay’ can
zahr al-ghayb means that someone has talked about something that he has not
witnessed. Other derivatives also suggest concealment, in the sense of pretending
something that is not real.9 Here the meanings of zahr and batn
conflate. For example, to refer to what appears of the sky, the Arabs used to
say zahr al-sama’ or batn al-samd’.w Zahara la-hu thus
means “it seemed to him,” and azhara la-hu means for a person to have
pretended something to another.[560]
[561] Common
among these derivatives is an element of hiddenness or uncertainty about what
appears to the eyes. Furthermore, whereas zahara cala means
“to have prevailed,” it can also mean just the opposite: to support someone,
such as zahartu calay-hi, meaning “I have assisted or
supported him” (a'antuhu)}2 In brief, the productivity of the
root z-h-r is potentially misleading. The basic meaning of
the root indicates something that is obvious and evident, or one that prevails
over others. Other meanings, however, indicate just the opposite, such that zahir
and batin could indicate just the same thing.
Some legal scholars were inspired by
lexical senses of zahir. In a section on “the zahir and its
interpretation” (fl ’l-zahir wa-taWllihi) in his Ihkam fl Usul
al-Ahkam, Sayf al-Din al-Àmidï presents two views on the meaning of zahir.
According to the first, zahir is the “obvious or apparent” meaning,
or that which readers take to be the most likely meaning?3 The other
view, which al-Àmidi supports, is that zahir is the “conventional”
meaning. A meaning can be conventional when it is assigned to a certain word ab
initio (al-wadc al-asll), or when a certain group of people
agree to use a certain word in a certain sense (al-wadal-curfl).
Referring to a lion by the word asad is an example of the former, but
using gha’it (a word that refers to a small hole in the ground in which
people relieve themselves) to refer to human defecation is an example of the
second.14 The first view on the meaning of zahir here raises
the question of how the “obvious” meaning can be determined, or why a reader
would take a certain meaning to be the most likely one intended by a certain
word or sentence. The second view, however, can be helpful. What is zahir
is conventional rather than self-evident. In other words, the zahir
sense of a word is not inherent in the language, but is rather a matter of
convention among its users. Put differently, language does not have an
ontological existence separate from those who use it in communication.
If this is the case, then zahir is open to interpretation; indeed,
al-Àmidï argues that zahir is less certain than other modes of bayan
(expression), particularly nassl5
Zahir in al-Àmidi’s account and in
all other accounts in usul al-fiqh is thus a linguistic term. Yet it has
not yet been established that Dâwüd was labeled al-Zahirl on account of
linguistic views that he held. Accordingly, we now turn to the question of how zahir
was used in selected works written in the first three centuries AH, starting
with the Qur’an, followed by al-Shâfi'ï’s Risalah and al-Tabari’s Jami
al-Bayan.
Various derivatives of the root z-h-r
appear some 59 times in the Qur’an.[562]
[563] Nearly
one third of these are related to zahr (meaning the back of something^[564]
[565] [566] and
one quarter indicates prevailing over someone or something (zahara cala),is
or siding with someone against another (zahara calâ).iÿ
Other derivatives that appear frequently in the Qur’an are zahara, meaning
“to appear,” azhara, “to cause to appear,” and azhara cala,
to “reveal to.”[567]
All these derivatives do not seem to have posed special difficulty for Qur’an
exegetes, indicating that their various senses were quite clear. However, these
exegetes had disagreements over the Qur’ânic use of zahir itself, used
as a noun and adjective in some Qur’ânic verses. The following discussion of
four instances of Qur’ânic usages of this word seeks to examine how this could
be helpful in contributing to our understanding of what the term zahir
may have meant in early Islam. Two early commentaries on the Qur’ân (tafslrs)
are used here—those attributed to Mujâhid ibn Jabr (d. c. 102/720) and
Muqâtil ibn Sulaymân (d. 150/767), and some other tafslrs written
between the late 3rd/gth and the 8th/i4th centuries and generally considered
authoritative.[568]
[569] [570] [571] [572] [573] [574]
In Q. 6:120, “Forsake the outwardness
of sin (zahir al-ithm) and the inwardness thereof (wa-batinahu),”
zahir is distinguished from, indeed contrasted with, batin.22
Medieval scholars had various views as to what zahir al-ithm and batin
al-ithm mean. Muqâtil ibn Sulaymân held that ithm in this and
similar verses refers to fornication; whereas zahir refers to committing
it openly, batin refers to doing it secretly.23 Attributing
Muqâtil’s view to many earlier authorities (Companions and Successors),
al-Tabari does not accept this restriction of the meaning of ithm to a
particular sin (for reasons that a later discussion will reveal). Supporting
his view by reports from earlier authorities, he nevertheless accepts the view
that zahir refers to sins committed in public and batin to sins
committed secretly.24 Later scholars generally accept this element
of publicity regarding the difference between zahir al-ithm and batin
al-ithm, but they also provide more views about the kind of sins to which
the verse refers. Fakhr al-Din al-Râzi, for instance, mentions a view that
whereas zahir al-ithm refers to physical sins, batin al-ithm
refers to spiritual and doctrinal sins, such as holding wrong beliefs, hatred,
envy, haughtiness, wishing harm for others, etc/5 Al-Qurtubi accepts
this view/6 but Ibn Kathir is more inclined to al-Tabari’s views on
the unrestrictedness of the term ithm and the view that for a sin to be zahir
or batin depends on whether it is done publicly or privately.[575]
In Q. 13:33, “Is He Who is aware of
the deserts of every soul as he who is aware of nothing? Yet they ascribe
partners to Allah. Say: Name them. Is it that you would inform Him of something
which He does not know in the earth? Or is it but a way of speaking (am
bi-zahir min al-qawl)?.” the meaning of zahir appears to be
problematic. According to Mujahid ibn Jabr, zahir here means zann,
something of which one has no definite knowledge?[576]
[577]
For Muqatil, zahir min al-qawl means a false matter (amr batil
kadhib),29 a view that al-Tabari supports with several reports.[578] In
agreement with this, al-Razi explains that this means that they [those who
ascribe partners to Allah, presumably the Meccan polytheists] propagate
falsehood to deceive others?[579]
[580] [581]
For his part, al-Qurtubi connects this to the previous part of the verse, where
God is asking polytheists if they would inform him of something that he did not
know (other deities in this context). In al-Qurtubi’s view, am bi-zahir min
al-qawl means that they would inform him of known deities like those they
used to worship in the Hijaz, while batin would be referring to deities
of whom they would not inform Him.32 Ibn Kathir adopts Mujahid’s view and
explains that this part of the verse means that they worshiped their false
deities on the basis of zann, or the false belief that they could do
them good or harm.33
A third verse is Q. 30:7, “They know
only some appearance of the life of the world (ya'lamüna zahir min al-hayat
al-dunya) and are heedless of the Hereafter.” According to Muqatil, the
“knowledge” (cilm) meant in this verse refers to
their—presumably Persians living in the time of the Prophet—mastery of worldly
activities and skills in gaining worldly benefits, although they were otherwise
heedless of the Hereafter[582]
[583] [584]
Al-Tabari agrees with this understanding, supporting it with reports from
earlier authorities. In one such report, what these people knew were the
worldly and material matters, but they were ignorant in matters of religion?5
a view that al-Qurtubi and Ibn Kathir supports?6 In al-Razi’s view,
this means that the knowledge of these people was superficial, focusing only on
certain aspects of worldly life—indulgence in pleasurable activities and
material satisfaction—and ignoring the batin part of it, i.e., its
troubles and harms. He also reports the view that zahir here refers to
the existence of life, of which the Persians were aware, whereas batin
refers to its end, of which they were negligent.[585]
Finally, Q. 57:13, “On the day when
hypocritical men and women will say to those who believe: Look on us that we
may borrow from your light! It will be said: Go back and seek for light! Then
there will separate them a wall wherein is a gate, the inner side whereof (batinuhu)
contains mercy, while the outer side thereof (zahiruhu) is toward the
doom,” distinguishes again between zahir and batin. Muqâtil
explains that the “wall” in this verse refers to a wall separating Paradise
and Hellfire, and zahir and batin refer to the two sides of this
wall (batin to the side of Paradise and zahir of Hellfire).3[586] In
addition to this view, al-Tabari reports another one according to which the
wall mentioned in the verse is a wall in al-Aqsa mosque in Jerusalem. Known
as the Eastern Wall, it separates the mosque and a place called wadijahannam
(or the Valley of Jahannam or Hellfire). Batin refers to the side facing
the mosque (or the interior of the mosque) and zahir to the side facing
the valley[587]
Al-Razi prefers Muqâtil’s view,[588]
but al-Qurtubi, following al-Tabari, only reports all various views.[589]
Ibn Kathir believes that since Paradise and Hellfire are in two different
places, the wall here is only used figuratively (by those holding that it
refers to a specific wall between Paradise and Hellfire) to clarify the
meaning. This wall, he argues, is a wall that leads to Paradise. When all
believers have passed through it on the Day of Judgment, it will be closed,
leaving hypocrites behind in bewilderment, darkness and torment[590]
To recapitulate, when used verbally,
derivatives of z-h-r in the Qur’an refer to prevailing over, supporting
someone, appearing or causing to appear, and spreading. Nouns and adjectives
derived from this root, however, bear a generally negative sense, such that zahir
refers to something that is uncertain, false, misleading, superficial and
materialistic. This is hardly useful in providing a satisfactory answer as to
the meaning of zahir in early Islam or why would someone be labeled
“al-Zahiri.” While it is possible that Dâwüd was labeled al-Zahirl
because his understanding of the Qur’an was deemed superficial and misleading,
the fact that Ibn Hazm used this epithet himself and referred to Dâwüd and
other Zahiris as such indicates that it cannot have been used in this Qur’anic
sense. Therefore, we now turn to srd/gth-century writings to explore other
possibilities of the meaning of zahir and how it pertains to
jurisprudence.
Al-Shafi'i’s Risalah and
al-Tabari’s tafslr seem potentially useful for our purposes of
identifying what zahir may have meant in Dâwüd’s time. The former
discusses various theoretical legal issues, whereas the latter is the earliest
comprehensive Qur’an commentary that has reached us.[591]
[592]
Both works have the advantage of having been written just before and just after
Dawüd’s time. Al-Risalah was written in the late 2nd or the early 3rd
century AH, whereas al-Tabari wrote his tafslr in the late 3rd century
AH. Furthermore, we have noted earlier the relationship of Dawüd with these two
scholars. Dawüd began his career as a follower of al-Shafi'i’s legal thought
and met with al-Shafi'i’s immediate students, whereas al-Tabari is reported to
have attended Dawüd’s lectures in Baghdad. Finally, both works do use the term zahir.
In other words, if there exists some consistency in the way both scholars use
this term in their writings, we should be able to assume that that was how it
was understood in Dawüd’s time.
The term zahir appears
frequently in al-Shafi'i’s Risalah.44 The first extensive use of this
term there is in a chapter that discusses various methods of expression (bayan)
that the Qur’an uses:
God addressed the Arabs in His Book
in a way consistent with what they know about their language’s features. Among
those features of their language with which they are familiar is their
language’s broad scope, and [the Arab] knows by nature that he could be
addressed with a sample of language which is timrn zahir which is in
fact intended as timrn zahir, such that one can dispense with bringing
something else to bear on it; or which is !amm zahir and is
intended as !amm, but also contains something which is khass,
which is indicated by some of what is mentioned in it [al-camm
al-zahir]; or which is imm zahir but is intended as khass; or
which is zahir that the context indicates that what is intended by it is
not, in fact, the zahir. Knowledge of all this could be at the beginning
of the speech, the middle, or the end thereof.[593]
In this rather difficult passage,
al-Shâfi'ï stresses that the Qur’an was revealed in a specific language to a
specific people who used it. Accordingly, understanding it requires knowledge
of how these people used their language. This requirement further suggests that
there existed rules of their understanding. Believing that these rules are
knowable, al-Shâfi'ï sets out to list them, and it is within this framework
that he discusses what the Arabs considered zahir or otherwise. In other
words, al-Shâfi'ï held that the zahir meaning is not self- evident or
inherent in the language itself; rather, it must be defined from the
perspective of the people who use the language.
On the face of it, this passage may
suggest that al-Shâfi'ï’s held that many forms of bayan can equally be zahir.
Other instances of his use of the term zahir, however, do not support
this understanding. In numerous other passages, he seems to use the term zahir
to refer to the general, unrestricted (camm) scope of
Qur’ânic terms and verses. Zahir in these instances refers to the widest
possible extension or the broadest range of referents of a verse or term. The
term batin, in contrast, is used to refer to just the opposite: the
restricted meaning of some Qur’ânic references.[594]
[595]
For example, “traditions from the Messenger should be accepted as ‘general’ as
they apparently are ('ala ’l-zahir min al-'amm.) unless an indicator
suggests otherwise ...or unless there is an agreement of the Muslim [scholars]
that their meaning is batin but not zahir, and that it is khass
(restricted) and not Hmm (general, unrestricted).’^7
Al-Shâfi'ï applies this understanding
of zahir and batin meanings to some legal issues. For instance,
discussing the issue of the number of times one is required to wash his head
during ablution, he argues that “the zahir meaning of God’s statement:
‘Wash your faces’ is that the minimum requirement for washing is once, but it
may [also] mean more [than once].” The zahir meaning of washing here is
one that is inclusive of any one single performance of what can be described as
washing. “[T]he apostle decreed that ablution must be performed by washing
once, in conformity with the zahir [meaning] of the Qur’ân,” al-Shâfi'ï
adds.[596] In
another instance, he discusses zakat (charity) and its amount or value
for various assets and commodities. Quoting Q. 9:103, “Take of their goods a
freewill offering to cleanse and purify them,” he notes the various values of zakat
and concludes that “[i]f it were not for the evidence of the Sunnah, all
goods would have been treated on an equal footing on [the basis of] the zahir
meaning of the Qur’ân, and zakat would have been imposed on all, not on
some only.”4[597]
What al-Shâfi'ï says here is that the zahir meaning of the verse is its
meaning that is inclusive of everybody and everything without restriction. It
is only the Sunnah that restricts this unrestricted, zahir
meaning of the verse and limits its scope of application.[598]
Al-Shâfi'ï also uses the term zahir
in another context. On the subject of “forbidden women” (women whom a man
cannot marry, temporarily or categorically), he comments on the list of such
women given in Q. 4:23 by stating: “This communication may have two meanings:
[it may mean] that the women whom God has [specifically] forbidden shall be
[regarded as] forbidden, and that those whom He has not specifically forbidden
shall be lawful on the ground that He is [both] silent about them and [also]
according to His saying (Q. 4:24): ‘And [it is] lawful for you to seek what is
beyond that’.” This, he states, “may be regarded as the zahir meaning of
the communicated message.”[599]
[600] Remarkably,
in reading this verse, al-Shâfi'ï made conclusions not only about women whom
one cannot marry, but also about women whom one can marry. The
verse, as it is, does not say anything about the other category of women, but
this, he believes, we can reasonably understand or infer from the verse. Even
more remarkable is al-Shâfi'ï’s reference to another verse where the Qur’an
declares a general rule, namely, that it is permitted to marry any category of
women beyond those listed in Q. 4:23. The significance of this will be
discussed later.
In another context, al-Shâh'ï
discusses the various kinds of food that Muslims are not allowed to eat.
Quoting Q. 6:146, “Say, I do not find, in what is revealed to me, anything
forbidden to one who eats of it, unless it be a dead animal, or blood
outpoured, or the flesh of swine, for it is an abomination, or an impious thing
over which the name of a god other than God has been invoked,” he notes that it
could be understood in two different ways. The first meaning, which concerns us
here, is that “nothing is forbidden except that which God has [specifically]
excluded. This is the azhar [superlative of zahir] most common
and prevalent of all meanings (a'ammaha wa-aghlabaha), and anyone
presented with it would immediately understand that nothing is forbidden
except that which God has specifically forbidden.’^2 This statement
shows the strong relationship that al-Shâh'ï saw between the zahir
meaning and the assumption that what is explicitly mentioned with regards to a
particular case represents the only exception to any general rule under which
it could be subsumed. In this case, the general rule is: everything is
permissible. Q. 6:146 mentions some exceptions that restrict the scope of this
otherwise general rule. The unrestricted meaning of the verse is the zahir
meaning, and it is the default meaning that users of the language understand
with immediacy as soon as they read or hear this or similar verses. The use of zahir
in other contexts in al-Risalah similarly relates to the issue of "umüm/khusâs
(the generality and restrictedness of the scope of terms). Speaking of the
relationship of the Prophetic Sunnah to the Qur’an, an interlocutor asks
al-Shâfi'ï: “If we find in the Qur’an a zahir meaning which a certain Sunnah
may either make specific [i.e., restrict] or to which it may give a batin
meaning that is contradictory, do you [not] agree that the Sunnah [in
such a case] is abrogated by the Qur’ân?”[601]
Al-Shâfi'ï replies by explaining that the role of the Sunnah is to
explain the Qur’ân, not to abrogate it, but he was obviously in agreement with
this use of zahir.[602]
[603] [604] [605] [606]
Zahir also appears in al-Shâfiïs Risalah
in a way that is reminiscent of another usage of it indicating something that
differs from that which is real, even if it is the obvious, self-evident, or
prevalent meaning. For example, in a section on the “category [of declaration]
the wording of which indicates the batin, not the zahir”55 the zahir
meaning is rejected because it cannot be possibly intended by the speaker. The
example mentioned here is that of Jacob’s sons when they say to him: “Ask the
town in which we have been, and the caravan with which we have come” (Q.
12:82). Al-Shâfi'ï asserts that what Jacob’s sons obviously mean here is not
the zahir meanings of “town” and “caravan,” but rather an implicit
meaning, namely, the “people of the town” and the “travelers in the caravan.”56
Thus, the zahir meaning here is not the intended meaning. This
particular example of Q. 12:82 will be brought up again in another context.
A last context in which al-Shâfi'ï
uses zahir is the context of the imperative mood. For example, the
Prophet is reported to have said that washing (ghusl) on Fridays is wajib
(obligatory/highly commended).57 Although this tradition does not
use the imperative as such, many Muslim scholars, including al-Shâfi'ï in this
and other instances^8 take similar kinds of expression (in which the
Prophet states that a certain act is wajib) to indicate that it is obligatory
(and not just meritorious) for Muslims to perform it. Elsewhere, he addresses a
question that arises from another tradition in which the Prophet is reported to
have prohibited Muslims from seeking to marry women who are engaged to others.[607] He
mentions here various views on what this tradition means, but argues that if we
do not have an indication from the Prophet that it meant one thing and not
another (‘ala ma’na duna ma'na), its zahir indicates that a
Muslim cannot, in all circumstances, seek to marry a woman already
engaged to another.[608]
[609]
What is remarkable about these two instances in which zahir appears in al-Risalah
is that they provide cases of a command (amr) and a prohibition (nahy).
Zahir in both cases is presented as the absolute, unconditional obligation
of either carrying out the command or avoiding that which is prohibited.
This presentation of al-Shâfi'ï’s use
of zahir suggests that it is used technically in a specific context,
namely, the context of the scope of application of terms and statements. A zahir
meaning is one that allows for the broadest scope of terms and statements in a
way that is inclusive of all its possible referents. This use of zahir
is obviously (if still implicitly) connected by al-Shâfi'ï to another notion, al-ibahah
al-asliyyah, namely, the presumption that everything is permissible unless
proven otherwise. This is evident in the example of the “prohibited women.”
What is noteworthy here is that al-Shâh'ï’s reading attributes to this verse
what it does not actually say, that is, women who are not included in
the Qur’ânic list of prohibited women must be lawfully available for marriage.
Al-Shâfi'ï, however, seems to have felt the need to adduce another verse that
is more explicit about the permissibility to marry all other women in
order to justify his reading. It is difficult to determine whether al-Shâfi'ï
would have made the same argument absent this second verse. What is useful for
our purposes here, however, is that the notion of al-ibahah al-asliyyah
provides scholars with a very important general rule that they can always refer
to, viz. everything that is not explicitly forbidden is, it must be presumed,
permissible. Prohibition is thus an exception to this general rule.
In a section that deals with analogy
with reference to Sunnah, al-Shâfi'ï argues if the Prophet mentions the
rationale (ma'na) of a divine ordinance, it can be used to draw analogy
with other cases. If the same rationale applies to another case that is not
mentioned by the Prophet, jurists can apply to the new case the same ruling of
the Sunnah case. This is the most productive method of drawing analogy
with Sunnah.61 A second method of such analogy is when the Prophet
declares something lawful using a general expression, but then prohibits a
specific part of it. What jurists (should) do in this case is consider unlawful
only the specific part that the Prophet had so declared. No analogy to this
specific part is permissible, al-Shâh'ï stresses, for drawing an analogy to a
general rather than a specific rule is more reasonable.[610]
The same logic applies to the opposite case, i.e., when the Prophet declares
something to be generally unlawful but makes exception of a specific part of
it.
We have noted earlier that scholars
of usul al-fiqh distinguished between al-qiyas al-jall and al-qiyas
al-khafl. In the former kind, the rillah is known or
evident, whereas in the second it has to be inferred from other statements[611]
This second kind of qiyas interests us here, for it was reported
that Dâwüd rejected this particular kind of qiyas, despite later Zâhirï
rejection of all forms of it. The problem with this kind of qiyas is
twofold. First, it relies on a mere assumption that a certain case is governed
by a particular rationale (a view that al-Qâdï al-Nu'mân attributes to Muhammad
ibn Dâwüd).6[612]
Secondly, it restricts the generality (cumum) of both
permissions and prohibitions. Al-Shâfi'ï’s discussion of it, in other words,
suggests that for him qiyas qualified the default, unrestricted scope of
a given general rule by drawing analogy to its exception, a method that he
explicitly rejects. Arguably, if a scholar does not seek to include something
under a khass, restricted statement (i.e., include it under the
exception), it necessarily remains under the general, unrestricted rule with no
need of qiyas. It is in fact unclear how one can draw an analogy to a
general rule, and it seems that al-Shâfi'ï only mentions this to show the absurdity
of drawing analogy to an exception unless the rationale or the basis of
a given ruling is explicitly indicated by the Prophet.
In a prolegomenon with which he
begins his tafsir, al-Tabari, similar to al-Shâh'ï, stresses that the
Qur’an was written in the language of a specific people and that full mastery
of this language and how the Arabs used it is essential for understanding its
literary styles. God’s wisdom requires that he address people in a way that
they understand and send messengers to people in the language that they use[613]
[614]
Therefore, the Prophet Muhammad’s message “had to conform to the rules of the
Arabic language, and its zahir should match the zahir of this
language, although we acknowledge that the Qur’ânic language is superior to the
language that the Arabs used.”66 Al-Tabarï notes, however, that the way the
Arabs used their language was “multiple and diverse,” for they expressed the
same thing in ways that varied in length or in brevity. The Arabs may have
referred to a specific idea or thing by what appears as a general statement, or
to a general idea by what appears to be a statement with a specific or
restricted reference.[615]
Elsewhere, al-Tabari argues that the Qur’anic zahir terms or statements
can indicate either general or restricted reference (muhtamilkhususan
wa-’umüman). The only way to figure out what each term or statement
indicates is through the person whom God trusted with explaining the Qur’an,
viz. the Prophet Muhammad[616]
[617] [618] [619] He
mentions numerous versions of the well-known tradition in which the Prophet
says that the Qur’an was revealed “in seven ahruf” The meaning of ahruf
here is debatable, but one version of this tradition mentions that each of
these ahruf has a zahr and a batn.69 According to
al-Tabari, zahr here refers to people’s recitation of the Qur’an (tilawah),
whereas batn refers to the hidden part of its interpretation (batin
al-taWll)70 Next, he states that Qur’anic statements are of two
kinds: statements the interpretation of which only comes from the Prophet, and
statements the taWll (here, meaning) of which can be discerned by anyone
with knowledge of Arabic. Ibn ‘Abbas once said that the explanation (tafslr)
of the Qur’an is of four kinds: one that the Arabs know according to their
tongue (wajh tacrifuhu ’l-Arab min kalamiha), another that a
Muslim is not excused for being ignorant of, a third that only scholars know,
and a fourth that is only known to God?1
Al-Tabari thus held that while the
meaning of some Qur’anic statements is clear for those who know the rules of
Arabic, others are ambiguous and open to various interpretations. Without
Prophetic guidance in the case of these ambiguous statements (which probably
Ibn ‘Abbas’s second and possibly third kinds of tafstr refer to), it is
not possible to determine God’s intent. Al-Tabari’s view that zahir refers
to the recitation of the Qur’an and batin to its interpretation is
problematic, however. If we assume that he does not mean the mere recitation of
the Qur’an (which would be useless without any attention to the meaning), we
can infer that for him zahir meant that which is understandable from the
Qur’an without interpretation that requires specialized knowledge. In other
words, zahir is what is not hidden of the Qur’an and only requires
knowledge of the Arabic language to understand. It is not clear, however, if
this means that all Arabs should understand (or indeed have understood) the
Qur’an’s zahir statements similarly. Other statements, however,
potentially have more than one possible meaning and it is only through
Prophetic guidance that we can determine their intended meaning. It is not
clear, however, whether this kind of statements does not have zahir in
the first place, or has more than one potential zahir. What follows,
therefore, discusses how al-Tabari uses zahir in approximately the first
100 verses of Q. 2 (sürat al-Baqarah).[620]
[621]
[622]
In his commentary on Q. 2:1,
al-Tabari presents several explanations of the “disjointed letter” (al-hurüf
al-muqattacah), alif, lam, mm, with which Q. 2 begins. In one
view, these letters are abbreviations of ana, Allah, a'lamu respectively.
In other words, the verse intends to say: “I, God, know.” It is prevalent (zahir
mustafld) in the usage of the Arabs, al-Tabari points out, to use only a
few letters of a word as long as the remaining letters are indicative of what
the shortened version is, a practice that he illustrates by citing a number of
poetry verses?3 Zahir here, then, refers to a certain
convention of using the language. A similar use of zahir appears in
al-Tabari’s commentary on verse 31, “And He taught Adam all the names.. .”74
He mentions various theories as to what “names” in this verse means. Whereas
some early religious authorities held that this refers to the names of a
specific category of things, others held that it refers to everything. Al-Tabari
does not rule out the plausibility of this latter explanation, yet he believes
that the use of the pronoun -hum in "aradahum (showed them)
later in the verse suggests that “names” refers to the names of the angels as
well as Adam’s entire progeny. The Arabs, he explains, only use the pronoun -hum
with reference to the angels and human beings, and -ha or -hunna
when referring to other things. This is what the zahir al-tilawah
suggests, and it is the more common and prevalent (al-ghalib al-mustafld)
in the use of the Arabs. In fact, he finds an excuse for those who held that
“names” referred to everything—including no less an authority than Ibn
‘Abbas—in a report that mentions that Ubayy ibn Ka'b did read the verse with "aradaha,
which is more inclusive than "aradahum, for it can be used to refer
to everything, including the angels and humans.[623]
It is noteworthy that al-Tabari
needed to argue against the view that sought to extend the scope of “names” to
its fullest possible reference, which only suggests that the general,
unrestricted rather than the restricted or particularized sense of terms and
statements was the default assumption. Indeed, he appears reluctant to
categorically dismiss the view of the term’s unrestrictedness and seems to have
felt the need to justify his restricting construal of it, which he did on the
basis of the prevalent use of pronouns by the Arabs. This prevalent use,
according to him, is the zahir al-tilawah, apparently what readers can
understand by the mere recitation of the Qur’an without much reflection. In
the same vein, he argues against the view that “hard” in Q. 2:45, “Seek help in
patience and prayers, and truly it is hard save for the humble-minded,” refers
to accepting Islam?6 In his view, what is being referred to here is
the prayers. This is al-zahir al-mafhum (the zahir that is
understood) of the verse, which should not be abandoned for a batin the
soundness of which is not verifiable.77 The zahir meaning here is taking
the pronoun to refer to something that is explicitly mentioned in the same
verse.
In commenting on Q. 2:38, al-Tabari
mentions a disagreement on the reference of one part of it, “and whoso follows
my guidance.. .”78 In one view, this is an address to all humanity. In his
view, however, God is only addressing those whom the first part of the verse
mentions: Adam, Eve, and Iblis. This is closer to the zahir al-tilawah
(the zahir of the recitation) and is the zahir al-khitab (the zahir
of the communication). Nonetheless, he does not categorically dismiss the view
that this part of the verse could refer to all the progeny of Adam and Eve. In
fact, he says that this is a possible interpretation of the verse?9
He, therefore, feels the need to provide evidence for limiting what appears to
be the unrestricted reference of the verse, and the evidence in this instance
is the first part of the verse. In other words, al-Tabari seems to argue that
the zahir of a given verse can only be understood on the basis of its
entirety and not a fragment of it.
Al-Tabari uses zahir in
another, significant context. In commenting on Q. 2:27,80 he mentions several
explanations of what “... and sever that which God has ordered to be joined”
means. Some have understood “sever” here to refer only to silat al-rahim,
viz. maintaining good ties with one’s kindred. Others held that the intended
referent is the ties with the Prophet and the believers, as well as the blood
ties. This view, he reports, relies on the unrestrictedness of the verse (zahir
‘umüm al-ayah) and the lack of indication that it meant to refer to only
one part of what God has ordered to be joined and not another. Al-Tabari
himself does not hold this view, but he comments on it by saying that it is not
far from the sound understanding of the versed1 although the fact
that there are Qur’ânic verses that speak about the hypocrites and their
severing of their blood ties specifically indicates, in his view, that the
verse can be speaking about this particular form of severing things that God
has ordered to be joined[624]
[625] [626]
Similarly, al-Tabari argues against the view that “sin” in Q. 2:81, “...
whoever has done evil and his sin surrounds him.. .”8[627]
refers to any sin, notably grave sins (al-kabair). He states that this
understanding of the unrestrictedness and all-inclusiveness of sin here is the zahir
of the verse, but argues at the same time that its batin exclusively
refers to polytheism (shirk) only. Since no one holds that even minor
sins could lead to eternal damnation, he points out, there is an agreement that
“sin” here does not refer to all its referents. Furthermore, even grave sins
(other than shirk, namely, associating partners with God) are not
included in the reference of this verse because believers, according to
Prophetic traditions, will not abide in Hellfire eternally[628]
In these examples, zahir
refers to the unrestricted scope of application or the broadest range of
referents (cumum) of terms, and when he rejects their zahir,
al-Tabari finds himself compelled to argue against it but never feels that he
can simply ignore or reject it. There are numerous other instances in which he
mentions that zahir indicates the understanding of a given term or verse
in a way that does not restrict or limit its scope of possible referents, but
he mentions this explicitly in his commentary on verse 70.[629]
Listing many reports from Companions and Successors according to which the Jews
who were ordered to slaughter a cow would have fulfilled their duty by
slaughtering any cow, he points out that their repeated questioning about the
cow led to more restrictions from God and thus increased the hardship of their
duty. The Companions and Successors held that whatever God commands or
prohibits should be understood according to the apparent generality (al-cumüm
al-zahir) of his speech, and not in a restricted, uncertain sense (al-khusus
al-batin). This restriction of the scope of terms or verses could only be
made by reference to another statement from God or from the Prophet, in which
case what is mentioned by them is excluded from their otherwise
unrestricted scope and allinclusiveness[630]
These reports, he adds, demonstrate that his own view conformed to the view of
the Companions and Successors, and that his madh- hab (here, view) was
identical with theirs. They also prove the erroneous belief in the
restricted meanings of terms (al-khusus), or the view that when a specific
aspect of a term is excluded from its scope of referents, all its other aspects
necessarily lose their all-inclusive nature[631]
[632]
Furthermore, al-Tabari uses zahir
in the context of arguing against the figurative explanation of some Qur’ânic
verses. For example, in his commentary on Q. 2:65,88 he rejects Mujahid’s view
that this verse does not mean that God did actually transform the Jews who
violated the Sabbath into real apes, but rather means figuratively that God
transformed their hearts because of their transgression. This understanding,
al-Tabari argues, contradicts what the zahir of the Qur’an indicates,
that is, God did transform them into real apes.[633]
[634] Zahir
here is used to reject the figurative and metaphorical understanding of the
Qur’an.
Finally, al-Tabari’s use of zahir
in some instances is difficult to discern. For example, in a lengthy commentary
on Q. 2:30,9° he mentions a view that has no support from the zahir al-tanzll
in his view, namely, that the angels wondered about God’s intention to create
human beings because He Himself had given them permission to do so[635]
[636]
The meaning of zahir al-tanzll here is not clear, but it is reminiscent
of al-Tabari’s distinction of zahir and batin in his prolegomenon.
Zahir is that which people actually read, while batin is the
meanings that can be uncovered only through interpretation. Another example is
his argument for zahir in his commentary on Q. 2:41,92 where there is
disagreement on the reference of “therein.” Whereas some scholars held that the
reference is to the Prophet Muhammad, others believed that it was to the
Scripture of the Jews (whom God addresses in this verse). Al-Tabari rejects
these two explanations on the ground that they are far from what zahir
al-tilawah indicates. He argues that the verse begins by referring to what
God has revealed, and this is not the Prophet Muhammad, but the Qur’an
itself. It is not customary in communication to end a verse by enjoining
people to not disbelieve in something other than what the verse begins by
calling them to believe in. This is al-zahir al-mafhüm, even if it is
possible to refer to something not mentioned explicitly in a verse by way of
metonymy (kinayah). In other words, while he does not categorically
reject the possibility that “therein” could be referring to the Prophet
Muhammad or the Jewish Scripture and implies that zahir al-kalam allows
for this kind of understanding, al-Tabari still believes that a safer explanation
is to take it to be referring to what the verse itself begins by mentioning[637] If
we rule out the possibility that al-Tabari’s use of zahir here is
haphazard, it is difficult to determine what he means by it in the context of
this verse, for at the same time of accepting that the reference to the Jewish
Scripture here is possible according to zahir al-kalam, he argues that
it is far from what zahir al-tilawah wa-l-tanzll indicates. The use of
the superlative form of zahir (al-azhar) here, however, can suggest that
there can be more than one, but not necessarily equal, zahir meanings of
a given statement.
Al-Tabari, then, uses zahir in
a variety of contexts, one of which is the common use of the Arabic language
by the Arabs. Using a certain pronoun to refer to certain objects is one such
instance. In other contexts, zahir is used to refer to the
non-figurative meaning of a term or a statement. Zahir is also used to
refer to the meaning understood with certainty in a given verse, in which case batin
refers to a hidden meaning that needs to be uncovered with the help of
extra-textual evidence, such as Hadith.[638]
At other times, what al-Tabari means by zahir is not clear, such as when
he speaks about zahir al-tanzll or zahir al-tilawah, which, if
taken at face value, could suggest that he held that some Qur’anic statements
can be understood without the need for any interpretation. Finally, some
instances of his use of zahir suggest that there exists various layers
of zahir, i.e., some meanings can be more zahir than others or
even the most zahir (al-azhar).
These instances notwithstanding, zahir
seems to appear in al-Tabari’s tafslr more often in the context of the "umüm/khusüs
dichotomy. Here, the broadest meaning or the fullest scope of a term or a
statement is its zahir meaning, whereas batin refers to the
restricted meaning. It is evident that al-Tabari had a real concern about not
jeopardizing the generality of any term or statement without justification
based on a textual or a non-textual indicator. Textual indicators, which
al-Tabari seems to prefer, can be obtained from the same verse in which a term
is mentioned, or from another verse in the same text. Non-textual or external
indicators include theological views that scholars hold, such as the case with
minor sins. Although he does use them himself, al-Tabari seems hesitant about
their weight. For example, relying on what he regarded as the zahir meaning
of Q. 2:30, he rejected the view that the angels only expressed their inability
to apprehend God’s decision because God Himself had permitted them to do so, a
view that is probably based on certain theological views concerning the nature
of the angels and their relationship with God. Finally, al-Tabari’s discussion
also indicates that there was an assumption that the zahir meaning
should be taken to reflect the intention of the speaker (God, in the case of
the Qur’an), and that any deflection from this meaning requires justification.
That zahir is used by
al-Shafi'i and al-Tabari in the context of hermeneutics is evident, and this is
in perfect agreement with al-Qadi al-Nu'man’s identification of istidlal,
obviously a hermeneutical tool, as the defining feature of Zahiris, if these
were indeed whom he was referring to. But what aspect of hermeneutics does
Zahirism relate to? Arguably, nothing in what al-Shafi'i says in his Risalah
and al-Tabari in his tafslr proves the view that the zahir was
taken to mean the “obvious” or “apparent’ meaning. Their understanding of how
to interpret a text proceeds on the assumption that the Arabic language has
rules that we can identify by investigating how the Arabs used it. The zahir
meaning is one such linguistic aspect that needs reference to the common use of
the Arabic language by its speakers when the Qur’an was revealed. Both scholars
seem to use the term zahir consistently in two contexts. The first is
the context of the figurative vs. non-figurative use of language. The zahir
meaning is the non-figurative meaning of a certain term or a statement,
although al-Shah'i (possibly inspired by a Qur’anic use of zahir) adds
to this that the figurative meaning can in some instances be the intended
meaning. Accordingly, the zahir meaning here is what is understood (or
what is recited, as al-Tabari puts it), but it is not what is communicated, so
to speak.
The other context in which both
scholars use zahir is the context of the scope of application or range
of referents of terms (the iimüm vs. khusüs dichotomy). According to
this, any term must be taken to refer to all its potential referents without
exception, i.e., without particularization or restriction. In other words, the zahir,
general meaning of a term or a statement is one which allows it to encompass
all its referents in an all-inclusive manner. This view, however, does not seem
to have been the only view about how to interpret a term or statement. We have
seen that in one instance of using zahir in this context, al-Tabari
attributes this view (that the zahir meaning is the general,
unrestricted meaning of a term or verse) to earlier generations of Muslims, and
his discussion here strongly indicates that this was a disputed issue in or
before his time, for which reason he may have written his own Risalah to
discuss this issue and defend his viewpoint which he attributes to the Arabs
and early Muslim authorities. Evidently, some people in or before al-Tabari
argued against the presumption of 'umwn, which may explain why he was
keen to argue for any restriction he makes with respect to the scope of
application of a term or statement.[639]
In all circumstances, the Umüm/khusüs dichotomy seems to be the context
in which the term zahir was used technically in the 3rd/gth century, and
we know that this is a subject to which Dâwüd and his son Muhammad devoted
chapters in their works on usül al-fiqh.
Is it possible, then, that Dâwüd was
labeled al-Zâhirï because of his vehement defense of the 'umüm
presumption? There is no reason why this cannot be the case, but if we can
establish links between this notion of 'umüm and other views of Dâwüd’s,
we can be more confident that this notion was central to his legal thought. It
is remarkable that some of al-Shâfi'ï’s discussions in al-Risalah
suggest possible relationship between the notion of 'umüm and other
tenets of Dâwüd’s legal thought. These include the rejection of qiyas
and the presumption that everything is permissible unless proven otherwise (the
principle of al-ibahah al-asliyyah). Qiyas, in al-Shâh'ï’s view, meant
additional qualification or restriction of a general rule (e.g., any
intoxicating beverage is forbidden by analogy to grape wine), which therefore
can only be valid if the 'illah is explicitly indicated by a Prophetic
tradition (it is usually a tradition because the function of Sunnah/Hadïth is
to explain the Qur’ân). If the 'illah is not mentioned, however, no
analogy to the exception can be drawn. In addition, since the zahir
meaning for al-Shâfi'ï meant that what is listed in the Qur’ân as forbidden
indicates that other things (that are not mentioned) are not forbidden, this
can only work out if a particular general rule is assumed, and this rule is:
everything is permissible unless proven otherwise.
Dâwüd started his career as an
admirer of al-Shâfi'ï, and it is not unlikely that he drew on many of his views
to develop a distinct legal thought. But apparently, he did not draw only on
al-Shâfi'ï. Much of what we know about Dâwüd’s life suggests that he had a
strong relationship with the Ahl al-Ra’y of his time. Additionally, much
of his legal views on usül are almost identical with legal views that
the Ahl al-Ra’y held. In what follows, therefore, the question of the
relationship of Dawud’sjuridical thought with the two legal trends that existed
in 3rd/9th-century Baghdad will be pursued.
2
Zahirism between the Ahl al-Ra’y and the Ahl
al-Hadlth Revisited
It has been noted earlier that the
complicated picture of the legal scene in early Islam and the sharp differences
among scholars regarded as members of either the Ahl al-Ra’y or the Ahl
al-Hadlth requires that we choose a representative of both legal trends.
Abu Hanifah was evidently a, or the, master of the Ahl al-Ra’y
and is obviously the best candidate to represent them. Ibn Hanbal is a good
representative of the Ahl al-Hadlth, which designation actually ended up
referring especially to him and to his followers. However, there is no assumption
here that all scholars belonging to either group were thinking similarly, or
that each of these two scholars was invariably consistent in his legal thought.[640]
2.1
Zahlrism and the Ahl al-Ra’y
DawUdism and Hanafism shared some
fundamental views on the nature and philosophy of Islamic law, as well as many
legal and linguistic assumptions. “The great dividing line in Islamic law,”
writes Aaron Zysow, “is between those legal systems that require certainty in
every detail of the law and those that will admit probability. The latter were
historically dominant and include the leading legal schools that have survived
to our own day. Zahirism and, for much of its history, Twelver Shi'ism are examples
of the former.”[641]
[642] [643]
Later on, Zysow distinguishes between two groups of Muslim legal scholars.
Formalists, like Hanafis, believed in the validity of and practiced ijtihad,
the results of which were deemed valid “by the fact that the framework within
which he [the Muslim jurist] practices is known with certainty,” even if there
was some probability in the actual outcome. The second group is the
materialists, such as Zahiris, for whom “probability has no place in the
formulation of the rules of law.”98
On the face of it, this makes exactly
the opposite argument of what is being argued here, but this is only so if this
argument were that Dâwüdism/Zâhirism was identical to Hanafism. As discussed
shortly, Zahirism shared a particular view of knowledge that was itself only
part, albeit significant, of the Hanafi understanding of knowledge. Secondly,
the received wisdom about the place and role of certainty in the Zahiri legal
thought is not accurate. Ibn Hazm does admit a degree of uncertainty in
his jurisprudence and acknowledges the possibility of changing some of his
conclusions in cases where contradictory evidence or traditions with disputed
authenticity exist.99 In this kind of cases, we only know to the best of our
knowledge that our conclusions are sound, but we cannot pretend that we
know them for certain.[644]
[645] [646] He
is even willing to give the benefit of the doubt to scholars who abandoned the zahir
of a text on the basis of an interpretation that they thought was sound.101
Whether what Ibn Hazm mentions here was only a theoretical possibility that did
not materialize or that he knew would not take place is a question that
requires further investigation. However, it does not change the fact that he
did not claim that probability had no place whatsoever in his jurisprudence.
In a chapter on “The meaning of dalll,
‘illah, qiyas, and ijtihad!’ in his Fusul fl al-Usul, the
leading Hanafi scholar, and one of the earliest scholars to write about the
Hanafi usul al-fiqh following the “method of the jurists,”W2
Abü Bakr al-Jassas (d. 370/980) distinguishes carefully between two forms of
deduction (istidlal)^3 the first of which leads to
[apodictic] knowledge (al-cilm bi-l- madlül), while the other
only establishes high probability (yüjibu ghalabat al-ra’y wa-akbar
al-zann). The former includes the “rational” proofs (data'll al-caqliyyat),
and many of the rulings of cases (ahkam al-hawadith) for which
there is only one indicator, and in which we are required to find the correct
ruling.[647]
[648] [649]
The second category of knowledge is that of the rulings that are deduced
through ijtihad (ahkam al-hawadith allati tarlquha 'l-'jtihad), and in
which we are not required to determine the ruling with certainty, for God
Himself has not provided us with a conclusive indicator (dalll qatd)
that leads to determining it with certainty (for which reason, al-Jassas adds,
we call it [the indicator] dalll only figuratively (cala
wajh al-majaz)).w5 This distinction between these two categories
of knowledge seems central to the Hanafi jurisprudence as presented by
al-Jassas. Although he does not attribute it to Abü Hanifah or his earlier
disciples, there is nothing surprising about this distinction after all. Any
scholar would probably agree that if there is one valid indicator in a certain
case, we can be confident that a ruling based on it is certain. So irrespective
of whether this distinction goes back to Abü Hanifah’s time or was a later
development, the argument that is made here is that Dawüd shared with (or
perhaps drew on) Hanafism’s first category of knowledge. He sought to
demonstrate that in each case there existed one, and only one, valid indicator,
and the duty of jurists it was to search for and determine this indicator to
reach the right ruling. While this practically eliminates the need for
the second category of knowledge, it requires a number of “tools” that jurists
can use in the process of identifying the valid indicator in each case in order
to attain the required certainty. Many of the tools that Dâwüd relied on were
used, and possibly developed, by Hanafi jurists.
One such tool that was particularly
useful for Hanafis in achieving certainty was their belief in the principle of istishab
al-hal, or the presumption of continuity. Al-Jassas mentions the question
of whether touching the male sexual organ (usually of oneself) invalidates
ritual purity (meaning that a Muslim who does so has to perform ablution (wudü’)
before praying). He attributes to Abü Hanifah the view that it does not, for we
know that the Prophet would have had to make this (that touching the
penis invalidates ritual purity) known to everybody so that his Companions (who
must have experienced that) would not pray while ritually impure. The Prophet
did that with other things that invalidated ritual purity, and they were
transmitted to us through tawatur (the concurrence of large number of
reports).[650] In
other words, the presumption is that what counts here is only what the Prophet
explicitly specified as invalidating ritual purity. If there is dispute over
one thing, this presumption, which we know for certain, overrides any doubtful
source of ritual impurity. Integral to this principle of istishab,
therefore, is the principle of al-ibahah al-asliyyah, according to which
Muslims can assume that anything and everything is permissible unless there is
a valid indictor that invalidates this assumption in a particular case. Dawüd
and other Zahiris accepted both principles and used them extensively in their
jurisprudence.
Another tool, also related to the
issue of certainty, is setting carefully the relationship between the Qur’an
and the Prophetic Sunnah. We have noted that a notion that the Ahl
al-Hadlth sought to establish was that the Sunnah was independent of
the Qur’an, in the sense that it can establish rules that did not exist in the
Qur’an, or modify some of those that exist in it. Although the dominant view
among them was that the akhbar al-ahad (traditions transmitted by
individual transmitters) did not yield apodictic knowledge even if they were
solid enough to establish obligation, they did not allow this issue to interfere
with the way they perceived the relationship between the Qur’an and Sunnah. The
Ahl al-Ra’y, including Hanafis, on the other hand, did not give such
weight to akhbar al-ahad, whose authenticity was lacking the level of
certainty of the Qur’an, the authenticity of which did not need any
investigation due to its transmission through a large number of people in each
stage in its chain of transmitters (tawatur). When it comes to the relationship
between the Qur’an and Sunnah, therefore, al-Jassas mentions that Hanafis did
not approve the possibility of the Qur’an being abrogated except by traditions
that were transmitted by way of tawatur. A khabar al-wahid, he
points out, cannot abrogate either the Qur’an or another Sunnah that was
transmitted by tawatur. The reason for this is that that which is proven
in a way that yields apodictic knowledge (bi-tariqyüjibu ’l-'ilm) can be
abrogated only by a piece of evidence that yields similar certainty, and not by
one the authenticity of which is disputed and cannot accordingly be a source
of certainty.[651]
[652] [653]
This logic must have had a
significant influence on how Hanafis identified the indicator that could be
used to achieve certainty in each case. Whereas the Ahl al-Hadlth had to
take the akhbar al-ahad into consideration, resulting in establishing
their entire juridical system on probability, Hanafis simply rejected them,
especially when they contradicted the Qur’an in their view. Dâwüd, however, had
another way in dealing with this issue. Seeking to avoid abandoning the ahad
traditions or his interest in certainty, he held that these traditions, in
fact, did yield apodictic knowledge and were therefore a solid ground of
obligation.K)S In other words, both Hanafism and Dawüdism held that
certainty was attainable in legal issues, although they differed on how that
was possible. Ideally, if certainty is the goal of any jurist, he would likely
prefer to have as many pieces of textual evidence as possible. But if we are
dealing with a legal system the textual evidence of which is, more often than
not, diverse at best and contradictory at times, certainty would be better
served with as few pieces of textual evidence as possible, as well as with a
clear categorization of the weight of each kind of evidence on the basis of
how much certainty it yields. Hanafis were able to reject many pieces of
evidence on the basis of their lack of certainty in their view, and were thus
able to have many of their rulings fall in the first category of knowledge that
al-Jassas mentions. For his part, Dawüd managed to find a way to incorporate
categories of evidence that Hanafism rejected (such as akhbar al-ahad)
without causing damage to the principle of certainty itself.
Goldziher had noticed that while most
schools of Islamic law have accepted a tradition in which the Prophet is
reported to have said: “Disagreement in my community is a kind of mercy” (ikhtilaf
ummati rahmah), both Zahiris and Mu‘tazilis rejected it. Hanafis, he added,
also rejected this tradition on the basis of its content.109 Ibn
‘Abd al-Barr attributes to Abü Hanifah himself the view that when jurists
disagree on a given issue, only one of their differing
views could be correct.[654]
[655] [656] [657] He
also mentions that two views were attributed to Abü Hanifah apropos
disagreement among the Companions on a given issue. According to the first
view, Abü Hanifah, in accordance with a Prophetic report that praises
disagreement among the Companions, would choose (randomly?) from among the
various opinions attributed to them.m In the second view, he held
that when two Companions disagreed, one of them must have been right and the
other wrong.n2 Al-Jassas’s categorization of knowledge could be the
key to solving this apparent contradiction. It is possible to imagine that Abü
Hanifah’s first view was related to the second category of knowledge (which is
only “probable”), while the second view referred to the first category of knowledge,
which is “certain.” Similarly, Zahiris believed that the “truth is one,” and
that all other views were categorically wrong.n3 It is remarkable,
but not coincidental or surprising, that the Ahl al-Hadlth embraced the
ikhtilaf ummatl rahmah tradition as well as the other tradition that
sanctions all differing views of the Companions. Thus, unlike Hanafis and
Zahiris, they regularly had to deal with conflicting evidence based on
contradictory views attributed to Companions, which may have made it impossible
for them to argue that their own rulings, which were more often than not in
apparent contradiction with one or two items of the relevant legal evidence,
were certain.
Another significant resemblance
between Hanafism and Zahirism relates to the issue of the “wisdom” and higher
goals of the law, an issue that later came to be known as maqasid al-sharlcah.
Muslim scholars generally agree that God’s law must be based on some wisdom (hikmah)
and is meant to serve some higher goals. However, they differ on the verifiability
of this wisdom and its practical relevance to the actual jurisprudence.
A large number of scholars believe that some immediate legal purposes can be
discerned and used to judge cases not covered by the law. These legal purposes
or causes of rulings (‘ilal, plural of Illah) are at times
obvious and determinate enough to be used to draw analogy between cases. In
contrast, the wisdom of the law is its general and higher goals, which
ultimately relies on each jurist’s understanding of its overall nature. For
example, the ‘illah of forbidding alcoholic beverages is their
intoxicating effect (by analogy, then, an intoxicating substance is forbidden).
But why the law seeks to avoid intoxication in the first place—viz. the hikmah
of the law—is a question that jurists answer variously according to their
religious worldview. Historically, Malikis and Hanbalis were willing to accept
some Illahs that were less exact and objective than the requirements of
Hanafis and Shafi'is, who insisted that a valid Illah must be both exact
(well-defined) and objective.[658]
[659] [660]
The Hanafi qiyas only accepts Illahs
that have specific features, which features betray their concern for both
consistency and objectivity. In this respect, al-Jassas makes a fine
distinction between two kinds of Illah. The first is cilal
al-ahkam (causes and rationales of rulings), which can be determined and
used in qiyas, and the second is Hal al-masalih (bases and
sources of interests), which are known only through revelation. The
former are features (awsaf) of an existing ruling (al-asl al-malul),
whereas the latter pertain to the subjects of law (al-mutacabbadun)
and their interests. In this latter case, we do not necessarily know God’s
wisdom in each case, but we do know that He must have one.115 By way
of example, the majority of Muslim scholars held that God— even if He can in
theory abrogate any ruling by any other according to His will—would abrogate a
ruling with another that is equal to it in terms of hardship or even lighter
and less demanding (akhaff ). This belief is based on their
understanding of divine mercy that takes people’s interests into consideration
and would not therefore inflict more hardship on them.n6 Al-Jassas,
however, rejects this notion, pointing out that Hanafis held that God can
abrogate any ruling with another without being bound with the issue of
hardship, for God’s law is meant to “serve our interests,” which are known only
to God.[661]
[662] [663]
Al-Jassas’s view here seems
inconsistent with the assumption of many medieval and modern scholars that the
notion of maslahah, which is related to the overall wisdom and purposes
of the law, was fundamental to Hanafi jurisprudence. The Hanafi notions of istihsan
and hiyal, among other things, are considered indicative of the Hanafi
interest in and use of maslahah. Although it is not our purpose here to
argue for or against consistency in the Hanafi jurisprudence, three points
could help reconcile what al-Jassas presents as the Hanafi rejection of the verifiability
and usability of maslahah with other Hanafi notions such as istihsan.
Firstly, it has been surmised that Abü Hanifah adopted this notion of maslahah
from Ibrahim al-Nakha'i through Hammad.n8 It is argued that Ibrahim
held that the rulings of the law were both reasonable (in terms of being
identifiable by reason), and purposeful (in the sense of seeking to realize
individual and public interests).n9 Proceeding on the assumption of
homogeneity in the Hanafi jurisprudence, this argument rules out the possibility
that there may have been a difference between Abü Hanifah and his teachers, on
the one hand, and between him and his students, on the other hand. That Abü
Hanifah was an uncritical follower (muqallid) of Ibrahim al-Nakha'i is
unlikely, and so is the contention that he himself was an exponent of the
notion of maslahah.[664]
[665]
[666]
[667]
Secondly, the actual role of istihsan—at times perceived as a defining
feature of Hanafism—in Abü Hanifah’s jurisprudence may have been
over-emphasized.121 This holds equally true to the notion of the legal
stratagemsi22—also considered important tools that Hanafis used to serve
individual and social interests as they understood them—despite frequent
references to Abü Hanifah in works on hiyal .123 The question
here is not whether Abü Hanifah made use of istihsan and hiyal or
not; it is a question of how frequently he did that and how significant they
were in his jurisprudence.
Finally, if we lend more credence to
medieval Hanafi scholarship—such as al-Jassas’s views presented above—we would
be able to consider the possibility that Abü Hanifah himself may have
distinguished between two categories of knowledge, each with its own rules and
assumptions.[668]
[669] [670]
The assumption here is that even if he had believed that the wisdom of the law
was recognizable and usable, Abü Hanifah did not use this notion when there
existed textual evidence that he accepted. If it is agreed that he had a
genuine interest in consistency, objectivity, and certainty, he must have been
seeking to apply his linguistic assumptions without trying to read into
authoritative texts considerations of any nature. In fact, systematization and
consistency do not serve flexibility, a basic requirement of a legal system
that seeks to give itself enough room to respond to the surrounding reality and
take the changing interests of people into account. In the second category of
knowledge, however, he may take the benefit and interests of the parties
involved into account.
Zahiris were notorious for their
rejection of the notion that the wisdom of the law was knowable and accordingly
relevant to the actual application of the law, a view that they categorically
rejected as both arbitrary and baseless.125 Furthermore, their
uncompromising rejection of the notion of ‘illah, as attributed to
Muhammad ibn Dawüd by al-Qadi al-Nu'man, is a recurrent theme in the writings
of a Zahiri scholar like Ibn Hazm, to the extent that this particular notion
has been identified by many scholars, erroneously in my view, as the defining
feature of Zahirism.126 In brief, both Hanafis and Zahiris operated
on the same principle regarding the overarching goals of the law. They all held
that jurists and believers should focus on what they are required to do, not on
the wisdom of the religious law which is beyond our knowledge and, therefore,
has no practical relevance to jurisprudence.
Another major common feature in the
juridical thought of both Zahiris and the Ahl al-Ra’y/Hanafis is their
hermeneutics. A basic view on language that Zahirism and Hanafism shared was
their understanding of the nature and workings of language.[671]
[672] [673] [674] [675] [676]
“The classical Hanafi usül doctrine,” Zysow argues, “stands out from
that of other legal schools in the consistency with which it defends a view of
language that permits confident, secure interpretation. In this respect,
it stands close to the doctrine of Zahiris such as Ibn Hazm and that of certain
Hanbalis such as Ibn Taymiyya.” Zysow goes on to explain that “[w]hat all these
systems of interpretation have in common is that they seek to explain the
workings of language, or at least the language of the sacred texts, in such a
way as to exclude uncertainty from the process of interpretation.”^8
Thus, for Hanafis, “a valid interpretation of discourse cannot be expected to
go beyond the evidence. In this respect, the Hanafi position on interpretation
may be seen to represent a clinging to the zahir of the text, its
apparent meaning, and historically the Hanafis were partisans of the natural
reading of the texts against those who claimed to be pursuing a more
sophisticated analysis of language.”i29
It is worth noting that textual
evidence falls within the first category of knowledge that al-Jassas mentions,
which is how this statement by Zysow could be reconciled with what he says
earlier about the difference between formalist and materialist scholars of
Islamic law and their different notions of how much certainty is attainable in
law. But to give concrete examples of this perception of language, it suffices
to mention two issues that demonstrate how Hanafis and Zahiris shared essential
linguistic postulates in dealing with textual sources. The first is the issue
of the imperative mood (al-amr) and what it entails. To illustrate the
paramount importance of this issue in Islamic law, it suffices to take a look
at introductory chapters in works of usül al-fiqh by the Shafi'i scholar
Abü Ishaq al-Shirazi, the Hanafi scholar Abü Bakr al-Sarakhsi, and the Hanbali
scholars of the Àl Taymiyyah, which chapters deal with the imperative.130
Al-Sarakhsi points out that knowledge of this subject allows Muslims to
distinguish between what is lawful and what is not, for which reason knowledge
of it completes knowledge of religion.131 Therefore, this issue was a subject
of much controversy among Muslim scholars.r'!2 We will
focus here on three points, all of which have to do with the question of
whether the imperative form (fal, in the Arabic language) signifies in
and of itself—“as its sole literal sense,” as Bernard Weiss puts it[677]—more
than the mere calling for an act. The first issue is the degree of obligation
that the imperative establishes: absolute obligation (wujüb),
recommendation (nadb), or permissibility (ibahah). The second is
the time framework that the imperative allows: whether it requires the
immediate performance of what is commanded (ala l-fawr), or allows more
time for its performance (ala l-tarakht). The third is whether the
imperative, in and of itself, requires the repetition (tikrar) of what
is commanded, or only one single performance of it.
Muslim legal scholars have differed
on each of these issues. Many scholars held that the imperative has an
original, default sense that could be changed only when a strong indicator (daltl)
exists. Other scholars were hesitant, denying that the imperative, in and of
itself, carried any sense beyond the calling for the action to be performed,
which means that in all circumstances we have to search for an indicator to
know what the imperative signifies and entails. The imperative, they argued,
does not tell us, in and of itself, whether the act it calls for must, should,
or only could be performed, whether or not the performance must be immediate or
could be delayed, and whether the person commanded need to perform it only once
or has to keep repeating it. If we discuss this issue from the angle of certainty,
we can say that scholars who are hesitant about that which the imperative
conveys (in other words, they do not hold that it has any default sense) do not
aspire to achieve absolute certainty in their jurisprudence (if, of course,
they do not make the argument that in each case they can identify clear-cut
evidence that indicates what the imperative signifies with complete certainty).
On the other hand, scholars who hold that the imperative has an inherent sense
are in a much better position to claim certainty for the legal views that they
derive from textual sources.
Both Hanafis and Zâhirïs belonged to
this last group of scholars. Both madh- habs held that the imperative in
and of itself carried more meaning than the mere calling for an act. Both held
that this inherent sense of the imperative can only be changed when a solid
indicator can be determined with complete certainty; otherwise, the imperative
form retains its original sense. They, admittedly, differed on the evidence
they considered certain and definite, although this was also done on principles
that both shared. That is, Hanafis, as discussed earlier, did not acknowledge
the khabar al-wahid as a valid and solid indicator, whereas Zâhirïs
accepted it as such and held accordingly that it was able to change the sense
of Qur’ânic commands, for instance. The Zâhirï acceptance of the validity of khabar
al-wahid as indicator is, of course, in complete consistency with their
acceptance of it as a source of apodictic knowledge. It is equally remarkable
that Hanafism and Zahirism made similar arguments as for why they held this
view on the signification of the imperative. They argued that the imperative
that signified obligation must have a form out of necessity (darüratan);
otherwise we, as the ones who are commanded and required to perform the command
(al-mukallafün), would be left in complete confusion, since there would
be no way anyone could indicate to another that he must do what he
commands him to do. Al-Sarakhsi argued that the centrality of the issue of the
imperative (that requires obligation) makes it indispensable that it have a
peculiar form, the sense of which could change only on the basis of a solid
indicator.[678]
[679] [680] [681] [682]
Similarly, Ibn Hazm argues that if there were no form for the imperative that
establishes absolute obligation, communication would be impossible and God’s
message to us would be meaningless. Language, he adds, is meant to clarify, not
to confuse.^5
What is even more pertinent to our
purposes here, however, is that both Hanafis and Zahiris shared the same views
on the default senses of the imperative form. Both believed that the
imperative, in and of itself, and when no indicator exists that suggests
otherwise, establishes obligation.^6 Both believed that the imperative
established an obligation of the immediate performance of the act it commands.617
Furthermore, both believed that the subjects of the command (al-mukallafün,
in our case) fulfilled their duty and were spared further obligation to
perform the act commanded the very first time they perform it, unless there is
a certain indicator that suggests otherwise.6*3
Another linguistic issue that
demonstrates a significant resemblance between Hanafi and Zahiri juridical
thought is the issue of the scope of applicability of terms, the issue that
may have given Zahiris their name as discussed earlier. Some scholars held that
any term should be assumed to be general, meaning that it encompasses its
entire range of referents, i.e., everything to which it can be used to refer.
Other scholars, on the other hand, held that terms, in and of themselves, do
not indicate their range of referents, which range we constantly have to search
for indicators to determine. The first group of scholars knew, or so they
thought, what terms encompassed; the second was hesitant. The importance of
this issue stems from the fact that, more often than not, textual sources,
especially the Qur’an, use terms that, if always taken to refer to the entire
range of their possible referents, this can lead to catastrophic results. For
example, the Qur’an mentions the amputation of a thief’s (al-sariq) hand
as a prescribed punishment. Al-sariq can be used to refer to any person
who steals anything. If the reference of this term is not restricted, a person
who steals a penny or an egg is considered a sariq whose hand must be
cut off according to the Qur’anic verse. This term, however, was restricted by
the Prophet, who determined a minimum value that a person must steal to be
considered a thief and thus deserves the Qur’anic prescribed punishment for
theft. A problem could arise if a scholar were to dismiss this tradition as
being of dubious authenticity, for instance. In this particular case, since
this tradition was transmitted by individual transmitters rather than by way of
tawatur, it is thus short of absolute certainty and cannot therefore
restrict a term the range of referents of which we know with certainty.[683]
[684] [685] [686] [687]
Zysow writes: “the problem of the
general term stands ...at the heart of the Hanafi exegetical tradition, for the
mainstream Hanafis were almost alone in regarding the general term as a source
of absolute certainty.’940 He goes on to say that even if the
possibility of restriction or specialization (takhsls) was readily
admitted, the majority of Hanafis were of the opinion that “each general term
was to be taken in its fullest extension unless there was an accompanying
indication.”^ Abü Bakr al-Jassas—who confirms that this was the opinion of all
Hanafi scholars^2—adds that we know the range and scope of
application of general terms with absolute certainty, which is why it is
treated as a source of solid, apodictic knowledge.143 He rejects the view that
since Hanafis allow some traditions to limit the applicability of some general
Qur’anic terms, they should do the same on the basis of the akhbar al-ahad,
for they accept only traditions that, while being transmitted by one person,
have become so well-known that they now carry the same epistemological weight
of mutawatir traditions.[688]
[689] [690] [691] [692]
This, we recall, is also the opinion of all Zahiris (jamT ashab al-zahir)
as Ibn Hazm points out. All terms should be taken to include all its possible
referents unless a valid or “true” indicator (dalll haqq) changes that.M5
Restricting the scope of application of any term is similar to holding that the
imperative does not establish absolution obligation, or that performing
commanded acts could be delayed. These are all cases of unjustifiable
tampering with the inherent, default senses of terms (naql al-asma’ can
musammayatiha).i46 Hanafis, therefore, were not alone in this.
2.2
Zdhirism and the Ahl al-Hadith
In his Uddah fl Usül al-Fiqh,
the famous Hanbali scholar Ibn Abi Ya‘la al-Farra’ (d. 458/1066) mentions that
the zahir (here, most probable or likely) of Ibn Hanbal’s views on the
default sense of the imperative is that it establishes absolute obligation (wujüb)
absent the presence of an indicator that suggests otherwise. This was inferred
from a statement attributed to Ibn Hanbal in which he says: “If [the
authenticity of] a report from the Prophet is established, it must be
followed.”^7 However, al-Farra’ also mentions, in a rather enigmatic
way, that Ibn Hanbal “suspended his view” in the version (riwayah) of
‘Abd al- Malik al-Maymüni who collected some of Ibn Hanbal’s cases. The basis
of this suspension is a Prophetic tradition that says: “When I command you to
do something, do as much of it as you can; and when I prohibit you to do something,
avoid it!”i48 Commenting on this tradition, Ibn Hanbal is reported
to have said that “commands in my view are less stringent than prohibitions.”[693]
[694] [695] [696] Al-Farra’
argues against the view that this statement could be taken to mean that
commands, in Ibn Hanbal’s view, only established recommendation. In their Musawwadah
fl Usul al-Fiqhf50 the Àl Taymiyyah also reject this understanding,
which, they argue, contradicts other statements (mansusat) attributed
to Ibn Hanbal. Accordingly, they reinterpreted this statement in a way that
would reconcile it with their view that the imperative established absolute
obligation, which was Ibn Hanbal’s own view.i5i
What is noteworthy here is that later
Hanbali scholars were uncomfortable with the possibility, or perhaps the
reality, that Ibn Hanbal may have had a different view on what they regarded
as the default sense of the imperative. Abü Ya‘la is in fact the only scholar
who actually sought to produce evidence, in the form of a statement attributed
to Ibn Hanbal, for his contention that he did not differ from the view of most
[later] scholars on this issue. The statement that he produces, however, does
not serve his purpose here. Ibn Hanbal’s statement about the reports of the
Prophet does not, even indirectly, tackle the question of the imperative and
the level of obligation that it establishes. It may be for this reason that no
other Hanbali scholar of usul used it, and, in fact, the Àl Taymiyyah
considered it a “weak indication” of Ibn Hanbal’s opinion?52 Furthermore,
Ibn Hanbal’s other comment on the Prophet’s tradition of commands and
prohibitions suggests that he was hesitant between two possibilities of the
denotation of the imperative—either absolute obligation or mere recommendation.
In this comment, he seems to be distinguishing between prohibitions, which
establish absolute obligation to abstain from certain acts, and commands, which
could have a similar degree of obligation (to do something), or a lesser
degree (which is the case with recommendations).
Scholars who held that the imperative
had a certain default or primary meaning argued that when it is used to
indicate another degree of obligation (or complete lack thereof, such as in
the case of permissibility), it does so figuratively. For example, as we have
seen, al-Jassas mentions that the imperative in and of itself indicates
absolute obligation. It could, however, be used figuratively (majazan)
to indicate any other level of obligation (i.e., recommendation).153
Hanbali scholars of usül al-fiqh, however, attributed to Ibn Hanbal the
view that when the imperative is used to indicate recommendation, it does so cala
’l-haqlqah (“factually,” “literally”?), not figuratively (which is the case
when it is used to indicate permissibility).^4 This confirms the
impression that Ibn Hanbal was probably hesitant about this issue. If the same
imperative form (slghat ifal here) can be used to indicate, cala
’l-haqlqah, two degrees of obligation, this renders less certain our
understanding of the degree of obligation that any imperative establishes. On
the other hand, the other view that the imperative form indicates one thing cala
’l-haqlqah but could indicate another only cala ’l-majaz
allows for certainty.
Ibn Hanbal was evidently hesitant
about other issues too. On the question of whether the imperative indicates
that the act requested must be done immediately or could be delayed, the
Hanbali scholar ‘Ali ibn ‘Aqil (d. 513/1119) attributes to him the view that
the imperative, in and of itself, and if no indicator suggests otherwise,
carries the requirement of the immediate performance of the commanded act.155
Reporting other views that indicate that Ibn Hanbal did not actually think that
the imperative carried the requirement of the immediate performance of the act,
al-Farra’ agrees that what Ibn ‘Aqil says is the zahir of Ibn Hanbal’s
views.i56 Ibn ‘Aqil, however, criticizes al-Farra’ for concluding
this on the basis of some of Ibn Hanbal’s masa’il,i57 arguing
that the masters of usül do not deduce the usül principles from
the furü', but rather establish the furüc on the usül.i’8
In Ibn ‘Aqil’s view, Ibn Hanbal must have held the view that the
imperative required the immediate performance of the command because this was
more “precautionary,” and precaution (ihtiyat) in the usül andfurüc“is
the heart of Ibn Hanbal’s madhhab” he contends/’’9 In addition
to demonstrating the difficulty of determining the principles that guided his
juridical thought (which was probably due to his own hesitancy), this statement
is a strong indication of the moral dimension of Ibn Hanbal’s jurisprudence as
Hanbali scholars themselves understood it, and it contrasts sharply with the
beliefs of both Hanafis and Zahiris who insisted that a certain act cannot be
declared forbidden on any basis other than a text (or analogy thereto [697]
[698] [699] [700] [701] [702] [703] [704]
for Hanafis), the authenticity and meaning of which we have full confidence in.
Precaution, which is based on the same logic that governs the sadd al-dharai
principle (where an act is avoided not because it is wrong in itself, but
because it may lead to a forbidden act), is not a principle they would consider
for declaring an act forbidden. Remarkably, while works of Hanbali usül
affirm that for Ibn Hanbal the imperative denoted the requirement to carry out
the commanded act repeatedly (ala ’l-tikrar),60 the Mu'tazili
scholar Abü al-Husayn al-Basri (d. 436/1044) mentions that those who held the
view that the imperative indicated the necessity to repeat the act did so on
the basis of ihtiyat^
On the issue of the scope of
application of terms, however, Hanbali usul works attribute to Ibn
Hanbal the view that any term is to be interpreted as broadly as possible
unless an indicator suggests otherwise.[705]
[706] [707] [708] [709] [710] [711]
Yet the authors of al-Musawwadah mention that many of Ibn Hanbal’s
associates held other views regarding this issued3 Arguably, this
contention (that Ibn Hanbal’s view on the issue of Omüm was similar to
that of Abü Hanifah and Dâwüd) is inconsistent with Ibn Hanbal’s moral agenda
and with his hesitation, and the case studies discussed in chapter six will
demonstrate that he was more concerned with reconciling various pieces of
evidence that he had on a certain issue rather than following the Ornüm
of a particular textual evidence.
It is worth noting that Abü al-Hasan
al-Ash'ari (d. 324/936) figures as the most important scholar of waqf
(suspension of opinion), not only on the issue of the imperative, but also on
the issue of the scope of application of terms. Al-Ash'ari is reported to have
argued that the imperative that required absolute obligation has no specific
form, and that the ifal form, in and of itself, does not have any
inherent sensed4 In every single case, therefore, we have to search
for clues that indicate what the imperative suggests.K>5 What is
remarkable here is that this is not the view of the Mu'tazilis, who held that
the imperative denoted recommendation unless proven otherwise?» Similarly,
al-Ash'ari also denied that al-lafz al-camm had a specific
form in the language in the first place. Therefore, every term could be of
broad or limited scope of application depending on the clues available, which
we need to seek in every single case.[712]
[713] On
the other hand, Mu'tazilis had the same view of Hanafis and Zahiris regarding
the scope of application of terms.168 This suggests that al-Ash'ari,
who converted from Mu'tazilism to Hanbalism, may have thought that his views
on these two issues were those of Ibn Hanbal himself, which is more consistent
with what we know about Ibn Hanbal. If Ibn Hanbal thought that all the
Companions were correct, the fact that they disagreed on many issues—many of
which must have been related to the imperative and scope of application of
terms—must have made it difficult for him to take a definite position on any of
these issues. In other words, Ibn Hanbal’s inconclusiveness is consistent with
other things that we know about him, and the conflicting usül views that
later Hanbalis concluded on the basis of his masa’il are only indicative
of this.
This chapter has sought to determine
the meaning of zahir and, accordingly, why Dâwüd was labeled al-Zahirl
(i.e., what was defining of his juridical thought) and how this relates to the
question of the relation of his juridical thought to the two legal trends of
his time. Examining some Qur’anic uses of zahir was not particularly
helpful in this respect. Some ambiguities and inconsistencies notwithstanding,
however, discussion of the uses of zahir in al-Shah'i’s Risalah
and part of al-Tabari’s commentary on the Qur’an suggests that it was employed
in the context of hermeneutics and used extensively and frequently, and most
likely technically, in a specific context, that of the scope of application—or
the generality/restrictedness (Umüm/khusüs)—of terms. Zahir is
the most comprehensive sense, or the broadest and fullest possible scope of
application or range of referents of a certain word or statement. Al-Tabari’s
discussion strongly suggests that there was an assumption that the zahir
meaning should be taken to reflect the intention of the speaker (God, in the
case of the Qur’an), and that any deflection from this meaning required a valid
indicator, one both the authenticity and indication of which is beyond doubt.
Deviating himself from the zahir meaning at times, al-Tabari had an
evident concern to not jeopardize the all-inclusiveness of any Qur’ânic term or
statement without valid evidence. This use of zahir was implicitly, but
obviously, connected by al-Shâh'i to the principle of al-ibahah
al-asliyyah, or the presumption that any act is permissible from the
religious point of view unless proven otherwise. In other words, what is
forbidden is only what God has explicitly forbidden, and that on which He has
been silent is not forbidden. Therefore, when God or the Prophet prohibit
something, this particular thing is regarded as an exception to this general
rule of permissibility, but that which is not prohibited remains covered by the
general rule, viz. it remains permissible. This principle has provided
scholars with a very important general rule with which they can begin thinking
of new cases.
Furthermore, from this discussion of zahir
as it was used in the 3rd/gth century, we can infer a relation between the
subject of Umüm and Dâwüd’s rejection of qiyas. Qiyas, as
al-Shâh'i explains, qualifies (here, restricts) general rules by drawing
analogy between what it textually prohibited and other things deemed similar to
it but are not textually prohibited. For example, if we assume, for the sake of
the argument, that jurists agree that the Qur’ânic word khamr refers
only to grape wine, a Zâhiri scholar would consider grape wine to be the only
exception to the general rule of the permissibility of all beverages. A scholar
who draws analogy between grape wine and some other beverages, declaring
thereby these other beverages forbidden, violates al-ibahah al-asliyyah
rule by reducing its range of referents or increasing the exceptions to it.[714]
This, of course, does not apply to scholars who do not subscribe to the
principle of al-ibahah al-asliyyah, and for whom qiyas is a valid
tool to demonstrate that something is permissible (by drawing analogy between
it and something else that we know to be permissible). In other words, qiyas,
in this case, seeks to demonstrate that something that is not explicitly
mentioned by the law is not permissible because of a presumed similarity
between it and another thing that is known to be forbidden. This is a further
expansion of the exception to the general rule of al-ibahah al-asliyyah,
or, reversely, a further restriction of its scope. Scholars who hold the
principle of al-ibahah al-asliyyah, however, do not need to argue for
the permissibility of anything in the first place, for they presume that
everything and anything is permissible unless a valid piece of evidence proves
otherwise.
This means that if zahir had
multiple applications in different linguistic contexts, it was particularly
associated with the subject of cumüm/khusûs. There is solid
evidence that Ibn Hazm understood the zahir meaning to be the !amm
sense of words and statements. For example, commenting on various views on
the meaning of “those who are in authority among you” (ülï ’l-amr min-kum) in
Q. 4:5g,[715]
[716] [717] [718] [719] he
rejects the view that ülï ’l-amr here refers exclusively to scholars
rather than to other Muslims. Since there is no textual evidence from the
Qur’an or Hadith that it refers to one part of the Muslim community rather than
another, it must be interpreted according to its zahir, the restriction (takhsïs)
of which requires evidence (burhan). The zahir meaning of the
ülï ’l-amr here is obviously its unrestricted meaning that is inclusive
of the entire possible range of its potential referents. Furthermore, the
relationship between 'umum and qiyas is also evident in some of
Ibn Hazm’s discussions. On the question of the punishment of a male slave who
engages in an illicit sexual relationship while he is or had been married (muhsan),
Ibn Hazm argues against the view, attributed to Abü Hanifah, Malik, al-Shafi'i,
and Ibn Hanbal, that he is not to be stoned to death as is the case with free
men, but should rather receive fifty lashes similar to slave girls who engage
in a similar relationship. Ibn Hazm relies on a Prophetic tradition to argue
that stoning to death is the rule in the case of adultery.171 The only exception
to this rule is female slaves, according to Q. 4:25.172 It is not to anyone, he
asserts, to challenge the 'umüm of this tradition without evidence. Qiyas,
which is used to include male slaves in the exception, is therefore invalid.
Accordingly, a male slave is to be stoned to death just like free men according
to the general rule on this matter.173
In addition to the subject of ’umüm,
zahir appears in the context of the imperative. The zahir meaning of
a command, according to al-Shafi'i, is that it is meant to establish absolute
obligation to do something, a view that Ibn Hazm fully endorses.174
What is remarkable here is that a relationship between the two issues of ’umüm
and the imperative is conceivable. That is, just as it is the case that any
term is presumed to refer unconditionally (i.e., without restriction)
to any thing or person that falls or can potentially fall within its
reach, the imperative is presumed to establish an unconditional
obligation on everyone in all circumstances to do something, or,
in the case of prohibition, to avoid doing something. There is then an element
of unconditionality, unrestrictedness, and absoluteness in this
understanding of commands and prohibitions, an element that is central to the
belief in the supremacy and immediacy of the all-comprehensiveness of words
and statements. In both cases, challenging the absoluteness of a statement
requires a valid, solid indicator. Furthermore, out of the desire to defame
Zâhirïs, medieval scholars have typically focused on cases that demonstrate how
their presumption that all commands established absolute obligation led them
to many “absurdities.” For example, in Q. 2:282, Muslims are commanded to write
down a note when they borrow money or any other item.[720]
[721] [722]
Zâhirïs insisted that the imperative in this verse ( fa-iktubühu) established
absolute, unconditional obligation, which means that the value of the debt is
irrelevant to the duty to put it in writing. However, if rather than focusing
on the command itself and how Zâhirïs construed it, we focus on the object
of the command, the relationship between the imperative and the issue of 'umum
would be evident. In this case of debt, what really distinguished Zâhirïs was
their contention that writing was obligatory regarding any debt and
regardless of its object or valued6 In the layakhtub
tradition mentioned earlier, the general rule that it establishes is that no
Muslim is allowed under any circumstance to ask any woman who is
already engaged to another for marriage. The views that al-Shâh'ï mentions in
this context do not seek to mitigate the degree of obligation of this
prohibition, but rather to qualify the apparently absolute, unconditional, and
unrestricted rule that this tradition establishes.177 Thus, presuming the
imperative to establish less than absolute obligation that applies “across the
board,” so to speak, threatens its 'umum or zahir.
Remarkably, it is not uncommon for
non-Zâhiri scholars to make conclusions about the purpose of the law on the
basis of exceptions to general rules. For example, al-Tabari mentions a number
of scholars who held that the command in the verse of the debt is for absolute
obligation and not just recommendation (which is the Zâhiri view). Others held
that this command was in fact abrogated by Q. 2:283, “And if you are in a
journey and cannot find a scribe, then a pledge in hand [shall suffice]. And if
one of you trusts another, he who is trusted should deliver his trust.”[723]
[724] In
their view, this textual evidence mitigates the command, for it spares people
of the requirement of writing their debts or have witnesses when they are
traveling and do not find a scribe. When this is done, however, the gate is
wide open, not only for mitigating the obligatoriness of the first verse, but
also for adding new exceptions to the general rule that it establishes on the
basis of each scholar’s understanding of the “spirit” of the law and the
purposes that it seeks to serve. It is not therefore surprising that the
majority of scholars, including those who held that the command in and of
itself established absolute obligation, agreed that this command to write debts
cannot be taken to establish absolute obligation.™ For Dâwüd, the
unrestrictedness of terms and rules can only be qualified by the lawgiver. The
logic behind a certain exception or qualification of a rule is one that we (the
interpreters of the law as well as its followers) do not know and are not
required to seek to begin with. Therefore, we cannot use an exception to make
conclusions about the purpose of the law.
Dâwüd shared the belief in 'umüm
with the Ahl al-Ra’y, as well as their understanding of the nature of
divine law. Both believed that certainty in not only required in the law, but
was also attainable if the right methodology is used. Accordingly, there must
exist one correct reading of any legal text, and this correct reading is within
our reach with complete confidence. To achieve certainty, the Ahl al-Ra’y/Hanafis
and Dâwüd/Zâhiris emphasized the centrality of legal texts and the importance
of interpreting them on the basis of well-defined assumptions and rules, such
as the notion of istishab al-hal, the assumption that restricting the
full scope of application of a text requires a valid evidence, and the
assumption that the imperative in and of itself established absolute
obligation. It is important to note that Dâwüd evidently had more textual
evidence to deal with than the Ahl al-Ra’y, for which reason he was able
to argue that in most cases, there existed one, and only one, valid evidence,
unlike the Ahl al-Ra’y who felt more at liberty to use their own
judgment where no valid textual evidence existed in their view, or when conflicting
pieces of evidence existed on one issue. What is significant is that Dâwüd and
the Ahl al-Ra’y dealt similarly with the textual evidence that they accepted
without emphasizing notions such as the wisdom and higher goals of the law.
On the other hand, Ahmad ibn Hanbal
does not seem to have been interested in abiding by specific assumptions and
rules in hisjurisprudence. His evident hesitancy made later Hanbali scholars
unable to infer one view on the issues of the scope of application of terms and
the imperative, for instance, from his legal cases. Hesitancy appears as a
hallmark of Ibn Hanbal, and this is consistent with the view that he was more
concerned for the morality rather than the legality of acts and practices. To
serve his moral agenda, and also to be able to reconcile and synthesize various
pieces of evidence from the Qur’an, the Prophetic Sunnah, and Companions’
views, he needed to be at liberty to deal with the evidence without abiding by
rigid and restrictive rules. The case studies discussed in chapter six will seek to demonstrate
these views on Dawüd and Zahiris, the Ahl al-Ra’y as represented by Abü
Hanifah and later Hanafis, and the Ahl al-Hadlth, as represented by
Ahmad ibn Hanbal and his later followers. Now we attend to the question of the
nature of Zahirism as a hermeneutical and legal theory.
Zahirism,
Literalism and Textualism
Modern Islamicists, and perhaps some
medieval Muslim scholars, have regarded Zahirism as a literalist approach,
assuming that the zahir meaning is the “literal” meaning.[725]
They, however, do not examine how the term zahir was used in the Muslim
tradition, nor do they take into account the controversy in modern linguistics
on the validity of the very notion of “literalism,” or the possibility of
identifying a literal meaning for a given word or sentence. The previous
chapter dealt with the first issue. This chapter continues this interrogation
of Zâhirism by tackling the issue of literalism. It begins with comparing
Zâhirism as elaborated by Ibn Hazm al-Andalusi with the version of textualism
expounded by a contemporary Americanjurist,Justice Antonin Scalia. The second
part of the chapter deals with literalism from a linguistic point of view.
Justice Antonin Scalia—who has been
Associate Justice of the United States Supreme Court since 1986—is known to be
the most outspoken advocate of textualism in the United States in recent
decades. Here, I investigate the extent to which his version of textualism
corresponds to Zâhirism with respect to its premises, goals, and methodology.[726]
A theory of language (by which I mean
a set of assumptions about the nature and workings of language) is central to
all interpretative methodologies.[727]
[728] In
describing textualism, Scalia contends that textualists are neither literalists
nor nihilists. “Words,” he explains, “... have a limited range of meanings, and
no interpretation that goes beyond that range is permissible.”[729]
This indicates two significant aspects of Scalia’s perception of language;
first, he believes that although we may need to exert some effort in order to
determine the intended meaning of a given term, we are dealing primarily with afinite
number of possibilities, which we can learn from many sources, as explained
below. The second and probably the more important aspect is that it is assumed
here that we can understand the language (of the law) in a correct way.
For his part, Ibn Hazm argues that the first language that man used was not
man-made, but was rather taught to man by God himself. According to him, Q.
2:31, “And He taught Adam all the Names.. .,”[730]
clearly indicates that God taught Adam all the words that He had assigned to
everything.[731]
This first language must have been the most perfect of all languages in its
clarity, straightforwardness, and freedom from ambiguity.[732]
As for other languages, they may too have been taught to Adam by God, or may
have been derived (but not developed separately) from the first language. Yet
even in the latter case, Ibn Hazm’s view on how language functions remains the
same; he holds that when people invented new languages, they had already
learned how language works.[733] In
every language, therefore, there is a word that corresponds to a certain thing,
and this is what makes communication among people who speak the same language
possible. This is a conclusion that is dictated by both reason and Revelation,
he argues, for language is meant to explain rather than confuse matters.[734]
Consequently, Ibn Hazm insists that a Muslim jurist must be accomplished in the
Arabic language, the language of Revelation. This requires full knowledge of
the words that are assigned to things and the grammatical rules of Arabic.[735]
[736] [737]
The important analogy we can draw
between Ibn Hazm’s and Scalia’s understanding of language here is their
conviction that each word refers to a specific thing (its referent) and that “correct
understanding” is possible. Whereas Ibn Hazm does not—to the best of my
knowledge—make an explicit statement with regard to having more than one word
referring to one thing (i.e., synonymity), this does not seem to have been a
problem that he worried much about. As for assigning one word to many things,
he refers to this question in his discussion of majaz—the metaphoric use
of language—which he defines as assigning to a word a meaning that is different
from the meaning that was first assigned to it. In religion, only another text
or consensus can establish that a word is used figuratively in a certain text.
If this is done by God, however, the metaphorical meaning ceases to be
metaphorical and becomes a true meaning of the word, for it is God who assigns
meanings to words in the first place, Ibn Hazm states.11
Another assumption that Scalia has
relates to the purpose of the law and its relation to the social environment in
which it is applied. Criticizing the “Living Constitution” philosophy—according
to which the American Constitution must always be reinterpreted to remain in
tune with changing circumstances— Scalia argues that the Constitution’s “whole
purpose is to prevent change.’42 Scalia is not against legal
change on principle, but he does believe that this should be done in a
particular way as explained below. As long as a certain law stands, it should
be followed as it is without attempting to render it compatible with a
particular social reality or the subjective views of the legal interpreter. For
his part, Ibn Hazm maintained that God’s law that was revealed to the Prophet
Muhammad was the grounds on which life should be organized. His main criticism
of other madhhabs was their—in his view—allowing their whimsical and
arbitrary understandings of the purpose and spirit of the law to change God’s
law according to the circumstances. For him, God’s message to the Prophet
Muhammad was God’s last communication to mankind, and its legal aspect was
intended to remain valid and operative until the end of time.[738]
[739] [740] [741]
A third assumption that Scalia holds
concerns the distinctive roles of legislators or lawmakers, on the one hand,
and that of legal interpreters—be they jurists or judges, on the other. In his
view, the legislative power is the “power to make laws, not the power to make
legislators.” “Congress can no[t]... authorize one committee to ‘fill in the
details’ of a particular law in a binding fashion.’^4 On the other
hand, “judges have no authority to pursue th[e] broader purposes [of the law]
or write... new laws.’45 Similarly, this uncompromising distinction
between the lawgiver and the legal interpreter is at the core of Ibn Hazm’s
jurisprudence. He insists that there is only one lawmaker in Islam—God, and
that this lawmaker has not authorized anyone to assume the function of
legislation (including the Prophet Muhammad, whose Sunnah is mandated by God
himself). Thus, the role of thejurist is not to legislate by declaring things
permissible or forbidden, but only to determine and report God’s rule in cases
presented to him?6 To do this, both Scalia and Ibn Hazm believe that
the right methodology must be used. The discussion on their methodology below,
therefore, deals with the way jurists and judges interpret the law, and not
with the actual making of the law. In other words, it deals with how
textualists and Zâhirïs deal with language as interpreters.
The rejection of the notion of
legislative intent is generally seen as the main characteristic of textualism,
for which reason it is always contrasted with “intentionalism.” In fact,
textualism is regarded as emanating from “origi- nalism,” which refers to the
search for original meaning rather than original intent.1
This position is both a principle that textualism maintains, as well as (or
perhaps as a result of) a pragmatic, epistemological assumption about what they
believe legal interpreters can and cannot do (here, what they can and cannot determine).
“Textualists,” Caleb Nelson points out, “emphasize that the legislative process
is set up to achieve agreement over words, not motives or purposes.”[742]
[743] [744]
Unlike intentionalism, textualism “treat[s] the legislative process as a black
box that spits out the law to be interpreted but whose internal workings in
any particular case are not part of the context that should be ascribed to an
‘appropriately informed reader’.’49 (What is meant by “appropriately
informed reader” will be discussed shortly.) What textualists seek to find out
when interpreting a certain law, therefore, is that which lawmakers intended to
say rather than what they intended to achieve or bring about by making a given
law. It is not surprising, then, to learn that in this view, “[u]nfairness is
irrelevant when the rule applies as a matter of plain textual meaning,” as
William Eskridge comments on one of Scalia’s legal arguments.[745]
[746] [747] [748] [749] [750] Scalia
argued that “judges should allow even stupid laws to stand ...I do not
think... [that] the avoidance of unhappy consequences is adequate basis for
interpreting a text.”2i Another scholar explains that “[a]lthough textualists
find it appropriate in cases of ambiguity to consult a statute’s apparent
purpose or policy..., they resist altering a statute’s clear semantic import in
order to make the text more congruent with its apparent background purpose.”22
It is also argued that textualism “rests upon the notion that enforcing the
clear semantic meaning of a statute represents the best, if not the only, way
to preserve the unknowable legislative bargains that produced the final
text.”23 Scalia, it is believed, does not lend credence to the
notion of legislative intent because it is not, most of the time,
ascertainable?4 Scalia himself argues that determining the original
intent is almost impossible for a number of reasons (most of which relate to
issues of American legal history, which is beyond the scope of this study).25
Textualism, therefore, “might be understood as a judgment about the most
reliable (or perhaps the least unreliable) way of discerning legislative
instructions.”[751]
Textualism, however, does not
entirely disregard legislative intent, for the intent that matters in their
view is “the rule that legislators meant to adopt rather than the
real-world consequences that legislators expected the rule to have.”2[752]
Textualism seeks after what is called the “objectified intent,” which is “a
concept predicated on the notion that a judge should read a statutory text just
as any reasonable person conversant with applicable social conventions would
read it.”2[753]
The intention of the lawmakers, in other words, is to “enact a law that will be
decoded according to prevailing interpretative conventions.’^[754]
In Scalia’s own words, “[w]e [should] look for a sort of ‘objectified’
intent—the intent that a reasonable person would gather from the text of the
law, placed alongside the remainder of the corpusjuris... [for] it is
incompatible with democratic government, or indeed, even with fair government,
to have the meaning of a law determined by what the lawgiver meant, rather than
by what the lawgiver promulgated.”[755]
[756] [757] [758] [759]
Thinking of what lawmakers meant would lead one to think in terms of his
understanding of how an intelligent person “should. have meant”
and thus what the law “ought to mean.”-'*1
Ibn Hazm’s concern about the
usurpation of God’s absolute prerogative as the sole lawmaker cannot be
articulated better than Scalia’s argument here (with Congress replacing God, of
course).*2 In both views, legal interpreters should not be allowed to assume
the role of lawmaking. Textualists, therefore, address various issues that
could potentially give room to legal interpreters to assume this role. Scalia
is critical of “certain presumptions and rules of construction that load the
dice for or against a particular result.”** Criticizing their vagueness and
uncertainty, he argues that these rules are not textual, and can facilitate the
job of a willful judge and increase judicial unpredictability.*4
Accordingly, textualists reject the notion of “imaginative reconstruction,” a
process by which legal interpreters imagine how lawmakers would have decided on
a given case. Rather than doing this, textualists focus on “the implications
of what the enacting legislature actually did decide.”[760] In
contrast, intentionalism focuses more on the spirit rather than the letter
of the law, seeking to figure out the intentions—meaning the goals—of
lawmakers by resorting to imaginative reconstruction as well as to other
tools. For example, “[w]hen a sufficiently dramatic mismatch between means and
ends occurs (or, more accurately, appears to occur), classical intentionalists
ascribe that divergence to legislative inadvertence.’^[761]
In other words, an intentionalist legal interpreter can go so far as to assume
that the law as it stands cannot be the law that the lawgivers had intended to
promulgate. In Scalia’s view, this type of judge intentionally manipulates the
law to impose what a judge regards as an appropriate judgment in a particular
case[762]
Intentionalists, thus, can be
regarded as meddling with the law at times to reflect more faithfully what they
believe to be the real goals of the lawmaker. In so doing, they can assume that
lawmakers may not be cognizant of the full implication of everything they say.
Textualists, on the contrary, do not proceed on a similar assumption. They begin
from the assumption that lawmakers are deliberate in choosing the language of
the law, which language, they hold, reflects the outcome of a lengthy process
which the law had to go through in order to be agreed upon by the majority of
lawmakers[763]
Therefore, they focus on what an “informed reader”—by which they mean a learned
but unspecialized person—would understand when reading a legal text. Focusing
on what is thought to be the intent of the legislator rather than what the law
could reasonably be understood to be saying, they argue, puts people outside
the legislature in a situation where they have to abide by laws of which they
cannot be fully aware since they may be interpreted by judges in a way that
they could not understand or predict[764]
It was noted in a previous chapter
that Zâhirism is notorious for rejecting the notion of ‘illah, which is
primarily used to determine the immediate objective of the lawgiver so that
analogy can be drawn between new and existing cases.[765]
[766] [767] [768] [769] [770] [771]
Ibn Hazm distinguishes very carefully and categorically between the lawgiver’s
(i.e., God’s) intent—which is basically that we obey his law, and his objective
in creating a certain law. Just as Scalia argues that “the text is the law, and
it is the text that must be observed,’^1 he argues that zahir
is what we recite, and we are not required to go beyond that?2 We
are required to follow only what we understand, and do not need to consider the
rationale or anything else beyond what we understand from a given legal text?3
At the outset of his Ihkam, he points out that what believers would be
better off doing in this life is to seek to determine that which God has
ordered us to do and abide by it.44 This is, so to speak, the meaning of
submission to God. Zâhirïs, then, do not concern themselves with original
intent. However, they look for the “original meaning.’ The way Ibn Hazm deals
with legal texts evinces his conviction that God uses language in the clearest
and most efficient way, for which reason the first language that He created
must have been the most perfect, as it was the clearest, the most
straightforward and the least ambiguous, as noted earlier?5 This,
for Ibn Hazm, is the use of language that befits God. As noted in chapter one, it is for this reason that
some Zâhirïs rejected the idea that the Qur’an contained metaphoric
expressions, for this was regarded as a degraded form of language that created
ambiguity and uncertainty. On this ground, the possibility that the language of
the law was insufficient or not clear enough was categorically ruled out in
principle?6
God, then, speaks in the clearest way
in the Zâhirï understanding, and this clarity is intentional. Muslim scholars
have disagreed on whether the bayan (clarification) of a certain ruling
can follow its being made incumbent upon people. In other words, can God impose
a duty on people by means of an ambiguous statement and only clarify what he
exactly means in a later statement? In Ibn Hazm view, the actual obligation of
a command cannot in principle precede its hayan because this would be
tantamount to burdening us, the subjects of the law, with what we cannot
tolerate (tahmlluna ma la yutaqu). God would not do this, not because he
cannot do it, and not because it does not befit him, but according to his own
words in the Qur’an.[772]
Similar to textualists’ belief that people should not be held accountable for a
law that they do not fully understand, Zahiris argue that God’s promise that he
would not inflict on people a burden that is beyond their capacity to carry out
certainly indicates that he would not speak to them in an unclear or ambiguous
way.4[773] In
other words, God would not mislead people when they are sincere in attempting
to submit to His will.
It is worth noting here that while
originalists in general assume that lawmakers are aware of the full import of
the language that they use,4[774]
textualists, according to Nelson, do not categorically rule out the possibility
of what is called “scrivener error,” which roughly refers to any error in
drafting a law. However, “[b]efore they will reinterpret a statutory text on
the ground that it reflects a drafting error, textualist judges insist on a
very high degree of certainty that Congress as an institution did indeed make
a mistake.”[775]
[776] [777] [778]
For instance, if an error is “obvious,” textualists are willing to act on the
basis of what they thought lawmakers really intended to say.51 This
notion of scrivener error is only comparable to Hadith transmission in the
context of Islamic law, when a transmitter inadvertently changes one or more
words in a Prophetic tradition.52 It may be for the purpose of
avoiding this kind of error (which would undermine the certainty of the law)
that Ibn Hazm insisted that a transmitter has to transmit traditions verbatim
without making any changes in their wording or structure^3 whereas
others were generally tolerant of changes provided that the traditionist who
makes them know that they do not change the meaning.
According to some contemporary legal
scholars, what really distinguishes tex- tualists is not what they think about
the content and intent of the rules that Congress promulgate, but rather how
they set about determining these rules.[779]
[780] [781] [782] [783] [784] As
noted, identifying the underlying purposes of the lawmaker is not an objective
for either textualists or Zahiris. Identifying the meaning of the text
of the law, however, is what they seek to accomplish. Therefore, the first
thing that a judge or a jurist (the legal interpreters) needs to do when
working on a certain case is to find a relevant textual basis upon which he can
proceed. Scalia argues that “judges should focus on the text. If someone claims
he or she is being denied the exercise of a right or if the government asserts
it has authority to take a given action, courts must make certain there is
specific textual support for each assertion.”55 Accordingly, if a judge is
confronted by a case that the law does not directly address, what should be
done is that “instead of simply assuming the authority to engage in... [a]
reconstructive project, courts should find the statute inapplicable unless it
‘plainly hands [them] the power to create and revise a form of common law’ with
respect to the issued6 That is, if thejudge is not given the
authority to decide on certain cases, he should abstain from making judgments
that do not follow from specific legal texts. Likewise, Ibn Hazm argues that
the authoritative legal texts (the Qur’an and Hadith) are our only bases for
knowing God’s ordinances.57 Texts for Ibn Hazm are not more important
than other sources of Islamic law; they are its only sources. In fact, a
view that distinguished Zahiris and that demonstrates their insistence on the
absolute supremacy of texts was their dismissal of the Prophetic “practical
Sunnah” (al-sunnah al-camaliyyah) as a valid source of law.58
Ibn Hazm argues that only verbal Hadith is a valid source of law. The Prophet’s
practice, irrespective of how habitual it was, is only recommended for us to
follow but is not legally/religiously binding.[785]
Having identified a relevant text or
texts, textualists begin the crucial process of interpretation. The most
distinguishing feature of textualism here is their “rule-like” approach, which
is contrasted with the “standard-like” approach of intentionalists. The
difference between these two approaches is that whereas a “rule” is a directive
that “requires for its application nothing more than a determination of the
happening or non-happening of physical or mental events,” a standard-like
directive is one that “can be applied only by making, in addition to a finding
of what happened or is happening in the particular situation, a qualitative
appraisal of those happenings in terms of their probable consequences, moral
justification, or other aspect of general human experience.”[786] In
general, rules provide jurists with well-defined and fixed regulations on how
they should go about interpreting the law. For example,
a rule might tell implementing
officials to ignore some factors that they otherwise would have thought
relevant to the goal behind the rule and to focus exclusively on a narrower set
of issues identified by the rule. Or it might permit implementing officials to
consider all the circumstances they like, but still make some binding
generalizations about how those circumstances usually play out or about the
proper weight of various factors[787]
The rule-like attitude, in other
words, seeks to regulate the legal process by carefully informing the legal
interpreter of what he can and cannot do. In contrast, the standard-like approach
of intentionalism gives legal interpreters more flexibility in deciding each
case by allowing a degree of value-judgment. Accordingly, insisting that the
development and use of hermeneutical tools is central to textualism,6[788]
Nelson points out that “[a] formalist theory has got to have rules about
rules”[789]
The rule-like attitude of textualism, a formalist theory according to Scalia
(see below), is even more evident in cases where textualists use some of the
techniques of other legal trends without giving up their convention that rules
and only rules must rule.[790]
[791] [792] [793] [794] [795]
For example, “textualists try to keep their attempts at imaginative
reconstruction within the rule-based framework that they understand the
enacting legislatures to have chosen, and they are more likely than
intentionalists to presume that this framework applies notwithstanding changed
circumstances.”*’’’ In commenting upon how textualist interpreters deal with
legal texts, Scalia argues that:
textualists are willing to deviate in
certain ways from the baseline that conventional meaning provides. Still,
textualists prefer such deviations to be guided by relatively rule-like
principles. While textualists are willing to invoke some regularized canons
that bear on the intended meaning of statutory language even though they are
not part of normal communication, textualists are more reluctant than other
interpreters to make ad hoc judgments that the enacting legislature must have
intended something other than what conventional understandings of its words
would suggest.66
This insistence on the necessity of
both having/developing rules as well as abiding by them is, in fact, consistent
with textualists’ understanding of the all-importance of consistency,
determinacy, and predictability in the law— notions that they regard as both
crucial and indispensable for any just legal system.*7 Realizing
these, however, requires that the process of legal interpretation be governed
by specific, pre-defined rules. Therefore, Scalia believes that “general rules
are beneficial because they provide notice and certainty to the public that is
expected to obey the law. They also ensure that Americans will receive equal
and consistent treatment and not be subjected to the predilections of the
current justices on the Court or to shifting popular opinion.”*8 On
the other hand, “by using unclear standards,” he points out, “consistency
suffers.” Rules are thus required and applied “to all situations.”*9
Textualism, accordingly, makes use of
numerous interpretative rules. One of its basic rules is that “it [is]
imperative, given the complexities of the legislative process, to respect the
level of generality at which Congress speaks; for them, legislative
compromise is reflected in the detail of the text produced. So they subscribe
to the general principle that texts should be taken at face value— with no
implied extensions of specific texts or exceptions to general ones—even if
the legislation will then have an awkward relationship to the apparent background
intention or purpose that produced it.”[796]
[797] [798] [799] [800] [801]
When the Constitution speaks of “any person,” Scalia takes this to mean any
person regardless of anything, whereas the same article could be read by
other, non-textualist interpreters in view of the circumstances of its
promulgation in a certain context with the aim to ensure specific rights for
specific groups of citizens (mostly minorities)?1 Furthermore, if a
law could be read in two different ways, one of which would make another law,
or part of the same law, superfluous, a textualist would prefer the other
reading which allows the two laws to stand together and complement each other?2
In other words, a textualist would assume that the lawmaker intended to say
something new or different in the new law even if this was not clear enough.
Remarkably, in a chapter on the contradictions among legal texts (ta'ârud
al-nusâs), Ibn Hazm argues against scholars who held that in cases like
these (when authentic pieces of textual evidence seem to contradict each
other), all texts fall and we proceed as if no text was available as evidence
in the case at hand. If two authentic texts contradict each other (a
possibility that Ibn Hazm does not acknowledge but only mentions to make a
certain point)?3 both of them are to be used, for there is no good
reason to follow one of them rather than the other?4 This view does
not seem to have been influential in Ibn Hazm’s jurisprudence, not only because
he did not abstain from dismissing a large number of textual pieces of evidence
on account of their (lack of) authenticity?5 but also because he was
always willing to question and dismiss the relevance of particular
textual evidence to a particular case on the basis that we do not know enough
about its circumstances.
What is noteworthy about the
rule-like and standard-like approaches is the implied inverse relationship
between rules and the degree of subjectivity involved in the process of legal
interpretation. Textualists and Zâhirïs sought to minimize subjectivity in
legal interpretation by introducing hermeneutical rules. Ibn Hazm judges
earlier scholars by the extent to which they use rules in their jurisprudence.
He admires al-Shâfi'ï because he was, in his view, an imam in language
and religion who introduced many rules, the sound among which outnumber the
faulty.[802]
[803] [804] [805] As
we have noted earlier, the insistence of Zâhirïs on the use of interpretive
rules makes their methodology closer to the Ahl al-Ra’y’s and far from
that of the Ahl al-Hadlth, who, in fact, seems to have loathed having
to abide by rules that would limit their ability to serve their moral agenda,
as reports about Ibn Hanbal’s hesitation and indecisiveness strongly suggest.
Another major issue concerning the
way textualists seek to identify what they call the “objectified intent” of the
law is their attitude towards the context of any given legal text. According to
Nelson, “when a statement has multiple and equally valid interpretations,
textualists use internal and external evidence to ascertain the meaning
intended by the lawmakers.”77 These kinds of internal and external evidence
that textualists consider in order to identify the meaning intended by the
lawmaker include historical as well as linguistic and social contexts.78
When dealing with the historical context, a distinction must be made between
two points: the historical context of a certain legal text, and what is called
“legislative history.” The historical context refers to the place and time in
which a legal document or rule was produced. Legislative history, on the other
hand, refers to all the interpretations of that legal doctrine since it was
produced. In the American legal system, for example, the late 18th- century
(would-be) United States is the historical context of the US Constitution.
Subsequent interpretations of and writing on the Constitution are known as its
legislative history. This similarly applies to statutory laws. In the Islamic
context, the late 6th- and early 7th-century Arabia represents the historical
context of the Qur’ân, for instance. All subsequent scholarship on its legal
aspects, however, belongs to the legislative history of its law.
It has been argued that
“[d]octrinally, the new textualism’s most distinctive feature is its insistence
that judges should almost never consult, and never rely on, the legislative
history of a statute.’^9 Several reasons are provided for this
position. The first is that Congress itself (i.e., the lawmaker) does not
authorize this kind of quest for intended meaning in the legislative history.
What it authorizes, however, is only the use of the laws that are approved and
which are submitted to the President.[806]
Secondly, textualists assume that the lawmakers choose their language
carefully because they are aware that their laws would be used by the courts[807]
Furthermore, textualists are generally skeptical of the judge’s ability to
distinguish between reliable and unreliable or misleading materials in the
legislative history[808]
[809] [810] [811] [812]
Finally, they assume that the final legal product was one emerging from many
compromises, and thus relying on how the law is formulated is the best way to
“identify the compromises that members of the enacting legislature
collectively intended to strike.”83
Nevertheless, textualists do use
history. What is important is that they do not use it to determine the intent
of the law, which is not a goal for textualist legal interpreters in the first
place. They, however, use history “only as a guide to meaning.”84 In
Scalia’s view, it is not contrary to sound interpretation to “give the totality
of context precedence over a single word.”85 He argues that “when confronting a
statute, all mainstream interpreters start with the linguistic conventions (as
to syntax, vocabulary, and other aspects of usage) that were prevalent at the
time of enactment. Those conventions help determine the ‘ring’ that the
statutory language would have had to ‘a skilled user of words... thinking
about the... problem [that the legislature was addressing]’.’^6 For
his part, Ibn Hazm is not less than textualists in considering the historical
context for identifying the intended meaning, a point that will be discussed in
more detail below. This attitude towards historical context is remarkably
reminiscent of both al-Shâh'ï’s and al-Tabari’s attitudes towards the same question,
and differs from the attitude of the Maliki madhhab, for instance, for
which history is a source of knowledge for the practice rather than the meaning
of the law.
The issue of the historical or
physical context is at the heart of the difference between literalism and
textualism, for whereas the former focuses only on the “semantics” (words and
grammatical structures and the meaning that they convey) of sentences, the
latter approaches the texts in light of the textual and historical contexts.
Having said this, it must be noted that some scholars have expressed some
uncertainty about the real attitude of textualists towards the historical
context. For example, it has been argued that Scalia’s interests are only
linguistic rather than historicist, for he “often devotes little or no effort
to figuring out how contemporaries actually would have understood the terms
used in statutes.”[813]
[814] In
other words, he only cares about how a legal statement would be understood by a
reasonable speaker of the English language.88 Others have argued that Scalia
and his ilk seek to determine the meaning of words as they were understood when
a legal document was produced. Manning, for example, argues that textualists
“are not literalists; they do not look exclusively for the ‘ordinary meaning’
of words and phrases. Rather, they emphasize the relevant linguistic
community’s... shared understanding and practices.’^[815]
We have seen a similar statement made by Scalia himself. Eskridge’s understanding
of Scalia’s attitude towards the historical context, therefore, is inconsistent
with how others view his legal theory.
It is noteworthy that a similar
uncertainty about the role of the historical context can be detected in Ibn
Hazm’s Zahirism. A staggering fact about Ibn Hazm’s legal writings is his rare
references to Arabic poetry and disagreements among scholars of the Arabic
language[816]
Ibn Hazm regularly mentions linguistic rules without providing historical
evidence for their authenticity and soundness. For example, at the very beginning
of his Ihkam, he mentions the function, role, and indication of many
conjunctive particles (like waw, fa-, thumma, etc.) without providing
any examples from Arabic poetry to prove his views on their indication[817]
[818]
Ibn Hazm probably assumed that these rules were known to everyone, for which
reason he may have felt that he did not need to prove them.92 In
fact, he does make numerous references to linguistic usages of the Arabs, even
though he does not always produce evidence for that. For example, he asserts
that when the Arabs spoke about a group of men and women, they used masculine
pronouns. No evidence is given here except the argument that since the Prophet
was sent to men and women alike, and the Qur’an uses the masculine pronouns
more often than not, this must indicate that these pronouns referred to
both men and women.[819] He
also asserts, without demonstration, that there is no disagreement among the
Arabs that the dual has a form that differs from the plural. Therefore, the
plural only indicates three or more (in contrast to another view that he
mentions, according to which it can also refer to two).9[820]
Ibn Hazm is probably talking here about what, in his view, ought to be,
but he does not demonstrate that this rule was actually invariably followed by
the Arabs.
History for Ibn Hazm was important
not only as a means for determining the intended meaning by informing jurists
of how the language was used when legal texts were produced, but also because
the historical context provides a “circumstantial evidence” for the intended
meaning. In one Prophetic tradition, a woman asks the Prophet about the
permissibility of kissing while fasting, to which the Prophet replies by
saying that he used to do that. She then said to the Prophet that since God had
forgiven all his sins, he was not similar to other men in this regard, meaning
that his behavior in this case could be one of his prerogatives as the
Messenger of God. This answer actually upset the Prophet, a context on which
Ibn Hazm relies to prove that the permissibility of kissing during fasting was
not a prerogative of the Prophet, but was rather valid for all Muslims, even if
the Prophet did not say this explicitly to the woman who asked him about it[821] It
is important to note that the fact that we do not find comparable use of the
historical context in American textualism can simply be accounted for on the
basis of the nature of the two legal systems. In the American legal system,
laws must be promulgated in a “formal” way. Congress, for example, cannot outlaw
a practice by the mere expression of displeasure with or disapproval of it.
Finally, textualists take into
consideration the textual context of words. In textualism, the language of the
statute as a whole is considered essential in the process of determining the
meaning of terms[822]
Scalia argues that “... the Court should ensure the meaning makes sense within
the context of the law or code of which it is part,”9[823]
which is part of the “totality of context” that he believes should be given
precedence over individual words[824]
Because of the centrality of this point, it will be discussed in more detail in
a later context, after discussing two case studies that illustrate Scalia’s
juridical thought.
In American criminal law, the
sentence of a person who “uses” a machine gun in drug trafficking is thirty
years in jail. In what is known as the Smith case,[825]
J. A. Smith and a friend of his took part in a drug trafficking
operation, during which Smith sought to sell or barter his machine gun with a
drug dealer. Through an undercover agent, the police was informed about the
operation, whereupon Smith fled the hotel in which the operation took place and
was arrested later after a car chase. The police found the machine gun with
Smith when he was arrested. He was indicted and sentenced to 30 years for knowingly
“using” the machine gun “during and in relation to a drug trafficking crime.”[826]
[827] [828] [829]
When the case reached the Supreme Court, thejudge who was in charge of the case
decided that what Smith did constituted “use” of his machine gun and the
statute was thus relevant to the case. The judge referred to the meanings of
“use” in some dictionaries to demonstrate that Smith did use his machine gun in
the operation.101
Scalia dissented, arguing that the
Court’s logic that the dictionary definition of the word “use” is very broad is
fallacious. In his view, “[i]t is a ‘fundamental principle of statutory
construction’ (and indeed, of language itself) that the meaning of a word
cannot be determined in isolation, but must be drawn from the context in which
it is used.”W2 “That is particularly true,” he adds, “of a word as
elastic as ‘use,’ whose meanings range all the way from ‘to partake of’ (as in
‘he uses tobacco’) to ‘to be wont or accustomed’ (as in ‘he used to smoke
tobacco’).” Citing other cases of the Supreme Court, Scalia adds that “[i]n the
search for statutory meaning, we give nontechnical words and phrases their
ordinary meaning,” on the basis of which we can conclude that “[t]o use an
instrumentality ordinarily means to use it for its intended purpose.”W3
On this ground, considering that what Smith did constituted use of the machine
gun is similar to saying that he would have been indicted for scratching his
head with the machine gun during the crime. This is an extraordinary
understanding of “use,” which is a nontechnical word the meaning of which is
“inordinately sensitive to the context,”[830]
[831] [832] [833] [834]
and the ordinary meaning of which in this kind of cases is the use of the
machine gun “as a weapon,” which Smith did not do. The statute relied on,
therefore, intended to refer to the use of a machine gun as a weapon during
drug trafficking, and not to using it as a medium for exchange or barter, and
the Court has failed to distinguish between how a word could be used,
and how it is ordinarily used. The petitioner, Scalia points out, was not
“seeking to introduce an ‘additional requirement’ into the text..., but is
simply construing the text according to its normal import.’^5
The judge of the Supreme Court—Sandra
Day O’Connor—responded to Scalia’s dissent by pointing out that even though
Scalia’s understanding of “use” is the ordinary meaning of the word, this does
not warrant excluding other meanings of the word, according to some of which
Smith did use his machine gun during the crime.W6 This was
probably a response to Scalia’s view that the addition of a direct object
(firearms here) to the verb (“use,” in this case) narrows the meaning of the
verb.W7
The dispute in the second
case—Maryland vs. Craig (or the Craig case), is on the sense of another word,
“confrontation,” as used in the Sixth Amendment of the US Constitution.108
A Maryland statute permits an abused child to testify through a one-way
closed-circuit television if the court feels that the physical presence of the
child in the court could cause him or her emotional suffering that would affect
his ability to testify. In our case, a child testified via closed-circuit
television against S. A. Craig, who was subsequently indicted by the court for
child abuse. Craig, however, argued that the Constitution requires a
face-to-face courtroom encounter between the two litigants, which was not done
in her case. The case reached the Supreme Court, and it was ruled that the
Confrontation Clause of the Constitution does not disallow use of procedures
that secure reliable evidence while preserving “the essence of effective
communication.”[835]
[836] [837] [838] [839] [840] [841] [842] [843] [844]
Scalia dismissed the validity of this
argument as “antitextual,”no and insisted that “[t]he Sixth
Amendment provides, with unmistakable clarity, that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right ...to be confronted with the
witnesses against him.’”m In his view, this Confrontation Clause
“means, always and everywhere, at least what it explicitly says: the
‘right to meet face to face all those who appear and give evidence at trial,’ ”n2
and this is what it means regardless of “whatever else it may mean in
addition.”n3 Scalia harshly criticized the Court’s view that “a
State’s interest in the physical and psychological well-being of a child abuse
victims may be sufficiently important to outweigh, at least in some cases, a
defendant’s right to face his or her accusers in court,” regarding this as a
“subordination of explicit constitutional text to currently favored public
policy.”n4 Adding that he did not think that things were
significantly different when this constitutional amendment was adopted,n5 he
stressed that “the Constitution is meant to protect us against, rather than
conform to, current ‘widespread belief,’ ”n6 the widespread belief
here being not exposing children to particular kind of emotional suffering.
Furthermore, Scalia criticized the court’s agreement with some states’ laws in
this kind of cases for the purpose of “protecting] child witnesses from the
trauma of giving testimony in child abuse cases,”n7 which could
make him unable to “reasonably communicate.”ii8 He wonders why a
prosecutor would want “to call a witness who cannot reasonably communicate [in
the first place],”[845]
[846] [847] [848]
arguing that that this Constitution clause intended to “induce precisely
that pressure [which the Maryland statutes intended to spare the abused
children] upon the witness which the little girl found it difficult to endure.”
It is difficult, he points out, “to accuse someone to his face, particularly
when you are lying.’920 In addition to this, since children are
generally unable to separate fantasy from reality, this is a stronger reason to
insist on bringing them to the courtroom and confronting them with whom they
accuse.^ Finally, the Supreme Court has no right to decide that this
requirement of direct confrontation is dispensable, for this reduces the
Confrontation Clause to “only one of many ‘elements of confrontation,’” and
could also justify regarding trial before a jury indispensable. The
“interest-balancing analysis” that Scalia believes motivated the Court’s
decision is simply not permitted by the Constitution.122
Scalia has many detractors, one of
whom is Vincent Crapanzano, whose critique of Scalia can help us shed more
light on his legal thought and reinforces some of our conclusions. Commenting
on these two cases, Crapanzano speaks of “Scalia’s epistemological naiveté,”
that is, “his unquestioned assumptions that words are spiritless..., that
meaning can be divorced from intention, and that texts can have a
context-independent meaning that is at least potentially immune from the
interlocutory effects of reading and interpretation.” Furthermore, these two
cases reveal Scalia’s inconsistency, for while he relies in the Smith case on
the ordinary meaning of words, in Craig he opts for the “literal” meaning.[849]
Arguably, this does not do justice to Scalia’s argument that the word “use” is
a general word that must be interpreted in light of the textual context, unlike
the word “confrontation” which he seems to regard as a more technical word that
has a specific meaning in law.
Noting Scalia’s belief that he “can
bypass the human, humane, and social dimension of the cases before him,”i24
Crapanzano argues that, contrary to his proclaimed faith in “literalist
hermeneutics,” he, like other judges, does not separate interpretation of the
law from his personal values and interests.125 His view about
children’s inability to separate fantasy from reality and how this makes
necessary their physical presence in the court reveals his concern for the
adults who may be wrongly accused, and lack of sympathy towards terrorized
children in child abuse cases. In other words, in Crapanzano’s view, Scalia,
similar to the other judges, also made an “interest-balancing analysis.” This,
it must be noted, seems to be another unfair critique of Scalia, and one that
does not take into account that his logic could be that when a case of alleged
child abuse is being investigated, whether or not the child or children
involved were actually abused is not certain. Therefore, he is not willing to
jeopardize justice on the basis of uncertainty, especially considering that he
actually referred to other cases in which adults were falsely accused on the
basis of children’s testimonies, as Crapanzano himself mentions.126
Yet since there is a possibility that a child involved in a case like these was
in fact abused, this indicates that Scalia is not willing to give up his belief
that the proper procedures of the law should be followed regardless of the case
and without exceptions, which he states quite explicitly.
For our purposes, these cases reveal
much about Scalia’s legal thought. In both cases, he appears to be completely
certain that a correct meaning of the words used does exist and is
identifiable. As the Smith case demonstrates, he considers the textual context
central to sound interpretation, for it can restrict or narrow the sense of a
word with a potentially broad meaning (like “use”). These cases also
demonstrate Scalia’s understanding of the role of the judge and what he can,
or, rather, cannot do. A court cannot decide without textual evidence, nor can
it decide on the basis of its understanding of the interests of the litigants
because there is no textual evidence for this. This point is consistent with
Scalia’s formalism and also illustrates his understanding of the overall
purpose of the law, which is to ensure that our changing values do not
influence the judicial process. This case also demonstrates that Scalia does
believe that the “rationale” of the law (which, in the Craig case, is
exposing the witness or plaintiff to the pressure of direct confrontation with
the defendant) could be reasoned. However, whether he would make a judgment on
its basis is a question that is beyond the scope of this study.[850]
[851] [852] [853]
As Crapanzano has rightly observed,
in these two cases, Scalia “resists expanding meaning.”^8 That is,
in the Smith case, he argued against considering all the senses of “use” and
insisted that only one of its meanings was relevant to this case, a view that
Crapanzano believes was motivated by Scalia’s “pleasure of textual play and
argument.” In the Craig case, Scalia rejected the expansion of the word
“confrontation” to mean anything other than direct, face-to-face confrontation.
Crapanzano seems to regard this attitude against expanding meaning as a feature
of literalism, for he says that Scalia “takes... laws as literally as
possible..., resisting any expansion of meaning, any metaphorization, and
translation, and thereby freezes meaning—the meaning he claims, often on
scant evidence, was the original (and therefore only valid) meaning.”^9
To this observation, we can add another that is significant in demonstrating
the resemblance of Scalia’s textualism and Ibn Hazm’s Zahirism. In the Smith
case, Scalia notes:
Even if the reader does not consider
the issue to be as clear as I do, he must at least acknowledge, I think, that
it is eminently debatable—and that is enough, under the rule of lenity, to
require finding for the petitioner here. At the very least, it may be said
that the issue is subject to some doubt. Under these circumstances, we adhere
to the familiar rule that, ‘where there is ambiguity in a criminal statute,
doubts are resolved in favor of the defendant.430
This view obviously relies on the
presumption of continuity. The innocence of any defendant must be presumed, and
if there exists any doubt in the evidence provided to prove the opposite, his
original, default innocence of which we are certain must continue to be
presumed. We have discussed earlier the centrality of the principle of istishab
al-hal in the Zâhirï jurisprudence and how it relates to the broader issue
of certainty.
Before we make some concluding
remarks about Scalia’s textualism and Ibn Hazm’s Zahirism, some points
regarding the validity of comparing these two legal/hermeneutical theories must
be addressed. The first concerns authorship of the law. In Islam, the lawgiver
(God) is one and is regarded by Muslims as divine. In the American legal
system, the lawgiver is also one, but it is a secular institution (Congress)
that is made up of hundreds of persons. So whereas in the latter system we can,
if only in theory, debate whether “original meaning” meant the subjective view
of the lawmakers or not and whether it is at all possible to determine it,[854]
[855] [856] we
cannot do the same in Islamic law, undermining thereby the validity of this
comparison. Fortunately, Scalia’s textualism has ruled out the possibility of
identifying the intention of the lawmakers, simply because it cannot be assumed
that there exists only one such intention in any given case to begin with.132
This means that the two theories are similar in this respect even if for two
different reasons. Whereas Zâhirï jurists proceed on the basis that we cannot
“read God’s mind” and can only know what he tells us, American textualists do
not hold that Congress has a readable mind in the first place.
The second question concerns the
nature of the law. Whereas the core of Islamic law is regarded by Muslim
jurists as divine or God-made, Western law (including those documents that are
considered sacred, such as the US Constitution for Americans) is at the end of
the day man-made, and alienating “reason” from interpreting it is, by
definition, self-contradictory. Unsurprisingly, even staunch American
originalists would agree that there are some “sensible” principles that should
be respected when interpreting a legal document. “Many canons of construction
reflect the sensible principles that interpreters would not be too quick to
read a law to do something strange; other things being equal, they should
prefer readings that comport with prevailing attitudes or established
practices,” Nelson points out regarding textualists’ view on this issue.133 It
is probably for this reason that some scholars have argued that “it appears
that norms are not absent from Scalia’s interpretation of statutes; he is
merely influenced by different norms.”[857]
[858] [859] [860] [861] [862] In
fact, Scalia himself speaks about a number of what he regards as
“commonsensical rules” of interpretation that textualists employ; for example,
expression unius est exclusion alterius (expression of the one is
exclusion of the other),i35 and noscitur a sociis (it is known by its
companions) which simply refers to the understanding of words in their textual
context.^6
Similar rules are used by Ibn Hazm,
who begins his work on usül al-fiqh. by defending reason (al-caql)
as one of several means to the truth. According to him, God has provided us
with ideas and concepts that do not even require reflection on our part (like
the belief that the whole is larger than the part, that a person is not another
person, or that a person cannot be standing up and sitting down at the same
time). In these and similar things, he explains, no inference (istidlal)
is even required.^7 Commenting on Q. 49:6 (“O you who believe, if an
evil-doer (Jasiq) comes to you with any news, verify it...”), he argues
that since the verse requires the verification of the testimony of an impious
person in particular, we are not required to do so with pious people (according
to the notion of dalil al-khitab, which is the same thing as expression
unius est exclusion alterius^8 Another example that is based on
the same principle is Ibn Hazm’s rejection of the tradition mentioned in an
earlier context in which the Prophet is reported to have said: “Disagreement
among my community is mercy.” In refuting this tradition, he argues that if disagreement
was mercy, agreement would be the opposite, which cannot be the view of a “true
Muslim.”i39
Reason, as must be clear, is only a means
to discover God’s law in the Zahirï madhhab, but it cannot itself be a source
of law. Similar to American textualists who reject the use (or abuse) of reason
by legal interpreters to reach legal conclusions that cannot be supported by
legal texts, reason, in Ibn Hazm’s view, has a specific function and role, and
that is to understand God’s ordinances without interference with their actual
content.[863]
[864] [865] [866]
And while Ibn Hazm held that reason and revelation can agree on the
goodness (husn) and evilness (qubh) of beliefs and practices, he
insists that the former cannot play a role in making something licit or
otherwise.^
A third issue concerns legal change.
“To be a textualist in good standing,” Scalia writes, “one need not be too dull
to perceive the broader social purposes that a statute is designed, or could be
designed, to serve; or too hidebound to realize that new times required new
laws. One need only hold the belief that judges have no authority to pursue
those broader purposes or write those new laws.”i42 Criticizing
elsewhere some other legal theories, he points out that amendments were added
to the Constitution when earlier generations of Americans wanted to assert new
rights. These Americans, however, did not try to read those rights into the
Constitution.^3 Evidently, Scalia is not against the principle of
legal and constitutional change per se, but he insists that it can only
be done by lawmakers and not by legal interpreters. However, as far as Islamic
law—or at least that part of it that is based on explicit textual ground in the
Qur’an which Muslim scholars have generally regarded as outside the realm of ijtihad—is
concerned, legal change as such is not an option, for the lawmaker in
Islam—according to the dominant Muslim view—has stopped communicating new laws
or amending existing ones. This is probably the major difference between
Zahirism and textualism, for whereas any sort of legal change, including
significant change, can occur in the latter system if proper procedures are
followed, a significant part of the former—that part that is based on “fixed”
texts, such as the Qur’an and a great deal of Hadith— is beyond any
addition, omission, or alteration of the kinds possible in American law.[867]
[868] [869] [870]
With the exception of this last
point, comparing Zahirism to textualism is thus essentially sound. We have
already seen that they concur on their understanding of the nature of the law,
as well as its objectives and methodology. To these, one more important point
can be added. Both Zahiris and textualists justify their methodologies.
Speaking of originalism, Scalia believes that any interpretative methodology must
be based on textual or historical evidence.^5 Arguing for some of
his views on interpretation, he states that “the Constitution tells us not to
expect nit-picking details, and to give words and phrases an expansive rather
than narrow interpretation—though not an interpretation that the language will
not bear.”i46 Scalia is here seeking to prove that the Constitution
itself is the source of some of his hermeneutical assumptions. In other words,
it is the same document on which disagreements occur that provide the right
methodology in Scalia’s view.
Ibn Hazm similarly felt the need to
defend the legitimacy of his methodology, but he does this on a number of
grounds,^7 the first of which is to argue for its authenticity. It
was the methodology inherited from the Prophet Muhammad and followed by his
Companions and their followers, and it was the methodology that all early
Muslim scholars followed. In this juncture, he distinguishes between those whom
he describes as the notable scholars of early generations, on the one hand, and
their blind followers, on the other,[871]
[872] [873] [874] [875]
excluding thereby the former from his criticism of the latter.M9
Furthermore, he relies on textual and non-textual evidence to argue for the
validity of particular aspects of his methodology. For example, to demonstrate
that commands should be taken to indicate absolute obligation if no indication
suggests otherwise, he refers to Q. 5:67 (“O Messenger! Make known that which
has been revealed unto you from your Lord, for if you do it not, then you have
not delivered His message”). Since the Prophet would be disobeying God if he
does not carry out the command, then he was required to take the command to
mean absolute obligation.150 Furthermore, it is reported that when
the Prophet said “God had made pilgrimage an obligation unto you,” one of the
attendees asked him: “Do we need to do this every year?” The Prophet did not
reply and the man had to repeat the question two more times, when the Prophet
said: “If I were to say yes, it would be obligatory on you every year.” This,
in Ibn Hazm’s views, demonstrates that we should presume that any command
should be taken to indicate absolute obligation, for the Prophet was asked
about the required frequency of performing pilgrimage, not the
obligatoriness thereof.1’4 As for non-textual evidence,
Ibn Hazm uses his overall understanding of Islamic law to argue for the
validity of specific legal or linguistic views. For example, he believes that
when a pronoun occurs in a sentence, we must take it to be referring to the
nearest referent; otherwise, there would be sheer confusion.152
This, arguably, is a view that is based on a certain assumption about the
lawgiver, which is that God does not want to confuse us. This confusion could
well be avoided by taking the pronoun to be referring to the farthest possible
referent. Ibn Hazm would probably not disagree with this in principle. What is
important, however, is that we have to have fixed rules about such cases.
To sum up, for both Zâhirism and
textualism as legal and hermeneutical theories, the only intention of lawgivers
that concerns legal interpreters is following the actual laws that they
communicate through language. Both theories assume that the “correct”
understanding of language is possible through mastery of its conventions and
rules, and by examining textual and historical contexts. What is behind the
communicated law is not for legal interpreters to worry about, for it is not
something that they can verily in the first place. Both are formalistic theories
of law that emphasize the soundness of their methodologies and the necessity
of following the rules and the procedures that the law specifies. Scalia openly
describes his legal philosophy as formalist, arguing that formalism “is what
makes a government a government of laws and not of men.”[876]
[877]
Similarity, Zâhirism for Ibn Hazm is what makes Islamic law the law of God
rather than the law of men.154 And it is this understanding that
constitutes in his view the sound meaning of submission to God’s will.
Just like Zâhirism, textualism has
been, similarly uncritically, regarded as a “literalist” legal theory without a
proper interrogation of the meaning and the very possibility of a “literal”
reading of any text. This section, therefore, presents some views on different
aspects of literalism as used in religion (Christianity in particular), law,
and the all-important field of linguistics, with the aim of investigating the
extent to which Zâhirism—and textualism, for that matter—can be viewed as
literalist.
2.1
Literalism in Religion and Law
Speaking of literalism, the American
anthropologist Vincent Crapanzano writes:
[L]iteralism does not result from
dull wit, though it is often taken to, even by those of us who are sometimes,
despite ourselves, caught in it. It demands discipline... [meaning] a strict
commitment to what is taken to be ‘literal’ or ‘true’ meaning. It is associated
with a set of assumptions about the nature of language, language’s
relationship to reality, its figurative potential, its textualization, and its
interpretation and application. It is the object of considerable philosophical
reflection among Fundamentalist Christians, for example, and certainly among
those legal scholars who interpret the Constitution in terms of what they claim
to be its ‘plain meaning.’ It encourages a closed, usually (though not necessarily)
politically conservative view of the world: one with a stop-time notion of
history and a we-and-they approach to people, in which we are possessed
of truth, virtue, and goodness and they of falsehood, depravity, and
evil. It looks askance at figurative language, which so long as its symbols and
metaphors are vital, can open—promiscuously in the eyes of the strict
literalist—the world and its imaginative possibility.[878]
[879] [880]
Crapanzano believes that literalism
is prevalent, nay dominant, in many aspects of American life, especially in
Evangelical Christianity and legal origi- nalism.156 According to his words in
this passage, literalism is, generally speaking, regarded (by non-literalists,
of course) negatively, being associated often with “dull wit.” Accordingly,
literalists are regularly thought of as fundamentalists and conservatives
(both terms evidently bear a negative connotation here) who proceed on the
conviction that they, and they alone, hold the absolute truth.
Literalism, as Crapanzano notes, is
essentially a theory about language, and similar to all theories, it has
assumptions about various issues. Central to literalism is the belief in the
possibility of sound interpretation.^7 Literalists do not, in and on
principle, acknowledge the possibility of having multiple, equally valid
interpretations of a single text. This conviction is based on their concern for
meaning, that is, only when the possibility that one text could be read in
different, and equally valid, ways is excluded can we maintain the notion that
every text has one true meaning and sound interpretation.[881]
[882] [883] [884] [885] [886] [887] [888] [889]
This conviction also relies on the belief that words have “plain meaning,”
which is the same thing as the “original meaning” and the “original intent.”^9
“Plain meaning” is defined as the single, unambiguous meaning of a word, or the
one understood by users of the language when they read a text?60
Determining this plain meaning requires solid knowledge of the “original”
meanings of words in the language of the text,161 which knowledge requires in
turn reference to the specific time when a text was written with the aim to
determine the “original meaning,” viz. the “original intent” of the author of
the text. Reference to this context, however, is not meant to provide a social
and cultural context to understand the text. As Crapanzano points out,
whereas Christian literalists freeze the meaning by not acknowledging
later changes in the use of language,^2 they resist interpreting the
Bible “historically” in the sense of regarding it as being a product of a
specific time, with the aim to avoid the notion that the Bible was written in a
specific cultural context. Other than challenging the relevance of the Bible
to modern times, this could “undermine the literalist understanding of
Scripture”^3 Finally, Christian literalists insist that the
authority of the Bible is based on the Bible itself, and that it is the Bible
that must be the source of authority and legitimacy of anything else. The Bible
is not authoritative because people see it as such; however, it is the Bible
that establishes its own legitimacy and legitimizes or delegitimizes the views
of those who write or talk about it.164 For this reason, Christian
literalists are suspicious of many aspects of medieval Christian scholarship,
which suspicion similar to that of legal precedents by legal literalists.165
Crapanzano notes that literalism
seeks to promote social order and continuity by “stabilizing” the law, which
is achieved by controlling meaning.166 To do this, it seeks to “bracket off
human and social considerations” by rendering extra-textual factors irrelevant
and treating law as a closed “autonomous system.”[890]
Literalists oppose attributing to a text unstated principles or underlying
goals.[891]
[892] [893] [894] [895] [896]
Here Crapanzano draws a comparison between what some scholars call legal
“conservatives,” “formalists,” “originalists,” “interpretivists,”
“strict-constructionists,” “intentionalists,” and “textualists.” Whereas
formalists and textualists are literalists, intentionalists are pragmatists.
Legal formalists maintain that the role of the judiciary is to enforce “norms
that are stated or clearly implicit in the Constitution as it was understood by
those who ratified it,” and insists that judges “must rely on value judgments
‘within’ the Constitution.” On the other hand, non-originalists or
intentionalists hold that “judges should, or at least can, look ‘outside’ the
Constitution and the decisions based on it.” These pragmatists speak in terms
of the Constitution’s “spirit, its aspiration, its unwritten presuppositions,
the thrust of the whole, its need to be in tune with the times.”i69
Literalism, furthermore, rejects
analogy and insists on a textual basis for any ruling.i70 It also
rejects metaphorical and allegorical interpretations of religious and legal
texts, stressing that “[an interpreter] should assume a literal interpretation
unless there is some indication in the text to do otherwise.”171 It separates
the exegesis of a text and its application. A text is usually independently
interpreted and then applied to a particular situation, rather than being
interpreted in light of the particular circumstances of that specific situation.
Furthermore, literalism valorizes the written word and prefers it over oral
communication. This preference, according to Crapanzano, is due to the perception
of the written word as stable and autonomous, unlike the oral word, which is
always flexible, context-dependent, and ephemeral.^2 Literalists, he
adds, usually identify as foundational specific passages of authoritative texts
and make frequent references to them. Not only do they refer to these authoritative
texts at all times, literalist can even go so far as to physically carry them
at all times.173
It should not be surprising now to
envisage why Zâhirism could be regarded as a literalist legal theory. Zâhirism
and literalism share some fundamental assumptions, foremost among which is the
belief in the attainability of “correct” meaning and the necessity of belief in
the possibility of achieving sound interpretation as well as the ability to
distinguish it from wrong interpretations. Both believe that one and only one
interpretation of any given text is sound, a view that Ibn Hazm holds, not only
with regard to interpretation, but also with regard to all aspects of the law,
where there exists only one correct ruling.[897]
[898] [899]
Both Zahirism and literalism believe in the ability of sound hermeneutics to
determine the original and true meaning without allowing personal biases to
interfere in and corrupt the interpretative process. Both reject allegorical
interpretation and analogy, which either change or add new elements to what a
text explicitly says. Both share the same concern for social stability, and
seek to have the society governed by the law (be it religious or positive),
rather than subjecting the law to the norms of the society. Both value the
written word, and both rely on specific passages on which to build their entire
methodology and understanding of the law. Ibn Hazm, for example, argues that Q.
4:59, “O you who believe! Obey God, and obey the Messenger and those of you who
are in authority. And if you differ on anything, refer it to God and the
Messenger if you [truly] believe in God and the Last Day,” encapsulates the
core of Islamic law, such that he does not consider his voluminous Ihkam
save an explanation of what this verse says in terms of what we need to do and
how we should deal with the legal tradition.^5 Other similarly key
verses include Q. 2:29, “He it is Who created for you all that is in the
earth,” and Q. 6:119, “He [God] has explained to you in detail that which is
forbidden unto you),” which demonstrate in his view that if something is not
prohibited, it is (religiously/legally) permitted according to the text of the
Qur’an, a belief that is central to Zâhirï jurisprudence, as has been
discussed.^6 Even when discussing specific cases, Ibn Hazm would
determine specific verses as the most pertinent to the case at hand.
What this discussion of literalism
leaves unanswered, however, is the very meaning of literalism and the
possibility of identifying literal meaning. Literal meaning is defined here as
the plain, single, and unambiguous meaning. This evidently refers to meanings
of words only, and the cases that Crapanzano has chosen to discuss Scalia’s
legal philosophy shows that his discussion primarily deals with words, although
Scalia himself evidently appeals to the textual context. When we deal with
legal texts, however, we do not deal with words per se; rather, we deal
with words as part of larger statements or sentences. Even if all the words of
a given sentence have plain, single, and unambiguous meaning, this does not
necessarily mean that the sentence as a whole yields a plain, single and
unambiguous meaning. What is important, then, is to see how literalism deals
with sentences and how this corresponds to the way Zâhirism does the same
thing. As for the possibility of identifying literal meaning, we have seen that
literalism seeks to “bracket off” all sorts of extra-textual considerations.
In other words, interpreting a text is, so to speak, a mechanical process, the
result of which should be the same regardless of who performs it. What we need
to investigate, then, is whether Ibn Hazm’s interpretation is truly free from
extra-textual considerations. The following discussing seeks to examine to
which extent similarities between literalism and Zâhirism can justify regarding
them as essentially similar.
2.2
Literalism in Linguistics111
There are two main theories in the
study of natural languages, which languages evolve through actual usage. The
first is formal semantics, which assumes that language can be studied independently
of any context of speech and irrespective of the intention of the speaker.
This theory focuses on the “lexical” meanings of words and rules of syntax and
grammar when interpreting a text. In formal semantics, the French linguist
François Recanati explains, “[t]he meaning of a sentence ...is determined by
the meanings of its parts and the way they are put together.” Therefore,
knowing a language for a formal semanticist is “like knowing a ‘theory’ by
means of which one can deductively establish the truth-conditions of any
sentence of that language.”[900]
[901]
The other theory is pragmatics, which
insists that language makes sense only when in use. Pragmatics does not deal
with sentences; it deals with “speech acts,”[902]
[903] [904] [905] [906] [907] or
“utterances,” the meanings of which depend primarily on the context of used80
For a pragmatist like Keith Allan, “the source of linguistic data is the speech
act: where a speaker S makes an utterance U in language L to hearer H in
context C.” This context C consists of the “physical setting” of the utterance
(i.e., the time and place in which S utters and H hears or reads U), the
“textual environment” in which a certain utterance appears, as well as what
Allan calls “the world spoken of,” which provides an infinite number of assumptions
about the larger context or background information needed for an utterance to
make sense.181 For example, an utterance like “Almond Eyes ate her Kornies and
listened to the radio” invokes a world in which a female (we know that Almond
Eyes is a female from the pronoun “her”) ate something and listened to the
radio, which must have been broadcasting something. While this could have taken
place in any moment in the past, we know that it must have taken place after
the invention of the radio. If we do not have evidence to the contrary, we
assume that an utterance like this is meant to be understood according to these
specific assumptions which the sentence itself invokes when thought of
carefully.182
Because of the centrality of context
in pragmatic theory, it is regarded as a “contextualist” theory, one that takes
the context of speech to be “an essential feature of natural languages,”^3
and maintains that “speech acts are the primary bearers of content.”^4
On the other hand, semantic theory corresponds to a notion that some scholars
call “literalism.” Literalism, however, is a very elusive concept, and scholars
of natural languages have put forward various definitions of it. Recanati, for
instance, defines literalism as “ascrib[ing] truthconditional content to
natural language sentences, quite independently of what the speaker who
utters this sentence means.”[908]
[909] [910] A
“literal” meaning of a linguistic expression here is “its conventional meaning:
the meaning it has in virtue of the conventions of the language endow with a
particular meaning.” Donald Davidson rejects identifying literal meaning with
conventional meaning, arguing that literal meaning is what he calls the “first
meaning,” which meaning “comes first in the order of interpretation.”^6
Delving into the details of this controversy over literalism is beyond the
scope of this section, but we can note here that various theories on literal
meaning define it in terms of its relationship to the context of speech. Unlike
contextualism, literalism seeks to minimize or disregard context sensitivity by
focusing on the semantic interpretation of words and sentences and insists
that we appeal to the “speaker’s meaning” only when the sentence requires it.187
This notion of literal meaning,
however, has been questioned by many scholars, who insist that any
understanding relies, to varying degrees, on the context of speech. This
requires pragmatically rather than linguistically mandated processes
(discussed below). For example, John Searle challenges
the view that for every sentence the
literal meaning of the sentence can be constructed as the meaning it has
independently of any context whatever. I shall argue that in general the
notion of the literal meaning of a sentence only has application relative to a
set of contextual or background assumptions and finally I shall examine some
of the implications of their alternative view. The view I shall be attacking is
sometimes expressed by saying that the literal meaning of a sentence is the
meaning that it has in the ‘zero context’ or the ‘null context.’ I shall argue
that for a large class of sentences there is no such thing as the zero or null
context for the interpretations of sentences, and that as far as our semantic
competence is concerned we understand the meaning of such sentences only
against a set of background assumptions about the contexts in which the
sentence could be appropriately uttered.[911]
[912] [913]
Searle gives numerous examples of
sentences traditionally thought to yield meaning solely on the strength of
their semantic value and without consideration of the context in which they
are uttered. He then demonstrates that the interpretation of these sentences
relies, in reality, on presumed contextual settings and background assumptions.
In the same vein, Recanati gives other examples, arguing that under scrutiny,
even such primary processes which literalists take to be “linguistically
required” in order for a sentence to be propositional also appeal to the
speaker’s meaning according to the context of speech.189
Recanati has studied the issue of
literalism in more depth in recent years. He points out that while “in ideal
cases of linguistic communication, the speaker means exactly what she says...,
in real life,... what the speaker means typically goes beyond, or otherwise
diverges from, what the uttered sentence literally says. In such cases the
hearer must rely on background knowledge to determine what the speaker
means.”i9° In this view, what is said (the sentence) does not necessarily
correspond to what is meant or communicated (the utterance). One sentence can
be used in various contexts (where each use of the sentence is a distinct
utterance) to communicate different things, even if the words and syntax of the
sentence are the same. For instance, “Muhammad is a prophet” is a sentence, but
not a propositional one.[914]
[915] [916] [917] [918]
Before we know who Muhammad is (we know that he is a human being and not a
thing from the word “prophet”) it only means that somebody named Muhammad is a
prophet.i92 However, when a person like Abü Bakr, the Prophet
Muhammad’s Companion, goes to one of his Qurashi tribesmen and says to him
“Muhammad is a prophet” (assuming that the person knows the Muhammad whom Abü
Bakr has in mind), the sentence becomes propositional, and here it communicates
a specific information about a specific person. But if a person goes to Abü
Bakr and asks him: “Does Muhammad communicate with God?,” to which Abü Bakr
replies, “Muhammad is a Prophet,” the sentence (still propositional) communicates
something other than what it meant in the previous utterance. Here it says,
“Yes, Muhammad does communicate with God because he is a Prophet” (assuming,
again, that there is an agreement that prophets, qua prophets, are
believed to have some kind of communication with God).i93 In this
example, what is communicated or “implicated” (implied) is different from that
which would be understood from this sentence if it is uttered independently of
this particular context.^4 This distinction between what is said and
what is meant or implicated assumes that we can distinguish between the
linguistic meaning of a sentence and what it intends to convey in different
contexts where it is uttered. In Recanati’s view, however, “there is...no such
thing as ‘what the sentence says’ in the literalist sense, that is, no such
thing as a complete proposition autonomously determined by the rules of the
language.” “In order to reach a complete proposition,” he argues, “we must
appeal to the speaker’s meaning.”i95 In this view, literalism is illusory, and
“the notion of what the sentence says is incoherent,” for “what is said ...is
nothing but an aspect of speaker’s meaning.”
Debates over the issue of literal
meaning have apparently softened the views of scholars belonging to the two
camps of formal semantics and pragmatics. Now a relationship between the
semantic value of a sentence and the context in which it is uttered is more or
less acknowledged by all scholars, even if they still disagree on the emphasis
that they place on each. This has essentially reduced the difference between
semantics and pragmatics to the kinds of contextual clues that are admissible
in the process of interpretation rather than to whether contextual clues are
ever admissible to begin with. On this basis, Recanati identifies two camps of
modern linguists: minimalists and non-minimalists. Minimalism—the dominant
literalist position, according to him[919]—holds
that what is said must relate to the “conventional” meaning of the words used
in a given sentence, and that departing from this conventional meaning is
acknowledged as a possibility “only when this is necessary to ‘complete’ the
meaning of the sentence and make it propositional.” In other words, for
minimalists what is said must correspond to the potentials of the semantics of
the sentence.19[920]
They also admit only of linguistically mandated constituents that are
necessary to make a sentence propositional, rejecting any “pragmatically
determined element in utterance content that is not triggered by grammar.”19[921]
[922]
For non-minimalists, on the other side, what is said is just as pragmatically
determined as what is implied.199 In other words, they maintain that it is
often the case that pragmatically rather than linguistically required constituents
are needed for a sentence to be propositional.[923]
[924]
A process is linguistically required
when the sentence is not propositional without it. In other words, if a
sentence cannot be a proposition (i.e., a statement that conveys meaning and
can be described as being true or false) as it is, the process that we have to
perform to make it propositional (viz. meaningful) is linguistically mandated.
For example, the only contextual process that minimalists acknowledge,
according to Recanati, is called “saturation,” which refers to the process by
which “slots” in sentences are filled out by a linguistically required
constituent.201 “He is tall” can only be a proposition when we know to whom the
pronoun “he” refers, and this can differ from one context to another. Before we
know the referent of “he” from the context, “he is tall” is almost meaningless
in any obvious way. This requirement to assign a referent (which is not stated
in the sentence) to the pronoun “he” only follows a rule of use in the language
which does not assign this demonstrative (and other demonstratives, for that
matter) to a specific referent. This process of assigning referents to pronouns
is thus linguistically mandated. The interpretation of these demonstratives and
similar indexical expressions,[925]
[926] [927] [928]
Recanati points out, takes us “beyond what the conventions of the language give
us, but that step beyond is still governed by the conventions of the language.”
In other words, this interpretation of the utterance is predetermined by the
very use of the demonstrative or similar expressions. Extra meanings that are
not necessary to make a sentence propositional, therefore, are considered
“external to what is said.” Minimalists, thus, hold that with the exception of
saturation, all pragmatic processes are secondary and presuppose the existence
of a literal interpretation of what is said.203
Scholars who reject the validity of
the notion of literalism do not do so only by ruling out the possibility of
identifying a literal meaning of a sentence without considering the context of
speech. However, they maintain that literal meaning “has no compositional
privilege over derived meanings [that pragmatic processes other than
‘saturation’ mandate].” In Recanati’s view, “literal” (to the extent that this
is possible) and “non-literal” meanings compete, and it is possible for some
derived meaning to be retained while the literal interpretation is suppressed.
204 It happens regularly that one moves immediately, through
pragmatic processes, to what an utterance communicates (i.e., what the speaker
intends to convey) without even considering what the sentence explicitly says
(which is considered the “literal” meaning). In order to do this, Recanati
distinguishes between two kinds of pragmatic processes, one primary and the
other secondary. Primary pragmatic processes—which concern us here—are neither
conscious nor inferential.205 They take place unconsciously at the
same time the literal meaning of a sentence is construed and do not even
require reflection on the part of the interpreter. “Only when the unreflective
normal process of interpretation yields weird results,” Recanati argues, “does
a genuine inference process take place whereby we use evidence concerning the
speaker’s beliefs and intentions to work out what he means.”[929]
[930] [931] In
other words, some pragmatic processes that are not linguistically required to
make a sentence propositional and thus meaningful have to be made and are in
fact regularly made mostly unconsciously.
3
Zàhirism between Literalism and (Con)Textualism
Although the notion of literalism is
controversial, it is generally assumed that literalist interpretation depends
solely on the lexical meaning of words and the grammar of the language. A true
literalist does not consider the context of speech and only allows linguistically
required processes to play a role in interpretation. However, modern research
is now paying greater attention to cases where what people intend to
communicate or express by their utterances does not correspond to the semantic
value of the sentences that they use, or where interpreters move directly to a
pragmatically determined meaning without even entertaining the literal meaning
of a given statement. To be sure, Recanati’s views on the inherently pragmatic
nature of natural languages (which other scholars, notably Relevance theorists,
maintain too)207 have been severely criticized by scholars who regard them as a
return to “the pessimistic conclusions of the past,” when it was thought that
“the context-dependence and vagueness of natural language undermined the
possibility of providing a systematic account of the meaning of natural
language sentences.”208 As noted, engaging in this controversy is beyond the
scope of this chapter, but it is essential to see how views like Recanati’s can
help us better understand the way Zâhirïs (and textualists) perceived and dealt
with religious/legal texts.
It is important, however, to
distinguish between how a speaker uses the language and how an
interpreter (a reader or hearer of an utterance) processes what is said and
understands it accordingly. As noted earlier, Zâhirïs, including Ibn Hazm, held
that the Qur’ân does not contain any majaz. Whatever God says should not
be taken to be metaphorical. This ensues from the notion that metaphorical
language is a degraded, deceitful, and harmful form of speech. But do Zâhirïs
also assume that God’s speech does not require distinction between what is said
or expressed and what is implicated or intended to be said? In other words, are
we to regard the Qur’ânic text as made up of sentences, or utterances the
understanding of which requires reliance on the context? Furthermore, when
interpreting the Qur’an, do we need to focus only on its semantic content, or
do we have to use pragmatic processes to grasp its meaning? In what follows,
some of Ibn Hazm’s interpretation of Qur’anic verses will be discussed in order
to demonstrate that he did acknowledge the possibility that what the Qur’an
“says” is not necessarily what it “means” (vis. intends to communicate), and
that the language of some Qur’anic verses admits more than one reading. Ibn
Hazm did not focus only on the semantic content and structure of sentences.
Rather, he engaged in pragmatic processes and appealed to contextual,
historical, and even doctrinal evidence to determine the meaning that the
Qur’an seeks and intends to convey. Unlike literalists, he did not deal with
Qur’anic statements as sentences that could provide meaning without context,
but dealt with them as utterances and speech acts that required examination of
the context of use to achieve sound interpretation. Where Ibn Hazm stands on
the continuum of minimalism/non-minimalism, however, is a subject that will
hopefully be examined in a separate study.[932]
[933] [934]
An example that Recanati gives to
illustrate his view of the indispensability of pragmatic processes in any
process of interpretation is when one says “the city is asleep.” He argues that
when we hear this, we immediately and intuitively infer that either the word
“city” is used non-literally to refer to the “inhabitants of the city,” or that
“asleep” is used metaphorically to denote that “the city is quiet.”2io The
“literal” meaning of this sentence (i.e., that much of it, if any, that could
be understood independently of any context) is not considered here. Taking
“asleep” in this example to mean “quiet” is a pragmatic process called
“loosening,” whereby “a condition of application packed in to [a] concept
literally expressed by a predicate is contextually dropped so that the
application of the predicate is widened.’^11 This is the case when
we say, for example, “the atm
machine has swallowed my credit card.” We make sense of an utterance like this
by widening the scope of application of the word “swallow” so that we can
imagine the atm as something that
can swallow and the credit card as something that can be swallowed. However, if
we take “city” to refer to its inhabitants, we do this on the basis of a
pragmatic process called “semantic transfer,” by which what we understand only
has a systematic relation to what is being literally expressed. Thus, although
the “city” and the “city dwellers” are two different concepts, they are
obviously related to each other. Similarly, in “the ham sandwich has left
without paying,” the “ham sandwich” would be processed by the interpreter
immediately as the “ham-sandwich-orderer,” without the “absurd” literal meaning
“being ever computed,” Recanati states.[935]
[936] [937] [938]
A third primary pragmatic process is
“free enrichment,” which is the “paradigm case” of such pragmatic processes,
according to Recanati. Free enrichment is simply the opposite of loosening,
for it “consists in making the interpretation of some expression in the
sentence contextually more specific.” For this reason, this process is
described by some linguists as “specifization” (remember takhsls). For
example, we take “he eats rabbits” to mean rabbit meat (a specific part of the
rabbit), while “she wears rabbit” to mean rabbit fur (another part of the
rabbit).213 Recanati argues that what distinguishes these three
pragmatic processes from what he regards as secondary pragmatic processes is
that whereas the latter are “post-propositional”—i.e., can only take place when
a proposition is assumed to have been expressed, primary pragmatic processes
are “pre-propositional,” viz. they do not require a proposition to serve as
input to the process of interpretation. Therefore, this kind of processes is
not conscious: “[n]ormal interpreters need not be aware of the
context-independent means of the expressions used.” “Saturation,” which is a
linguistically mandated process, is an example of these primary pragmatic processes,
but the three other processes that we have just mentioned are “optional and
context-driven,” Recanati argues.214
To what extent does Ibn Hazm’s
interpretation of the Qur’an conform to Recanati’s views? In Q. 12, the Hebrew
patriarch Jacob (a prophet in Islam) asks his sons about their brother Benjamin
and they tell him that he was arrested for stealing the cup of the king when
they were in Egypt. Because Jacob was suspicious of them, they said: “Ask the
town where we were (is’al al-qaryah) and the caravan (al-clr)
in which we have returned” (Q. 12:82). In dealing with this verse, Ibn Hazm
mentions two interpretations, according to the first of which, what is meant
here are the “people of the village” and the “travelers in the caravan,”2i5
an obvious case of semantic transfer. The second interpretation is that given
that Jacob was a prophet, had he asked the village and the caravan themselves,
they would have answered him. These two interpretations, Ibn Hazm argues, are both
valid and possible. It is evident, however, that he is more inclined to the
first interpretation, which he mentions first and then attributes the other one
to some unnamed scholars.[939]
[940] [941] [942] [943]
What is worth noting here is that Ibn Hazm does not argue that the “village”
and the “caravan” are things that can be asked. Jacob is only miraculously
capable of doing so on the strength of him being a prophet.217 The
first interpretation demonstrates that Ibn Hazm admits that some constituents
or components are missing in the verse, and these are the “people” of the
village and the “travelers” in the caravans. The same applies to Q. 2:93, “And
the calf was made to sink into their hearts (wa-u^hribuflqulubihim al-cjl
bi-kufrihim)” Ibn Hazm explains that the verse does not mean the calf
itself, but rather the “love” of the calf which God made to sink into the
hearts of the disobedient Jews to whom the verse refers.2i8 In these
two cases, there exists a relation between what is “literally” expressed and
what is implicated and understood, although these remain two different things.
“He went to the cliff and jumped” is
an example of free enrichment. Everyone, Recanati argues, would understand from
this sentence that the referent of the pronoun “he” went to the cliff and
jumped off it, rather than jumped in his place. Similarly, when a child
cuts his finger and his mother says to him: “You are not going to die,” we
understand immediately that she means that he would not die from that cut,
rather than not dying at all. In both cases, the proposition is made more
specific: the referent of “he” in the first example jumped in a specific
manner, while “death” in the second example was connected to a specific
condition. This is particularly what Justice Scalia did in the Smith Case: he
appealed to the context to restrict the meaning of “use” to a specific kind of
use.
Two Qur’ânic verses are useful for
comparison here: Q. 2:60, “We said [to Moses]: Strike the rock with your staff,
and there gushed out from it twelve springs,”2i9 and Q. 26:63, “Then
We revealed to Moses: Strike the sea with your staff. So it divided.. .”22° In
commenting on these verses, Ibn Hazm argues that every reasonable person
(dhu caq[) understands that there is something missing in
them and that what they mean to say is that upon God’s command, Moses
struck the rock with his staff before the water gushed, and that he struck the
sea with his staff before it divided.[944]
[945] [946]
What Ibn Hazm does here is rendering the propositions in these verses more
specific by filling in gaps in them with the aim of specifying how and when the
springs gushed and the sea divided.
“Everybody went to Paris” is another
example of free enrichment. Here, “everybody” is construed to mean everyone
from specifically such and such group (rather than everyone on earth)
went to Paris. In commenting on Q. 46:25, “Destroying [i.e., the wind]
everything (kullshay’) by the command of its Lord,” Ibn Hazm argues that
we conclude from the historical “fact” that the wind did not destroy everything
on earth (otherwise not human beings would have survived) that this verse only
means everything of the things that the wind passed over, or everything of the
things that God had ordered it to destroy.222 Just as the “literal meaning” of
“everybody went to Paris” is not even entertained because we know that in no
certain point in time all living people went to Paris, so is the meaning of kull
shay’ in this verse. In both cases, however, we do not need to engage in
this pragmatic process for the sentence to be propositional; in theory, both
could mean just what they “say.” However, we, unconsciously in Recanati’s view,
intuitively sense absurdity in what these sentences say and appeal to external
(that is, extra-textual) knowledge to identify the implicated or intended
meaning.
Ibn Hazm’s interpretation of Q.
18:77, “They [Moses and a righteous man whom he met] found there [in a village
that they visited] a wall that yuridu an yanqadda...,” represents
another example of pragmatic processes. In “zero context,” yuridu an
yanqadda means “wants to fall.” Ibn Hazm argues that we know by reason and
through the customary use of language that the wall does not have a
will, which only living things possess. Therefore, yuridu here cannot
mean that the wall wanted to fall, and we can be certain that God uses this
word to refer to something other than to that which it is usually used to
refer.223 In his view, it here means that the wall was physically
inclined (ma’il ). “Were it not for this necessity [of reason],” Ibn
Hazm asserts, “we would not have allowed ourselves to take a word to mean
something other than that which it normally means.” In fact, he argues against
the view that yuridu could mean that the wall wanted to collapse in
reality since God is able to create a will in it.
In his view, we must have a textual
basis for regarding this as having been a miracle.[947]
Without this textual evidence, we have to interpret the verse in terms of its
lexical meaning, and the lexical meaning of this verse indicates that one of
its words is not used to refer to what it conventionally refers to. While this
example is very close to Recanati’s example of the atm machine, Ibn Hazm, arguably, does not use “loosening” to
interpret the verse (i.e., he does not relax the conditions ofyuridu to
expand its application). Instead, he treats it as a case of “semantic
transfer,” although the relation between what is expressed (yuridu) and
what he takes to be implicated here (that the wall was inclined) is not clear.
This, in Recanati’s understanding, is regularly done without even considering
the absurd literal meaning, which Ibn Hazm is aware of but explicitly and
categorically dismisses.
Ibn Hazm, thus, engaged in some of
what Recanati calls “primary pragmatic processes” when interpreting the Qur’an.
But as the last example demonstrates, this was not performed unconsciously as
Recanati says, probably because of Ibn Hazm’s career as jurist and his careful
attention to the text with the aim to identify the “correct” meaning thereof.
Ibn Hazm was definitely aware of what he was doing when interpreting these
Qur’anic verses that we have seen, and he seems to have felt the need to
justify his “pragmatic” reading of them. Ibn Hazm’s hermeneutical methodology,
furthermore, relies on non-textual materials in light of which texts are
interpreted. In other words, Ibn Hazm does not read, and does not
pretend to be reading, religious texts solely on the basis of their semantic
meaning. He obviously believed that these texts were to be read pragmatically
within the broader context of, not only reason, but also history and theology.
In addition to engaging in these
pragmatic processes that are not linguistically mandated, Ibn Hazm’s treatment
of some other verses also reveals that he viewed them as “speech acts” or
utterances the understanding of which requires appeal to the context, rather
than viewing them as mere sentences, the understanding of which only requires
knowledge of the lexical meaning of the words and how they are put together in
the verses. For example, to demonstrate that a woman’s hands (kaffân)
are not part of her private parts (Owrah) and do not therefore have to
be covered in public, he refers to an incident where the Prophet asked women to
donate to the poor when they began to throw their rings on a garment. Ibn Hazm
argues that these women would not be able to take olí their rings unless their
hands were not covered.[948]
[949] [950]
Obviously, he appeals here to the context of speech to make conclusions on the
meaning (and legal rulings that can be inferred on the basis thereof) of this
report, although there is nothing in the text itself that says that these women
were not covering their hands.226
In another context, Ibn Hazm points
out that a command can take the form of a declarative sentence (Jumlah
khabariyyah) and does not have to be in the imperative mood. For example,
Q. 2:183, kutiba calay-kum al-siyam means that fasting is
made obligatory upon Muslims, even if the sentence does not use the imperative
form. Similarly, Q. 4:23, hurrimat calay-kum ummahatukum
means that mothers are forbidden. This issue, however, can be very problematic,
for how are we to determine the intended meaning of some other declarative sentences?
For instance, in Q. 3:97, wa-man dakhalahukana amin?, the pronoun in dakhala-hu
refers to the Sacred Mosque in Mecca. If interpreted as a declarative
statement, this verse would be informing us that whoever enters the Sacred
Mosque in Mecca is safe. However, if it is read as an imperative statement
(similar to the two examples above), it would mean that securing whoever
enters the sacred mosque is obligatory on Muslims. Ibn Hazm argues that since
God does not tell but the truth, the fact that people have not always been safe
in the Sacred Mosque evinces that this verse is not declarative. It must
therefore be a command to Muslims that they must secure people who enter the
Sacred Mosque.227 The appeal here is obviously to history with the
aim of determining the intended meaning, which is only one of many possible
meanings of the verse. However, in Q. 4:92, wa-man qatala mu’min
khata’anfa-tahrîru raqabah mu’minah and Q. 4:93, wa-man yaqtul mu’min
muta'ammidan fa-Jaza’uhu Jahannam, Ibn Hazm appeals to reason. These two
verses use almost the same words and are structurally similar, but do they
convey the same thing? Ibn Hazm acknowledges the difficulty of this, but
decides that whereas the first verse is prescriptive in that it establishes an
obligation to set free a Muslim slave in case a Muslim kills another Muslim by
mistake, the second verse is declarative, i.e., it only mentions that a Muslim
who kills another Muslim intentionally would reside in Hellfire forever. We
know this, he explains, because while we can obey the command in the first
verse (by freeing a slave), we cannot carry out the punishment of the murderer
in the second.[951]
[952] [953] It
stands to reason, then, that whereas the first verse is prescriptive, the
second has to be only informative.
Ibn Hazm uses other kinds of evidence
that are related to the broader context of Islam, including theology and law.
For instance, commenting on Q. 4:59, “O you who believe, obey God, and obey the
Messenger and those who are in authority among you, and if you have a dispute
concerning any matter, refer it to God and his Messenger,” he argues that ijmac
has established that God does not mean only the direct addressees of the Qur’an
(i.e., the Prophet’s Companions) by this, but rather all subsequent Muslim
generations too.229 In another context, he mentions a report where
the Prophet prohibits the killing of women. Ibn Hazm points out that the zahir
meaning of this tradition (viz. its general, unrestricted meaning) means that
no woman shall be killed under any circumstance. A consensus exists among
Muslims, however, that the zahir of this tradition is qualified (i.e.,
restricted), and that women can be killed in certain circumstances. It has also
been proven (sahha) that this tradition meant the killing of female prisoners
of war in particular. 230 In both these cases, ijmac
is used, not only to determine the intended meaning, but also to qualify the zahir
meaning.
Elsewhere, Ibn Hazm acknowledges an
apparent contradiction between Q. 2:47, “O Children of Israel! Remember my
favor wherewith I favored you and how I preferred you to all creatures (cala
’l-'alamm)”), and Q. 3:110, “You [i.e., the Muslim community] are the best
community that has been raised up for mankind.” In commenting on these two
verses, he says that either the first verse means that the Children of Israel
were preferred by God to all creatures except Muhammad’s ummah, or that
the second means that the Muslim ummah (which can here refer either to
the generation of the Prophet Muhammad exclusively or to all generations of
Muslims at all times) was morally superior to all other communities except the
Children of Israel. We know, Ibn Hazm argues, that the first verse is
qualified, for it is established that the angles are better than the Jews (a
theological view). At the same time, we do not have any textual or non-textual
evidence that suggests that the second verse is similarly qualified. Therefore,
we can conclude that the second verse is more general in its scope than the
first, meaning that the Muslim ummah is superior to all other
communities including the Children of Israel.[954]
[955] [956] In
other words, to solve the problem, Ibn Hazm relies on a theological view (which
he takes to be granted) to argue for the restrictedness of the first verse, and
against the unrestrictedness of the second. Similar to the case of killing
women, he is clearly struggling here between two apparently general statements,
and what he tries to do is to justify why one of them is, in fact, restricted.
In other words, one of them cannot be taken at face value (cala
’l-zahir), viz. its scope of application has to be restricted.
This and earlier examples also
clearly demonstrate the relationship between Zahirism and the Umüm/khusüs
dichotomy. Ibn Hazm’s dealing with these verses is consistent with the argument
made earlier that the issue of the zahir meaning was primarily
associated with the scope of application and range of referents of terms and
statements. In some of the cases discussed above, Ibn Hazm evidently struggles
to justify his qualification of the default generality of some Qur’ânic verses
by limiting its scope and rejecting its full potential range of reference. In
other cases, he is even more explicit about the subject of cumüm and
severely criticizes what he considers arbitrary restriction of terms. For
example, he argues against those who held that Q. 2:34, “And when we said to
the angles: Prostrate yourselves to Adam...,” did not mean all the angles, but
rather only those who were present. He goes so far as to call this “madness” (Junün)
that cannot be supported on the basis of the quoted text.232 Similarly, relying
on a Prophetic tradition that says that “the blood of Muslims is equal” (al-muslimün
tatakafa’u dima’uhum), he argues that any Muslim who murders another is to
be killed, regardless of the gender and freedom of either the killer or the
victim.233 This is the zahir meaning, which meaning is inclusive of all
possible referents and maintains the absoluteness of words and statements
unless another piece of textual evidence suggests otherwise.
Remarkably, Ibn Hazm mentions clearly
the relationship between zahir and the issue of the imperative, another
subject that we have discussed earlier, and his discussion of this subject also
indicates how it is related to the issue of the scope of application of terms.[957]
[958] [959]
Since every term should be interpreted to be cala ’l-zahir
(i.e., not restricted),235 the zahir meaning of Q. 5:38, “As for the
thief, both male and female, cut off their hands,” is that all thieves
should be punished by cutting off their hands irrespective of the value
of what they have stolen. Here, the obligation to cut off the hand of a thief
is absolute and unconditional, and it has to be carried out immediately. The zahir
meaning of commands, Ibn Hazm mentions explicitly, is that they should be
taken to indicate absolute obligation (wujüb) and the requirement of the
immediate performance of what is commanded (cala ’l-fawr).™
The purpose of this chapter has not
been to demonstrate that Zâhirism is not literalism because Zâhirï scholars
themselves regarded it as such. Zâhirism has been considered—mistakenly, as
should be obvious now—literalist only by modern and possibly some medieval
scholars. The previous discussion is an argument against this understanding of
Zâhirism which has been presumed but never in fact demonstrated. Similarly,
textualism, which is almost identical with Zâhirism as both legal and
hermeneutical theory, has also been conceived of as literalist by some Western
scholars. This conception of both Zâhirism and textualism ignores an important
fact: literalism is, and will probably continue to be, a controversial subject
among linguists. Recanati’s discussion shows that even minimalists, who believe
that a “literal meaning” of a sentence can be determined with only a minimal
appeal to the context of speech, can easily be shown to be wrong when they
assume that certain concepts, for instance, are inherent in the meanings of
certain words or verbs. This indicates that any meaning identified as literal
by some scholar could be demonstrated to be a mixture of literal and derived,
or stated and implicit, meaning. Furthermore, conceiving of Zâhirism as
literalism ascribes views to the former that it does not in fact expound.
According to the definition of
literal meaning that most linguists seem to agree on—the lexical meaning of the
words of a sentence read in light of the rules of language without
consideration of the context of speech, it can easily be demonstrated that Ibn
Hazm, the only Zâhirï scholar whose views we can discuss with sufficient depth,
was anything but a literalist in this sense. He did not regard the Qur’ânic
text as one that only required the minimal appeal to the context to be
understood. Not only did he engage in pragmatic processes (which, to be sure,
are not linguistically required) when interpreting the Qur’an, but he also
interpreted it against the backdrop of particular assumptions about God,
religion, and language, as well as its textual and historical contexts. This
does not mean that Ibn Hazm thought that he was deviating from what the text
said in his view. What this says is that if we regard his methodology as
literalist, we deprive ourselves of the opportunity to comprehend what he
actually does and says. This is probably the mistake that Crapanzano made when
he speaks about Scalia’s “literalist hermeneutics.” His perception of Scalia as
a literalist prevented him from understanding that Scalia’s appeal to the
context to understand what a word like “use” meant was not due to his alleged
inconsistency, but rather to his not being a literalist who disregards the
context. Scalia himself does not regard his hermeneutics as being literalist,
and those scholars who regard his methodology as literalist attribute to him
what he does not acknowledge and judge him accordingly. In other words, they
deal with fiction that they have created themselves. Accordingly, we must
disagree with the statement that the Zâhirï approach was “based primarily on
the nonpragmatic givens of the language and stresses the predetermined
conventions of the language which are encoded in the linguistic structure of
the texts as the essential, and perhaps the only requirements for
communication,” and that “[e]xtra-linguistic contexts are generally ignored and
the inferential capacity of the hearer has almost no role to play in
interpretation.”[960]
[961] [962]
In a revealing debate that Abü Ishaq
al-Shïrâzï mentions in his discussion of one form of textual implication, a
disagreement took place over Q. 17:23, “And Say not fie (uff ) to them
[i.e., your parents],’^8 and Q. 4:40 “Surely Allah does not do
injustice to the weight of an atom.”239 Is it possible to conclude
from the first verse, scholars wondered, that beating one’s parents is
prohibited, and from the second verse that God does not do injustice to a
weight that is more than that of an atom? Al-Shïrâzï argues that we can make
these conclusions on the basis of the meaning (ma'na) of the two verses,
which indicates that these conclusions can only be validly derived from the
meaning of the two verses in a “pragmatic” way. We take this to be a pragmatic
reading of the two verses because according to the other view that al-Shïrâzï
mentions, these two conclusions can be reached on “linguistic grounds” (min
nahiyat al-lughah), i.e., they can be linguistically mandated. Al-Shïrâzï
attributes to a certain scholar the view that what is more than an atom is two
or more individual atoms, each of which is covered by the text of the second
verse. Therefore, the language itself allows us to conclude from this verse
that God does not do injustice to the weight of more than one atom, even though
the verse speaks about one atom only. As for the first verse, al-Shïrâzï does
not explain the view that we can conclude from the prohibition to say fie to
one’s parent that one cannot beat them, and it is difficult to imagine the
logic of this argument since beating does not consist of several instances of
saying fie. Al-Shïrâzï himself refutes this view (of the possibility to make
these two conclusions about the verse on the strength of their wording) by
arguing that the Arabic word uffis not used to refer to beating, just as
the word atom is not used to refer to more than an atom. Therefore, scholars
and lay people alike make these two conclusions on the basis of the meaning,
rather than the wording, of the two verses.[963]
[964]
What is remarkable here is that the
view that the wording of Q. 4:40 is the basis of our conclusion that God does
not do injustice to more than the weight of an atom is attributed to Muhammad
ibn Dâwüd. Al-Shïrâzï adds that Ibn Surayj refuted this view by referring to
half an atom, which is not made of single atoms as is the case with two or
more atoms. Therefore, if we are to understand from this verse that God does
not do injustice to the weight of half an atom, we can only do this on the
basis of the meaning, rather than the wording, of the verse.241 While
al-Shïrâzï does not mention how Ibn Dâwüd responded to this point, it is not
difficult to imagine that he could have simply retorted by saying that this
point does not deal with the question in the first place. It is not against
reason to say that while we can conclude on the basis of the wording of the
verse that God does not do injustice more than the weight of an atom, we can
make a similar conclusion about half an atom only pragmatically on the basis of
the meaning of the verse. Be this as it may, this account seems to suggest
that Ibn Dâwüd in this example was a “literalist” in the technical sense of the
term. He was of the view that one can only resort to pragmatic processes if,
and only if, there is no possibility to appeal to the language itself, or make
conclusions that are derived from the very wording of a text. This view is
also attributed by al-Shïrâzï to some Shâfi'ï scholars, the majority of
theologians ('ammat al-mutakallimm), and some Zâhirïs (bacdahlal-zahir).
In other words, not all Zâhirïs held Muhammad ibn Dâwüd’s view.
Ibn Hazm was not a literalist, but we
can, with due caution, regard his legal philosophy to be almost identical to
Justice Scalia’s textualism.[965]
[966]
Truly, there are obvious and at times significant similarities between
Zâhirism, textualism, and literalism, the most important of which is their
conviction that “[f]or any conversation, dialogue, or debate to move in a
meaningful way, its participants must share, or at least have the illusion of
sharing, a set of assumptions about language, communication, interpersonal
relations, the nature of their world of reference, the way to make sense of it,
and how to evaluate divergent understandings and adjudicate differences.’^3
The three hermeneutical theories assume that the correct, intended meaning is
determinable. This notwithstanding, Zâhirism—and textualism, for that
matter—is not literalist for several reasons. Zâhirïs make use of pragmatic
processes that are not linguistically required when interpreting texts. Rather
than focusing on the semantic value of the text, they rely on the historical
and textual contexts to determine the intended meaning of its author. Their
consideration of the context allows them to depart from the semantic meaning of
the sentence (or what the sentence “says”) to what they believe the sentence
intends to convey in a particular context (what it “communicates”). Finally,
they interpret texts in light of various extra-textual considerations. Zâhirïs,
however, are textualists because they insist on the supremacy of the text and
take the context of speech into consideration in order to determine the
intended meaning. This is the main difference between Zâhirism and textualism,
on the one hand, and literalism, on the other hand. As legal theories, Zâhirism
and textualism share many assumptions about the division of labor between
lawgivers and legal interpreters, the objectives of the law, and the necessity
to follow the methodology that is dictated and approved by the lawgiver
irrespective of the result. Their differences only emanate from the nature of
the two legal systems that they deal with, Zâhirïs with a religious law that is
fixed in important aspects, and textual- ists with a positive law that can and
does change.
Case Studies
Several arguments have been made
about Dâwüd al-Zâhirï and hisjuridical thought (i.e., Zahirism) in the previous
chapters. One of these is that what we know about him strongly suggests that he
was closer in both personal profile and jurisprudence to the Ahl al-Ra’y
than to the Ahl al-Hadlth, the two leading legal trends in his time. A
strong connection between the general, unrestricted meaning of terms (al-cumüm)
and the zahlr meaning has been argued in the previous two chapters. We
have also discussed the relationship between the subject of Umüm and
other key notions in Zâhirï jurisprudence, namely, the principles of al-lbahah
al-asllyyah and lstlshab al-hal, as well as the rejection of qlyas.
It has been argued that Zâhirïs, like the Ahl al-Ra’y and American
textualists, give consistency and systematization a special emphasis in their
jurisprudence. This concern for consistency requires that legal thinking be governed
by specific assumptions and proceed on the basis of well-defined rules that
regulate the process of determining the right meaning of legal texts and
systematize the use of textual evidence. On the other hand, the Ahl
al-Hadlth, particularly Ahmad ibn Hanbal, were less interested in
consistency and more concerned about “morality,” meaning that ethical
considerations were given priority in his jurisprudence. In this, he resembles
intentionalist jurists who maintain that the law has a “spirit” and general
objectives that it seeks to secure or protect more than the strict adherence to
the text of the law or even the immediate benefits for the society and
individuals. Another feature of Ibn Hanbal’s jurisprudence, which feature is
strongly related to his moral approach to legal issues, is his keenness to
reconcile and synthesize all available evidence on a given issue. This concern
for morality and for not abandoning any part of the evidence in a given
question was the source of the main tension in his jurisprudence, which tension
his reported hesitation about many issues makes evident.
The following case studies, including
those that belong strictly to the ritualistic part of Islamic law, have a
clear social dimension. This makes possible drawing conclusions about the
concerns that may have underlined various views thereon, as well as putting to
the test some of our conclusions about Dawüd and his Zahirism and how it
compares with the juridical thought of both the Ahl al-Ra ’y and the Ahl
al-Hadlth. In the first two case studies, which are discussed at length,
the evidence that could have been available to jurists starting from the second
half of the 2nd century AH is presented and
© KONINKLIJKE BRILL NV, LEIDEN, 2014
| DOI 10.1163/9789004279650_008 discussed. This includes
Qur’anic verses as well as Prophetic traditions and non-Prophetic reports.
Qur’an commentaries that were written in the first three centuries AH are used
to examine how the relevant verses were interpreted. Hadith compilations are
used to identify relevant traditions and reports, paying particular attention
to works compiled in the second half of the 2nd century AH in order to
investigate whether the evidence that was available to Ibn Hanbal and Dâwüd in
the 3rd/gth century was also available to Abü Hanifah a hundred years earlier.
Works on legal disagreements (ikhtilaf)
provide an idea about the evidence that may have been used by early jurists on
each question under discussion, although they can at times be reticent about
why a certain jurist held a certain opinion and on the basis of what evidence.
To remedy this, some legal works of the madhhabs of Abü Hanifah, Ibn
Hanbal, and Dawüd are consulted. These works have the advantage of offering
lengthier presentations and detailed argumentation. Their downside, however, is
that they tend to confuse what the purported founders of their madhhabs
held and what its later scholars thought. It is not always clear whether an
argument made in a given case goes back to the founder of the madhhab,
to later scholars who belonged to that madhhab, or even to the author of
the work itself. Furthermore, while some of these works—many of which are also
works on legal ikhtilaf (such as Ibn Hazm’s Muhalla, the Hanbali
scholar Ibn Qudamah’s Mughni, and the Shafr'i scholar al-Nawawi’s Majmü)—seem
generally “objective” in presenting various points of view on each question, it
is natural that they would provide a more extensive and better-argued
presentation of the views of their madhhabs. Because of the succinct
nature of the first set of works (the ikhtilaf works) and the
indeterminate and possibly biased nature of the second, it is crucial to note
that the analysis put forward here of how and why each jurist may have come to a
certain conclusion is admittedly presumptive rather than demonstrative.
It must also be noted that while the
exact history of these works and their authenticity are beyond the scope of
this study, it is here assumed that when taken together, all these sources can
provide us with a reliable sense as to what was in circulation in the 2nd/8th
and 3rd/gth centuries and how that may have been used in jurisprudence.
1.1 “Touching" Women and Men’s Ritual Purity
This case deals with the question of
whether touching a member of the other sex invalidates the ritual purity of
either one or both of the two parties involved, assumed to be in a state of
ritual purity (taharah). The loss of ritual purity requires the
performance of ablution (wudü’) before praying. Following the tradition
of our primary sources, it is here presumed that the question has to do with
whether a man loses his ritual purity if he touches a woman.
On this question, Abü Hanifah held
that touching any woman (including women forbidden to men, such as their
mothers, daughters and sisters) does not influence the ritual purity of a
Muslim man.[967] On
the contrary, Dâwüd is reported to have held the opposite, insisting that a man
who touches a woman loses his ritual purity and has to perform ablution before
praying.[968]
Without reference to Ibn Hanbal’s view on this issue, this is how the opinions
of these two scholars would have been reported to us. With reference to Ibn
Hanbal’s view, however, Abü Hanifah’s view would be that touching a woman does
not invalidate the ritual purity of either the woman who is being touched, or
the man who touches her, irrespective of whether the touching is with or
without (sexual) desire (shahwah). Dâwüd’s view would be that touching any
woman invalidates the ritual purity of the man (but not the woman) who touches
her, be this with or without desire. The reason why the two positions
would be characterized differently if we bring Ibn Hanbal into the picture is
that he made the argument that if touching a woman involved sexual desire on
the part of the man who touches her, it invalidates his ritual purity; whereas
if it does not involve any desire, it does not affect his ritual purity.[969]
Works on ikhtilaf mentions one
Qur’anic verse that was used as a source of legal evidence on this issue. This
verse does not directly address the question of the things that invalidate a
Muslim’s ritual purity, but it speaks about the situation when a Muslim needs
to perform minor or major ablution (wudü’ and ghusl) but does not
find water. In this case, “dry” ritual wash (tayammum) is licensed in
lieu of the regular ritual ablution with water. Before giving this permission,
however, the Qur’an mentions some things that invalidate a Muslim’s ritual
purity, one of which is lamastum al-nisa’.
O you who believe! Draw not near
prayers when you are drunken, untill you know that which you utter, nor when
you are ritually impure (junuban), unless you are travelling, untill you
have bathed. And if you be ill, or on a journey, or one of you comes from the
closet, or you have touched/made love to women (aw lamastum al-nisa’),
and you do not find water, then go to high clean soil (fa-tayammamü sa'id
tayyib) and rub your faces and your hands (therewith). Lo! Allah is
Pardoning, Forgiving (Q. 4:43).
In one of the earliest available
Qur’an commentaries, Mujahid ibn Jabr reports, seemingly approvingly, only one
tradition that goes back to al-Hasan al-Basri (d. 110/728), according to which “al-mulamasah”
in this verse refers to sexual intercourse (al-jima')[970]
Both Zayd ibn ‘Ali (d. 122/740) and Muqatil ibn Sulayman held the same view.[971]
In the late 3rd century, there
existed many reports from earlier scholars on the meaning of lamastum in
this verse. Al-Tabari gives a list of the early jurists who held various
opinions on it meaning. Ibn ‘Abbas is mentioned as the Companion who held that lams,
mass and mubasharah all refer to sexual intercourse (al-jima^)
and that God only alludes to it out of decency (wa-lakinna Allah ya'iffu
wa-yakni). This report was transmitted by the famous jurist Sa‘id ibn
Jubayr (d. 95/714) and a son of Ibn ‘Abbas’s. Sa‘id ibn Jubayr also reports a
number of anecdotes, with various names, according to which some jurists
disagreed on this question on ethnic lines: while the Arabs argued that lams
in the verse was used figuratively to refer to sexual intercourse, non-Arab
clients (mawali) stuck to the zahir meaning of the verb and
argued that it referred to any skin to skin contact. When they asked Ibn ‘Abbas
about it, he said that the Arabs won and the mawali lost, meaning that
the Arabs understood it correctly. Ibn ‘Abbas was followed on this by al-Hasan
al-Basri, Mujahid ibn Jabr, and Qatadah ibn Di‘amah (d. 117/735). ‘Abd Allah
ibn Mas‘üd and ‘Abd
Allah ibn ‘Umar are mentioned as the
Companions who maintained that any touching of any woman invalidates men’s
ritual purity.[972]
Among the Successors, al-Hakam ibn ‘Utaybah (d. 115/733) and Hammad ibn Abi
Sulayman held this opinion, whereas Ibrahim al-Nakha‘i is reported to have
believed that touching invalidates ritual purity only when it involves desire.[973]
Al-Tabari’s own position on this
subject is ambivalent. He begins his discussion by stating that lamastum
means “you touched women with your hands” (bashartum al-nisa’ bi-aydlkum).[974]
Later, he mentions a number of anecdotes according to which the Prophet kissed
one of his wives and went to the prayers without performing ritual ablution.
With the exception of only one tradition that was attributed to Umm Salamah
(Hind bint Abi Umayyah, d. 59/678), a wife of the Prophet (who mentioned that
the Prophet once kissed her while he was fasting and did not break his fast or
repeat his ablution), all these traditions were narrated by ‘À’ishah bint Abi
Bakr (d. c. 58/678)—apparently the wife whom the Prophet kissed—and
transmitted by a certain ‘Urwah, a certain Ibrahim al-Taymi, and a certain
Zaynab al-Sahmiyyah. Commenting on these traditions and concluding his
discussion of this subject, al-Tabari argues that they offer “clear evidence”
that lams in this context means sexual intercourse.[975]
In addition to the evidence from the
Qur’an, works on ikhtilaf and some Hadith compilations that have
chapters on this issue mention a number of Prophetic traditions in the context
of this subject. There are generally two major sets of traditions (with various
versions) and a few other traditions that were brought to the discussion by
some isolated scholars.
The recurrent theme in the first set
of traditions is that the Prophet kissed one of his wives and prayed without
performing ritual ablution. With the exception of one version by Umm Salamah,
which is mentioned by al-Tabari and very few other scholars, and the isolated
version of Hafsah bint ‘Umar ibn al-Khattab (d. 41/661), which was transmitted
by Abü Hanifah himself,[976]
most versions of this tradition feature ‘À’ishah as transmitter. From very
early it became one of the most popular traditions in discussions of this
subject, and in later works of jurisprudence it became the standard source of
Prophetic Sunnah on the matter. As early as the late 2nd century AH, it was
mentioned as evidence for Abü Hanifah’s view in al-Shaybânï’s al-Hujjah 'ala
Ahl al-Madlnah,1 and later used by ‘Abd al-Razzaq al-San'ânï and
Ibn Abi Shaybah in their Musannafs in the context of discussing factors
that invalidated ritual purity.[977]
[978]
This tradition was transmitted by three persons from ‘À’ishah. The most famous
version was transmitted by ‘Urwah, whom most scholars take to be ‘À’ishah’s
nephew and son of al-Zubayr ibn al-‘Awwam (d. c. 94/712). ‘Urwah’s
version of this tradition is reported by Ibn Mâjah, Abü Dâwüd, al-Tirmidhi, and
al-Nasa’i in their Sunan compilations.1[979]
[980]
Al-Tabari’s version from Ibrahim al-Taymi is reported by Abü DâwüdM
and al-Nasâ’id[981]
and his version from Zaynab al-Sahmiyyah is reported by Ibn Majah in his Sunan.1[982]
‘À’ishah also figures in another set
of traditions that involves touching the Prophet, mostly while he was
prostrating. According to one of these, the Prophet used to pray while ‘À’ishah
slept in front of him and her legs were in the direction of the qlblah.
‘À’ishah mentions that when the Prophet wanted to prostrate himself, he would
squeeze her so that she would fold her leg and then stretch it again when the
Prophet stood up. This tradition is reported by al-Nasa’i, who reports a
similar tradition according to which the Prophet would touch ‘À’ishah with his
leg when he was praying. In a third tradition (also reported by al-Nasa’i),
‘À’ishah did not find the Prophet sleeping next to her one night when she started
searching for him with her hand until she touched his feet while he was
prostrating. She then mentions the prayer (du'a’) that the Prophet was
saying while he was in that position^[983]
from which it was assumed that the Prophet did not interrupt his prayers
because he did not consider his ablution void when she touched him.
A last Prophetic tradition that was
used in this context was one that has the Prophet carry his grand-daughter
Umamah bint al-Harith while he was praying. The relevance of this tradition
was refuted by Ibn Hazm in al-Muhallâ,[984]
which suggests that it was used by some earlier scholars as evidence
for one opinion or another.
In his Muwatta’, Malik ibn
Anas mentions the views of two Companions on our question. ‘Abd Allah ibn ‘Umar
is reported to have said that when a man kisses and touches his wife with his
hand, this constitutes mulamasah that requires performance of ritual
ablution before praying. The same view is attributed to ‘Abd Allah ibn Mas‘üd.[985] As
noted earlier, al-Tabari attributes the same opinions to these two Companions,
and during that time, reference to their opinions was made in almost all
discussions of this subject. While most of the reports of Ibn ‘Umar mention
kissing in particular, others speak of all kinds of touching. In some of these
reports, Ibn ‘Umar defines kissing in terms of touching (arguing that “kissing
is [a kind of] touching”),[986]
[987] [988] [989] [990] [991] [992] [993]
which may indicate that for him it invalidated ritual purity for being just
that. The same opinion is attributed to Ibn Mas‘üd, but in some versions, he
adds to it lying with one’s wife skin to skin (al-mubasharah) and
touching by hand. In his view, lamasa in Q. 4:43 means pressing or
squeezing with the hand (al-ghamz).2i
Ibn ‘Abbas, as we have seen, figures
from early on as the Companion who held that touching women had no effect on
the ritual purity of the man who touches or kisses her.22 The story that Sa‘id
ibn Jubayr reported on the dispute between the Arabs and non-Arabs on the
meaning of lamastum in the Qur’ânic verse is also reported in some early
Hadith compilations?3 Other reports have Ibn ‘Abbas argue that
kissing does not require performance of ritual ablution.24 In an
isolated report, ‘Abd al-Razzaq al-San‘ani mentions that ‘Umar ibn al-Khattab
once kissed his wife and went to the prayers without performing ablution.25
No direct statement, to my knowledge, is attributed to ‘Umar himself?6
In the generation of the Successors (tabi'an),
there are more statements that directly address our issue. In the Hijaz, Sa‘id
ibn al-Musayyab (who mentions kissing in particular)?7 and Muhammad
ibn Shihab al-Zuhri (d. 124/742) (following Ibn ‘Umar in considering kissing a
kind of touching)[994]
were reported to have held that touching invalidated ritual purity. In Iraq,
al-Sha‘bi is reported to have said that if a man kisses [his wife], he has to
perform ablution.2[995]
The same opinion is also attributed to Qatadah ibn Di‘âmah,[996]
[997] [998] [999] [1000] [1001] [1002] [1003] [1004] [1005]
Sulayman ibn Mihrân al-A‘mash (d. 148/765), al-Hakam ibn ‘Utaybah, and Hammad
ibn Abi Sulayman.31 Contrary to this, Masrüq ibn al-Ajda‘ (d. c.
63/682), al-Hasan al-Basri, and ‘Atâ’ ibn Abi Rabah (d. 114/732) are mentioned
as having held that kissing did not invalidate a man’s ritual purity.32 Sufyan
al-Thawri is also reported as having argued that if a man kisses his wife he
does not have to perform ablution before praying.33
Ibrahim al-Nakha‘i, who transmitted
the traditions of Ibn Mas‘üd and Ibn ‘Umar on this subject?4 ruled
that “if a man kisses or touches [his wife], he has to perform ablution.”35
In other reports, however, he is said to have argued that only when kissing and
touching involve sexual desire does it invalidate ritual purity.36 A
similar opinion is attributed to ‘Abd al-Rahman ibn Abi Layla (d. c.
83/702), who held that “if a man touches his wife with lust, he [has to]
perform ablution unless he ejaculates.’^7 Hammad ibn Abi Sulayman
agrees with this view, but adds another element to the discussion. Reported as
having held that any touching invalidated ritual purity,38 he thought that if
a man kisses his wife when she does not want it, he has to perform ablution but
she does not have to, unless she feels sexual desire. By the same token, if a
wife kisses her husband while he does not want that, she needs to perform
ablution, but he does not have to unless he feels sexual desire.39 To those
scholars who made similar arguments, al-Nawawi adds al-Hakam, Malik ibn Anas,
al-Layth ibn Sa‘d, Ishaq ibn Rahawayh, al-Sha'bi and Rabi'ah ibn Abi ‘Abd
al-Rahman (Rabi'at al-Ra’y) in one opinion attributed to each of them.[1006]
The Qur’anic evidence on this issue
obviously triggered the controversy over it. The verb that Q. 4:34 uses for
touching is not used in the first form (lamasa), but rather in the third
form (lamasa), which led jurists to interpret the verse variously. In
general, some of them took lamasa to refer to sexual intercourse, while
others held that it only meant the mere touching of a woman, an understanding
that the first form would probably have indicated straightforwardly[1007]
[1008] [1009] What
complicated the matter is that some Companions did read the verb in this verse
in the first form, which reading is attributed to ‘Abd Allah ibn Mas‘üd42 and
maintained in the readings of the two Kufan scholars Hamzah ibn Habib al-Zayyat
(d. 156/772) and ‘Ali ibn Hamzah al-Kisa’i (d. x8g/8o5).43
In the earliest available Qur’an
commentaries, lamastum was understood to mean jama'tum, viz.
having sexual intercourse. The first Qur’an commentary in which a controversy
about this verb is reported is al-Tabari’s, which suggests that in the two
centuries between Mujahid and al-Tabari something heated up the debate about
this issue in Iraq, an observation discussed in a later context. Needless to
say, the various ways this verb was construed by early scholars must have had a
correlation with what they thought about this issue. Those who believed that lamasa
meant sexual intercourse, like Ibn ‘Abbas, would be able to exclude this verse
from the debate over the issue of touching a woman and its effect on the validity
or otherwise of men’s ritual purity when they touch women. On the other hand,
for those to whom the verb meant the mere touching of a woman, such as Ibn
‘Umar, the verse could have provided the basis of the ruling on the question
that all other relevant pieces of evidence would then be assessed against its
backdrop. These pieces of evidence include reports about and from the Prophet
Muhammad.
Remarkably, none of the reports that
involve the Prophet that were used by early scholars were immune from criticism
by medieval scholars with regards to both their relevance and authenticity.[1010]
It has been noted that the tradition of ‘À’ishah (in which the Prophet would
kiss one of his wives and then go to the prayers without performing ablution,
the assumption being, again, that he was already in a state of ritual purity
when he kissed) became almost standard in most medieval discussions of this
subject (although its relevance to the issue was not accepted by all early
scholars, as discussed below). This tradition, however, was the target of much
criticism regarding its authenticity. It is conspicuously absent from some
early works where we would expect to find it. Zayd ibn ‘All, for instance, does
not mention any tradition—including those reports from wives of the Prophet
other than ‘A’ishah—in his Majmü" when he mentions that kissing
does not invalidate ablution?[1011]
Malik, too, does not mention this tradition, but not necessarily because it
would contradict his opinion[1012]
[1013]
Nor does al-Tayâlisï (d. 204/819) mention any version of this tradition in his Musnad.47
In the 3rd/9th century, each of the three versions of this tradition was
rejected by one or more traditionists. Its ‘Urwah version, which was the most
popular, was rejected by al-Bukhârï (and probably Muslim who does not mention
it in his Sahih) on the basis that Habib ibn Abi Thâbit (d. 117/735)
(who is supposed to have transmitted the tradition from ‘Urwah) never in fact
heard from ‘Urwah.[1014]
Notably, it is even reported that Ibn Hanbal himself had some doubts about it[1015]
Abü Dâwüd, however, quoted the ‘Urwah version approvingly, but had to defend
his selection of this version. He mentions that Yahya ibn Sa‘id al-Qattan, the
famous Hadith critic, rejected it (al-Qattan is quoted as having said that this
tradition was “nothing”). Abü Dawüd also mentions that al-A‘mash identified the
‘Urwah in the tradition as ‘Urwah al-Muzani, from whom, according to al-Thawri,
Habib ibn Thabit used to transmit. Abü Dawüd disagreed with this view,
insisting that Habib did transmit sound traditions from ‘Urwah ibn al-Zubayr
himself.[1016]
[1017] [1018] [1019] [1020] [1021]
Al-Tirmidhi mentions that “our fellow traditionists have abandoned the ‘À’ishah
tradition because they do not consider it sound on account of the condition of
its chain of transmitters.”-’’1 A few centuries later, al-Nawawi
mentions that this tradition is weak according to the consensus of the
traditionists, as it was declared weak by Sufyan al-Thawri, Yahya ibn Sa‘id
al-Qattan, Ahmad ibn Hanbal, Abü Dawüd, Abü al-Hasan al-Daraqutni (385/995), Abü
Bakr al-Bayhaqi (458/1066), and others.’2 Ibn Rushd, however,
mentions that while the Hijazis considered this version weak, the Kufans “found
it sound” (sahhahahu ’l-küfiyyün).’3
The version of Ibrahim ibn Yazid
al-Taymi (d. 92/710) was similarly rejected by some scholars. Abü Dawüd
considered it weak because he believed that Ibrahim never heard from À’ishah.’4
Despite his view that there was “nothing better than [this tradition] in this
chapter,” al-Nasa’i considered this version mursal, a tradition from the
chain of transmission of which a transmitter is missing.’’ Ibn Majah mentions
this and the other two versions of the tradition without commenting on their
authenticity.[1022]
[1023]
As for the version of Zaynab al- Sahmiyyah [bint Muhammad ibn ‘Amr ibn al-‘Às]—which
was mentioned by Ibn Hanbal in his Musnad,57 Ibn Mâjah in his Sunan,
and al-Tabari in his Tafslr but was nonetheless the least popular
version of this tradition— al-Daraqutni is reported to have considered her an
unknown person (majhul). Later, al-Nawawi does not mention it even to
say that it was yet weaker than the other versions of the tradition, which he
also rejected.5[1024]
[1025]
The similar tradition of Umm Salamah, to my knowledge, does not exist in any
source other than al-Tabari, which holds true for the tradition of Hafsah that
Abü Hanifah transmitted.59
In addition to the problem of
authenticity, this set of traditions had another problem regarding their
relevance to our case. Strictly speaking, this set of traditions deals with
kissing, which is probably why Ibn Mas‘üd and Ibn ‘Umar had to explain that
kissing is a kind of touching. Although this set of traditions was brought to
the discussions of this subject very early, a medieval Hanbali scholar still
felt the need to prove that kissing was a form of touching[1026]
[1027]
But if the relevance of this to the issue was dubious, this is even more so for
the other important set of traditions, where the Prophet touches ‘À’ishah while
prostrating. For example, al-Bukhari and Muslim, who have no chapters on lams
al-mar’ah (“touching women,” which is usually mentioned in the kitab
al-taharah among the things that affect ritual purity and make ablution
necessary), report the various ‘À’ishah traditions in chapters that have
nothing to do with our subject. For example, al-Bukhari mentions it in a
chapter in Kitab al-Salah (chapter on the prayers) on the issue of “Can
a man squeeze his wife to prostrate himself?”*’1 and by Muslim in
the context of the prayers (duca’) that can be recited while
bowing and prostrating, also in the Kitab al-Salah.[1028]
The other similar tradition by ‘À’ishah, where she mentions that her
leg would be in the direction of the qiblah in front of the Prophet
while he was praying, is mentioned by al-Bukhârï in a chapter on al-tatawwu'
khalfa ’l-mar’ah (saying supererogatory prayers behind a woman).[1029]
For his part, Ibn Hazm openly dismisses this set of traditions, not on the
basis of their authenticity, but on the basis of the fact that we do not know
much about their context. He argues that we do not even know that the Prophet
was praying in the first place. Furthermore, the tradition as it is does not
rule out the possibility that the Prophet did interrupt his prayers, if he was
indeed praying, to perform his ablution anew. But the main ground on which Ibn
Hazm dismisses the relevance of this tradition is his argument (which meshes
well with his opinion on the matter) that in all circumstances the Prophet was
the one who was touched, not the one who did the touching. It was the absence
of intention (qasd) here that allowed the Prophet to maintain his ritual
purity and go on with his prayers[1030]
[1031] [1032] Ibn
Hazm dealt similarly with the tradition that has the Prophet carrying his
grand-daughter Umâmah, which al-Bukhârï reports in a chapter on “carrying a young
girl while praying.”65 He argues that the tradition does not indicate whether
the Prophet’s skin touched Umâmah’s, or whether he did not interrupt his
prayers, performed ablution, and then prayed again. Be this as it may, Ibn Hazm
points out, this set of traditions and even the first one were abrogated by
the Qur’ânic aw lamastum al-nisa’.66
Finally, acknowledging many of the
weaknesses of this tradition, al-Nawawï similarly dismissed them as evidence
for the argument that touching and kissing do not affect men’s ritual purity[1033]
[1034]
The logical conclusion of all this for al-Tirmidhï was, “nothing from the
Prophet on this subject [of touching women and how this affects ritual purity]
is sound” (wa-laysa yasihhu can al-nabl flhadha ï-bâb shay’).6s
It is noteworthy that non-Prophetic
reports associated with this subject reveal that it was purely Iraqi. Although
there was some controversy on this issue in the Hijaz,[1035]
Hijazis seem to have made up their minds very early that all kissing, as well
as any touching that involved sexual desire, invalidated ritual purity. This
opinion was probably established by Sa‘id ibn al-Musayyab and al-Zuhri,
following the example of Ibn Mas‘üd and Ibn ‘Umar. In Iraq, however, the
differences in opinion between ‘Abd Allah ibn Mas‘üd and ‘Abd Allah ibn ‘Abbas
seem to have instigated a disagreement that was never resolved either by their
followers, or by the students of their followers. The majority of Iraqi
Successors apparently accepted Ibn Mas‘üd’s opinion, according to which touching
invalidated the ritual purity of the one who touches. While some accepted this
categorically (like Shu‘bah, al-Hakam, and al-Sha‘bi), others sought to
qualify it by introducing further elements into the discussion. Ibrahim
al-Nakha‘i and Ibn Abi Layla, in an opinion attributed to each of them,
introduced the element of sexual desire. Al-Nakha‘i’s student Hammad introduced
the element of intention. Some other Iraqi scholars, such as ‘Ata’, al-Hasan,
Masrüq, and Sufyan al-Thawri, however, sided with Ibn ‘Abbas, not only on his
opinion that touching does not invalidate ritual purity, but also regarding his
view that lamasa in Q. 4:43 refers to sexual intercourse.
The aim of this lengthy discussion of
what was taken as textual evidence in this issue and of the opinions that were
attributed to the earlier authorities is not to assess the evidence or the
opinions. Rather, it is to find out what sort of evidence was used, even by
later scholars, and how much of it could have been available to the three scholars
whom we are dealing with here. What we have seen is much disagreement and
contradictory opinions that the generation of Abü Hanifah and later generations
of jurists inherited and had to deal with. This is exactly what we need to be
looking at to investigate how Abü Hanifah, Ibn Hanbal and Dawüd may have dealt
with the legal legacy on this issue.
On the question of what evidence was
available to the three scholars on this issue, it seems fair to say that the
evidence they confronted was similar. Abü Hanifah was aware of the various
views of the Companions and the Successors on the matter (i.e., their views of
the meaning of lamastum and on the issue of touching more broadly)[1036]
and a tradition very similar to the first tradition of ‘À’ishah (which he
actually may have been aware of and have considered relevant to the subject).[1037]
By the time of Ibn Hanbal and Dâwüd, all the traditions used in this
controversy were used and considered relevant by at least some scholars. It can
be safely assumed, then, that the three scholars had similar raw material to
work with.
Abü Hanifah, Ibn Hanbal, and Dâwüd,
nevertheless, came to three different conclusions on this question. When
facing the various views on lamastum, Abü Hanifah chose the view that it
referred to sexual intercourse, most likely on the basis of either one or both
of the following two reasons. The first is the use of the third form of the
verb, which was the most popular reading even if Ibn Mas'üd’s reading, which
had the verb in the first form, was popular in Iraq. This form must have
suggested to him, just as it did to many other jurists, that it was not
the basic meaning of the root l-m-s that was meant. If this is how he
thought of the verse, then the case was almost done for him since there was no
other evidence that he would consider on the issue of touching. However, it is
also possible that Abü Hanifah had rendered the Qur’ânic verse irrelevant to
the discussion in a different way. The fact that even the Prophet’s Companions
were uncertain about the meaning of lamastum may have undermined it as
evidence in his view. If the Qur’ânic evidence is uncertain, there was no
reason for him to ignore the evidence from the Sunnah, which is at least not
less certain than the Qur’ânic evidence. In this case, only one text should be
accepted and the other one assessed accordingly. Abü Hanifah chose the
Prophetic traditions (for reasons that are discussed below) and assessed all
other pieces of evidence accordingly. In both cases, having neutralized the
Qur’ân (by rendering the Qur’ânic verse irrelevant, or reducing its
epistemological value as evidence), he was ready to turn to Sunnah, where most
reports about the Prophet did not seem to indicate that touching women
invalidates men’s ritual purity.
But even if Abü Hanifah had some
Prophetic traditions from which it could be understood that touching women
voided men’s ritual purity, he would probably not have accepted them. This
case falls under the category of what Hanafis call 'umüm al-balwa,
meaning that it is a matter that happens frequently, no matter how unfavorable
it may be. Touching a member of the other sex is very likely to happen
frequently and on a daily basis. Accordingly, Hanafis would maintain that if
this was an issue that affected people’s ritual purity (which means that they
would not be able to pray unless they perform ablution), the Prophet would have
made this clear, and the Muslim community would have transmitted it by way of
(either verbal or practical) tawatur, just as is the case with other
things that affect ritual purity. It was on this very ground that Hanafis did
not accept the isolated traditions according to which touching the male sexual
organ voided ritual purity, as noted earlier. Since this was something that
was liable to happen frequently, there should not be any uncertainty about it
among the Companions and the succeeding generations.[1038]
In fact, it may have been for this reason that Abü Hanifah did not consider Ibn
Mas'üd’s reading of the verb in the first form, for this would have had
catastrophic consequences on one of the basic assumptions of his
jurisprudence. He did not think that it was plausible for an issue like this to
be handed down from the Prophet to the latter generations with all that
confusion. He must have thought that this could not happen, and he was most
likely unwilling to challenge his assumption of how such issues ought to be
transmitted on account of an isolated reading of a Qur’ânic verse.
Abü Hanifah, therefore, probably had
no other choice but to proceed under the presumption of continuity, according
to which, in this case, nothing voids ritual purity unless we know for certain
that either God or his Prophet had so specified. Since this was not done
regarding our issue, it followed that no touching of any woman
had any effect on the ritual purity of men. The isolated reports of the
Prophet’s conduct must have added further confirmation for him. This does not
necessarily means that this issue falls within the second category of knowledge
that Jassas would discuss (the category of uncertain evidence and of ijtihad
which only yields probable results). Rather, it falls within the first category
of knowledge, one in which we know for certain what the law has to say
and how it should say it. But since the law is silent on this issue (for it
cannot be explicit and ambiguous at the same time), then we have to adhere to
the general rule, viz. nothing voids ritual purity other than that which is
explicitly mentioned by God or His Prophet.
There are two points that are worth
noting about Abü Hanifah’s view on this issue. He ruled against what seems to
have been the general attitude in his region. Not only did he reject Ibn
Mas'üd’s reading, but he also rejected the views that were attributed to him
and to Ibn 'Umar concerning kissing and touching. More significantly, he
rejected the views of his more immediate teachers: Ibrahim al-Nakha'i and
Hammad. Other than pointing to Abü Hanifah’s independence as a jurist (as well
as the diversity within the camp of the Ahl al-Ray), his rejection of
both his teachers’ views as well as the elements that they introduced into the
discussion (sexual desire by al-Nakha'i and intention by Hammad) is
significant. While it is not clear why he did not consider the element of
intention (although we can speculate that the reason may be that Hammad did not
provide evidence for his view), his rejection of the more popular, but fuzzy
element of sexual desire seems to be in perfect line with what has been
discussed earlier about his jurisprudence and his predilection for
systematization. The reason is that the element of sexual desire suffers from
two important weaknesses, subjectivity and uncertainty. Each of these elements
suffices to disqualify it in a legal system like Abü Hanifah’s, where only an
exact and objective criterion would be admitted. The only element that Abü
Hanifah is reported to have considered on this issue is that only when a man
lies naked with his wife and erection occurs does he need to perform ablution.
While it could be argued that erection here serves as the “objective” criterion
for which he was looking, some later scholars—probably seeking to demonstrate
that Abü Hanifah was not as whimsical by considering this factor as other
scholars (since there is no textual evidence for erection as a
criterion)—argued that what he probably had in mind is the fact that more often
than not, when a man reaches this stage of intimacy with his wife, he would
discharge some pre-ejaculatory fluid that voids ritual purity,[1039]
[1040]
as all madhhabs maintain.
Unlike Abü Hanifah, considering the
Qur’an and Prophetic Sunnah two epistemologically and authoritatively equal
textual sources, Dawüd was considering the evidence from the Qur’an and Sunnah
simultaneously. He believed that the verb in the verse meant the mere and,
apparently, the unconditional touching of women. He probably did not see why
it should be understood otherwise. It is certain that the root l-m-s
means touching, and even if it is assumed that the use of the third form of the
verb could be suggesting something else, this does not furnish a valid
reason for abandoning that of which we are certain for a possibility that could
be right or wrong. Dawüd’s Zahirism is quite obvious here: he takes the word to
its fullest possible extension and potential range of referents, including any
and all kinds of touching. Therefore, on the basis of the Qur’anic evidence, any
touching of any woman (be she the mother, sister, wife, or daughter of
the man who does the touching) invalidates men’s ritual purity.
But what about those Prophetic
traditions that could be taken to suggest otherwise? The only element that
Dawüd was willing to accept and consider in this discussion was the element of
intention, an element that is both objective and exact in the sense that the
person who does the act can be certain of it (i.e., that he intended to touch)?4
This, Ibn Hazm argues, is an element that is inherent in the very third
form of l-m-s that the verse uses. While Ibn Hazm does not explain how
this is so, it seems that for him the use of the third form rather than the
first one indicates that the one who touches does so intentionally, which
means that if a man unwittingly touches a woman, his ritual purity remains in
effect, but if he touches her deliberately, regardless of any other factor, his
ritual purity is void and he has to perform ablution again before praying.[1041]
This understanding resolved any
contradiction between the verse and the second set of traditions (where the
Prophet was touched while, apparently, he was praying). As for the first set
(where the Prophet kissed and then went to the prayers), Dâwüd must have
concluded that these traditions referred to a time when the verse had not yet
been revealed. The verse, in other words, abrogated the original rule and
established touching as one of the causes of the loss of ritual purity (which
Ibn Hazm argued), for in the case of contradiction in the available pieces of
textual evidence, only one of them can be the valid source of the law in light
of which all other pieces of evidence are to be assessed, either through
reconciliation, if possible, or by the outright exclusion of one or more pieces
of evidence on the basis of relevance, authenticity, or abrogation, which
methods were all used by Ibn Hazm in his discussion of this subject.
For his part, Ahmad ibn Hanbal had
more pieces of evidence to consider on this issue. He had to deal with various
views inherited from earlier generations on the meaning of the verse and the
practice of the Prophet, and he had to do this in a way that would incorporate
all or most pieces of the available evidence. He probably had two options
which would both reveal the tension that was inherent in his jurisprudence. The
first was to accept Abü Hamfah’s view, which was also the most popular view
among the Companions and Successors (and this would have saved him from any
embarrassment). But not only would this have put him at odds with the views of
some great Companions like Ibn Mas‘üd and Ibn ‘Umar, but he must have also felt
uneasy about not considering the possibility that touching, especially when it
involves a member of the other sex (who might not be related to the touching
man) may have an effect on ritual purity, if only as a precautionary measure.
Ibn Hanbal’s scrupulousness was probably why he could not accept this view as
it was. The second option was to accept the logic of the Zâhirïs, which was in
all likelihood expressed by someone at that time, if not by Dâwüd himself.
This, however, would have put him in sharp contradiction with the Prophetic
traditions, the abandonment of which was not an option for him. His desire to
consider all evidence was probably why he could not accept this option either.
If the following is a convincing
approximation of how Ibn Hanbal resolved the problem, it clearly demonstrates
the synthesizing nature of his jurisprudence and his moral approach at the
same time. He adopted the element that Ibrâhîm al-Nakha'i had introduced into
the discussion (and which Malikis partially used)[1042]
[1043]
by making the entire argument revolve around the existence or absence of a
particular factor, that is, (sexual) desire. If a man touches a woman with
desire, or if he touches her and (unintentionally) feels desire, he loses his
ritual purity. However, when he neither seeks nor feels sexual desire, his
ablution remains in effect. This way, Ibn Hanbal combined all the seemingly
contradictory evidence that reached him. If the Qur’anic verse refers to sexual
intercourse, this would make it irrelevant to this subject because intercourse
has its own rules. However, if it means touching, then the evidence of the traditions
qualifies this touching by restricting it to a particular kind of
touching, viz. one that involves sexual desire. This would exclude women who are
forbidden to men to marry (such as mothers, sisters, and daughters etc.), and
would also neutralize “innocent” touching that could take place between a man
and his wife. When it comes to women who are not related to a man, however, it
is conceivable that Ibn Hanbal’s scruples would have had him perform his ablution
anew, and advise others to do so, every time they touch such women, for one may
not always be able to exclude the possibility that sexual desire was
accidentally involved.
This possible simulation of how Ibn
Hanbal may have dealt with the seemingly conflicting evidence on this issue
was in fact entertained by the Hanbali scholar Ibn Qudâmah. He argues that Ibn
Hanbal probably thought that touching invalidated ritual purity on account of
the generality of Q. 4:43 (li-cumüm al-ayah), and thought
that it did not because of the traditions of ‘À’ishah in which she touched the
Prophet while he was praying in addition to the kissing traditions. He then
decided that touching invalidated ritual purity only if it was accompanied by
sexual desire, combining thereby the verse and the reports ( jam'an bayna
’l-ayah wa-l-akhbar).77 What is remarkable in this view is that the element
of desire has no basis in the Qur’an or Sunnah whatsoever. Discussing the
various views on the subject, the famous Maliki scholar Ibn Rushd concluded
that each of the early scholars (who had views on the matter) had predecessors
among the Companions, with the exception of those who made sexual desire (ladhdhah)
a conditioning factor. “I am aware of no Companion,” he points out, “who made
it a condition.”[1044]
[1045] [1046] [1047] [1048] [1049]
But Ibn Hanbal had to deal with the tension that always existed in his
juridical thought between, on the one hand, his moral commitments, which would
have him wish to hold that the mere touching would invalidate ritual purity,
and, on the other hand, his keenness to incorporate all available evidence.
This tension is evident in the fact that two other views were attributed to
him, according to one of which touching does not invalidate ritual purity
irrespective of anything, and according to the other one it does, also
irrespective of any factor?9 This proves that Ibn Hanbal was
hesitant about this issue?0 but he (or his followers, following his
example) later managed to find a way to reconcile and synthesize all the
relevant evidence around a moral principle, where sexual desire serves as the
basis of judgment?1
1.2
Breastfeeding and Foster Relationships
The second case deals with the number
of incidents of breastfeeding (rad'at) that makes an infant a son or
daughter of the woman suckling him (who could be a relative or a wet nurse),
with all the serious consequences that this entails in Islamic law?2
On this question, we also get three different answers from the three scholars
who concern us here. Abü Hanifah held that even a single incident of
breastfeeding establishes a foster relationship between the infant and the
woman who suckles him or her?3 Dâwüd held that at least three such
incidents are required to establish such a relationship.[1050]
Ahmad ibn Hanbal held that at least five separate sessions of breastfeeding are
required[1051]
Q. 4:23 gives a list of various
categories of women who are “prohibited” to men, i.e., women whom men cannot
marry, either temporarily (such as a sisterin-law) or perpetually (such as the
mother, sister, daughter, etc.). One of these categories of women is “your
mothers who have suckled you” (ummahatukum allati, arda'nakum). For
legal and other purposes, suckling women become the baby’s (foster) mothers
whom (and whose mothers, daughters, and sisters, etc.) he cannot marry. Unlike
the Qur’ânic verse in the previous case, there is no special difficulty in this
verse, which is probably why Mujahid ibn Jabr, Zayd ibn ‘Ali, Muqatil ibn
Sulayman, and al-Tabari had nothing especially significant to say on this part
of it. Furthermore, and also unlike the previous case, there are many direct
and indirect reports from the Prophet on this question, which are arranged here
in different sets on the basis of their content.
In the first set of traditions, the
Prophet is reported to have said that a single incident of sucking (mussah),
or even two such incidents, do not establish prohibitive foster relationship (la
tuharrimu ’l-mussah wa-l-mussatan). The first tradition in this set was
transmitted from ‘À’ishah by ‘Abd Allah ibn al-Zubayr, and was mentioned by
many traditionists in their Hadith compi- lations.8[1052]
In an almost identical tradition (whose only difference from this one is the
addition of min al-rada'ah after la tuharrimu), Ibn al-Zubayr
relates directly from the Prophet himself a version that was used by, among
others, al-Shafi‘i, al-San‘ani, and Ibn Abi Shaybah[1053]
[1054] A
third tradition is related from Umm al-Fadl bint al-Harith (died during
‘Uthman’s caliphate), a wife of the Prophet’s uncle al-‘Abbas (d. 32/653), from
the Prophet, according to which the Prophet said that one or two incidents of
breastfeeding (imlajah) do not establish foster relationship (la
tuharrimu ’l-imlajah wa-l-imlajatan).88 This tradition is reported by
Muslim in his Sahih,[1055]
and in his Musannaf, Ibn Abi Shaybah mentions the same tradition with al-radcah
wa-l-radcatan or al-mussah wa-l- mussatan, instead of al-imlajah
wa-l-imlajatan.[1056]
In the second, and equally popular,
set of traditions on this subject, ‘À’ishah is said to have reported that a
verse of the Qur’an that was revealed to the Prophet and dealt with the issue
of rida" specified that ten incidents of breastfeeding were needed
to establish prohibition. This, she adds, was then abrogated by another verse
which mentioned only five such incidents, which verse she says was still
recited when the Prophet died. This tradition is reported in almost all Hadith
compilations and some early legal works.[1057]
In one report in this set, included by Ibn Majah in his Sunan, ‘À’ishah
mentions that she had under her bed a sheet on which this verse was written,
but it was eaten by a domestic animal while they were busy preparing the
Prophet’s body for burial[1058]
[1059]
Some other Prophetic traditions are reported
in the context of this subject and used by some later scholars for one reason
or another. In one of these, the Companion ‘Uqbah ibn al-Harith went to the
Prophet and told him that he had married a woman when a black slave girl told
them later that she had suckled both of them. When ‘Uqbah first mentioned this
to the Prophet, the Prophet turned away from him. But when he mentioned it to
him again, the Prophet said: “How [can you remain her husband] when she [the
slave woman] has claimed that she had suckled you?” (kayfa wa-qad za'amat
anna-ha arda'atkuma?').[1060]
This tradition was reported by al-Bukhari, al-Darimi, and al-Tirmidhi
in their compilations[1061]
In a different set of traditions, the
Prophet is reported to have advised Sahlah bint Suhayl, a wife of the Companion
Abü Hudhayfah ibn ‘Utbah, to “breast-feed” Salim—who used to be Abü Hudhayfah’s
adopted son and then his mawla when the Qur’an prohibited adoption—so
that he becomes prohibited to her. This tradition is reported without any
number of suckling sessions in many Hadith compilations[1062]
[1063]
In another version of it, however, the Prophet is said to have told Sahlah to
suckle Salim five times (ardi’ïhi khamsa rada'at fa-yahrumu bi-labaniha)?6
or, in yet other versions, ten times.97
Related to this is a set of reports
in which ‘À’ishah would send the same Salim, and other men whom she wanted to
allow to be able to interact with her, to her sister Umm Kulthüm, asking her to
breast-feed them. This tradition too appears without mention of the number of
breastfeeding sessions^8 but also with the ten such sessions that
were required by ‘À’ishah.99 However, after mentioning the ‘À’ishah abrogation
tradition (where she says that ten was abrogated by five in the Qur’an),
al-Shafi‘i says that none would enter À’ishah’s house without completing five
sessions of breastfeeding. He then mentions the tradition of Salim where the
latter says that he was only breast-fed three times by Umm Kulthüm, and was
thus unable to see ‘À’ishah because he did not complete the required ten.100
A similar tradition has Hafsah bint ‘Umar doing the same thing with her sister
Fatimah, sometimes without mentioning a specific number of breastfeeding
sessions,ioi and in other versions specifying ten such sessions.W2
Ibn Abi Shaybah mentions another report in which it was ‘À’ishah who sent a
certain ‘Àsim ibn Sa‘d to Fatimah bint ‘Umar to be breastfed ten times, after
which he was allowed to enter her place and meet her.W3
In another set of traditions, the
relevance of which to our subject will become apparent later, the Prophet is
reported to have said that the breastfeeding that is effective in establishing
prohibition (i.e., establishes foster relationships) is one which moves the
stomach and takes place before weaning (la yuharrimu min al-rada'ah illa ma
fataqa ’l-amca’ wa-kana qabla ’l-fitam).™ In ‘À’ishah’s version
of this tradition, the Prophet once went home and found a man talking to her.
The Prophet’s face, ‘À’ishah reports, changed (meaning that it became clear
that he was angry). When she told him that the man was her brother’s
foster-son, the Prophet said: “Mind whom you take as your brothers; [effective]
breastfeeding is one that results from hunger [in infancy] (unzurna man
ikhwanukunna; inna-ma ’l-radffah. min al-niajaahj.”u>5 [1064]
* [1065]
[1066]
[1067]
[1068]
[1069]
[1070]
[1071]
Views that are attributed to the
Companions and their followers are not less numerous. Ibn Abi Shaybah
attributes to ‘Ali ibn Abi Talib (through Ibrahim al-Nakha'i), ‘Abd Allah ibn
Mas‘üd (through al-Nakha‘i and Mujahid ibn Jabr), ‘Abd Allah ibn ‘Umar, and
‘Abd Allah ibn ‘Abbas (through Tawüs ibn Kaysan) the view that any number of
breastfeeding sessions suffices to establish foster relationships.[1072]
[1073] [1074] [1075] [1076] [1077] [1078] [1079] [1080] [1081]
To ‘Abd Allah ibn Mas'üd is also attributed the opinion that “[effective]
breastfeeding is only one that leads to the growth of the flesh and
strengthening of the bones (la ridac illa ma shadda ’l-cazm
wa-anbata ’l-lahmyw0 Abü Müsa al-Ash‘ari is reported to have
held a similar view, in which he speaks about the flesh and the blood.W8
Zayd ibn Thabit, however, maintained
that prohibitive breastfeeding requires three occasions of suckling,W9
while ‘Abd Allah ibn al-Zubayr, who transmitted the Prophetic report according
to which one or two incidents of breastfeeding do not make it prohibitive, is
reported to have said that one, two, or three such incidents are not sufficient
to make breastfeeding effective in establishing prohibition.™ A few centuries
later, Ibn Qudamah attributes the view of his school (five breastfeeding
sessions) to ‘À’ishah, Ibn Mas'üd, and Ibn al-Zubayr, and the requirement of
ten such sessions to Hafsah bint ‘Umar.™
Sa'id ibn al-Musayyab, al-Hasan
al-Basri, ‘Amr ibn Dinar, Makhül, Ibn Shihab al-Zuhri, Qatadah ibn Di'amah,
al-Hakam ibn ‘Utaybah, Hammad ibn Abi Sulayman, ‘Abd al-Rahman al-Awza‘i,
Sufyan al-Thawri, al-Layth ibn Sa‘d, Malik ibn Anas, and the Ashab al-Ra’y
are reported to have held that any breastfeeding is sufficient to
establish prohibition.™ To Abü Thawr and Dawüd is attributed the opinion that three
breastfeeding sessions are required to establish prohibition.™ In his Dararlal-Mudiyyah,
al-Shawkani attributes to, among others, ‘Ata’ ibn Abi Rabah, Tawüs ibn Kaysan,
Sa'id ibn al-Jubayr, ‘Urwah ibn al-Zubayr, al-Layth ibn Sa‘d, al-Shafi‘i, and
Ibn Hanbal the view that effective breastfeeding requires five incidents.04
Tawüs is said elsewhere to have held that only ten incidents of breastfeeding
can be effective.05
If it was the Qur’an that instigated
the controversy in the previous case, it was, arguably, brought into the
controversy over this issue quite unjustly. As it stands, the Qur’an mentions
the term arda'nakum without qualifying it, which could be and was indeed
taken to indicate that any breastfeeding is effective. This is in all
likelihood why Mujahid ibn Jabr, Zayd ibn ‘Ali, Muqatil ibn Sulayman and
al-Tabari did not comment on it.[1082]
[1083] [1084]
The only issue that is relevant to
the Qur’an does not come from the Qur’an that we have today, but has to do with
evidence that stands, “literally,” outside the Qur’an itself, namely,
‘À’ishah’s tradition of the abrogation of the Qur’an, where she said that one
Qur’anic verse, which was part of the Qur’an until the Prophet died, specified
the exact number of incidents necessary to make breastfeeding prohibitive. It
does not take an expert to realize how problematic this could be, for it
simply suggests that part of the Qur’an that was recited during the Prophet’s
life did not find its way to the Qur’anic vulgate later on. This is an issue
whose significance goes far beyond Islamic law and is beyond the scope of this
study. For our purposes, however, this is a case of what may be called
“compound abrogation.” Not only was the verse that mentioned ten incidents of
breastfeeding abrogated by another that mentioned only five (a typical case of
abrogation), but the whole revelation on this issue was also dropped from the
text of the Qur’an, an incident that is referred to as the “abrogation of
recitation” (naskh al-tilawah) Those who used this tradition in the debate
on this issue said that this was a case of naskh al-tilawah duna ’l-hukm,
i.e., the abrogation of only the recitation of the verse but not the legal
ruling that it establishes, a notion that is not without its problems in both
Islamic law and theology.117
This tradition does not seem to have
enjoyed much popularity in the first two centuries of Islam. Hijazis, for
instance, seem to have rejected it completely. In his Muwatta’, Malik
commented on the tradition by saying that that was not the practice in Medina.n8
Since the Ahl al-Ra’y in Iraq apparently did not accept it, it seems
that it was not popular there either. Pointing out how problematic this report
was, the Hanafi al-Jassas argued that, to be consistent, anyone who accepted
this tradition had to either hold that the Qur’an could be abrogated after the
Prophet’s death or that it could not. If yes, he would be making a truly
blasphemous statement that puts him in the category of the enemies of the
Qur’an. If he does not believe that it is possible, however, that the Qur’an be
abrogated in any way after the Prophet’s death, then he cannot use this
tradition as evidence in this case. This report, therefore, is baseless either
on the basis of the (lack of) integrity (cadalah) of its
transmitters, or on the basis of their (in)accuracy (dabt). In other
words, the tradition, as it is, was either deliberately fabricated, or was
transmitted by careless traditionists who inadvertently made changes to its
content.[1085]
[1086] [1087]
This is not to say that the report was abandoned. In fact, it was this report
in particular that al-Shâfi'ï and later Ibn Hazm (against his school) relied on
as a basis for the requirement of five incidents of breastfeeding.
In this case, it was the various
traditions that were attributed to the Prophet that clouded the picture,
especially since every set of traditions that different scholars used had some
problems. The first set of traditions (where the Prophet says that one or two
incidents of breastfeeding do not suffice to make it effective) seems to have
been accepted, in one of its versions or another, by many early and medieval
scholars, although the fact that neither the majority of the Ahl al-Ra’y
in Iraq nor the Hijâzïs accepted it (witness their view on this issue) suggests
that there were some uncertainties surrounding it. Again, because of the
limitations of the sources, speculation is inevitable here. It is possible that
early scholars noticed that in the ‘Urwah version of the tradition (which was
by far the most famous one from ‘À’ishah), he transmitted the tradition from
‘À’ishah at times, and directly from the Prophet (whom he never actually saw)
at other times. He was also reported to have transmitted other reports from
‘À’ishah in which she mentioned five, seven, and ten incidents of breastfeeding
that were required to make it effective in establishing foster relationships?20
All this must have cast doubt not only on the attribution of the
traditions to the Prophet, but also on the strength of the evidence that it
could furnish as to the number of incidents that make breastfeeding
effective.121 Furthermore, this and the similar traditions were problematic for
both groups of scholars, those who held that any breastfeeding was effective,
and those who argued that fewer than five incidents of it were not effective,
although the latter group must have been in a better position to reconcile the
two sets of traditions (by arguing, for instance, that the Prophet said that
one or two incidents were not effective, which we know for certain, but did not
say that three or four were, which could be taken to admit other
possibilities).
Furthermore, the ‘Uqbah tradition
could have been easily neutralized. Those who used the tradition must have made
the argument that the Prophet did not ask about the number of breastfeeding
sessions (which the slave women spoke about) because, they would say, it was
not relevant. We have seen in the first case that those traditions the context
of which was not clearly identified could be easily dismissed. Just as we do
not know whether the Prophet’s skin touched his grand-daughter’s, as Ibn Hazm
argued in the previous case study, we also do not know whether or not he knew
that ‘Uqbah was not aware of what constituted effective breastfeeding. In all
circumstances, this tradition, probably for this or similar reasons, did not
seem to have been very popular on this subject. Al-Bukhârï, for instance,
mentions it only in a chapter on the testimonies of nursing women, and not in
the chapter on the number of breastfeeding sessions required to establish
foster relationships, which suggests that he did not consider it relevant to
our subject.
The remaining set of traditions, that
of Sahlah bint Suhayl and Salim, and the other traditions of ‘À’ishah and
Hafsah (where they are reported to have had their nieces or sisters breast-feed
men), were used as evidence on two different issues. When no number of
breastfeeding incidents was mentioned, they were primarily used in the chapter
on the notion of “adult breastfeeding” (rida' al-kablr). They were
brought to the context of our question only when they mentioned the number that
was required by the Prophet and his wives to establish the “desired”
prohibitive relationship. In both cases, where the numbers are mentioned and
where they are not, adult breastfeeding is an integral part of these
traditions, which means that if a scholar rejects this notion, he cannot use
these traditions, even when they give numbers, to substantiate his view on our
subject. This notion of adult breastfeeding, however, has caused heated
controversies in Islamic law and has been rejected by many scholars on the
basis of its content.[1088]
But this set of traditions could have
been, and was indeed countered by, the other Prophetic traditions, some of
which were also narrated by ‘À’ishah, in which the Prophet apparently says that
effective breastfeeding is one that takes place before weaning and contributes
to the growth of the body (which usually happens to infants but not to adults).
Therefore, breastfeeding an adult is not valid and consequently does not
establish any prohibitive relationship. This, it must be noted, is the context
in which these traditions were mentioned very early. In his Kitab al-Athar,
al-Shaybânï mentions that a husband went to Abü Müsâ al-Ash'arï and told him
that after his wife gave birth, their child died and her breast was full of
milk. To get rid of the milk, she asked him to suck and spit it out. The
husband unintentionally swallowed some of the milk. Abü Müsâ told him that this
made his wife forbidden to him. When he went to Ibn Mas'üd, however, Ibn Mas'üd
told him that he was attending to her medical needs (inna-ma kunta
mudawiyan), and that “there is no breastfeeding after weaning; [effective]
breastfeeding is that which contributes to the growth of flesh and bones.”[1089]
[1090] [1091] [1092] [1093]
The notion of adult breastfeeding,
therefore, was reportedly rejected by the majority of the Companions, such as
‘Umar ibn al-Khattâb, Ibn Mas'üd, 'Alï ibn Abi Tâlib, Abü Hurayrah, Abü Müsâ,
Ibn ‘Abbâs, and Umm Salamah, and by the Successors Sa'id ibn al-Musayyab,
Sulaymân ibn Yasâr, ‘Amr ibn Dinâr, ‘Atâ’, and al-Sha‘bi.124 It is
even reported that all the Prophet’s wives told ‘À’ishah that the Sâlim
tradition provided a special ruling for that particular case, and rejected
allowing any men to enter to them through this method.125 Many
reports mention that ‘Umar ibn al-Khattâb used to punish those women who would
breast-feed other women to make them forbidden to their husbands.126 Just
as the majority of Iraqi and Hijâzi scholars rejected the ‘À’ishah abrogation
reports, so also they rejected her opinion on this matter. Al-Zuhri reportedly
said that ‘À’ishah continued to hold that breastfeeding after weaning was
effective until she died, and it is not clear whether he wanted to say that she
was the only one who held that view, or that she did not give up her unpopular
view. In what could be taken as innuendo regarding the reports of her asking
her niece to breast-feed men, al-Zuhri also says that she mentioned five
incidents of breastfeeding, in “what was reported to us, and God knows better” (f-ma
balaghana, wa-Allah alam.))27
There is nothing significant about
the views attributed to the Companions and the following generations except
that they were sharply divided between those who held that any breastfeeding
was effective for the purposes of our question here, and those who held that
there must be a specific number of incidents of it (the minority). This last
group was divided between those who held that there must be two or more such
incidents (the minority), and those who held that there must be at least five
such incidents to make breastfeeding effective in establishing foster
relationships. Only a few scholars held the view that ten sessions of
breastfeeding were required. The first view, of the unqualified breastfeeding,
was dominant in the Hijaz and the most popular in Iraq. The other views were
held by some scholars here and there in different regions.
The way Abü Hanifah, Ibn Hanbal, and
Dâwüd dealt with the conflicting evidence and diverse opinions of earlier
authorities on this issue seems to corroborate the arguments made about their
jurisprudence in previous chapters. It is safe to assume that even if we cannot
be completely certain that they were dealing with exactly the same raw
material, the three of them were probably dealing with evidence that could have
suggested to them any of the possible conclusions on this issue, which makes
this case too suitable for comparing them.
Possibly starting with the Qur’an and
thinking on the basis of his assumption that any term must be understood in an
all-inclusive, unrestricted manner unless its scope of application is
restricted by a valid piece of evidence, Abü Hanifah must have thought that the
Qur’an did not qualify (i.e., restrict) ridac (from arda'nakum)
which can possibly refer to suckling one drop of milk. It follows from this
that any number of incidents of breastfeeding makes it effective in
establishing foster relationships. Qualifying this term requires evidence that
has the same epistemological value as the Qur’an. But there were two main
problems with the traditions that reached Abü Hanifah from the Prophet. All
these traditions were ahad traditions, i.e., they rested on shaky ground
in his understanding. Furthermore, and probably more importantly, they were
contradictory and problematic. Similar to the first case, this issue, which
took place regularly at that time, also falls within the category of cumüm
al-batwa, where Abü Hanifah would expect a clear ruling from the Prophet
that is transmitted by tawatur. But this was not the case, for even if
many Companions held that one or two incidents of breastfeeding did not make it
effective, others held that any breastfeeding was effective, not to mention
the other views that required more than three incidents of breastfeeding to
establish prohibition.
This must have rendered all these
traditions uncertain and therefore useless for Abü Hanifah’s purposes. This in
fact is how the medieval Maliki scholar Ibn Rushd accounts for Abü Hanifah’s
(and al-Thawri’s and al-Awza'i’s) view.[1094]
[1095] [1096] Abü
Hanifah, therefore, must have held that the evidence of the Qur’an was the only
relevant evidence, and without seeking to incorporate all reported views or
consider extra-textual values of any sort, he simply argued that the Qur’an
mentioned ridac without qualifying it, so any
breastfeeding was effective.
Dawüd would have come to the same
conclusion had he held the same view of the epistemological value of the akhbar
al-ahad. But since he thought that this category of traditions had the same
epistemological value of the Qur’an, he was willing to qualify the relevant
Qur’anic verse on the basis of one tradition or another. The real problem that
must have faced him was that he had to deal with contradictory reports from the
Prophet. Since he proceeded on the assumption that only one of the relevant
traditions could be the source of the law on this issue, he was left with only
two options: to show that all the traditions were sound but only one of them
was the source of the law because the others were abrogated, or to argue that
only one tradition was the source of the law because it was the only authentic
tradition relevant to the question at hand. Our sources are not useful in
indicating which route Dawüd took, and what complicates the issue further is
that Ibn Hazm himself differed with him and with all other Zahiris on this
issue. He accepted the traditions, including ‘À’ishah’s abrogation report that
required five incidents of breastfeeding to make it prohibitive.129
He refuted the use of all other traditions either on the basis of the
unreliability of the transmitters or on the basis of their relevance, and
defended the À’ishah abrogation tradition against all the views that rejected
it.130 Rather than undermining our theory on how Dawüd dealt with
the evidence, Ibn Hazm’s disagreement with him demonstrates that Hanafis and
Zahiris dealt similarly with the evidence. They considered only one textual
source to be the source of the law and neutralized others, either by reconciliation,
when possible, or by rejecting them as inauthentic or irrelevant. In either
case, no factor, other than the certainty and authenticity of the evidence, is
used to resolve the contradiction between the traditions.
Ibn Hanbal was almost in Dâwüd’s
position, but unlike Dâwüd, he was unwilling to give up any piece of evidence
and was also seeking to define a criterion or factor, mostly of a moral nature,
that would be the basis of reconciling, in his view, the various traditions on
this issue. As in the first case, three opinions were attributed to him, in the
first of which he said that only one incident of breastfeeding was enough to
establish foster relationship, whereas in the second he said three, and in the
third five.[1097]
[1098] [1099]
Remarkably, the first source that mentions his opinion shows that he was
hesitant about it. Al-Kawsaj mentions that when he asked him about the number
of incidents of breastfeeding that establishes prohibition, Ibn Hanbal replied
that one or two such incidents were not sufficient for that, which indecisive
reply evinces his desire to avoid giving a definite answer. When al-Kawsaj
repeated the question, Ibn Hanbal said: “If somebody says five I would not
blame him, but I have some hesitation, although I see it [this opinion] as more
solid.'3-'12
Ibn Hanbal, who had no problem with
the issue of the Qur’an being qualified by a Prophetic tradition, seems to
have liked to consider any number of incidents of breastfeeding sufficient to
establish prohibitive relationship as a precautionary measure that is inspired
by his scrupulous character. It is indeed possible that this was the opinion
that Ibn Hanbal held for some time in his life, and probably for this reason.
Apparently, however, he eventually had to choose the many reports of ‘À’ishah
about the five sessions of breastfeeding, without, at the same time,
challenging the authenticity of the other reports from which it could be
understood that any number of breastfeeding sessions that exceed two was
sufficient for the purpose of establishing prohibition. But it seems that he
did not make this choice to accept one piece of evidence and abandon another
arbitrarily. The fact that most later Hanbali scholars insisted that the “growth
of the flesh and strengthening of the bones” was the conditioning factor that
distinguished between effective and ineffective breastfeeding suggests that
this was probably the basis that he considered. In a sense, he used another
Prophetic tradition, which relates to an entirely different context (the
context of adult breastfeeding) to judge the contradictory evidence that he had
on our issue. Remarkably, while he used this part of the ridac
al-kablr tradition, Ibn Hanbal, and probably on the same moral ground,
rejected the notion of ridacal-kablr itself.133 He must have
used this same criterion to rule on the questions of drinking the milk of the
nursing woman indirectly, such as from a cup—either through the throat (called wajür),
or through the nose (called saüt)[1100]—or
eating the milk as cheese rather than drinking it,[1101]
[1102]
opinions that only this factor (of contributing to the growth of flesh and
strengthening of the bones) can account for, and that also point to the moral
aspect in his thought (as it could be argued that he probably held these views
as a precautionary measure).
Be this as it may, the similarity
between this criterion that Ibn Hanbal relied on in this case and the element
of lust which he relied on in the first case study above is unmistakable. Both
are flexible enough to be used to reconcile various pieces of evidence.
Furthermore, the fact that he did not try to hide his hesitation about this
issue indicates that certainty was not an element that he worried seriously
about. Abü Hanifah and Dâwüd (and Ibn Hazm), however, were absolutely certain
of the soundness and basis of their views, even if they disagreed, and did not
seek to rest or qualify these views on the basis of any factor similar to the
one that Ibn Hanbal selected and used. The only factor that they considered was
what they accepted as evidence, and they followed that without seeking to
relate it to any other factor.
2.1 The Status of Imra’at al-Mafqüd
On the question of the marital status
of a woman whose husband has disappeared, Abü Hanifah and Dâwüd are reported
to have held that she remains his wife until he re-appears or his death is
confirmed.^6 Ibn Hazm cites various views of Companions on this
issue, among which is ‘Umar ibn al-Khattâb’s view, also held by many other
Companions and Successors, that the woman has to wait for four years and then
start a waiting period of four months and ten days (according to Q. 2:34, which
specifies this waiting period for a widowed woman).[1103]
After the waiting period, she is free to get married.[1104]
[1105] [1106] [1107] [1108]
‘Umar’s view was held by Ibn Hanbal, but he distinguished between a husband who
disappears in war or at sea, and one who does not return home and nothing is
known about his whereabouts. ‘Umar’s view applies to the former case. In the
latter case, the woman remains her husband’s wife until his whereabouts are
known.139 Ibn Hazm criticizes all views on this issue, arguing that
they rely only on Companions’ opinions without any basis in the Qur’an or the
Sunnah. In his view, a wife whose husband disappears remains his wife and no
one has the authority to declare her otherwise. Additionally, there is no
waiting period for a woman whose husband has not died, and in the case under
consideration, we do not know that her husband has actually died or notd40
Abü Hanifah and Dâwüd probably came
to their conclusion on the basis of Ibn Hazm’s logic, for both accepted the
notion of istishab al-hal™1 Since it is certain that that the
woman was her husband’s wife, there must exist a valid reason to consider a
change of her status.^2 Both rejected ‘Umar’s view because it has no
textual basis. Ibn Hanbal, however, accepted his view, but as expected, he does
not apply it across the board. He had to deal with various views from the
earlier generations of Muslims and find a solution that served the moral
character of the community at the same time. When a husband disappears in war
or at sea, while there is a considerable chance that he may have perished for
reasons that are outside his control, there is also a chance of his return. In
both cases, it is worth having his wife wait for him. Here he probably thinks
of the husband and of what the community may expect of a wife whose husband
disappears while fighting or working to provide for his family (if he is a
fisherman, for instance). After four years and the expiration of the waiting
period, however, his concern shifts to the fact that the woman has remained
effectively unmarried for a long period. Ibn Hanbal is reported to have held
that marriage was obligatory (wajib) and that celibacy was not part of
Islam.[1109]
[1110] [1111] [1112] [1113] [1114] [1115] [1116] [1117] But
if a husband disappears mysteriously, his wife has to wait for him because
there is always a chance of his return. Ibn Hanbal’s concern for the marriage
bond here and for not letting a woman marry a man while she is still another’s
wife overcomes his concern for her being unmarried. It is even reported that he
expressed some hesitation about his view on the first case, when a husband
disappears in war or at sea, preferring instead to keep his wife waiting until
she dies or her husband appears or is confirmed dead. This is a more precautionary
approach to the question, he is reported to have said, especially given that
earlier authorities disagreed on it.144 In both cases, Ibn Hanbal relies on
Companions’ views, yet he cannot provide any evidence from the Qur’an or Hadith
for either view.
On the question of the marital status
of a woman whose husband divorces her while he is drunken, Abü Hanifah is
reported to have held that the divorce is valid,i45 whereas Dawüd held that it
was invalid and the woman remained his wife.i46 Three responses,
expectedly, are attributed to Ibn Hanbal: she remains his wife, she is
divorced, and a third response where he abstains from answering this question
because the Companions disagreed on it.M7 Ibn Qudamah mentions that
those authorities who held that the divorce was valid relied on a Prophetic
tradition according to which any divorce is valid except that of a madman (ma'tüh).™8
Some of the Companions and Successors who held that the divorce was invalid
relied on this tradition, arguing that by analogy, actions of any person who is
not in his right mind are invalid. Ibn Hazm, who did not accept the
authenticity of the tradition,^9 accepted this view but not on the
basis of this analogy. He referred to Q. 4:431s0 to demonstrate that
a drunken person does not know what he says, for which reason uttering the
divorce formula has no effect on his marriage.^
Ibn Hanbal’s—whose students adopted
one or the other of the views attributed to him on this question—hesitation is
not unusual. He could have chosen to follow any of the Companions’ views on
this issue or to rely on the taldq al-mactüh tradition to
come to a conclusion similar to Abü Hanifah’s. Apparently, he was hesitating
between what he saw as two equally bad outcomes: the annulment of a marriage,
and letting a couple live together when they may no longer be married. He does
not seem to have thought of a possible formula that would allow him to say that
it really depends on the situation and the parties involved. Be this as it may,
his hesitation to decide on this question reflects the tension between his
desire to reconcile and synthesize all available pieces of evidence (including
views of the Companions) and his commitment to his moral worldview.
Abü Hanifah relied on a text which
mentions one condition that renders a divorce invalid. To remains faithful to
his belief in Umüm, he considers this the only exception to the general
rule that if a husband utters the divorce formula to his wife, their marriage
is dissolved. It is remarkable that Abü Hanifah did not use analogy in this
case. He could have relied on what other scholars regarded as the “spirit” of
the law on this question by considering not being in one’s right mind,
regardless of the cause, as sufficient reason to invalidate one’s utterances.
Dâwüd may have relied on Q. 4:43 to prove that a drunken person is unaware of
what he says, for which reason he cannot actually divorce his wife in this
state even if he utters the divorce formula.
The final case concerns a find, known
as luqatah in Islamic law. There are numerous questions about finds:
what counts as a find, how should it be dealt with, if it should be publicized
so that its owner can reclaim it, who would publicize it, how and where should
it be publicized, what happens after it has been announced for one year (as
discussed below), what happens if its owner appears after a year and his item
has perished or been consumed, what happens if two people claim ownership of a
find, etc.[1118]
[1119]
Here we focus on the question of whether a person who finds something should
take or leave it.
The Qur’an does not speak about this
issue, but there are seemingly contradictory Prophetic traditions on it.
According to one tradition, when a person finds something, he has to declare it
in public for one year, after which he is free to use it, but if its owner
appears later, he has to return it to him.153 According to another
tradition, the Prophet told a person who asked him about a lost camel that he
had no business with it, telling him to leave it until its owner finds it.[1120]
In a third tradition, the Prophet answers a question about a lost sheep by
instructing the questioner to take it, for if he does not, another person or a
wolf will.155
Abü Hanifah is reported to have held
that if a person finds something, he should take it,i56 or, in
another view attributed to him, that he can take or leave it although taking it
is preferable.^7 Relying on Prophetic traditions that indicate so,
Ibn Hazm argues that it is obligatory to take a find and declare it for one
year.i58 Ibn Qudâmah attributes to Ibn Hanbal the view that if one
finds something, it is better to void taking it (al-afdal tark al-iltiqat),
a view that is attributed to Ibn ‘Abbas and Ibn ‘Umar.i59 In Ibn
Qudâmah’s view, Ibn Hanbal held this view because of the risks involved in
taking finds, which risks are evidently moral in nature. When a person takes a
find, he risks consuming (“eating,” in Ibn Hanbal’s words, meaning taking into
possession, sinfully here) something that is not his and is therefore forbidden
to him (haram). He may also be unable to publicize it in the proper
fashion. It is more precautionary (aslam), therefore, to leave it
altogether?60
Dawüd apparently came to his legal
conclusion on the basis of some traditions that indicated to him that one
should take finds. It is likely that Abü Hanifah did not consider any evidence
on this issue valid, for which reason he held that it was up to the person,
although he would prefer that he take it. Dawüd may have thought about this
issue in the same way. For both scholars, if there is no textual evidence on an
issue, or if the evidence is too contradictory to be reconciled, the original
rule of permissibility applies. Since there is no evidence that indicates
otherwise, appropriating a find is lawful. As for
Ibn Hanbal, what is remarkable is how
he expressed his view on this issue. To avoid contradicting some Prophetic
traditions and Companions’ views (which indicate that one can take a find), he
said that it is more precautionary that one does not take it. He does
not say that taking it is sinful, and he did express views on what happens when
a person does take it. Ibn Qudamah’s explanation of Ibn Hanbal’s primary view
on this question, however, is consistent with the contention made here that Ibn
Hanbal was always grappling with the evidence, which, more often than not, is
contradictory, and that his concern was focused on the morality rather than the
legality of acts.
The purpose of these case studies has
been to try to construct the arguments made by Abü Hanifah, Ibn Hanbal, and
Dâwüd al-Zahiri on the five questions discussed on the basis of the textual evidence
that was available to them and in light of what we have concluded about their
respective juridical thought in the previous chapters. Admittedly, there is
some circularity here, for we use what we have said about them to construct
their arguments, and use this argument to support that which we have said.
However, I hope that it has been clear that that was not done arbitrarily. No
evidence has been deliberately twisted to be consistent with any pre-determined
conclusion. The previous constructions were made smoothly and our previous
discussions led them to specific directions in a rather natural way. However,
as has been made clear at the outset, these constructions, despite all the
evidence presented, remain presumptive to some extent.
The case studies discussed above
reveal similarities between Hanafi and Zahiri jurisprudence in terms of their
assumptions and methodology. When dealing with a legal question, Hanafism and
Dawüdism typically accept one legal text (a Qur’ânic verse or a Prophetic tradition)
as the primary source of evidence on the question and deal similarly with other
problematic texts (which they usually reject as inauthentic or irrelevant). The
presumption of Umüm helps them identify the zahir meaning of the
text they accept as primary. When formulating a certain ruling on the basis of
this evidence, they consider it valid for all similar questions, regardless of
the parties involved or any other personal or social considerations. Therefore,
more often than not, they are able to say that something is either
religiously/legally permitted (halal) or forbidden (haram), but
not that it depends on the situation. This is consistent with their concern for
consistency and systematization of the law, as well as for a high degree of
certainty.
In contrast, Ahmad ibn Hanbal in all
likelihood regarded morality as part of the religious law. For him, one thing
can be halal in one situation but haram in another. He therefore
cannot answer a question like whether touching a woman invalidates a man’s ritual
purity in definitive terms. In his view, this depends on a qualitative
aspect of the touching involved, just as the number of effective breastfeeding
sessions is related less to their actual number and more to how much the milk
that a baby suckles contributes to his growth. Yet Ibn Hanbal’s other main
concern was to synthesize all relevant legal evidence in each case, a job that
was even harder for him than for other scholars given his consideration of
evidence that others rejected (such as views of the Companions). The main
tension in hisjurisprudence, therefore, was his keenness to take all relevant
evidence into account in a way that served his moral agenda. Striking a balance
between these two concerns, or even prioritizing one over the other when
reconciliation is difficult, requires flexibility in dealing with the available
evidence. This need for flexibility may explain Ibn Hanbal’s apparent lack of
interest in, or perhaps dislike of, holding to rigid rules, as well as his
hesitance in accepting some of them.
This study has begun with several
questions about the Zâhiri madhhab and made three main contributions to
our knowledge and understanding of its history and doctrines. These questions
included whether we can study Zâhirism without exclusive reliance on Ibn Hazm’s
writings, what the term zahir meant in the 3rd/gth century, and why
Zâhirism failed to survive. It raised the question of what we can actually
learn about the founder of the madhhab—Dâwüd ibn ‘Ali ibn Khalaf
al-Isbahâni al-Zâhiri—and how this may confirm or call into question what is
generally held apropos his scholarly profile and juridical thought. chapter one has thus surveyed what
medieval sources report about Dâwüd’s life and doctrines. Biographical evidence
on him has suggested that his overall profile was closer to that of the Ahl
al-Ra’y scholars of his time, an issue taken up in more depth in chapter three and chapter four. The meaning of the term zahir
and how it may have been used in the 3rd/gth century was discussed in chapter four. chapter five has
questioned the received wisdom on the nature of Zâhirism, according to which
it is a “literalist” legal and hermeneutical theory. Finally, chapter six has discussed five case
studies that sought to illustrate conclusions drawn in earlier chapters about
Dâwüd and Zâhirism. The following conclusions summarize and expand on the
findings of all these chapters.
The Zâhiri madhhab has
regularly been regarded as a failed school of law. This belief, however, is
based on a mischaracterization of it. If by a legal school is meant a set of
doctrines attributed to a particular scholar, a hierarchical structure of
scholars and legal works, and institutionalized transmission of knowledge, then
our survey of the history of the Zâhiri madhhab demonstrates that at no
point did it develop into anything similar to the madhhabs that have
crystallized into the existing schools of law. In fact, there is no evidence
that Dâwüd’s students thought of themselves as belonging to a school of law, or
that they sought to establish one.[1121]
There is evidence that Dâwüd was not
an insignificant scholar. However, statements about his scholarly status cannot
always be substantiated on the basis of the information given in the same
sources that make them. While this may be a purely historiographical issue that
has to do with what the authors of these sources—particularly biographical
dictionaries—selected to report about him, it is here assumed that they would
have mentioned what they actually knew about him had there been anything
particularly special about his personal character or views as a legal scholar.
Indeed, there are lengthy accounts in these sources about Dâwüd’s asceticism
and piety. Whereas this may or may not serve a particular or a significant
purpose in a biography of a legal scholar, it suggests that if these authors
had had other information about his life, they would have reported it. Be this
as it may, whether they knew things about Dâwüd that for some reason they did
not mention, or did not know more than what they actually reported about him,
is, in the final analysis, an idle question for us. Accordingly, for Dâwüd’s
legal knowledge and scholarly interests, we have to rely on titles of works
and views on usül and furüc al-fiqh. that are
attributed to him in medieval sources in order to determine the subjects to
which he may have contributed. While these do not constitute conclusive
evidence for his legal doctrines, the fact that medieval sources do not
attribute more than one view to him is significant. These sources attribute at
times more than one view to Zâhirïs, but they are always consistent on views
that they attribute to him. Views on the theory of law (usül) that are
attributed to Dâwüd are generally consistent with view that al-Qâdï al-Nu‘mân,
in his Ikhtilaf Usül al-Madhahib, attributes to Dâwüd’s son Muhammad.
Arguably, this level of consistency among medieval scholars in attributing
certain views to Dâwüd renders skepticism about these rather unwarranted.
Besides what Dâwüd himself left
behind, his immediate students and followers are reported to have had
differing views on many issues, such that the prominent 4th/ioth-century Zâhirï
scholar ‘Abd Allâh ibn al-Mughallis compiled a work designed to refute the
views of another Zâhirï. Consequently, regardless of how coherent Dâwüd’s views
were, it is clear that he did not leave behind a unified group of students who
shared similar views. In fact, he had a small number of students, and only two
or three of them transmitted his legal knowledge. The most significant of these
students was his own son Muhammad, who was fairly young when his father died.
Only through Muhammad can we construct any meaningful chain of Zâhirï scholars.
Muhammad, however, had the same weakness as did his father in that he did not
distinguish himself as a Hadïth scholar. It is probably for this reason, and
also because he died relatively young, that Muhammad had little success in
spreading Dâwüd’s madh- hab. The fact that Ibn al-Mughallis, who was one
of Muhammad students, is credited with spreading the madhhab in Baghdâd
itself in the first half of the 4th/ioth century indicates that neither Dâwüd
nor his son had much success in propagating their views in their lifetimes.
Just as Dâwüd’s students seem to have
followed in the footsteps of their teacher in having little interest in Hadith,
their students seem to have had just as little. Scholars of the second
generation of Zahiris—who traveled to various corners of the Muslim world—were
not active in Hadith transmission and criticism. Despite their many and
significant disagreements, these scholars seem to have begun to develop a sense
of belonging (many of them shared the eponym “Dâwüdi”) and of connection with
common past teachers. Chains of scholars who studied with and transmitted from
each other can be constructed as of the 4th/ioth century. However, the small
number of these students was not sufficient to ensure continuity of the madhhab
in the region that witnessed its emergence. In the 6th/i2th century, Iraq
ceased being a center of Zahirism.
It probably was not just the number
of scholars that adversely affected Dawüd’s madhhab very early and
continued to undermine it, but also the “schizophrenic” nature of the careers
of Zahiri scholars. Of the 4th/ioth- century Zahiri scholars whose profession
is reported, the majority were judges. Since judges were almost always
appointed on the basis of their legal affiliation, the Zahirism of these
scholars must have been kept as a personal matter. These scholars were likely
trained according to a certain madhhab (Hanafism in Iraq and Malikism in
Andalus, for example) and adjudicated according to its rules, but practiced
religious rituals and perhaps gave private fatwas according to the
Zahiri madhhab.[1122]
Those of them who did not hide their true affiliation— such as Zahiris who
compiled legal works according to their madhhab—seem to have enraged
other scholars by engaging in polemics against their imams and
ridiculing their views and methodologies. This must have alienated Zahiris from
mainstream scholars and made affiliation with them risky and unrewarding. Over
time, the number of Zahiri scholars decreased until they completely disappeared
in the early ioth/i6th century.
The advent of Ibn Hazm was an
extremely significant event in the history of the Zahiri madhhab, but
this is not only because of his accomplishments. Truly, Ibn Hazm provided
Zahirism with an extensive, well-articulated and coherent literature on usül
andfurff al-fiqh that was probably unprecedented in the history of the madhhab,
and which subsequent Zahiris evidently took great interest in preserving and
transmitting. It was probably Ibn Hazm who shifted the primary (but not
necessarily exclusive) focus of Zahirism from the Qur’an (which the few titles
of Zahiri works before him suggest) to Hadith (in conjunction with the Qur’an),
as indicated by the obvious interest of almost all subsequent Zahiris in Hadith
transmission. In fact, he believed that knowledge of Hadith and the ability to
distinguish authentic reports from fabricated ones (such as those used by the Ahl
al-Ra’y, in his view) were fundamental to any jurist’s work.[1123]
As such, Ibn Hazm may have been, quite ironically, the founder of the
misconception that Zahiris belonged to the Ahl al-Hadlth and were
opposed to the Ahl al-Ra’y.
Furthermore, Ibn Hazm played a role
(perhaps the most important one) in developing Dâwüd’s image as the founder of
Zahirism. His evident keenness to connect himself to Dawüd, his references to
Dawüd’s views to support his own even against fellow Zahiris, and his agreement
with him on almost all theoretical legal issues can be regarded as consciously
securing Dawüd’s position as the founder of the madhhab. This was done
in a very distinctive way, however. It has been noted that before Ibn Hazm,
Dawüd’s madhhab was generally known as al-madhhab al-Dâwüd! or al-Dâwüdiyyah
(Dawüdism), and that a scholar who followed him was often referred to as
“al-Dawüdi.” After him, however, Dawüd’s madhhab came to be known
exclusively as al-madhhab al-Zahlri, and his followers as the Ahl
al-Zahlr, the Zahiris. What is remarkable here is that while Dawüd’s
authority as the founder of the madhhab was being constructed, there was
a simultaneous focus on his methodology rather than his personal authority. In
other words, rather than focusing on the person, Ibn Hazm, who apparently had
some of Dawüd’s legal works, focused on his methodology to demonstrate that
Dawüd was the founder of Zahirism because he was the Zahiri par excellence.
In this respect, there was no process of authority construction similar to the
one described by Wael Hallaq with regard to the surviving schools of law, where
such process led to the replacement of regional with personal madhhabs
the foundation of which a single scholar was credited, almost single-handedly,
with having laid.[1124]
Despite Ibn Hazm’s accomplishments
and contributions, the number of Zahiri scholars in subsequent generations
remained quite limited in comparison with the number of scholars belonging to
other madhhabs, which madh- habs had become powerful enough—in
terms of the number of their scholars and followers and their association with
caliphal and regional governments— to prevent new schools from emerging or
weaker ones from growing. After Ibn Hazm, Zâhirï scholars were generally on the
defensive. Many of them had to conceal their affiliation with Zâhirism, and
others seem only to have admired the Zâhirï madhhab such that Ibn Hajar
was uncertain about their true affiliation. For these scholars, and for those
Zâhirïs who worked as judges, Zâhirism remained a personal matter, and only one
Zâhirï scholar (in the post-Ibn Hazm period)—Muhammad ibn Sa'dün ibn Murajjâ
al-Abdarï—is reported to have given fatwas in public according to the
Zâhirï madhhab.
Admittedly, some Zâhirïs are reported
to have engaged in defending Zâhirism. However, it was probably these same
scholars who were also confronting the rulers of their times. We know that in
one of these cases—that of Ibn al-Burhân—confrontation arose from Zâhirï
doctrines, which must have made affiliation with Zâhirism a risky matter. Even
under the Almohads rule, which is commonly believed to have favored Zâhirism,
Zâhirï scholars do not appear to have fared much better than elsewhere. Despite
the fact that al-Mansür [r. 580/1184-594/1198] actively sought to promote
Zâhirism,[1125]
it has been argued that there was no “significant increase in the absolute
number of Zâhirïs in the Iberian peninsula and North Africa during the Almohad
period, nor in the number of Zâhirïs employed in the judiciary.” Almohad
Caliphs “continued to rely mainly on Mâlikï, or at least non-Zâhirï, personnel,
first of all because the pool of Zâhirïs from which judges, preachers, imams
etc. could be recruited, was apparently rather limited, and secondly
because contrary to what has generally been assumed, the Almohad caliphs, with
the exception of al-Mansür, did not adopt a policy of giving preferential
treatment to Zâhirïs.”[1126]
Be this as it may, neither the Almohads nor any other government would
give preferential treatment to a madhhab that had only a few followers
and a limited number of scholars who could fill judicial posts.
All this must have made it difficult
for Ibn Hazm’s students and later Zâhirï generations to establish a real school
of law. Although they now had a founder— be he Dâwüd or Ibn Hazm himself for
some of them—and a substantial literature on usul and furu',
there is no trace of any coordinated effort on their part to defend the madhhab
and secure its survival. We do not hear of any specific venue in which Zâhirï
scholars taught their madhhab, and the transmission of Zâhirï knowledge
from teachers to students seems to have been done in private and only for
interested students. We do not even find any commentaries or abridgements of
Ibn Hazm’s works, which are often polemical in nature, that are intended to
make them more suitable for educating new students. A situation like this
cannot continue indefinitely. Unsurprisingly, references to Zâhirïs in medieval
sources steadily diminished. A survey of Zâhirï scholars until the ioth/i6th
century has shown that there was a sharp decrease in the number of Zâhirïs
after the 8th/i4th century, with only a few in the gth/i5th and one in the
ioth/i6th centuries. In biographical dictionaries of the iith/iyth, i2th/i8th,
and is/igth centuries, there does not seem to be any Zâhirïs,[1127]
even in Egypt and Syria, where they existed in the 7th/i3th and 8th/i4th
centuries.[1128]
Despite Ibn Hazm’s accomplishments,
it has been suggested that they may have contributed to the failure of
Zâhirism. His unconditional conviction of the soundness of his methodology and
rulings, and the massive literature that he produced and the reception of this
literature by later Zâhirïs put Zâhirism on the road of turning into a legal
school, where ijtihad is restricted and taqlld becomes the norm.
Although Zâhirism never actually turned into a legal school similar to other
schools, it seems to have frozen after Ibn Hazm, whose followers seem to have
either lacked or abandoned his ingenious ijtihad in interpreting
textual sources and weighing various pieces of evidence in each case.
The failure of the Zâhirï madhhab
may also be related to its own doctrine. It has been noted in the introduction that although medieval
Muslim jurists were tolerant of what they may have regarded as a “literal”
reading of religious commands (which was how some of the Prophet’s Companions
understood the Prophet’s command to not pray casr except in
the abode of the Banü Qurayzah), this toleration was more of an admiration that
did not materialize in their actualjurisprudence.[1129]
The tension, which probably exists in all legal systems, between consistency
and coherence on the one hand, and convenience and practicality on the other
hand has been settled in Islamic legal history in favor of the latter. Dâwüd
believed that in cases that are under the purview of the law, there must exist
one, and only one, relevant and decisive piece of evidence, which can determine
the outcome with complete certainty,
and because of which the soundness
and validity of our legal views are also certain. Regardless of whether or not
Dâwüd drew on the distinction that al-Jassâs presents between cases in which
there is only one piece of evidence and others in which conflicting pieces of
evidence exist, it is not clear why he would seek to collect traditions that
contradicted each other and contradicted the Qur’an too. However, although he
was willing to argue that when there was no evidence in a certain case we can
assume that it is not covered by the law, he probably drew on the traditions
collected by the traditionists of his time, for which reason he was mistakenly
thought to be their associate. Adopting the view that in every case there must
exist only one relevant and sound piece of evidence and accepting at the same
time the wealth of traditions that tra- ditionists gathered must have left a
mark on Dâwüd’s juridical thinking, for he constantly and simultaneously had to
argue for the relevance and authenticity of some pieces of evidence and the
irrelevance and inauthenticity of others. This tension is very clear in Ibn
Hazm’s writings, and it was noted that he did not abstain from rejecting many
Prophetic traditions, at times on the basis of their authenticity, and at other
times on the basis of their relevance.
10
A juridical system with this inherent
tension can only survive if scholars always have the freedom to assess the
available evidence and select the one they deem relevant and sound in cases
offered to them. Dâwüd and Ibn Hazm, and perhaps some scholars between them,
were able to do this. The problem arose when social and cultural circumstances
changed, and Zâhirï scholars whose mindset was shaped by different cultural
mores had to deal with either new or old issues. In normal circumstances, even
if a scholar openly rejects them as irrelevant to jurisprudence and the
judicial process (as do Ibn Hazm and Justice Antonin Scalia), cultural mores
and social conventions play an inevitable role in every stage of any juridical
process, beginning with the selection and assessment of the legal evidence
itself.[1130]
Zâhirï scholars must always have found themselves in an insoluble dilemma.
Rethinking any legal issue which Ibn Hazm had an opinion on was a direct
assault not only on the legal heritage of the madhhab, but also and
primarily on its pivotal contention that in every legal issue there is one and
only one valid piece of evidence which is necessarily identifiable. At the same
time, following the legal views of any scholar, including Zâhirï scholars, is
also detrimental to their belief in the absolute invalidity of taqlld.
Ibn Hazm, and perhaps earlier Zâhirïs, do not appear to have faced this
dilemma. They disagreed with each other, and Ibn Hazm was able to disagree with
them. However, Zâhirïs after him were choosing between being faithful to the
beliefs and views of their school (which were basically Ibn Hazm’s beliefs and
views at this point), and being able to practice independent thinking that by
necessity takes social convenience into consideration even if they were not
consciously operating on this ground. This dilemma must have made it difficult
for the Zâhiri madhhab to survive as a popular madhhab (if it was
ever one) and consequently as even an elitist one.
The second contribution of this study
concerns the relationship between Zâhirism and the two main legal trends of the
3rd/gth century. Against the predominant view that Dâwüd was affiliated with
the Ahl al-Hadlth, it has been argued that the available biographical
and doctrinal evidence about him strongly suggests that he was closer to the Ahl
al-Ra’y. Born to a Hanafi father, Dâwüd himself began his career as a
Shah'i. Among his teachers, Abü Thawr al-Kalbi, and possibly Abü ‘Ali
al-Karâbisi, were probably the two scholars with the longest and strongest
influence on him. These two scholars were affiliated with the Ahl al-Ra’y,
and al-Karâbisi was an open enemy of the Ahl al-Hadlth. Furthermore,
neither Dâwüd nor his immediate students were interested in Hadith transmission
and criticism, which was the main activity of the Ahl al-Hadlth.
Finally, there is evidence that Dâwüd was not on good terms with Ahmad ibn
Hanbal and possibly with Ishâq ibn Râhawayh, two scholars that the Ahl
al-Hadlth held in high esteem. Accordingly, there is hardly any evidence
that suggests that Dâwüd belonged to the Ahl al-Hadlth in terms of his
profile, activities, or interests as a scholar. In addition to this, what we
know about his legal doctrines seems to confirm not only that Dâwüd was not a
member of the Ahl al-Hadlth, but also and more importantly that he may
in fact have been a member of the other camp, the camp of the Ahl al-Ra ’y
and those who shared some important views with them, such as some theologians.
chapter four examines how the term zahir
is used in two 3rd/gth-century works deemed potentially useful for the purpose
of determining why Dâwüd was labeled al-Zâhiri—al-Shâh‘i’s Rlsalah and
part of al-Tabari’s Jamlc al-Bayan. Despite some ambiguities
and inconsistencies (which could indicate merely that zahir was just
beginning to be used as a technical term), al-Shâh‘i’s and al-Tabari’s uses of
this term suggest that the term was used in a specific context: the scope of
application of terms. Both scholars seem to be using zahir to refer to al-macna
al-camm, meaning the fullest possible extension or the broadest
range of referents that is inclusive of everything that can potentially fall
under a term’s gamut. When the Qur’ân speaks of al-nas, for instance, al-macna
al-zahlr refers to all people everywhere rather than a specific group of
them. Limiting the reference of this word to include only the Muslims or the
Arabs, for example, is a takhsls, restriction or particularization, that
excludes some of its referents. This takhsls, in the view of Zâhiris and
other scholars who adhere to al-macna al-camm,
requires a valid indicator, such as a Prophetic tradition, for example, the
authenticity and indication of which are beyond doubt. Ibn Hazm, who, to the
best of my knowledge, does not explain what the term zahir actually
means,[1131]
[1132]
mentions clearly the relationship between it and cumüm. Remarkably,
when describing his legal methodology, Shams al-Din al-Dhahabi points out that
Ibn Hazm relied on the zahir al-nass and the general terms and
statements (Umümat) of the Qur’an and Hadithd2 which suggests
that al-Dhahabi saw a connection between zahir al-nass and the scope of
application of terms as suggested here.
What was Zahiri about Dâwüd
al-Zahiri, then, was his unconditional belief that in the absence of indicators
to the contrary, all words and sentences must be understood in an all-inclusive
manner. The assumption that the unrestricted meaning is the intended meaning
unless proven otherwise is one of the most important hermeneutical tools of the
Ahl al-Ra’y scholars. Medieval sources attribute this view to Abü
Hanifah, the leading figure of the Ahl al-Ra’y. Dawüd shared other
theoretical legal views with Abü Hanifah, such as the assumption that any
imperative (amr) in the Qur’an or Hadith indicates absolute obligation (wujüb)
rather than the mere recommendation or permissibility of doing something, and
the assumption that any interdiction (nahy) indicates absolute
prohibition rather than the mere recommendation that a certain act or belief be
avoided. The two issues of cumüm and amr and the sense
of each of them are foremost among the basic linguistic issues that the
discipline of usül al-fiqh deals with. More often than not, Muslim
jurists have disagreed on how to construe a imm statement or a command.
That the term zahir appears in
the context of commands and prohibitions indicates that it had more than one
application depending on the context. However, our survey of al-Shah'i Risalah
and al-Tabari’s Jami al-Bayan strongly indicates that its most common
application was in the context of the scope of application of terms. These two
contexts, however, seem to share an underlying common element, that is, the
unconditionality and absoluteness of the indication of legal texts. That is,
that which is presumed to be the linguistic indication of a given expression,
be it a term or an imperative, is taken to be absolute. Just as any term is
presumed to be referring to everything that could be included under it, any
command establishes an unconditional religious obligation on all those
who are addressed by religious law to do something in all circumstances.
Similarly, any prohibition establishes the absolute obligation to avoid doing
something regardless of other factors. In both cases, challenging the
unconditionality and unrestrictedness of expressions requires a valid
indicator, which indicator in both Hanafi and Zâhiri view must be certain in
terms of both authenticity and relevance.
Remarkably, although Dâwüd shares
this view with the Ahl al-Ra’y and with other scholars as well, what was
distinctive about him was how his understanding of the meaning of zahir
led to the rejection of other tools of the Ahl al-Ra’y. It has been
argued that there is an intimate relationship between zahir and qiyas,
and that Dâwüd’s understanding of the former led to his rejection of the
latter. Qiyas essentially limits or restricts the scope of applicability
of legal rules. In Dâwüd’s view, prohibiting something because of its
resemblance to another that is prohibited infringes on God’s prerogative as the
only legislator. This happens by widening the scope of prohibition and thus
limiting the general rule that what is not prohibited by the law remains in the
default state of legality and permissibility (al-ibahah al-asliyyah)
according to the presumption of continuity (istishab al-hal). If
religious law prohibits a certain beverage, for instance, declaring another
beverage forbidden because it shares a certain quality with the one that the
law explicitly prohibits (a quality that scholars of qiyas regard as the
cause of prohibition, cillah) is an assault on the presumed
permissibility of all drinks except those prohibited specifically and
explicitly by the law. In the case of khamr, therefore, it was
imperative for Zâhiris to argue that khamr was a generic term that
referred to all intoxicating beverages.[1133]
Had they accepted the view that khamr referred to one kind of drink
(grape-wine, for instance) only, there would have been no justification for
maintaining that other intoxicating beverages were forbidden, for this would
further limit the rule of general and presumed permissibility. The issue of Umüm
thus came to play a central role in Dâwüd’s jurisprudence, and together with
the belief in the principles of al-ibahah al-asliyyah and istishab
al-hal, it represents the core of his doctrine.
Other than sharing these particular
theoretical views with the Ahl al-Ra’y, Dâwüd also had their interest in
producing consistent and coherent jurisprudence. This interest is evident in
proceeding in legal issues on specific legal and linguistic assumptions and
according to certain procedures of weighing the often contradictory evidence.
On the other hand, the Ahl al-Hadlth do not appear to have been
interested in proceeding according to fixed assumptions and rules. Instead,
they had an obvious moral agenda, and the legality or illegality of a certain
act was not their primary concern. Ibn Hanbal explains his rejection of a
marriage between a man and a woman with whom the man’s father has had a sexual
relationship without producing conclusive evidence for the illegality of this
marriage from the Qur’an and the Hadith. In his view, this act was simply
immoral, regardless of whether or not it was forbidden. It is probably because
of this moral dimension that the Ahl al-Hadlth were not interested in
adopting and employing rules, for serving their moral agenda required a great
deal of flexibility and freedom from the restriction of rules. They wanted to
be able to judge every case on its own merits to produce a ruling that served
their vision of the moral character of the Muslim individual and society.
The case studies discussed in chapter six sought to demonstrate that
in addition to producing rulings that reflected their moral character and worldview,
the Ahl al-Hadlth also sought to reconcile and synthesize all relevant
legal evidence in a given case. In the case of whether touching women affects
men’s ritual purity, for instance, Ibn Hanbal argued that this depends on
whether or not he feels sexual desire. He came to this conclusion on the basis
of a number of Qur’anic verses and reports about the Prophet’s practice, none
of which refers to the element of sexual desire. For him, there cannot be one
answer to this question; it all depends on the circumstances of each particular
case. But whereas touching one’s mother or daughter may not involve sexual
desire, touching a woman who is unrelated to a man may well involve it. On the
other hand, the Hanafi insistence that no such touching ever affects the ritual
purity of men regardless of any factors, and the Zahiri view that all touching,
regardless of anything, invalidates men’s ritual purity indicate that for
these two groups of scholars, there must be a straightforward answer to each question,
and this answer, if it must, has to rely on verifiable factors, a basic
requirement of consistency. Both groups assume that touching does not affect
ritual purity without textual evidence. Zahiris accepted a Qur’anic text (the aw
lamastum al-nisa’ verse) that indicated in their view that touching women
invalidated men’s ritual purity. Hanafis interpreted the Qur’anic evidence
differently and did not recognize it as relevant to the question. Whether their
views contradicted any notion of morality (such as when a man touches a woman
with lust and then prays without performing ritual purity), or caused
unreasonable inconvenience or hardship (such as when one has to perform
ablution every time he happens to touch his mother, sister or daughter—let alone
wife), was not a concern for either of them. What is important is to follow the
evidence regardless of any considerations.
In the second case study, Hanbalis
accounted for their choice of five sessions of breastfeeding to make a nursing
woman a foster mother for the suckled baby by arguing that these ensure that
the milk consumed contributed to the growth of the baby’s flesh and
strengthened his bones. This explanation reveals their desire to identify and
rely on notions that could serve their moral agenda. Accordingly, they are
reported to have held that if cheese is made out of a woman’s milk and a baby
happens to eat it five or more times, he becomes the woman’s foster son.
However, they rejected the notion of adult-breastfeeding despite reported traditions
on this issue and also despite the fact that it can contribute to the growth of
flesh and strengthening of bones. This clearly points to the moral dimension of
their juridical thinking and the tension they sustained between following every
piece of evidence in a single issue and remaining true to what they took to be
moral considerations. Since this factor is not verifiable, however, it was of
no use for either Abü Hanifah or Dâwüd. The former relied on the cumüm
of the word ridff in a Qur’ânic verse to conclude that even one drop of
milk is sufficient to establish prohibition of marriage between the nursing
woman and the suckled baby.[1134]
Dâwüd would have held the same view had it not been for one tradition which he
accepted and according to which three sessions of breastfeeding are required
to establish prohibition. Unlike Hanbalis, neither Hanafis nor Zâhiris felt
the need to determine a rationale of what they take to be the correct view on
this and other issues.
The centrality of the principles of ‘umwn,
al-ibahah al-asliyyah, and istishab al-hal in Zâhiri and Hanafi
jurisprudence are also confirmed by the short case studies. Abü Hanifah and
Dâwüd insisted that the wife of a person who disappears remains his wife
because we know that she was his wife when he disappeared but are not
confident that he perished. A drunken person cannot divorce his wife in Abü
Hanifah’s view because he relied on one textual source according to which
divorce in only one state—madness—is invalid. The cumüm of
the validity of divorces and utterances, therefore, prevails in the case of
drunkenness. Dâwüd held the same view either on the same basis, or on the basis
of a Qur’anic verse that indicates that a drunken person is unaware of what he
says and therefore cannot make a conscious decision, which divorce has to be.
Finally, if someone finds something (presumably lost), there is no reason why
he should not take it in Abü Hanifah’s view. Dâwüd relied on a textual source—a
tradition in which the Prophet commands a person to take what he finds—to come
to the conclusion that one has to take lost items that he finds and deal with
them in the way described by the Prophet (i.e., publicize their discovery for a
year).
On these three issues, Ahmad ibn
Hanbal was also hesitant, not only because he had to deal with more pieces of
evidence, but also because he sought to find solutions that served his moral
worldview. While he was concerned not to let a wife get married to another man
if her husband disappears, he was equally concerned for keeping her unmarried
for a long time. Therefore, he decided that if her husband disappears in a
context that suggested his death—such as in war or at sea—she should wait for
four years and then begin a waiting period of four months and ten days, after
which she was free to remarry. Not only does this reconcile in his view various
opinions of the Companions on this issue, but it also takes into consideration
the moral consequences of each alternative. When a drunken person divorces his
wife, Ibn Hanbal struggled between the prospect of letting him live with her
while they may not be married anymore, or separating them while they may still
be married. His hesitation to decide on this issue reflects his inability to
reconcile and synthesize the available evidence in a way that solves this moral
dilemma. Finally, notwithstanding the Prophetic traditions that indicate that
one should take a lost item that he happens to find, Ibn Hanbal’s scruples and
fear that he may not deal with it in the prescribed manner led him to hold that
it is better, or safer, to keep away from it.
The historiographical issue of the
attribution of theoretical and substantive legal views to Abü Hanifah, Ahmad
ibn Hanbal, and Dâwüd al-Zâhirï has been noted and briefly discussed. It must
be stressed that there is no attempt here to advance any contention that the
three scholars were consistent in all their legal views. Proving the
consistency of the views of any legal scholar is obviously difficult. However,
this does not necessarily mean that we cannot or should not make general
observations about these scholars or about their juridical thought. In fact,
the lack of a reasonable degree of consistency and coherence can suggest either
false attribution or outright fabrication, and a reasonable degree of
inconsistency may indicate authenticity. In all circumstances, we should be
able to assume that there existed some general and perhaps rudimentary
guidelines that governed the legal thought of the three scholars that we have
dealt with here.[1135]
To say this is one thing, and to assume full or nearly full consistency is
quite another. Furthermore, in relating the substantive views of these three
scholars to the theoretical views attributed to them, it has only been assumed
that if these theoretical views can explain their actual rulings in some cases,
these latters should also confirm the former. This should allow us to question
some the attribution of some views to these scholars on account of their being
in sharp contradiction to our understanding of their overall legal thought.
Admittedly, this is a tricky endeavor that can easily slide us into circularity
and contradiction when we take inconsistency to say something about the
authenticity of some views and reject others as being inconsistent with the
overall legal thought of a scholar. To my mind, there is no solid formula to
solve this dilemma. Engaging in informed and reasoned guesses is inevitable in
deciding what to accept and what to reject. I have therefore sought to analyze
the legal views attributed to these three scholars on the basis of what is
generally known about their juridical thought among their followers. How
historically true this might be is an issue that I have not sought to take up
in depth here, if indeed it is at all possible to do that.
The third contribution of this study
is challenging the commonly-held view that Zâhirism was literalist. chapter five has discussed two fundamental
problems with this characterization of Zâhirism; first, it does not take into
account the fact that literalism is a controversial subject in the field of
linguistics; secondly and most importantly, Zâhirism is not literalist
according to the current understanding of literalism, but rather contextualist,
and as such it has strong affinity with textualism, an American legal theory
that shares with Zâhirism its most fundamental premises, methodology, and
objectives.
Zâhirism and textualism insist on the
absolute supremacy of legal texts and dismiss all non-textual evidence. Both
share views on the division of labor between the lawgiver and the legal
interpreter—the former (God for Zâhirïs and Congress for American textualists)
makes the law and formulates it in a certain and deliberate way, whereas the
job of the latter (be he a judge or a jurist) is to identify the relevant
textual evidence for a given case and apply it faithfully regardless of the
outcome. In both theories, the only intent of the lawmaker that matters is
applying the law as it is, not serving what the interpreter believes to be the
objectives of the law or the interests that it seeks to protect. Obviously,
both theories seek to rid the interpretation and application of the law of the
subjective views and prejudices of interpreters. For this reason, proceeding
in the legal process on the basis of specific assumptions and according to
specific rules is essential, for abiding by rules is the guarantee that a
willful judge would not be able to interpret the law according to his own
liking.
However, while both textualism and
Zâhirism share with literalism assumptions about the language and the ability
of people to engage in meaningful communication, they differ from it in one
crucial aspect that is generally regarded by philosophers of language to be the
defining feature of literalism. Unlike literalism, which assumes that any text
can be interpreted in “zerocontext,” or independently of any context, Zâhirism
and textualism rely on the historical and textual contexts when interpreting a
text. When interpreting a constitutional article, for example, a textualist
appeals to the historical context in which that constitution was written and to
other articles in the constitution itself to determine the intended meaning of
the article at hand. A literalist, on the other hand, would focus only on what
this particular article “says,” disregarding the social and historical
contexts in which it was written, or where it falls within the framework of the
constitution at large. The two case studies of Antonin Scalia and Ibn Hazm’s
interpretation of some Qur’ânic verses that have been discussed in chapter five demonstrate that neither
jurist interprets legal texts according to the precepts of the theory of
formal semantics. Their reliance on the historical and textual contexts to
identify the meaning intended by the lawgiver, and their drawing conclusions on
the basis of linguistic assumptions that a strict literalist would not
condone, indicate that their hermeneutics can only be understood with the help
of pragmatics, a contextu- alist theory that is antithetical to literalist
theory of formal semantics.
It has been noted earlier that the
inherent tension in Zâhirï doctrine between the necessity for constant
assessment of the evidence and the requirements of membership in a legal madhhab
after Ibn Hazm may have contributed to the failure of the Zâhirï madhhab.
It is this particular aspect of the Zâhirï doctrine that may have contributed
to its demise, and not its purported rigidity, hostility to human reason, and
failure to incorporate rationalism or meet it half-way as has been suggested. A
relevant aspect of pragmatic interpretation, according to Recanati, is its
inconclusiveness, or “defeasibility.” According to this, “[t]he best
explanation we can offer for an action given the availability of evidence may
be revised in the light of new evidence ...It follows that any piece of
evidence may turn out to be relevant for the interpretation of an action. In
other words, there is no limit to the amount of contextual information that can
affect pragmatic interpretation.” It would perhaps be assumed that Ibn Hazm
would not be happy with this aspect of pragmatism. However, we have already
seen how he appeals to contextual information or the lack thereof to argue for
or against the relevance of some textual evidence. He also acknowledges the
possibility of changing some of his conclusions, even if he claims to be limiting
this to cases that have contradictory verses or traditions, or to cases where
there exist traditions the authenticity of which is not certain but may become
so.[1136]
[1137] [1138]
In such cases, we hold only that our conclusions are sound to the best of our
knowledge, but we cannot pretend to say that we know them for cer- tain.17
He is even willing to give the benefit of the doubt to scholars who abandon
the zahir of a text through an interpretation that they believe is
sound?8 Although he may have regarded this as a theoretical
possibility that is unlikely to materialize, Ibn Hazm’s acknowledgment of the
possibility of new textual evidence coming to the light—which can easily put
the very methodology or any Zâhirï view on usül and furüc
at risk—is significant in that it demonstrates that Zahirism, as Ibn Hazm
practiced it, had the potential of considering new and reassessing old
evidence, not only in view of new, emerging evidence, but also in light of
contextual information about existing evidence. If the context is allowed a
role in the process of interpretation, possibilities for new interpretation
remain open. Taking the context into consideration was one practice that
allowed Ibn Hazm to disagree with earlier scholars and assert his own
independence.
This also points to Ibn Hazm’s
possible damaging effect on the Zâhirï madh- hab. If Zahirism had the
potential to renew itself, this was only possible when Zâhirï scholars made use
of that potential. After Ibn Hazm, this does not seem to have been the case.
Whether this was due to his absolute belief in the soundness of his
understanding of the evidence and of his legal views, or was because subsequent
Zâhirïs deferred to his authority and failed to follow his example by
disagreeing with earlier Zâhirïs, does not change the fact that Zahirism after
Ibn Hazm became rigid and stagnant. However, this rigidity is not
inherent in the doctrine itself. Ibn Hazm’s Zâhirism was anything but rigid in
its reading of the religious texts or assessment of the evidence. The rigidity
resulted from forsaking the methodology and freezing the madhhab after
Ibn Hazm. The Zahirism that is rigid, therefore, is that of the Zâhirïs after
Ibn Hazm. Prior to Ibn Hazm, Zâhirïs disagreed, and he was able to disagree
with them, opening up new possibilities for the madhhab by challenging
some pieces of textual evidence on the basis of their authenticity or relevance
(which his contextual- ist theory made possible) and introducing new ones.
Finally, the following observations
on Zâhirism and textualism are in order. By emphasizing the historical context
to determine the meaning of words, these two legal theories make an unwarranted
assumption: they assume that all people who lived in a certain historical
period—like the 7th-century Arabs for Zâhirïs and the late 18th-century
“Americans” for American textualists— used language in exactly the same way.
While this assumption is hard to prove in either case, it is harder to prove in
the case of Zâhirïs due to the lack of dictionaries that registered the senses
of words as the Arabs used them in the 7th century.[1139]
Using the evidence of pre-Islamic poetry is problematic. For one thing, using
such evidence to determine the meaning of words requires considering every
single instance in which a given word was used and its linguistic context in
order to determine its meaning. To my knowledge, Zâhirïs, and textualists, for
that matter, do not pretend to engage in this kind of exercise. This does not
necessarily doom their methodology, but it calls into question their claim to
stand on a solid ground of certainty (stated by Ibn Hazm and strongly evident
in Scalia’s arguments), for there always remains a chance that their
understanding of a certain word is different from the intended meaning.
Secondly, knowledge of the indication and denotation of single words does not
suffice in the process of interpretation. Knowledge of how the Arabs would understand
a complete sentence on the basis of its syntax and structure is not less, if
not more, important. Ibn Hazm evidently assumes that the Arabs used rules of
grammar and syntax consistently, an assumption that is impossible to prove
historically. This also makes room for uncertainty in the Zâhirï scheme.
Finally, Zâhirï and textualist scholars assume that the way they read the historical
evidence that they use to determine the meaning of words is sound. This
practically leads to circularity, for if there were a way to determine the
correct meaning of pre-Islamic poetry, for instance, the direct identification
of the correct meaning of religious texts themselves should not be problematic.
On this point, Zahirism and textualism have the disadvantage of not being
literalist.
If textualism seeks after the right
application of the rule of law, Zâhirism sought after the right way of
submission to God, which is what Islam is all
about, not just for Zahiris, but for
all jurists for whom Islamic law constituted the core of Islam. A good Zahiri
jurist is one who accepts only texts (the Qur’an and Hadith) as valid sources
of the law and rejects all non-textual sources such as qiyas (and its
opposite, the argumentum e contrario), istihsan, and maslahah, etc.
The process of dealing with these textual sources is strictly formalist,
meaning that it abides by specific rules throughout. It begins by searching for
pieces of evidence in each case and investigating how they may contribute to
reaching one ruling. To do this, they rely on certain assumptions, foremost
among which is that only interdiction (nahy) requires textual evidence,
whereas permission (ibahah) does not require such evidence according to
the principle of al-ibahah al-asliyyah, which principle has textual evidence
in the Qur’an. In interpreting textual sources, it is assumed that absent any
valid evidence (i.e., another textual source the authenticity of which is
accepted) to otherwise, all terms must be interpreted according to their
broadest scope of application without any sort of qualification or restriction
(i.e., takhsts is exceptional), such that it includes the full range of
its potential referents. Similarly, any textual command, unless a valid
indicator suggests otherwise, must be interpreted to establish absolute
obligation to carry out the demanded action without delay and as frequently as
is required. Together with these rules, all textual and non-textual pieces of
evidence should be considered in order to ascertain the intended meaning of
each text. Finally, the uncritical acceptance of views of earlier jurists
(i.e., taqltd, which is a, or the, basic feature of the madhhab
system) is strictly forbidden, and each jurist is personally required to deal
with textual sources directly (i.e., ijtihad within the bounds of
textual sources is obligatory). If this methodology is followed correctly,
believers should be able to determine God’s ruling in each case with complete
confidence. The next step would be for them to follow it. This is what
submission to God means and requires.
20
Finally, and admittedly, missing in
this monograph on the history of the Zahiri madhhab is a discussion of
the broader cultural significance of what seems to be its incompatability with
the medieval Islamic cultures, of its recent (slow) resurgence, and of its
potential prospects in “modern” cultures as a vigorous legal and hermeneutical
theory. It was my intention to dissuss these all-important questions in a
separate chapter on the contemporary rehabilitation of the madhhab either
by individual jurists or institutions (such as the Islamic Research Assembly of
al-Azhar University, where the Zahiri madhhab is one of eight madhhabs
that it accepts).[1140]
Unfortunately, however, it has not been possible to interview any of the contemporary
Zâhirï scholars—the most important of whom is Shaykh ‘Abd al-Rahman ibn ‘Aqil
in, significantly, Saudi Arabia—and the events in Egypt has made conducting
research there since 2011 almost impossible. Hopefully, these questions will be
duly discussed in a separate article.
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A
lam al-Muwaqqi'in 'an Rabb al-Alamin in2 A‘mash, al-, Sulayman ibn Mihran
232, 235 Ayan. al-Asr 74ni56
‘À’ishah
bint Abi Bakr 111, 229-230, 234-238, 235n55, 243, 245-252, 254-255
‘Abbâs,
al-, ibn ‘Abd al-Muttalib 245
‘Abbas
ibn Ahmad al-Mudhdhakkir 32 Abbasids, the i2n8, i3nio, 16, 24, 59, 99n32 ‘Abd
al-‘Aziz ibn ‘All, Ibn Sahib al-Radd 69 ‘Abd al-Baqi, Muhammad Fu’ad i27ni6
‘Abd al-Hadi, ‘Abd al-Baqi al-Sayyid 770168 ‘Abd al-Karim ibn Muhammad ibn
Ahmad
al-Shirazi
64n94
‘Abd
Allah ibn ‘Abbas i07n58, 111, 139-140, 228, 23i, 233n4i, 238, 248, 249nii6,
252, 260
‘Abd
Allah ibn ‘Umar io6n56, 108, 111, 128n21, 229, 231-232, 232n34, 234, 236, 238,
240, 242, 248, 260
‘Abd
Allah ibn Abi ‘Amr 68
‘Abd
Allah ibn Ahmad ibn al-Mughallis, Abû al-Hasan 31, 50, 50ni2, 50ni3, 51, 5ini5,
51n17, 52, 54-55, 57-60, 62, 64, 80, 81n185, 264
‘Abd
Allah ibn Ahmad ibn Hanbal i2n7, 14n17, 19, 23, 26, 26n69, 28-30, 30n87, 50,
52, 91, 92n5, 95, 95n14, 97, 97n19, 101n30, 102, 104, 104n48, 104n51, 108, 112,
113n96, 113n101, 115, 115n109, 116-117, 118n121, 119, 120n132, 121, 121n136,
122-123, 148, 148n96, 155n120, 161-165, 161n147, 163n157, 167, 170, 185,
225-227, 227n3, 235-236, 238-239, 242-244, 244n80, 245, 248, 253, 255, 256-262,
256n135, 271, 273-274, 276
‘Abd
Allah ibn Ahmad ibn Rashid (Ibn Ukht al-Walid) 55
‘Abd
Allah ibn Ahmad ibn Sa‘id ibn Yarbû‘ 66
‘Abd
Allah ibn al-Mubarak 26, 108
‘Abd
Allah ibn al-Zubayr 245, 248 ‘Abd Allah ibn Bakr ibn Khalaf 68 ‘Abd Allah ibn
Khalid al-Kûfi 12
‘Abd
Allah ibn Mas‘ûd 95ni4, 98, i06n56, 107n58, 108, 228, 231-233, 232n34, 236,
238-240, 242, 248, 252
‘Abd
Allah ibn Muhammad ibn Marzûq al-Yahsubi 67
‘Abd
Allah ibn Mûsa 66
‘Abd
Allah ibn Sulayman ibn Dawûd 69
‘Abd
al-Majid, ‘Abd al-Majid Mahmûd 107, 107n60, 109, 110, 110n77, 111, 113-115,
113n96, 113n100, 114n105, 119-121, 120n131, 123, 123n144
‘Abd
al-Mu’min ibn Khalaf ibn Tufayl al-Nasafi 52
‘Abd
al-Muhaymin ibn Muhammad al-Ashja‘i 72
‘Abd
al-Rahim ibn al-Hasan al-Tinmali 74
‘Abd
al-Rahim, Ibrahim Muhammad
79n179,
85n205, 86n206
‘Abd
al-Rahman ibn Mahdi 25
‘Abd
al-Rahman ibn Yahya ibn al-Hasan 68
‘Abd
al-Warith ibn Sufyan 53n38
‘Abdari,
al-, ‘Ali ibn Sa‘id 63
‘Abdari,
al-, Muhammad ibn Sa‘dûn, see Ibn Murajja al-‘Abdari
‘Abdi,
al-, Muhammad ibn Kathir 23
Abû
‘Abd Allah al-Gharnati, Muhammad ibn ‘Ali al-Bayasi 73
Abû
‘Abd Allah al-Sha‘‘ar, Ahmad ibn Bundar Ishaq 55
Abû
‘Abd al-Rahman al-Shafi‘i, Ahmad ibn Yahya ibn ‘Abd al-‘Aziz 24
Abû
‘Ali al-Dawûdi 57, 63
Abû
‘Awanah, al-Waddah ibn ‘Abd Allah 23
Abû
‘Id, Muhammad Àrif 4n8, i2n8, i7n38, 18n38, 119
Abû
al-‘Abbas al-Nabati, Ahmad ibn Muhammad ibn al-Rûmiyyah 71-72
Abû
al-‘Abbas Tha‘lab 15
Abû
al-Fadl al-Muradi 268n7
Abû
al-Faraj al-Fami al-Shirazi 58, 60
Abû
al-Hasan al-Karaji 66ni0i
Abû
al-Hasan al-Ru‘ayni al-Ishbili 48n2, 72
Abû
al-Husayn al-Basri 4ini55, 42-43, 164
Abû
al-Khattab ibn Dihyah, ‘Umar ibn al-Hasan 70
Abû
al-Qasim ibn Hubaysh 69ni9
Abû
Bakr al-Marrûdhi i2n7
Abû
Bakr al-Siddîq 209
Abû
Bakr ibn Abî ‘Àsim, Ahmad ibn ‘Amr ibn Muhammad ibn al-Dahhak 49
Abû
Dawûd, Sulayman ibn al-Ash‘ath 23-25, 230, 235
Abû
Hanîfah al-Nu‘man 19, 4ini55, 44ni82, 86, 91m, 93-97, 93n7, 94ni4, 95ni4,
103-106, i03n40, i03n43, 108-109, ii2, i48, i48n96, i49ni02, i50-i53,
i53niii-ii2, i55-i56, i55nii8, i55ni2i, i56ni24, i64, i67, i70, 226-227, 227ni,
229-230, 229ni0, 236, 236n59, 238-242, 244, 244n83, 253-254, 256-26i, 256ni35,
272, 275-276, 275ni4
Abû
Hayyan al-Nahwî, Muhammad ibn Yûsuf ibn ‘Alî Abû Hayyan 74
Abû
Hudhayfah ibn ‘Utbah 246
Abû
Hurayrah 111, 252
Abû Ja‘far al-Hashimî 236n60,
256ni35
Abû
Mukhalid Ahmad ibn al-Husayn 16, i6n33
Abû
Mûsa al-Ash‘arî 248, 252
Abû
Mutî‘ al-Nasafî, Makhûl ibn al-Fadl 34
Abû
Nu‘aym al-Isbahanî 53, 229010
Abû
Rawq ‘Atiyyah ibn al-Harith 229ni0, 236n59
Abû
Sa‘d Bishr ibn al-Husayn 53
Abû
Sa‘îd al-Raqqî 61
Abû
Sa‘îd ibn al-A‘rabî, Ahmad ibn
Muhammad
ibn Ziyad 52, 54n38
Abû
Thawr al-Kalbî, Ibrâhîm ibn Khalid ibn Abî al-Yaman 25-30, 28n79, 30, 44-45,
79, 9i, i08, 248, 27i
Abû
Ya‘qûb Yûsuf al-Muwahhidî 49n3
Abû
Yûsuf, Ya‘qûb ibn Ibrahîm i4ni7, 95ni4, i49ni02
Abû
Zahrah, Muhammad 4n7, 1071158, ii8ni22, ii9, i55nii8, i55ni2i
'adalah i32n44, 250
Adam
140-141, i40n74, 173, 220
Adang,
Camlilla 4n9, 49n3, 171m, 265M ‘Adud al-Dawlah al-Buwayhî 53, 77ni68 ahad
(traditions) (see also akhbar al-ahad, khabar al-wahid) 43, 151-152,
160, i60ni39, 253-254
Ahadith,
al-, al-Hisanfi Fadl al-Taylasan 14 ahadith, al-, al-mutawatirah (see also
tawatur) 43
ahkam
al-hawadith 150, 1500104
Ahkam
al-Ouran.
43, 51-53, 53038
Ahlal-Hadith (see also Ashab
al-Hadith) 6, 14, 18, 28-30, 83, 91-110, 92n4-5, 95n14, 100n26, 101n29-31,
102n36, 103n43, 104n46, 112-124, 113n101, 114n105, 116n114, 118n124, 120n131,
148, 151-153, 153n112, 161, 170, 185, 225, 266, 271, 273-274
Ahl
al-Kalam
92, 92n4, 94, 109
Ahlal-Ray (see also Ashab
al-Ra‘y and Ahl al-Ray wa-l-Qiyas) 6, 16, 22, 25, 29-30, 44, 46, 56,
91-101, 100n26, 101n29, 104-110, 112-114, 116-117, 119-122, 123n143, 124,
147-148, 151, 156, 169-170, 185, 225, 240, 245n83, 249-250, 263, 266, 266n3,
271-273
Ahl
al-Ray wa-l-Qiyas 96
Ahl
al-Zahir
13, 16, 19, 22, 33, 41, 46, 74-75, 123, 223, 266
Ahmad
al-Qasîr 72, 74
Ahmad
ibn ‘Abd Allah ibn Ahmad al-Bukhtarî 51, 56
Ahmad
ibn Bundar Ishaq, see Abû ‘Abd Allah al-Sha‘‘ar
Ahmad
ibn Muhammad ibn ‘Umar 70
Ahmad
ibn Muhammad ibn al-‘Ajannas al-‘Ajannasî 33, 330117
Ahmad
ibn Muhammad ibn al-Jasûr 53
Ahmad
ibn Muhammad ibn al-Rûmiyyah, see Abû al-‘Abbas al-Nabatî
Ahmad
ibn Muhammad ibn Hazm 73
Ahmad
ibn Muhammad ibn Isma‘îl, see Ibn al-Burhan al-Zahirî
Ahmad
ibn Muhammad ibn Mufarrij 72
Ahmad
ibn Muhammad ibn Salih al-Mansûrî 58, 64
Ahmad
ibn Muhammad ibn Ziyad, see Abû Sa‘îd ibn al-A‘rabî
Ahmad
ibn Muhammad, see Ibn Sabir al-Qaysî
Ahmad
ibn Sa'îd ibn Hazm 67
Ahmad
ibn Tahir, see Ibn Shubrîn
Ahmad
ibn Tûghan ibn ‘Abd Allah al-Shaykhûnî 75
Ahmad
ibn Tûlûn 33, 33nii6
Ahmad
ibn Yahya ibn ‘Abd al-‘Azîz, see Abû ‘Abd al-Rahman al-Shafi‘î
Ahmad
ibn Yazîd ibn ‘Abd al-Rahman 70 Ahmad ibn Yûsuf al-Lablî 48n2 Ahmadiyyah, al-
268n8 ahruf al-, al-sab'ah 139
akhbar
al-ahad
(see also ahad (traditions) and khabar al-wahid) 151-152, 160,
i60ni39, 254
Àl
Taymiyyah 157, 162
'ala
ï-fawr
158, 221
'ala
ï-haqiqah
vs. 'ala 'l-majaz 163
'ala
ï-tarakh.1
158
‘Ali
ibn Abï Talib 32, 95n14, 248, 252
‘Ali
ibn Ahmad ibn ‘Abd Allah al-Kûfï 22
‘Ali
ibn al-Madïnï 23
‘Ali
ibn Bundar ibn Isma‘il al-Barmaki 52
‘Ali
ibn Ibrahim ibn Sa‘d al-Ansari 72, 74
‘Ali
ibn Muhammad al-Baghdadi 52-53,
‘Ali
ibn Wasif al-Nashi’ 55
‘Ali
ibn Yûsuf ibn Tashfin 67
Ali,
Mohamed Yunis 171, 2o6n182
Allan,
Keith 206, 206n179
Almohads
76, 77n168, 87, 267
'amal 17, 42, 46, 113n101
'amal
ahl al-Madinah 96, 107n57, 172
Àmidi,
al-, Sayf al-Din 126-127
Amin,
Ahmad 98
'amm (see also al-lafz
al-'amm, al-ma'na al-'amm, and al-'amm zahir) 81, 132-133,
133n46-47, 134n50, 136n54, 143n87, 176, 272
'amm,
al-, al- zahir 132
‘Ammar,
Rabih 49n3
‘Amr
ibn Dinar 248, 252
‘Amr
ibn Marzûq al-Bahili 14n17, 23, 50, 72
amr,
awamir
(command, imperative) 81, 120n131, 137, 157, 272
analogy,
see qiyas
Andalus
4n9, 33, 330115, 49n3, 51-52, 53n38,
58-
61, 63, 65, 67, 69-70, 72, 74, 76-78,
80, 83, 85n205, 97, 107n57, 265
'aql, reason 196
Aqsa,
al-,
mosque 130
Arabia
185
Arabic
poetry, see poetry
Arabs,
the 96, 111, 125n7, 126, 132-133, 138-141, 145-146, 172n2, 187-188, 228, 231,
233n41, 271, 280
argumentum
e contrario, see dalil al-khitab
Arnaldez,
Roger 82, 88, 124, 95, 147
Ash‘ari,
al-, Abû al-Hasan 164-165
Ash‘ari,
al-, Abû Mûsa 248, 252
Ashab
al-Hadith
(see also Ahlal-Hadith) 25, 52, 91n2, 94n14, 95, 104, 119, 266n3
Ashab
al-Ra'y
(see also Ahl al-Ra'y) 25, 91n2, 95-96, 104, 248
Ashab
al-Zahir (al-zawahir) (see also Ahl al-Zahir) 41, 79, 86, 161, 227n2
‘Àsim
ibn Sa‘d 247
‘Ata’
ibn Abi Rabah 232, 238, 248, 252
Austin,
John 206n179
Awza‘i,
al-, ‘Abd al-Rahman 92n5, 93n7, 95, 105, 108-109, 248, 254
Ayyûb
ibn Ghassan 17n34
Azhar,
al- (mosque and university) 251n122, 281
Baghdad
11-13, 12n6, 12n10, 15-18, 17n35, 22, 25-29, 26n69, 32-33, 36, 43n173, 45, 52,
54, 54n44, 56-63, 65-66, 72, 91, 94, 131, 148, 264
Bakr
ibn Khalaf ibn Sa‘id 66
Banû
Qurayzah 1-3, 2n4, 269
Baqi
ibn Makhlad 70, 70n130
Basra
11, 12n10, 14n17, 22-25, 27, 27n76, 30, 49, 61, 65
batin 125-126, 128-130, 128n22,
131n44, 133, 133n47, 135-136, 139, 141-145
bayan 127, 131, 133, 179,
179n46
Bayhaqi,
al-, Abû Bakr 235
Bernards,
Monique 59n70
bid'ah (innovation) 25
Bishr
al-Marisi 29, 29n86
Bishr
ibn al-Husayn 53, 56-58, 60, 77n168
Buhsali,
al-, Mazin 31n92, 54n44
Bukhara
33, 64
Bukhari,
al-, Muhammad ibn Isma‘il 22-24, 113n100-101, 123n144, 235-237, 246, 251
Carnap,
Rudolf 207n185
child
abuse 190-191, 193
Children
of Israel, the 219-220
Christianity
200-201
Companions
(sahabah) 1-2, 36, 41-42, 46, 46n187, 70n135, 82, 94, 96, 98-100, 104, 106-111,
108n64, 111n85, 113, 113n101, 118n121, 120, 121n135, 128, 143, 151, 153,
153n111-112, 165, 170, 196, 199, 219, 229, 231, 233, 238-240, 242, 244, 248,
252-253, 256-259, 261-262, 269, 276
Confrontation
Clause, the 191-192, 191n118, 192n120
Congress,
see United States Congress consensus, see ijma‘ contextualism 207
Cook,
Michael 48n2, 76n166
Cordoba
53, 62-63, 67, 69
Coulson,
N. J. 117
Craig
case, the (Maryland vs. Craig) 190, 192, 194
Crapanzano,
Vincent 192-194, 193n123, 200-203, 205, 222
Dabbï,
al-, Ahmad ibn Yahya 66 dabt 250
Dabûsï,
al-, Abû Zayd 41, 41n155 dala'il al-'aqliyyat 150 dalil 42, 81,
149-150, 158
dalilal-khitab
(argumentum e contrario) 81n193, 83, 196, 196n139, 281
dalil
nassi
197n139
dalil
qat'i 43,
150
Damascus
33n116, 55, 58, 63, 68, 73, 75n162 Danï, al-, Abû ‘Amr 233n43
Daraqutnï,
al-, Abû al-Hasan 235-236 Darari, al-, al-Mudiyyah Shark al-Durar
al-Bahiyyah 248
Darimï,
al-, Abû Muhammad ‘Abd Allah 32, 246
Davidson,
Donald 207, 207n186 dawlah, al-, al-Bihariyyah 77n168 Dawûd al-Zahirï,
see Dawûd ibn ‘All ibn
Khalaf
al-Isbahanï al-Zahirï
Dawûd
ibn ‘All ibn Khalaf al-Isbahanï al-Zâhirï 4-6, 4n7, 4n8, 11-22, 12n6, 12n8,
12n10, 13n11, 14n17, 14n19-20, 15n23, 16n30, 16n33, 17n35, 17n38, 18n39, 20n44,
21n50, 24-35, 24n63, 25n65, 28n76-77, 34n118, 36n133, 39, 40-48, 41n155,
43n173, 44n179, 46n186, 49n3, 50-61, 50n12, 51n16, 61n75, 64-66, 69, 73, 76,
79-85, 79n178, 80n180, 84n204, 91, 92n5, 95, 97-98, 101, 117-124, 118n121, 127,
130-131, 138, 147-148, 147n95, 148n96, 150-152, 156, 164-166, 169-170, 171n1,
223, 225-227, 227n2, 230, 238-239, 241-242, 244, 248, 253-261, 260n158,
263-267, 269-273, 275-276
Dawûd
ibn Abï al-Ghana’im 69
Dawûd
ibn Ahmad ibn Yahya ibn al-Khidr 60
Dawûd
ibn Ibrahïm ibn Yûsuf
al-Isbahânï
61, 83
Day
of Judgment, the 130
de
Bellefonds, Y. Linant 87, 87n211, 166n169 Dhahabï, al-, Shams al-Dïn 16, 20n44,
24, 24n63, 25-26, 32-34, 35n129, 36, 36n133, 50, 50n12, 52, 54-56, 54n42,
64n94, 66n101, 67, 69, 71, 81n185, 272
Dhuhlï,
al-, Muhammad ibn Yahya 23
Die
Zâhiriten, ihr Lehrsystem und ihre
Geschichte;
Beitrag zur Geschichte der muhammedanischen Theologie 4
Dihyah
al-Kalbï 70n135
Eastern
Wall, the 130
Egypt
21, 33, 33n116, 55, 58, 60-61, 63, 65, 67-76, 214, 251n122, 268, 268n8, 282
Encyclopedia
of Islam,
second edition
(E72)
7
Eskridge,
William 176, 187, 270n10
expression
unius est exclusion alterius 196
Fadl,
al-, ibn ‘All ibn Hazm 63
Farh
ibn Hadïdah 63
Farra’,
al-, Ibn Abï Ya‘la 161-163
Fars
53, 58
Fatimah
bint ‘Umar 247
fatwa 27, 66, 73, 79n178,
107n57, 108-110, 111n85, 120, 265, 267
Fez
72
fiqh 11, 28n78, 103, 265
fiqh,
al-, al-taqdiri 114
Firozabad
53, 57, 63
formal
semantics, see semantics
formalism,
formalist 149, 157, 182, 183, 183n64, 193, 200, 203, 281
free
enrichment 214-216
Fudayl,
al-, ibn ‘Iyad 22, 24
Fusül,
al-, fial-Usül 149
Ghalbazûrï,
al-, Tawfïq 49n3, 68, 74n154, 74n156, 86n206, 124n2, 272n11
ghulam,
ghilman
28n77 ghusl 136, 228, 2321137
Gleave,
Robert 7
God
1, 16130, 16133, 29-30, 351129, 38-43, 391153, 54, 79, 82, 86, 94, 127120, 129,
132-135, 132145, 138-145, 143187, 150, 153-155, 1541116, 159, 1591135, 165-166,
1671170, 17212, 173-175, 174111, 177, 177132, 179-180, 180147, 181, 188,
195-197, 1961139, 199-200, 204, 209, 2091193, 212, 215-216, 219, 222-223,
2241242, 228, 233141, 240,
Goldziher,
Ig1az 3-4, 1218, 100-101, 100126, 101129-30, 117, 122, 152
Gra1ada
62, 67, 69, 73-74
Habib
ib1 Abî Thabit 233, 235
Hadîth
14, 14119, 15, 17, 19, 20144, 22-30, 27175, 28178, 32, 34, 351129, 36-37,
41-43, 431172, 45, 49-50, 52, 53138, 59-61, 63, 65-74, 701130, 76, 781171,
79-80, 83-84, 841203, 93-99, 95114, 101129-30, 102135, 103, 105-106, 108-111,
113-114, 1131101, 1141102, 1161114, 117, 119, 121-122, 145, 147, 167, 1671173,
180-181, 180153, 181158, 198, 1981144, 226, 229, 231, 235, 244182, 245-246, 2511122,
258, 264-266, 271-272, 274, 281
Hadiyyat
al-Arifm
92
Hafsah
bi1t ‘Umar ib1 al-Khattab 229, 236, 247-248, 251
Hajjaj,
al-, ib1 Yûsuf 78
Hakam,
al-, ib1 ‘Utaybah 229, 232, 238, 248
Hakim,
al-, al-Naysaburî 64
Hallaj,
al- 36
Hallaq,
Wael 105, 117-118, 266, 26614
Hammad
ib1 Abî Sulayma1 94, 110, 111187, 155, 1551118, 229, 232, 238, 240, 248
Hammad
ib1 Salamah 22-23 Hammad ib1 Zayd 22-24
Hamzah
ib1 Habib al-Zayyat 233
Harra1
51
Hasa1,
al-, al-Basrî 228, 232, 248
Hasa1,
al-, ib1 ‘Ubayd al-Nahraba1î 31 Hasa1, al-, Khalîfah Babakr 107-109 Haydarah
ib1 ‘Umar al-Za1ûdî 51, 54-55, 55147, 57-58
Hijaz,
the 25164, 33, 63, 71, 73, 78, 95, 98-99, 106-109, 107158, 111, 112190, 129,
231, 238,
Hijwi,
al-, Muhammad ib1 al-Hasa1 99, 99123
hikmah (wisdom of the law)
153-154, 179140
Hipkiss,
Robert 2051177
Hisham
ib1 Ghalib ib1 Hisham 62
hiyal 109, 115, 155-156,
1551122
Hujjah,
al-, 'ala Ahl al-Madinah 230, 239171
Humaydî,
al-, Muhammad ib1 Futûh ib1
Humayd
63, 65-66, 72, 781171
Hurford,
James 2061180
huruf
al-, al-muqatta'ah 140
Hurvitz,
Nimrod 1811121
Husay1,
al-, ib1 ‘Abd Allah ib1 Shakir al-Samarqa1dî 18139, 31
Husay1,
al-, ib1 al-Hasa1 ib1 Harb 26 husn vs. qubh 197
I'rab,
al-, 'an al-Hayrah wa-l-Iltibas al-Mawjudayn fi Madhahib Ahl al-Ra'y wa-l-Qiyas 1611146
ibahah,
al-, al-asliyyah 20-21, 40, 137, 147, 151, 158, 166, 1661169, 225, 273, 275, 281
Ib1
‘Abd al-Barr, Yûsuf ib1 ‘Abd Allah ib1 Muhammad 51, 51116, 14, 19, 80, 94,
94110, 94114, 106, 152, 1531111
Ib1
‘Aqîl, ‘Abd al-Rahma1 871209, 282
Ib1
‘Aqîl, ‘Alî ib1 Muhammad 163
Ib1
‘Arabî, Muhyî al-Dî1 76
Ib1
‘Asakir, ‘Alî ib1 al-Hasa1 33, 331116, 66
Ib1
Abî Du’ad 24
Ib1
Abî Layla, ‘Abd al-Rahma1 232, 238
Ib1
Abî Marwa1, Ahmad ib1 ‘Abd al-Malik
ib1
Muhammad 67
Ib1
Abî Shaybah, ‘Abd Allah ib1
Muhammad 23, 109, 230, 245-248
Ib1
al-‘Arabî, Abû Bakr 64, 73
Ib1
al-Abbar, Muhammad ib1 ‘Abd
Allah
62184
Ib1
al-Akhdar, Muhammad ib1 ‘Umar 48, 62
Ib1
al-Burha1 al-Zahirî, Ahmad ib1 Muhammad ib1 Isma‘îl 75
Ib1
al-Dahhak, see Abû Bakr ib1 Abî ‘Àsim, Ahmad ib1 ‘Amr ib1 Muhammad
Ib1
al-Faradî, Abd Allah ib1 Ahmad 33
Ib1
al-Husay1 al-Bardha‘î 16-17, 16131
Ib1
al-Imam, Sufya1 ib1 Ahmad ib1 ‘Abd
Allah
69
Ibn
al-Jawzî, ‘Abd al-Rahman ibn ‘All 14, 19, 171m
Ibn
al-Khallal 61
Ibn
al-Mughallis, ‘Abd Allah ibn Ahmad 31, 50-51, 5on12, 51015, 52, 54, 55, 57-6o,
62, 64, 80, 81n185, 264
Ibn
al-Mulaqqin, Siraj al-Din 12n8, 20n44 Ibn al-Muthanna, Muhammad ibn Músa 56 Ibn
al-Nadim, Muhammad ibn Ishaq 14, 16n29, 21, 28, 28n79, 31-32, 31n94, 34, 50-51,
51n15, 54, 57, 61, 64
Ibn
al-Qaffal, ‘Abd Allah ibn Ahmad 16n30 Ibn al-Qaysarani, Muhammad ibn Tahir ibn
‘All
ibn Ahmad 66
Ibn
al-Rúmiyyah, see Abú al-‘Abbas al-Nabati
Ibn
Bashkuwal, Khalaf ibn ‘Abd Allah 61-62, 61n75
Ibn
Danka al-Tabari 17n34
Ibn
Dawúd, see Muhammad ibn Dawúd Ibn Dihyah, see Abú al-Khattab Ibn Dihyah Ibn
Duhaym, Abú ‘Umar Ahmad 49
Ibn
Farhún, Ibrahim ibn Núr al-Din 12n10 Ibn Hajar al-‘Asqalani 18n38-39, 64, 69,
69n126, 70, 74-75, 113n100, 267
Ibn
Hanbal, Ahmad 12n6-7, 14n17, 19, 23, 26, 26n69, 28-30, 30n87, 50, 52, 91, 92n5,
95, 95n14, 97, 101n30, 102, 104, 108, 112, 113n96, 113n101, 115-117, 115n109,
118n121, 119, 120n132, 121-123, 121n136, 148, 148n96, 155n120, 161-165,
161n147, 163n157, 167, 170, 185, 225-227, 227n3, 235-236, 238-239, 242-245,
244n80, 248, 253, 255-262, 256n135, 271, 273-274, 276
Ibn
Hani’ al-Naysabúri 227n3
Ibn
Hazm al-Andalusi, Abú Muhammad ‘All 1-5, 2n3-4, 4n7, 4n9, 13n10, 19, 30, 33-34,
30n91, 36, 39-40, 41n155, 47-48, 49n3, 53-54, 53n37, 54n42, 61-63, 62n84,
65-69, 71-87, 77n168, 78n170-171, 79n175, 79n178-179, 80n180, 81n185, 81n187,
82n195, 84n203-204, 85n205, 86n206, 86n208, 88n213, 92n5, 97, 118n122, 119,
124n2, 131, 146n95, 149, 154n116, 156-157, 159, 161, 161n146, 167, 171n1,
172-175, 173n5-6, 174n11, 177, 177n32, 179-181, 179n46, 180n47-48, 184-188,
184n75, 187n92, 194-200, 196n139, 200n154, 204-205, 212-222, 213n209,
215n217,
216n223, 217n224, 218n226, 219n230, 221n236, 224, 224n242, 226, 227n2, 230,
237, 241-242, 250-251, 250n121, 254, 254n130, 256-258, 260, 260n158, 263,
265-272, 266n3, 268n8, 272n11, 278-280
Ibn
Hibban, Muhammad 23
Ibn
Hilal al-‘Absi, ‘Abd Allah ibn
al-Qasim
33, 330115, 58, 80
Ibn
Ihda ‘Ashrah, Muhammad ibn al-Husayn al-Ansari 66
Ibn
Jurayj, ‘Abd al-Malik 112
Ibn
Kathir, Isma‘il ibn ‘Umar 36, 68, 128-130
Ibn
Khaldún, ‘Abd al-Rahman 96-98, 149n102
Ibn
Khallikan, Ahmad ibn Muhammad 13 Ibn Khattab al-Mu‘afiri, ‘Ali ibn ‘Abd Allah
ibn
Yúsuf 70
Ibn
Khayr al-Ishbili 780171
Ibn
Kullab, ‘Abd Allah 25, 27
Ibn
Mada’ al-Qurtubi, Ahmad ibn ‘Abd al-Rahman 49n3
Ibn
Majah, Abú ‘Abd Allah
Muhammad
25-26, 230, 235-236, 246
Ibn
Makúla, ‘Ali ibn Hibat Allah 56
Ibn
Manzúr, Jamal al-Din 125, 125n4
Ibn
Muflit, Mas‘úd ibn Sulayman 61
Ibn
Murajja al-‘Abdari, Muhammad ibn Sa‘dún 66, 267
Ibn
Qayyim al-Jawziyyah 94n10, 171m
Ibn
Qudamah al-Maqdisi 226, 243, 248, 257n141, 258, 260-261
Ibn
Qutaybah al-Dinawari 92-94, 92n4-5, 95n15
Ibn
Rahawayh, Ishaq 11, 15, 18n38, 23-25, 25n64, 27, 52, 93, 108, 115, 119,
122-123, 123n143, 233, 271
Ibn
Rushd, Muhammad ibn Ahmad 235, 243, 254, 254n128
Ibn
Sabir al-Qaysi, Ahmad ibn Muhammad 72
Ibn
Sayyid al-Nas, Muhammad ibn Ahmad ibn ‘Abd Allah 71-72, 74
Ibn
Shihab al-Zuhri 231, 248
Ibn
Shubrin, Ahmad ibn Tahir 68
Ibn
Sirin, Muhammad 14n16, 41-42
Ibn
Surayj, Ahmad ibn ‘Umar 16, 16n29, 22, 31n94, 36, 43n173, 46, 51n15, 56,
164n165, 223
Ibn
Taymiyyah, Taqi al-Din 75, 119, 16211150, 171
Ibn
Ukht al-Walid, ‘Abd Allah ibn Ahmad ibn Rashid 55
Ibrahim
al-Mansûri 268n8
Ibrahim
al-Nakha‘i 95n14, 99, 111n87, 155, 1550118, 229, 232, 232n34, 238, 240, 243,
248
Ibrahim
al-Taymi 229-230, 236n55
Ibrahim
ibn Ahmad ibn al-Hasan al-Ruba‘i 61
Ibrahim
ibn Jabir 50
Ibrahim
ibn Khalaf ibn Mansûr 69
Ibrahim
ibn Muhammad ibn ‘Arafah, see
Niftawayh
Ibrahim
ibn Muhammad ibn Yûsuf
al-Ansari
71
Ibrahim
ibn Yazid al-Taymi 235
Ihkam,
al-, flUsülal-Ahkam (of Ibn Hazm)
81
Ihkam,
al-, flUsülal-Ahkam (of Sayf al-Din al-Àmidi) 126
ihtiyat,
al-
(precaution) 163-164, 242, 255-256, 258, 260-261
ijmd,
al-
(consensus) 21, 37-38, 40-42, 44, 44n179, 46, 46n187, 54, 79, 79n179, 81-82,
86, 86n207, 92, 97, 107n57, 118, 118n121, 121, 121n135, 131n44, 148n96, 174,
219, 235
ijtihad,
al- 1-2,
39-40, 82, 86n206, 87, 97, 107, 149-150, 198, 240, 269, 269n8, 281
Ijtihad,
al-, bi-l-RayflMadrasat al-Hjaz al-Fiqhiyyah 107
Ikhtilaf,
al-
(concept and works on) 226-227, 229, 233n41
Ikhtilaf
Masahif al-Sahabah 36
ikhtilaf
ummatlrahmah (Prophetic
tradition)
152-153
Ikhtilaf
Usül al-Madhahib 37, 41, 46, 264
Hal
al-masalih
154
'illah,
'ilal 20,
20n45, 38, 41, 46, 82, 820195, 96n17, 97, 99, 111, 111n89, 119, 131n44, 138,
147, 149, 154, 156, 178, 179n40, 273
ïlm,
al- 14,
42, 46, 96, 103-104, 129, 150, 152
India
268n7
informed
reader 176, 178
intention
(qasd, niyyah) 120, 231n26, 237-238, 240-241, 244n81
intentionalism,
intentionlists 175-176, 178, 182, 183, 203, 225
Intisar,
al-, min Muhammad ibn Jarlr al-Tabarl 36
'Iqd,
al-, al-Mudhhab fl Tabaqat Hamalat al-Madhhab 12n8
‘Isa
ibn Aban 16n29
Isfahan
11, 12n8, 17n34, 49-50, 53, 55, 58, 60 ishtiqaq (derivation) 44, 820195 isnad
14, 14n20, 101, 102n35, 103, 104n43, 113n101, 235n53
istidlal,
al-
(deduction, inference) 38-40, 124n1, 146, 150, 150n103-104, 196
istihsan,
al-
(equity) 6, 20, 201146, 21, 37n141, 40, 87, 92, 95n14, 96n17, 112n90, 120,
155-156, 155n121, 281
istishab
al-hal
(presumption of continuity) 44, 44n179, 46, 151, 166n169, 169, 194-195, 225,
240, 257, 265, 273, 275
‘Iyad
ibn Mûsa al-Yahsubi (al-Qadi ‘Iyad) 68
Jabir
ibn Ghalib ibn Salim 62, 83
Jacob
136, 214-215
Jami'
al-Bayanfl TaWll Ay al-Qur’an 127, 128n21, 271-272
Jami'Madhhab
Abl Sulayman Dawüd ibn 'All ibn Khalaf al-Isbahanl 51n16
Jassas,
al-, Abû Bakr 16n30, 150-157, 150n102-104, 160, 162, 227n1, 240, 249, 270
Jawahir,
al-, al-Mudiyyah 11n2
Jazari,
al- ‘Abd al-‘Aziz ibn Ahmad 56-57, 62-63, 65
Jedda
268n8
Jerusalem
66, 130
jima',
wat’(sexual
intercourse) 115n109, 228-229, 233, 236n60, 238-239, 243
Jubbâ’i,
al-, Abû ‘Ali 44, 164n166
Junayd,
al-, ibn Muhammad ibn al-Junayd al-Qawariri 12, 26-27, 52
Jurjan 56,58
Juwayni,
al-, Abû al-Ma‘ali 20n44
Juynboll,
G. H. A. 103-104, 103^0-43, 104n46
kaba'ir,
al- 142
Kairouan
77
Kamil,
al- (ruler of Egypt) 69n126, 70, 77n168
Karabisi,
al-, al-Husayn ibn ‘Ali 25, 26n69, 29, 30, 30n87, 44-45, 91, 271
Kawsaj,
al-, Ishaq ibn Mansûr 255 khabar, al-, al-müjib li-l-'ilm 46 khabar
al-wahid (see also abad (traditions) and akhbar al-ahad)
16-17, i6n33, iyn35, 21, 30, 42, 46, iisnioi, 121, 152, 158
Khadduri,
Majid i3in44, i32n45, i34n50, i37n6i
Khadimi,
al-, Nûr al-Dîn i97ni39
Khafîf,
al-, ‘All 91m
khalwah 2510122
khamr 166, 273
khass (restricted) 132-133,
1331'14647, i34n50, i36n54, 138
Khatib,
al-, al-Baghdadi, Ahmad ibn ‘All 11, i3, i4ni7, i4ni9-20, i6, i9, 24-26, 30,
32, 35, 46, 50n13, 56, 62
Khidr
ibn Muhammad ibn Namir 67
Kisâ’i,
al-, ‘Ali ibn Hamzah 233
Kitab
al-Athar
252
Kitab
al-Du'afa'wa-l-Mansübln ila al-Bid'ah min al-Muhaddithln 78ni7i
Kitab
al-Ttibar fl Ibtal al-Qiyas 61
Kitab
al-Radd 'ala Dawüd 34
Kitab
al-Radd 'ala Dawüdfllbtal al-Qiyas 31
Kitab
al-Zahrah
35, 35ni27
Kitab
al-Zuhd
26
Kitab
Jawab al-Qashanl 3in94
Kufa
11, 94, 110-111
kulliyyat 82ni95
Kunayz
ibn ‘Abd Allah 33, 33nii6
Kurrini,
al-, Muhammad ibn ‘Ali ibn ‘Ammar al-Kurrini 17, 1703435
lams,
mass, jass, mulamasah, lamastum 228-229, 231, 23in20, 233, 236-239, 236n60, 243n76,
274
lawh,
al-, al-mahfüz 17, i7n36
Layth
ibn Sa‘d 22, 92n5, 95ni4, 232, 248 legislative history 185-186
Liebla
77
Literalism
3n4, 6-7, 171-172, 171m, 186, 194, 200- 209, 204n175, 211-212, 221, 224, 224n
242, 277-278
Loosening
213-214, 217
Lowry,
Joseph i32n45, i33n46-47, i36n54
Ma’mûn,
al- (Abbasid Caliph) i2n8, 24 madhy, al- 24in73
Maghrib,
the 69ni26, 71, 74, 77ni68
Mahdi,
al- (Abbasid Caliph) 13, i3nii
Mahmûd
al-Marwazi 21
Mahmûd,
Ahmad Bakir i87n9i majaz (metaphor, figuration) 43, 43n172-173, 46-47,
126n8, 130, 143-146, 150, 162-163, 174, 174n11, 179, 194, 201, 203, 212-213,
216, 216n223, 228, 233
Majmü' (of al-Nawawi) 226
Majmü' (of Zayd ibn ‘Ali) 234
Makdisi,
George ii8ni2i
Makhûl
(Successor) 248
Makki,
Mahmud Ali 33nii5, ii9ni25
Malaga
74
Malik
ibn Anas 22, 22n53, 23, 28, 44ni82, 86, 92n5, 94-97, 95ni4, i06, i06n57, i08,
ii2, i67, i72n2, 23i-234, 234n46, 243n76, 248-249
Manning,
John F. 187
Mansûr,
al- (Almohad Caliph) 49n3, 267 maqasid 1, 153, 171m
Maqbari,
al-, ‘Abd al-Samad ibn Ahmad 69
Maqdisi,
al-, Burhan al-Din ibn Abi
Sharif
76
Maqqari,
al-, Ahmad ibn Muhammad 52, 67, 74
Maqrizi,
al-, Taqi al-Din Ahmad ibn ‘Ali 77
Marrakushi,
al-, Muhammad ibn
Muhammad
62, 68ni20, 70-71, 73
Marw
25n64
Marwazi,
al-, Muhammad ibn Nasr 21 masalih, al-, al-mursalah i55ni20 maslahah
(interest) 6, 87, 112, 120, 155, 155n122, 281
Masrûq
ibn al-Ajda‘ 41, 232, 238
Mecca
23-24, 26, 218, 268n8
Medina
i07n57, 108, 110-111, 249
Melchert,
Christopher 4n7, 4n9, 104, 115, 120n132, 121-122
mihnat
khalq al-Qur‘an, the Mihnah 13, 13n12, 24n62, 109,112, 121, 136
Milal,
al-, wa-l-Nihal 95 minimalism, minimalists 210-211, 2i0n200, 213, 213n209, 221
Modarressi,
Hossein 55n50, 77ni68, i07n60
Morocco
268n7
Moses
(prophet) i43n85, 215-216
Motzki,
Harald i0in29, 106
Mu‘adh
ibn Jabal 39
Mu'afa,
al-, ibn Zakariyya al-Nahrawânî 34
Mu'awiyah
ibn Abî Sufyân 7oni35
Mudah,
al-, 'ala Madhhab Ahl al-Zahir 51, 8ini85
Müdah,
al-, flal-Fiqh, see al-Mudah 'ala Madhhab Ahl al-Zahir
Mudawwanah, al-, al-Kubra 2431176
mudhakarah, al- 15, 121
Mufarrij ibn Sa'adah 73
mufassar, al-, wa-l-mujmal 22
Mughnl, al- 226
Muhalla, al-, bi-l-Athar 63, 226, 230
Muhammad ibn 'Abd Allah ibn Talib 61
Muhammad ibn 'Alî ibn 'Usfûr 67
Muhammad ibn 'Ubayd Allah ibn Khalaf 31
Muhammad ibn 'Umar al-Dawûdî 57, 62
Muhammad ibn al-Hasan ibn Ahmad 67
Muhammad ibn al-Hasan ibn al-Sabbah
al-Dawûdî
52, 56-57
Muhammad ibn al-Hasan al-Tûsî 55
Muhammad ibn al-Husayn al-Basrî 56-57
Muhammad ibn Banan 57
Muhammad ibn Futûh ibn Humayd, see
al-Humaydî
Muhammad ibn Ibrâhîm ibn Ahmad 75
Muhammad ibn Ibrahîm ibn Faris 63
Muhammad ibn Jafar al-Zahirî 64n94
Muhammad ibn Jami' al-Saydalanî 35, 64n94
Muhammad
ibn Jarm (or Kharm) 77n168
Muhammad
ibn Ma'mar ibn Rashid 53, 58
Muhammad
ibn Muhammad ibn Sahl
(al-Wazîr
Ibn Sahl) 73
Muhammad
ibn Muhammad ibn Ya'qûb al-Ja'barî 75
Muhammad
ibn Muqbil al-Turkî 74
Muhammad
ibn Mûsa al-Wasitî 50
Muhammad
ibn Mûsa ibn al-Muthanna 56
Muhammad
ibn Salih al-Mansûrî 58
Muhammad
ibn Sulayman ibn Mahmûd
al-Harranî
51
Muhammad
ibn Taghj al-Ikhshîd 55
Muhammad
ibn Waddah 53n38
Muhammad
ibn Yûsuf ibn 'Alî, see Abû
Hayyan
al-Nahwî
Muhammad ibn Yûsuf ibn Ya'qûb 52, 56-57
Muhammad Murtada al-Zabîdî 126n8
Muhammad, the Prophet 1-2, 2n4, 20,
35n129,
38-39, 39n153, 41, 43, 54, 64n97, 70n135, 81-82, 93-94, 93n7, 95n14, 96, 101,
103, 103n40, 103n43, 104, 106, 109-110, 120n131, 123n143, 125, 127n20, 129,
136-139, 142-144, 151-152, 153n111, 160-162, 166, 172n2, 175, 181n58, 187-188,
196, 199, 209, 214-215, 217, 219, 219n230, 229-230, 234, 234n45, 236-237,
239-240, 242-243, 244n82, 245-247, 246n93, 249-254, 257n141, 260, 269n8, 275
Muhammadiyyah,
al- 268n8
Mujahid
ibn Jabr 128-129, 131n43, 228, 233, 245, 248-249, 249n116
Mukhtasar
al-Müdah
81n185
munazarah (disputation) 15, 121
Mundhir
ibn Sa'îd al-Ballûtî 43n172, 53, 58-59, 80
munkar (traditions) 14n20
Muqaddasî,
al-, Muhammad ibn
Ahmad
58-59, 64n96
Muqatil
ibn Sulayman 128-130, 131n43, 228, 245, 249, 249n116
Murcia
69
mursal (traditions) 105n54,
1130101, 1140102, 235, 235n54-55
Mûsa
ibn 'Abd al-Hamîd ibn 'Isam
al-Jurjanî
34
Mûsa
ibn Abî al-Jarûd 15
Mûsa
ibn Alfafa 74
Musaddad
ibn Musarhad ibn Musarbal al-Asadî 24
Musannaf
Ibn Abl Shaybah 246
Musawwadah,
al-, fl Usül al-Fiqh 162, 164 Muslim ibn al-Hajjaj 23, 25, 235-236, 246 Musnad
Abl Hanfah 229010
Musnad
Ahmad ibn Hanbal 236
Musnad
al-Tayalisl 234
mutakallimün,
al-
(theologians) 25, 44-45, 92-93, 109, 112, 150n102, 223, 271, 277n15
mutawatir (traditions) 43, 131n44,
161 Muwaffaq, al- (Abbasid amlr) 13, 16, 16n33 Muwatta', al- 22,
22n53, 28n78, 101n29, 231, 234n46, 249
Muzanî,
al-, Isma'îl ibn Yahya 16, 16n30, 32, 51n15
Na't
al-Hikmahfl Usül al-Fiqh 61
Nadb (recommendation) 158
Nahawand 26
Nasa’î,
al-, 'Abd al-Rahman 24, 230, 235 naskh (abrogation) 43, 46-47, 249
nass 127, I27ni5
Nawawî,
al-, Sharaf al-Dîn 20n44, 226, 231n26, 232, 235-237, 236n59
Nazzâm,
al- 41, 9205
Nelson,
Caleb 176, 180, 182, 185, 195
Niebla
67
Niftawayh,
Ibrâhîm ibn Muhammad ibn
Arafah
32, 44, 78n171 niyyah, see intention non-minimalism, non-minimalists
210, 210n200, 213, 213n209
noscitur
a sociis
196
O’Connor,
Sandra Day 190 originalism 175, 182n62, 198, 201
Palestine
58
pragmatics
171m, 205, 209-210 precaution, see ihtiyat
poetry
(Arabic, pre-Islamic, Jâhilî) 140, 187, 187n90-91, 280
Qa‘nabî,
al-, ‘Abd Allâh ibn Maslamah ibn Qa'nab al-Qa‘nabî al-Hârithî 22-23, 22n53, 52
Qâdî,
al-, ‘Iyâd, see ‘Iyâd ibn Mûsâ al-Yahsubî Qâdî, al-, al-Nu‘mân 37-41, 37n141,
38n148, 46, 124n1, 138, 146, 156, 264
qadi
al-qudah
53, 59
Qâsânî,
al-, Muhammad ibn Ishâq 31, 31n94, 42, 82
Qâshân
11
Qatâdah
ibn Di‘âmah 41, 228, 232, 248 qiyas, al- (analogy) 6, 12n10, 15-16,
16n30, 18n38, 19-20, 20n44-45, 21, 31, 37n141, 38, 40-42, 45-46, 46n186, 49,
52, 95, 61, 64-65, 64n97, 81-84, 81n193, 82n195, 92-98, 94n14, 96n17, 104-107,
109, 111-112, 111n89, 114n101, 116-117, 118n121, 120-121, 124, 131n44, 138,
147, 149, 154, 166-167, 166n169, 197n139, 225, 273, 281
qublah (kiss) 231n20, 236n60
Qur’ân,
the 7, 13, 15, 17, 19, 20n44, 21, 25, 29, 36-37, 39, 41, 43, 43n173, 46, 50-51,
53, 53n38, 59, 63, 71, 74, 83, 93, 99, 102, 104n43, 105, 109, 113n101, 115,
115n109, 121-122, 121n136, 125, 127-128, 127n16, 130-132, 131n43, 134, 134n50,
135-136, 136n54,
138-141,
141n75, 144-147, 151-152, 152n108, 160, 165, 167, 167n173, 170, 171n1, 172n2,
179-181, 180n52, 185, 188, 197-198, 204, 204n175, 212-214, 216n223, 217,
217n224, 219, 222, 226, 228-229, 233, 239, 241, 243, 246-247, 249-250, 255,
257-259, 265,
Quraishi,
Asifa 172n2
Qurashî,
al-, Muhyî al-Dîn 11n2, 16-17, 17n35, 55, 55n47, 209
Qurtubî,
al-, Abû Abd Allâh 128-130, 128n21
Quryash
75
Rabî‘,
al-, ibn Sulaymân al-Murâdî 32, 91m Rabî‘ah ibn Abî ‘Abd al-Rahmân (Rabî‘at
al-Ra’y)
93, 98, 99n23, 110, 233
Rabî‘at
al-Ra’y, see Rabî‘ah ibn Abî ‘Abd al-Rahmân
radah,
mussah, imlajah 244-246, 245n88 Ramadân 12n5, 268n8
Ramlah
50
Raven,
Win 35n127
Râzî,
al-, Abû Hâtim 23-25, 29
Râzî,
al-, Abû Zur‘ah 15, 18-19, 23-24
Râzî,
al-, Fakhr al-Dîn 43n172, 128-130
Râzî,
al-, Ibn Abî Hâtim 14, 17, 18n38 reason, see al-'aql
Recanati,
François 205, 207-208, 210-215, 217, 218n226, 278
rida'
al-kablr
251, 255
Risalah,
al- (of
al-Shâfi‘î) 127, 131, 131n44, 134n50, 135-137, 137n61, 146-147, 165,
Risalah,
al- (of
al-Tabarî) 143n86
Risalah,
al-, al-Bahirah 13n10, 79
Rsalahfl
Fadall al-Andalus wa-Dhikr
Rijaliha 80n182
Risalahfi
Fadl al-Andalus 78n171
rule-like
vs. standard-like approach 182-183, 185
Russell,
Bertrand 207n185
Ruwaym
ibn Ahmad 34, 34n118, 80
Sa‘d
al-Su‘ûd ibn Ahmad ibn Hishâm 68, 68n120
Sa‘îd
ibn al-Musayyab 54, 93, 99, 106n56, 110, 231, 238, 248, 252
Sa‘îd
ibn Jubayr 228, 231, 248
sa'ül,
al- 256
Sacred
Mosque, the 218, 2i8n227 sadd al-dharai 114, 121, 164
Safadi,
al-, Khalil ibn Aybak 56, 59
Saffah,
al-, Abû al-'Abbas (Abbasid
Caliph)
99n23
Sahih (of al-Bukhari) 113n100
Sahih (of Muslim) 235, 246
Sahlah
bint Suhayl 246-247, 251
Salih
ibn Ahmad ibn Hanbal 50
Salim
al-Thaqafi 99
Salim
ibn Ahmad ibn Fath 62
Sam'ani,
al-, Abû Sa'd 11, 33, 3311117, 56, 59, 66n101
Samannûdi,
al-, Ibrahim 268n8
San'ani,
al-, 'Abd al-Razzaq 230-231, 245 Sarakhsi, al-, Abû Bakr 410155, 157, 159 sariq
(thief) 143n50, 160, 221 saturation 210-211, 214
Saymari,
al-, Abû 'Abd Allah 56
Scalia,
Antonin 6, 172, 172n2, 173-179, 181-184, 186-191, 190n107, 191n115, 191n118,
192-198, 192n120, 200, 200n154, 205, 215, 222, 224, 270, 270n10, 278, 280
Schacht,
Joseph 101-102, 101n31, 102n35, 117, 117n117, 118n122, 122
Schauer,
Frederick 183n64 scripturalists 122
Scripture,
the 144, 144n92, 202
Searle,
John 208
semantic
transfer 213-214, 217 semantics 186, 205, 205^177, 206n182, 207n185, 209-210,
209n194, 278
Seville
61-63, 66-73
sexual
desire, see shahwah, ladhdhah
Sha'bi,
al-, 'Àmir ibn Sharahil 94, 99n23, 110, 111n87, 232-233, 238, 252
shadhdh (traditions) 20
Shafi'i,
al, Muhammad ibn Idris 15-16, 18n38, 19, 20n44, 21, 24-25, 24n63, 26n69, 28-29,
28n79, 31-32, 41n155, 44n182, 45, 51n15, 76, 91n1, 92n3, 95-96, 95n14, 98, 102,
108, 112, 117-119, 117n117, 118n121, 121, 127, 131-138, 131n44, 134n50, 136n54,
146-147, 147n95, 164n165, 165-168, 168n177, 172n2, 185-186, 210n200, 245,
247-248, 250, 271-272, 276n15
Shahrastani,
al-, Muhammad ibn 'Abd al-Karim 95, 98 shahwah, ladhdhah (sexual desire)
227, 232, 238, 240-241, 243-244, 243n76, 244n81, 274
Shashi, al-, Abû Bakr 64
Shatti, al-, Muhammad 119, 260^158
Shawkani, al-, Muhammad ibn 'Ali 248
Shaybani,
al-, Muhammad ibn al-Hasan 25, 25n47, 91n1, 149n102, 227n1, 230, 239n71, 252
Shehabi, Nabil 224n242
Shinûziyyah, al- 12n6
Shiraz 53, 58, 60, 63, 64n94
Shirazi,
al-, Abû Ishaq 11, 13, 15, 26, 30-31, 34, 41-42, 41n155, 43n173, 48, 50, 52-54,
56-57, 60, 62-64, 157, 222-223
shirk (polytheism) 142
Shu'bah ibn al-Hajjaj 23, 238
Shurayh (the judge) 94
sighatif'al 163
Sind 64, 77n168
Sixth Amendment, the 190-191
Smith case, the (SMITH vs. UNITED
STATES)
189-190, 189n101, 190n104 190n107, 192-194, 194n130, 215
Spectorsky,
Susan 115-116, 122
Spolsky,
Ellen 201n156
Stewart, Devin 370141,
830142, 124m
Subki,
al-, Taj al-Din 15, 20, 20n44, 21n21, 29
Successors
(tabiün) 41, 104, 106n56, 110, 113n100, 118n121, 120, 128, 143, 229,
231, 238, 238n69, 242, 252, 256, 258
Sudan 268n8
Sufyan
al-Thawri 23, 42, 92n5, 95, 104, 108, 112, 232, 235, 238, 248
Sufyan ibn 'Uyaynah 24-26, 94
Sulayman ibn Harb ibn Bajil al-Azdi al-Washihi 14n17, 23
Sulayman ibn Sahl ibn Ishaq 65
Sultan Abû Muhammad Ya'qûb ibn
Yûsuf 68
Sunan
Abi Dawüd
230
Sunan
al-Nasa‘i
230
Sunan
al-Tirmidhi 230
Sunan
Ibn Majah
230, 236, 246
sunnah,
al-, al-’amaliyyah 81, 181
Sunniyyah,
al- 268n8
Suyûti,
al-, Jalal al-Din 13n16, 71 synonymity 174
Syria
25n64, 55, 58, 60, 63, 65-66, 72, 75-76, 268
ta'arud
al-adillah
2
ta'arud.
al-nusüs
184
Tabaqat
Ahl al-Zahir 311192,48n2
Tabaqat
al-Fuqaha’
30,48,50
Tabaqat
al-Shafiiyyah al-Kubra 15
Tabari,
al-, Muhammad ibn Jarir 14, 14m?, 34, 36, 51, 101030, 127-131, 128021, 138-146,
14on?2, 143n86-8?, 145n94, 165-166, 168n176, 169, 186, 210n200, 228-231, 233,
236, 245, 249, 249n116, 271-272
taharah (ritual purity) 151,
226-234, 227m, 231n26, 236-244, 241n73, 243n76, 262, 274
T'ahawi,
al-, Abú Ja'lar 227m
Tahir
ibn Muhammad 56, 58 takhlll al-lihyah 1230143 takhsls, al-
(restriction, particularization) 133n46, 160, 167, 214, 271, 281
talaq
al-matuh
259
Tanúkhi,
al-, 'Ali ibn al-Muhassin 5on12, 56 taqlld 21, 46-47, 49, 49n3, 61, 66,
82-84, 86n206, 87, 87n209, 121, 269-270, 269n8, 281
Taqwlm
al-Adillahfl Usül al-Fiqh 41
Tarlkh
Ahl al-Zahir 48, 62
Tarlkh
Madlnat Dimashq 33 tarlqat al-fuqaha‘ 1490102, 163n157 tarlqat al-mutakallimln
150n102 tawatur, mutawatir (traditions) 30, 151-152, 160, 239, 253
Tawús
ibn Kaysan 248
Tayalisi,
al-, Sulayman ibn Dawúd 234 taylasan 13, 13n16 textualism 6, 171-173,
172n2, 175-177, 182, 184-186, 188, 194-195, 198, 200, 207, 212, 221, 224,
224n242, 277-278, 280
Tha'alibi,
al-, Abú Mansúr 32n108 tikrar, al- (repetition) 158, 164
Tirmidhi,
al-, Muhammad ibn 'Isa 24, 26, 230, 235, 237, 246
Turki,
Abdel Magid 81n187, 118, 118n121-122, 119, 119n125, 122
'Ubayd
Allah ibn Ahmad ibn al-Husayn 55 'Uddah al-, fl Usul al-Fiqh 161
Umamah
bint al-Harith 230
'Umar
ibn Ahmad ibn 'Umar ibn Músa 71, 71n139
'Umar
ibn al-Khattab 99, 106n56, 110, 229,
Umayyad
Caliphate, the 77-78, 85n205, 102
Umm
al-Fadl bint al-Harith 245
Umm
Kulthúm 247
Umm
Salamah 229, 236, 252
'umüm
al-balwa
239, 240n72, 253
'umüm vs. khusüs 22,
44n182, 135, 138-139, 142, 145-147, 164-169, 220, 225, 239, 243, 259, 261,
272-273, 275
United
States Congress 175, 177, 180-181, 184-185, 188, 195, 277
United
States Supreme Court 172
'Uqbah
ibn al-Harith 246, 246n93, 251
'Urwah
ibn al-Zubayr 235, 248
use
(of guns) 189-191, 190n107, 193-194
usül
al-fiqh
11, 19, 21, 29-30, 37n141, 42, 61, 63, 65, 67, 79, 81, 124n2, 127, 138, 147,
148n96, 149, 149n102, 157, 161-165, 163n157, 164n166, 196, 264-265, 267, 272,
276n15, 279
'Uthman
al-Batti 153n112
'Uthman
ibn 'Affan 99
Valley
of Jahannam, the 130
Versteegh,
Kees 49n3
Vishanoff,
David R. 271176, 82n195, 84^03, 86n208, 122, 197n139, 276n15
wad.',
al-, al-'urfi 126
wad',
al-, al-asll 126
Wadi
Àshi, al-, Abú Ja'far al-Balawi 48n2
Wahb
ibn Jami' ibn Wahb al-'Attar
al-Saydalani
35n129
wajib (obligatory) 136, 258
wajür,
al- 256
Waki'
ibn al-Jarrah 22, 24-25
Wazir,
al-, ibn Sahl, see Muhammad ibn Muhammad ibn Sahl
Weiss,
Bernard 158
Wittgenstein,
Ludwig 207
wudüd
ghusl, tayammum 136, 151, 227-228, 232n37
wujüb,
al-
(obligation) 81, 158, 161, 221, 272
Wusül,
al-, ila Ma'rifat al-Usül 36, 37n141
Ya'qúb
al-Mansúr 49n3
Yahya
ibn Ma'in 23, 30, 35n129, 95n14,
236n59
231,
252, 256
Yahya
ibn Sa'id al-Qattan 23-24, 112, 235
Yahya
ibn Muhammad ibn Hubayrah 244n79
Yazîd
ibn Ibrâhîm al-Tustarï 23
Yemen
25n64, 39, 268n7
Yûnus
ibn Muhammad ibn Mugîth 53n38
Yûsuf
ibn 'Umar ibn Muhammad ibn Yûsuf ibn Ya'qub 54
Yûsuf
ibn Ya'qûb ibn Mihrân al-Dâwûdî 32
zahir 19, 21-22, 46, 52n28, 61,
72, 124, I24n2, 125-147, 125n7, 131n43-44, 132n45, 133n47, 134n50, 136n54,
140n72, 146n95, 149, 153n111, 157, 161, 165-168, 171, 171n1, 179, 210n200,
219-221, 225, 228, 261, 263, 271-273, 272n11, 279
zahir
al-kalam
144
zahir
al-mafhüm
141
zahir
al-tanzil
144-145
zahir
al-tilawah
141, 144-145
Zâhirism
2-4, 6, 13n12, 15, 19, 330115, 40, 46, 49n3, 50, 54, 59, 63, 67-70, 72, 74,
74n156, 76, 76n167, 77n168, 78-79, 79n179, 80, 82-87, 86n206, 86n208, 87n209,
87n211, 117-118, 118n122, 119n125, 120, 122, 124, 146, 147n95, 148-149, 153,
156, 159, 161, 170-173, 171n1, 172n2, 178, 187, 194-195, 198, 200, 200n154,
203-205, 212, 213n209, 220-221, 224-225, 241, 263, 265-267, 269, 271, 277-280
Zakariyyâ
ibn Yahyâ al-Sâjî 32, 34, 78n171 zakah, al- 134
Zandawardî,
al- 54n44
zann,
al- 129,
150
Zarkashî,
al-, Badr al-Dîn Muhammad 16, 16n30, 33, 43n172, 44, 44n182, 51n16, 86n207
Zayd
ibn 'Alî 228, 234, 245, 249, 249n116
Zayd
ibn Thâbit 110, 248
Zaynab
al-Sahmiyyah 229-230, 236 zihar, al- 127n17
Zubayr,
al-, ibn al-'Awwâm 230 Zysow, Aaron 148-149, 157, 160
Muslim Pragmatics, p. 5). Vishanoff (The
Formation, p. 5) translates zahir as “apparent.” As has been noted earlier,
medieval Muslim scholars are not clear as to their understanding of the meaning
of Zahirism. However, some of their views about it suggest that they regarded
it as “literalist” if by literalism we mean fixation on the wording of a text
(assuming that focus on the text is sufficient to make a certain reading
literalist, an issue that is dealt with below) without consideration to
non-textual factors. Ibn al-Jawzi, for instance, contends that Dâwûd “abandoned
what could be understood of a tradition for the form of its words” (yaltafitu
'ala mafhum al-hadith ila surat lafzihi) (Ibn al-Jawzi, al-Muntazam,
vol. 12, p. 236). Speaking of the ashab al-afaz wa-l-zawahir and citing
some Zahiri legal views, Ibn Qayyim al-Jawziyyah argues that their focus on the
(literal?) meaning made their understanding fall short of the intended
objectives of the lawgiver (qasaru bi-ma'ani [’l-nusus] 'an
murad [al-shari']) (Ibn al-Qayyim, A'lam al-Muwaqqi'in, vol. 1, p.
222). In other words, he distinguishes between what he calls al-zawahir
wa-l-alfaz and the objectives and (deeper? hidden?) meanings of texts (al-maqasidwa-l-ma'ani)
(ibid, vol. 3, p. 115). In this understanding, those who focus on the
former miss the latter.
[1] Layusalliyanna
ahadal-'asr illaflbant Qurayzah.
[2] For a discussion of this
well-known report, see, for instance, Ibn Qayyim al-Jawziyyah (d. 751/1350), A'lam
al-Muwaqqi'ln 'an Rabb al-Alamln, vol. 1, p. 203.
© KONINKlIJKE BRIll NV, lEIDEN, 2014 | DOI
10.1163/9789004279650_002
[3] For Ibn Hazm’s discussion
of this report, see his Ihkam fi Usül al-Ahkam, vol. 3, pp. 190-193.
[4] On the question of why the
Prophet did not order those who prayed "asr in the afternoon to
repeat it upon reaching the Banü Qurayzah in the evening, Ibn Hazm argues that
we simply do not know when news about this disagreement reached him. It is
possible, he surmises, that the Prophet knew about it the following day, when
it was too late to do anything about it (Ibn Hazm, Ihkam, vol. 3, p.
292). This kind of appeal to the historical setting and to our inability at
times to know all of its minutiae is a recurrent theme in Ibn Hazm’s legal
reasoning and relevant to our later discussion of his presumed literalism.
[5] I use madhhab rather than “school of
law” for reasons that will be discussed later in chapter one.
[6] Goldziher’s Die
Zâhiriten, ihr Lehrsystem und ihre Geschichte; Beitrag zur Geschichte der
muhammedanischen Theologie was published in 1884.
[7] For example, Abdel Majid
Turki’s article “al-Zâhiriyya” in ei2
is less than five pages long, and he makes it clear that he drew mainly on
Muhammad Abü Zahrah’s work on Ibn Hazm (Muhammad Abü Zahrah, Ibn Hazm:
Hayatuhu wa-'Asruhu, Ara’uhu wa-Fiqhuhu). Abü Zahrah himself, who wrote
monographs on the founders of the four surviving Sunnï schools of law, did not
write a book on Dâwüd and wrote instead on Ibn Hazm. In his study on the origin
and development of Sunnï schools of law, Christopher Melchert, who was by no
means studying the school for its own sake, discusses the history of the school
over more than six centuries in less than ten pages (Christopher Melchert, The
Formation of the Sunni Schools of Law:9th-ioth Centuries C.E.).
[8] The fact that all of
Dâwüd’s works seem to have been lost is of course an obstacle, but studying
the views that the available sources attribute to Dâwüd may prove fruitful.
Mention should be made here of Muhammad ‘Àrif Abü ‘Id’s monograph (based on his
doctoral dissertation) on Dâwüd (al-Imam Dawüd al-Zahiri wa-Atharuhufi
al-Fiqh al-Islami, the only such work to my knowledge). Unfortunately,
although Abü ‘Id made an impressive effort in collecting information about
Dâwüd’s life and legal views, his rather uncritical examination of these
materials has not added much to our knowledge of the subject.
[9] For example, in her “The
Beginnings of the Zâhirï Madhhab in al-Andalus” (in Peri Bearman et
al. (eds.), The Islamic School of Law: Evolution, Devolution, and
Progress), Camilla Adang refutes Christopher Melchert’s claim that the
Zâhirï madhhab did not have representatives in Andalus before Ibn Hazm,
who, according to Melchert, founded the school on the sole basis of books that
were available to him. Adang has written extensively on the Zâhirï madhhab and
has recently co-edited a volume—entitled Ibn Hazm of Cordoba: The life and
Works of a Controversial Thinker—on various aspects of Ibn Hazm’s thought.
For these views, see, for instance, George Makdisi, “The
Significance of the Sunnï Schools of Law in Islamic Religious History”;
Christopher Melchert, Formation, pp. 187ft.; and Wael Hallaq, The
Origins and Evolution of Islamic Law, pp. 167-172.
It must be noted here that although no major interpretative
revisions have been made to my dissertation, the overall organization has been
revised with important stylistic changes that seek to make the book more
accessible to a wider readership.
[12] Al-Khatib al-Baghdadi, Tarlkh
Baghdad, vol. 8, p. 369.
[13] Abü Ishaq al-Shirazi, Tabaqat
al-Fuqaha‘, p. 92. Al-Qurashi mentions the same thing in al-Jawahir
al-Mudiyyah (vol. 4, p. 544).
[14] Al-Sam‘ani, Ansab
al-Ashraf, vol. 4, p. 99.
[15] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 375.
© KONINKLIJKE BRILL NV, LEIDEN, 2014 | DOI
10.1163/9789004279650_003
[16] Ibn Khallikân, Wafayat
al-A'yan, vol. 2, p. 257. Two different months are reported, Ramadan and Dhü
al-Qa‘dah.
[17] Abü Ishâq al-Shïrâzï (Tabaqat,
p. 92) and Ibn Khallikân (Wafayat, vol. 2, p. 257) report that Dâwüd was
buried in a graveyard in the western part of Baghdad called “al-Shïnüziyyah”
(from al-Shïnüzï, a person’s name) or maqabir Quraysh, where many of
Baghdad’s scholars and notables were buried, according to al-Khatïb
al-Baghdâdï (Tarlkh, vol. 1, p. 122). Elsewhere, Dâwüd is reported to
have been buried in his home (ibid, vol. 8, p. 375).
[18] Each of these elements
is perhaps not of much significance by itself, but they become significant when
put together. Biographical dictionaries usually provide far more information
about the deaths and funerals of prominent scholars. In Tarlkh Baghdad,
for example, we are informed of the exact day on which Ibn Hanbal died, told
who led the funeral prayers over him, and where he was buried, and given an
estimation of the number of people who attended his funeral (some 800,000 men
and 60,000 women) (al-Khatïb al-Baghdâdï, Tarlkh, vol. 4, p. 422).
Likewise, al-Khatïb al-Baghdâdï reports the date of death of Ibn Hanbal’s
student Abü Bakr al-Marrüdhï (d. 275/888), as well as who led the funeral
prayers over him and where he was buried (ibid., vol. 4, p. 424). The
funeral of the Sufi al-Junayd (d. 298/910) is reported to have been attended by
some 60,000 people, and al-Khatïb al-Baghdâdï mentions the exact place of his
burial (ibid., vol. 7, 248).
[19] This is cited by
Goldziher (The Zahirls, p. 27) from a manuscript copy of Sirâj al-Dïn
ibn al-Mulaqqin’s (d. 804/1401) al-’Iqdal-Mudhhab flTabaqat Hamalat
al-Madhhab. I did not find this piece of information in the available
edition of al-'Iqd, nor did I find it in al-Sam‘ânï’s Ansab al-Ashraf
(al-Sam‘ânï, Ansab, s.v. “al-Dâwüdiyya” (vol. 2, pp. 448-449) and
“al-Zâhirï” (vol. 4, pp. 99-100), where the same piece of information is
reportedly mentioned (for this, see Abü ‘Id, al-Imam Dawüd al-Zahirl, p.
50). Abü ‘Id also used a manuscript of al-Ansab, but I could not find
reference to Dâwüd’s father in the edition of al-Ansab available to me.
Abü ‘Id mentions that ‘Abd Allâh ibn Khâlid was a judge of Isfahan in the days
of the Abbasid Caliph al-Ma’mün (ruled 198/813-218/833). Be this as it may,
what we know about Dâwüd remains marginal.
[20] Shams al-Dïn
al-Dhahabï, Siyar A'lam al-Nubala', vol. 13, p. 98.
[21] Seeking to demonstrate
how the famous Mâlikï judge of Baghdad Ismâ‘ïl ibn Ishâq was intolerant of the ahl
al-bida' (innovators) that they avoided Baghdad out of fear of him, Ibn
Farhün mentions that Ismâ‘ïl banished Dâwüd to Basra because of his innovation
of rejecting qiyas (li-ihdathihiman'al-qiyas) (Ibn Farhün, al-Dlbajal-Mudhhab,
pp. 151-155). According to this, Ismâ‘ïl used to say: “He who does not have
insight (firasah) should not
work as judge" (ibid., p. 154). It is not clear whether
Ibn Farhün knew that rejection of qiyas was the reason for Dâwüd’s
alleged banishment or was only a conjecture (we shall see below that rejection
of qiyas was made the defining characteristic of Zâhirism by medieval
Muslim scholars). Neither is it clear if Ismâ'ïl’s comment on insight as a
requirement for judgeship was connected to Dâwüd’s banishment. This account
would only suggest that Dâwüd worked as a judge in Baghdad if there is a
connection between these two reports about Ismâ'ïl. Ibn Hazm probably alludes
to this incident in his Risalah al-Bahirah, pp. 38-39, where he mentions
that the Abbasid leader al-Muwaffaq (d. 278/891) protected Dâwüd from Ismâ'ïl
ibn Ishâq “after what took place between them." These vague accounts and
the fact that no other source mentions anything about Dâwüd working as judge in
Baghdad make them useless for our purposes here.
[23] Al-Dhahabi, Siyar,
vol. 13, p. 97. Since al-Mahdi ruled and died long before Dâwüd’s birth, either
it was Dâwüd’s father who was his mawla, or a scribe inadvertently
changed al-Muhtadi (r. 255/869-256/870) to al-Mahdi. In either case, what this
means in terms of Dâwüd’s relationship with the Abbasid Caliphate is not
definite, of course, given that Dâwüd and his father were non-Arabs anyway and
had to have a mawla.
12
On this
issue, see M. Hinds, “Mihna," ei2, vol. 7, p. 2.
13
Wa-intahat
ilay-hiri’asatal-imfi Baghdad(al-Shirâzi, Tabaqat,
p. 92).
14
Al-Khatib
al-Baghdâdi, Tarikh, vol. 13, p. 273.
15
Ibn
Khallikân, Wafayat, vol. 2, p. 255.
16
Kana
yahduru majlisahu arbaUmi’at sahib taylasan akhdar
(al-Shirâzi, Tabaqat, p. 92). According to the Kitab al-Alfaz
al-Farisiyyah al-Mu'arrabah (p. 113), a taylasan is a round green
garment that has no bottom and is worn on the shoulders. Mostly made of wool,
it was worn by distinguished scholars and notables. Al-Suyüti compiled a work
on the
merits of taylasan, al-Ahadlth al-Hisan fl Fadl al-Taylasan.
And according to Ibn Sirin’s Tafslr al-Ahlam, it is felicitous to dream
that one is wearing a taylasan, for it promises a great status among
people or family. But if one’s taylasan is torn in a dream, this bodes
the death of a brother or son (Muhammad ibn Sirin, Tafslral-Ahlam, p.
197).
[25] Al-Khatib al-Baghdâdi, Tarlkh,
vol. 13, p. 273. Al-Khatib al-Baghdâdi adds that al-Tabari later parted company
with Dâwüd and started his own circle. It must be noted that a circle of 400
students is not impressive. The circle of one of Dâwüd’s own teachers in
Basra—Sulaymân ibn Harb—is reported to have been attended by some 40,000 students,
and that of ‘Amr ibn Marzüq, also a Basran teacher of Dâwüd, by 10,000
students. In Baghdâd, the circles of Abü Yüsuf and later Ahmad ibn Hanbal are
said to have gathered thousands of students. While these figures do not have
to (and sometimes cannot) be true or accurate, they certainly give an
indication of how large or small a circle of knowledge was.
[26] Ibn al-Nadim, Fihrist,
p. 217.
[27] According to al-Khatib
al-Baghdâdi, transmission of Hadith from Dâwüd was rare (wa-lakinna lriwayah
'an-hu nadirah jiddan), although the person who reported this about him
also mentioned that his works “contained much Hadith” (al-Khatib al-Baghdâdi, Tarlkh,
vol. 8, p. 370).
[28] Ibid, vol. 8, p.
370. The two traditions are described as munkar. According to Al-Khatib
al-Baghdâdi, a tradition is munkar or shadhdh when it contradicts
another tradition transmitted by a number of reliable transmitters (for this,
see al-Khatib al-Baghdâdi, al-Kifayah fl 'Ilm al-Riwayah, p. 171). In
Dâwüd’s case, the traditions were considered munkar because their isnads
contained unreliable transmitters.
[29] Ibn al-Jawzi, al-MuntazamflTarlkh
al-Muluk wa-l-Umam, vol. 12, p. 236.
[30] Ibn Abi Hâtim al-Râzi, al-jarh
wa-l-Ta'dil, vol. 1, p. 410.
[31] For how these two
activities were characteristic of scholars in Dâwüd’s time, see Christopher
Melchert, Formation, pp. 183-184.
[32] Law iqtasara 'ala ma
yaqtasiru 'alay-hi ahl al-'ilm la-zanantu anna-hu yakmidu ahl al-bid'ah bi-ma
la-hu min al-bayan wa-l-alah (al-Khatib al-Baghdâdi, Tarikh, vol. 8,
p. 373).
[33] Kana 'aqluhu akbar
min 'ilmihi (ibid., p. 371).
[34] Tâj al-Din al-Subki, Tabaqat
al-Shafi'iyyah al-Kubra, vol. 2, p. 290. To my knowledge, Müsâ’s date of
death is not mentioned in any biographical dictionary.
[35] Al-Khatib al-Baghdâdi, Tarikh,
vol. 8, pp. 370-371.
[36] Al-Khatib al-Baghdadi, Tarikh,
vol. 4, p. 290.
[37] Ibn al-Nadim attributes
to Ibn Surayj a work in which he responded to Muhammad ibn al-Hasan al-Shaybani
(al-Radd 'ala Muhammad ibn al-Hasan) and ‘Isa ibn Aban (al-Radd 'ala
'Isa ibn Aban). Ibn al-Nadim does not mention any work in which Ibn Surayj
refutes the Zahiris, but he mentions that Ibn Surayj had debates (munazarat)
with Muhammad ibn Dawüd (Ibn al-Nadim, Fihrist, p. 213).
[38] Al-Zarkashi, al-Bahr
al-Muhit, vol. 5, p. 26. In his reply, al-Muzani says that if he says that
as a source of law qiyas is primary or secondary, primary and secondary,
or is neither primary nor secondary, Dawüd would not be able to refute it.
According to al-Zarkashi, the Shafi'i scholar Ibn al-Qaffal (‘Abd Allah ibn
Ahmad, d. 417/1026), who transmitted this report, said that al-Muzani meant
that qiyas was primary “because it has been commissioned by God.” In the
same context, the Hanafi scholar Abü Bakr al-Razi al-Jassas (d. 370/980)
mentions that Dawüd’s question is indicative of his ignorance of the meaning of
qiyas.
[39] Ibn Hajar, Lisan
al-Mizan, vol. 1, p. 259. For al-Bardha‘i’s biography, see al-Khatib
al-Baghdadi, Tarikh, vol. 4, pp. 99-100, where it is reported that
al-Bardha'i was killed in a Qarmati massacre of pilgrims, most likely in
317/929. See also al-Qurashi, Jawahir, vol. 1, pp. 163-166.
[40] al-Khatib al-Baghdadi, Tarikh,
vol. 4, pp. 99-100.
[41] Al-Dhahabi, Siyar,
vol. 10, p. 553. According to this report, Dawüd was debating the subject of
the khabar al-wahid with Abü Mukhalid in front of al-Muwaffaq when Dawüd
looked at al-Muwaffaq and said: “May God put the amir on the straight
path, Abü Mukhalid has led the people astray (aslahaAllah al-amir,
qadahlakaAbüMukhalidal-nas). Al-Muwaffaq replied: “He has only defeated you
by what you have just said, for God, in your view, is the one who has led
people astray, so how can Abü al-Mukhalid lead them astray (qad qata'aka
bi-nafs qawlika hadha, li-anna Allah 'inda-ka huwa Iladhi ahlaka 1-nas,
fa-kayfa yuhlikuhum Abü Mukhalid)? Al-Muwaffaq’s reply, so the anecdote
goes, rendered Dawüd speechless (ibid., p. 553).
[42] Kana Dawüdyahtajiu
li-l-hmal bi-hi wa-yushanntu wa-yubalighufl thubütihi (al-Qurashi, Jawahir,
vol. 1, p. 292). Al-Kurrini is a toponymic derived from Kurrin in Tabas (al-Sam‘ani,
Ansab, vol. 5, p. 63), which is between Nishabur and Isfahan (ibid..,
vol. 4, p. 48). I could not find information on Muhammad ibn ‘Ali ibn ‘Ammar
al-Kurrini, nor on Ayyüb ibn Ghassan who transmitted this reported to Ibn Danka
al-Tabari.
[43] Al-Qurashi, Jawahir,
vol. 1, pp. 292-293. The rest of the story is unclear. Al-Qurashi mentions
that people gathered around Dawüd and al-Kurrini and began throwing one of them
with stones until he fled the mosque. When he was asked about the khabar
al-wahid later, that scholar said that if stones were involved in the
question, then the khabar al-wahid is a basis for both or a source of
knowledge and a basis for action (amma bi-l-hijarah wa-l- ajurr,
fa-inna-huyüjibu j-'ilm wa-l-'amaljamtan) (ibid, pp. 292-293). While we
would imagine that it was Dawüd who was stoned (since Baghdad was the
stronghold of Hanafism), the answer indicates that it was al-Kurrini rather
than Dawüd, which would suggest that Dawüd’s view on the issue was the more
popular. The vagueness of this report does not allow for any such conclusions,
however.
[44] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 374. Al-lawh al-mahfüz is mentioned in Q 85:21-22, bal
huwa qur’an majld,fl lawh mahfüz (Nay! This is a glorious Qur’an, in a
preserved tablet).
[45] For this, see, for
instance, Ibn al-Jawzi, al-Muntazam, vol. 12, p. 236.
[46] Ibn Abi Hatim al-Razi, Jarh,
vol. 1, p. 410. A contemporary biographer of Dawüd—‘Àrif Abü ‘Id—believes that
al-Razi’s Dawüd ibn Khalaf is not our Dawüd ibn ‘Ali ibn Khalaf
(Abü ‘Id, al-Imam Dawüd al-Zahiri, p. 48). Abü ‘Id, however,
does not demonstrate this, nor does he seem to have felt the need to do so. For
him, the person about whom Ibn Abi Hâtim speaks cannot be our Dâwüd. Abü
‘Id apparently did not notice Abü Hâtim al-Râzi’s view on Dâwüd. Admittedly,
there is some confusion in Ibn Hajar’s account, for he also reports that Ibn
Abi Hâtim had a biography of Dâwüd in which he did well (ajada). It does
not seem that Ibn Hajar meant that Ibn Abi Hâtim did well in proving what his
father is reported to have said of Dâwüd, for he apparently attributes to Ibn
Abi Hâtim the view that: “He [Dâwüd] transmitted from Ishâq [ibn Râhawayh]
al-Hanzali and a group of tra- ditionists. He also followed al-Shâfi‘i in his
legal thought (tafaqqaha li-l-Shafij), and then abandoned that and
rejected qiyas. He then wrote a number of books in which he contradicted
earlier authorities (salaf ) of the ummah, and innovated a method
on account of which the majority of scholars deserted him. This notwithstanding,
he is reliable and honest in his transmission and belief, although his view is
the weakest of all views, the farthest from the way of jurisprudence, and the
most deviant of all.” What Ibn Abi Hâtim al-Râzi really thought of Dâwüd,
therefore, is not clear. Be this as it may, Abü ‘Id’s assumption about Ibn Abi
Hâtim’s biography is not as unfounded as it may sound, for the image of Dâwüd
in biographical dictionaries is generally good, especially with regard to his
integrity.
39
Ibn Hajar,
Lisan, vol. 2, p. 491. Ibn Hajar attributes this to Dâwüd’s scribe (warraq),
who is probably al-Husayn ibn ‘Abd Allâh ibn Shâkir al-Samarqandi (for this,
see al-Dhahabi, Mizan al-I'tidal, vol. 1, p. 539). Al-Husayn is reported
to have died in 282/895 (Ibn Hajar, Lisan, vol. 2, p. 290).
40
Ibn Abi
Hâtim al-Râzi, Jarh, vol. 1, p. 411.
[49] For this, see, for
instance, al-Shirazi, Tabaqat, p. 93.
[50] Al-Khatib al-Baghdâdi, Tarlkh,
vol. 8, p. 373.
[51] Ibn al-Jawzi, Muntazam,
vol. 12, p. 236.
[52] Taj al-Din al-Subki, it
should be mentioned, is not the only Shafi'i scholar whose discussion of
Dawüd’s views betrays this desire to boost his image. We get the same
impression from al-Dhahabi, who rejects the view of the famous Shafi'i scholar
Abü al-Ma‘âli al-Juwayni that Dawüd’s views were worthless. Al-Dhahabi argues
instead that Dawüd was knowledgeable in jurisprudence, Qur’an, Hadith and legal
disagreements, and was also very smart and pious (Siyar, vol. 13, pp.
107-108). In his Tahdhlb al-Asma'wa-l-Lughat (vol. 1, p. 445), the
celebrated Shafi'i scholar al-Nawawi (d. 676/1277) also argues against the view
that Dawüd’s views did not count as a valid legal disagreement. He points out
that Dawüd’s merits, piety, and submission to the Sunna are all well-known (ibid.,
vol. 1, p. 443). In his 'Iqdal-Mudhhab (p. 27), Ibn al-Mulaqqin argues
that Dawüd’s rejection of qiyas does not exclude him from al-Shafi‘i’s
students. Al-Subki also begins his biography of Dawüd by stating that the
latter was one of the leaders and guides of the Muslims (kana ahadaimmatal-muslimin
wa-hudatihim) (al-Subki, Tabaqat, p. 248).
[53] In a nutshell, what
distinguishes al-qiyas al-khafi from al-qiyas al-jali is the
clarity of the 'illah that is identified to compare the two cases in an
analogy. If the 'illah is explicitly stated or “obvious,” the qiyas
isjali. But when the 'illah is deduced from a text, the qiyas
is considered khafi (for this, see, for instance, al-Àmidi, al-Ihkam,
vol. 3, pp. 95-96).
[54] On istihsan, see
ei2, vol. 4, p. 255.
[55] Al-Subki, Tabaqat,
vol. 2, p. 290.
[56] Ibn al-Nadim, Fihrist,
p. 216.
[57] Ibid., p. 216.
[58] Ibid., p. 217.
Dâwüd’s books are probably all lost (for this, see Abü ‘Id, al-Imam Dawud, p.
125).
[59] Isma‘il Pasha
al-Baghdadi, Hadiyyatal-'Arifln, vol. 1, pp. 680-681.
[60] Ibn Hajar, Tahdhlb
al-Tahdhlb, vol. 16, pp. 136, 139-140.
[61] Al-Qa‘nabi appears in
one of the various chains of transmission of Malik’s Muwatta’ (for this
see Thabat al-Balawl, pp. 119 and 151).
[62] Ibn Hajar, Tahdhib
al-Tahdhib, vol. 16, p. 141.
[63] Ibid., vol. 26,
pp. 335-336.
[64] Ibid., vol. 22,
pp. 225-228.
[65] Ibid., vol. 11,
pp. 385-386.
[66] Ibn Hajar, Tahdhib
al-Tahdhib, vol. 11, pp. 387ff.
[67] Ibid., vol. 11,
p. 389.
[68] Ibid, vol. 11, p.
392.
[69] Ibid, vol. 27,
pp. 445-447.
[70] Al-Khatib al-Baghdadi, Tarlkh,
vol. 5, p. 200. For Ibn Abi Du’ad’s biography and reported role in the Mihnah,
see al-Dhahabi, Siyar, vol. 11, pp. 169-171.
[71] Al-Dhahabi, Siyar,
vol. 10, p. 555. It is worth mentioning here that al-Dhahabi regards Ahmad ibn
Yahya as having been among the smartest scholars (min kibar al-adhkiyal)
and notable students of al-Shafi‘i (ibid., vol. 10, p. 555). It is
remarkable that al-Dhahabi does not mention any of his other Shafi'i students,
but his mention of Dawüd as his student is in line with Dawüd’s image in
medieval Shafi'i works as has been noted earlier.
[72] Ibn Rahawayh, who was
from Marw and a resident of Nishabur, visited Iraq, the Hijaz, Yemen, and Syria
(for this, see al-Dhahabi, Siyar, vol. 11, p. 359).
[73] In one of these
accounts, Dawüd visits Ibn Rahawayh in his home, browses his books, and makes
jokes with him.
[74] Al-Dhahabi, Siyar,
vol. 11, pp. 174-176.
[75] Ibn Hajar, Tahdhlb,
vol. 2, p. 81.
[76] Al-Khatib al-Baghdadi, Tarlkh,
vol. 6, p. 65.
[77] Ibid, vol. 6, p.
68. Abü Thawr met al-Shafi‘i when he went to Baghdad in 195/810 (for this, see
al-Shafi‘i’s biography in Ibn Kathir, al-Bidayah wa-l-Nihayah, vol. 10,
p. 211). Abü Thawr is reported here to have been one of many scholars who
attended al-Shafi‘i’s lessons, including Ibn Hanbal and al-Karabisi.
[78] Ibid, vol. 6, p.
66.
[79] Wa-ayna kuntum ila
‘l-an (ibid., vol. 6, p. 67).
[80] Al-Dhahabi, Tarlkh
al-Islam wa-Wafayat al-Mashahlrwa-l-A'lam, vol. 25, p. 238.
[81] Al-Khatib al-Baghdadi, Tarlkh,
vol. 6, p. 345.
[82] Al-Khatib al-Baghdâdi, Tarlkh,
vol. 6, p. 242.
[83] Our sources do not
mention the exact subjects that Dâwüd studied with each of his teachers, but
we can assume that he studied with them whatever they were interested in. If
this happened to be predominantly Hadith, this further confirms the conclusion
made on their influence on him.
[84] Writing about the all-important
grammarians of Basra, Vishanoff notes that they “posited a direct correlation
between the words and structures of Arabic on the one hand, and the reality
that they express on the other. Every word and verbal form is established to
express a specific idea, and for every idea there is a normal form of verbal
expression. Language is a mirror of reality” (David R. Vishanoff’s The
Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a
Revealed Law, p. 20). The relevance of this to Dawüd’s understanding of
language will be evident in a later context. For an overview of the intellectual
milieu and notable scholars of early Basra, see 'Abd al-Jabbar Naji, Min
Mashahir A'lam al-Basrah: Dirasahfi 'Ata’ al-Basrah al-Fikri.
[85] Min ghilman Abi Thawr
(al-Dhahabi, Siyar, vol. 13, p. 103). It should be mentioned here that
the word ghulam (singular of ghilman) could indicate that the
person who so described Dawüd meant that he was a blind follower of Abü Thawr,
who was thus more than just one of his teachers.
[86] This does not mean, of
course, that they were not interested injurisprudence. Some scholars have noted
how the very organization of some Hadith compilations indicates support of
particular legal views (for this, see, for instance, Mohammad Fadel, “Ibn
Hajar’s Hady al-Sari: A Medieval Interpretation of the Structure of
al-Bukhari’s al-Jami al-Sahih: Introduction and Translation”). This, however,
does not change the fact that those compilations remain Hadith collections in
the first place, unlike a work like Malik’s Muwatta’, for instance,
which is clearly a work of fiqh that uses Prophetic and non-Prophetic
traditions.
[87] In fact, Ibn
al-Nadim—who mentions Abü Thawr among al-Shafi'i’s followers—says that while
Abü Thawr studied with al-Shafi'i, he disagreed with him on some issues and
developed a new madhhab for himself derived from al-Shafi'i’s views (ahdatha
li-nafsihi madhhab ishtaqqahu min madhhab al-Shafi'i). Ibn al-Nadim
attributes to Abü Thawr a number of works on specificJuru' issues (Ibn
al-Nadim, Fihrist, p. 211).
[88] Al-Subki, Tabaqat,
vol. 2, p. 77.
[89] Ibid., vol. 2, p.
118.
[90] Ibid., vol. 2, p.
117.
[91] Al-Khatib al-Baghdâdi, Tarikh,
vol. 8, p. 64.
[92] Al-Subki, Tabaqat,
vol. 2, p. 117.
[93] Al-Khatib al-Baghdâdi, Tarikh,
vol. 8, p. 64.
[94] Ibid., vol. 8,
pp. 64-67. On Bishr al-Marisi, see ei2, vol. 1, p. 1241.
[95] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, pp. 64-65. He, of course, means that al-Karabisi was no match of Ibn
Hanbal.
[96] Ibid., vol. 8,
pp. 66-67.
[97] Al-Subki, Tabaqat,
vol. 2, p. 126.
[98] Ibn Hazm, al-Ihkam
fl Usul al-Ahkam, vol. 1, pp. 97, 107.
[99] Later, Ibn Hazm would
include these two scholars among the early independent scholars (mujtahids)
who chose to follow in the footsteps of earlier generations in their independence
and did not blindly follow other scholars (Ibn Hazm, Ihkam, vol. 2, p.
674).
[100] Ismâ‘il al-Baghdâdi (Hadiyyat
al-'Arifln, vol. 2, p. 12) attributes a work entitled Usül al-Futya
to al-Qâshâni and mentions that he died in 280/893-894. I owe references to Hadiyyat
al-Arifln to Mâzin al-Buhsali’s TabaqatAhl al-Zahir, where
al-Buhsali mentions scholars whose affiliation with the Zâhiri madhhab
cannot be confirmed (and therefore will not appear in our lists of Zâhiri
scholars). However, when I do not find a date of death that Ismâ‘il al-Baghdâdi
mentions in any other source, I mention it only in a footnote.
[101] Al-Shirâzi, Tabaqat,
p. 176.
[102] Ibn al-Nadim, Fihrist,
p. 213. What is intriguing, however, is that among the works that Ibn al-Nadim
attributes to Ibn al-Surayj is a response to al-Qâsâni (Kitab Jawab
al-Qashanï} (ibid, p. 213). This title does not indicate the nature of Ibn
Surayj’s response. In any case, if Ibn al-Nadim is correct about al-Qâsâni’s
conversion to Shâfi‘ism, Ibn Surayj is likely to have written this work before that
conversion.
[103] According to Ismâ‘il
al-Baghdâdi (Hadiyyat al-'Arifln, vol. 1, p. 138), al-Nahrabâni died in
276/889-890.
[104] Ibn al-Nadim, Fihrist,
p. 318.
[105] Abü Ishâq al-Shirâzi, Tabaqat,
p. 176.
[106] Ibid., p. 177.
[107] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 370.
[108] Ibn Hajar, Lisan,
vol. 3, p. 288.
[109] Al-Dhahabi, Siyar,
vol. 14, p. 198.
[110] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 370.
[111] Ibn al-Nadim, Fihrist,
p. 213.
[112] Al-Dhahabi, Siyar,
vol. 14, p. 199.
[113] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 370.
[114] Al-Dhahabi, Tarlkh,
vol. 31, p. 341.
[115] Al-Khatib al-Baghdadi, Tarlkh,
vol. 8, p. 370.
[116] Al-Tha‘alibi explains that
this nickname comprises two parts: nift, or oil, and awayh, a
Persian suffix. He mentions that Muhammad ibn Ibrahim was given this nickname
for his dark color and ugly face (for this, see Abü ‘Id, al-Imam Dawüd,
p. 105).
[117] Al-Dhahabi, Siyar,
vol. 15, pp. 75-76.
[118] Abü Ishaq al-Shirazi, Tabaqat,
p. 176.
[119] Al-Dhahabi, Siyar,
vol. 15, p. 76.
[120] Al-Zarkashi, al-Bahr
al-Muhlt, vol. 2, p. 72.
[121] Al-Dhahabi, Tarlkh,
vol. 30, p. 180.
[122] Ibn Hazm, Rasall,
vol. 2, p. 187.
[123] Ibn al-Faradi, Tarlkh
Vlama’ al-Andalus, vol. 1, p. 297. Relying on this account, Mahmud Ali
Makki believes that it was indeed Ibn Hilâl who introduced Zâhirism to Andalus
(Makki, Ensayo sobre las Aportaciones Orientales en la España Musulaman y su
Influencia en al Formación de la Cultura Hispano-Árabe, p. 205).
[124] Ibn 'Asâkir, Tarlkh
Madlnat Dimashq, vol. 50, pp. 261-262. Ibn 'Asâkir mentions here that
Kunayz stayed in Egypt for seven years after Ahmad ibn Tülün’s death, and then
moved to Damascus where he died a few years later.
[125] Al-Sam'âni, Ansab,
vol. 4, p. 162. According to al-Sam'âni, al-'Ajannasi is named after 'Ajannas,
which is a person’s name.
[126] The story, reported by
Ruwaym who was sitting with Dâwüd, mentions that one day Muhammad ibn Dâwüd
went to his father crying because his friends used to call him by a sarcastic
nickname (al-Khatib al-Baghdâdi, Tarlkh, vol. 5, p. 256).
[127] Ibn Hazm, Ihkam,
vol. 2, p. 674.
[128] Ibn Kathir, Bidayah,
vol. 11, pp. 303-304.
[129] Al-Dhahabi, Tarlkh,
vol. 30, p. 314.
[130] Al-Dhahabi, Syar,
vol. 15, p. 33. For more information about Makhül ibn al-Fadl, see al-Qurashi,Jawahir,
vol. 3, p. 498.
[131] Al-Shirâzi, Tabaqat,
p. 93.
[132] Ibn al-Nadim, Fihrist,
p. 236.
[133] Al-Khatib al-Baghdâdi, Tarlkh,
vol. 5, p. 262.
[134] Ibid., vol. 5, p.
256.
[135] Ibid., vol. 5, p.
259. For Kitab al-Zahrah, see Wim Raven, Ibn Dâwûd al-Isbahânî and
his Kitâb al-Zahrah (unpublished PhD dissertation, Leiden University,
1989). I am grateful to Raven’s generosity in sending me a bound copy of the
dissertation.
[136] Al-Khatib al-Baghdâdi, Tarlkh,
vol. 5, pp. 257-258.
[137] Ibid., vol. 5, p.
260. Al-Dhahabi gives his name as Wahb ibn Jâmi1 ibn Wahb al-'Attâr
al-Saydalâni (al-Dhahabi, Siyar, vol. 15, p. 115). A tradition that Ibn
Dâwüd transmits has the Prophet saying: “The one who loves [another man?],
remains silent and patient, and abstains from sin, God forgives his sin and
grants him paradise” (man ashiqa wa- 'affa wa- katama wa-sabara, ghafara
Allah la-hu wa-adkhalahu Ï-Jannah), al-Khatib al-Baghdâdi, Tarlkh,
vol. 5, p. 262). Yahyâ ibn Ma'in is reported to have said that he would kill
the transmitter who related this tradition to Muhammad ibn Dâwüd (al-Dhahabi, Siyar,
vol. 15, p. 113). Ibn Dâwüd’s informant of this tradition was Suwayd ibn Sa'id
(for his biography, see ibid., vol. 4, pp. 228-232, where Ibn Abi Hâtim
is reported to have said that Suwayd was an “honest mudallis”, viz. an
honest person who nonetheless uses deceit to hide defects in the transmission of
Hadith). Reports from and about Ibn Dâwüd, however, convey that he abstained
from engaging in an illicit relationship with his beloved, thus maintaining his
moral integrity (ibid., vol. 5, p. 262).
[138] Al-Sam'âni, Ansab,
vol. 2, p. 448.
[139] The anecdote mentions that
a man wanted to test Muhammad ibn Dâwüd’s knowledge so he asked him about the
signs that indicate that a person was drunken. Ibn Dâwüd gave a satisfactory
rhymed answer, leading people to realize how knowledgeable he was (al-Khatib
al-Baghdadi, Tarikh, vol. 5, p. 256).
[140] Because of his rhymed
answers, some of Ibn Dawüd’s answers were incomprehensible for lay people (for
this, see al-Dhahabi, Siyar, vol. 13, pp. 114-115).
[141] Al-Dhahabi does not cite
any source for this report. We can notice here that just as Dawüd’s lectures
were attended by 400 students, so also were his son’s.
[142] Al-Dhahabi, Siyar,
vol. 13, p. 110. The title of Ibn Dawüd’s Intisar as appears in his
biography in Ibn Khallikan’s Wafayat(vol. 4, p. 261) is al-Intisar
'alaMuhammadibnJarirwa-Abd Allah ibn Sharshirwa-’Isa ibn Ibrahim al-Darir.
[143] Al-Dhahabi, Siyar,
vol. 13, p. 110.
[144] Ibid, vol. 13, p.
109.
[145] Ibn Kathir, Bidayah,
vol. 11, p. 118.
[146] Al-Khatib al-Baghdadi, Tarikh,
vol. 5, p. 259. An example of these debates is preserved in al-Tanükhi’s Nishwar
(vol. 8, pp. 186-187).
[147] Ibn Kathir, Bidayah,
vol. 11, p. 124. This, of course, raises the question of why Hanbalis would
take the word of a person whose father was disliked by their imam.
[148] For a recent study on
Muhammad ibn Dawüd’s legal views and when they differ from his father’s, see
Arkan Yüsuf Halub, “Al-Àrâ’ al-Fiqhiyyah li-Abi Bakr Muhammad ibn Dawüd
al-Zahiri.”
[149] For this, see Devin
Stewart, “Muhammad ibn Dawüd al-Zahiri’s Manual of Jurisprudence, al-Wusulila
Ma'rifatal-Usul.” On al-Qadi al-Nu'man, see ei2, vol. 8, p. 117. Stewart’s attempt here should be dealt with with
caution. He himself admits that al-Qadi al-Nu'man’s implicit and explicit
references to Muhammad ibn Dawüd could be accounted for in many different ways
other than regarding them as evidence that he was quoting from Ibn Dawüd’s Wusul.
Stewart, however, believes that “[i]t is simpler and more reasonable to
conclude that al-Qadi al-Nu'man was quoting from a single major work in his
possession, and that this work was probably al-Wusul ila Ma'rifat al-Usul”
(ibid., p. 121). In endeavors like these, authors always have to stretch
their imagination to prove their points, which may not always convince all
readers. For instance, Stewart would make use of a comment that al-Qadi
al-Nu'man makes—in which he says that if he had gone on at length in refuting
Sunni views on some usul al-fiqh issues, dealing with each of these
would require many volumes—to indicate “the immense material on jurisprudence
available to him [al-Qadi al-Nu'man]” (Stewart, “Muhammad ibn Dawüd” p. 118).
It is very unlikely that al-Qadi al-Nu'man was speaking “literally” when he
mentioned several volumes, and his purpose was clearly to convey to the reader
how skillful and knowledgeable he was, rather than to convey that Sunni views
were too complicated to be dealt with in less than several volumes. This, in my
view, cannot be marshaled as evidence for the point that Stewart seeks to make.
Another example is Stewart’s argument on the basis of a minor reference that
Muhammad ibn Dawüd apparently makes and al-Qadi al-Nu'man quotes. According to
this, al-Wusul contained an introduction in which Muhammad provided a
theoretical frame for his work. The reference that Ibn Dawüd makes is in the
context of refuting the proponents of istihsan, at the end of which Ibn
Dawüd remarks, “as we have stated and explained” (ibid.., p. 123).
Needless to say, this could be a reference to anything, such as an earlier
chapter in his work where he refuted another view on the same basis, or to an
entirely different work. In my view, relying on this to infer that the work had
an introduction that “must have put forward an argument that served as a frame
for the remainder of the book” seems unwarranted. Finally, Stewart does not entertain
the possibility that al-Nu'man was quoting Ibn Dawüd from works other than al-Wusul,
such as his Intisar 'ala Muhammad ibn Jarir wa-'Abd Allah ibn Sharshir
wa-'Isa ibn Ibrahim al-Darir, which Stewart is aware of (ibid., p.
115), in the context of his rejection of qiyas, as al-Nu'man explicitly
mentions.
[150] Stewart, “Muhammad ibn
Dâwüd," pp. 138-139. Translation of the relevant passages from al-Nu'mân’s
Ikhtilaf are Stewart’s.
[151] Ibid, p. 141.
[152] Ibid., pp. 139-141.
[153] Ibid, p. 142.
[154] Ibid, p. 147.
[155] Ibid, pp. 145-146.
[156] Ibid, p. 147. This
reference is of course dictated by al-Qâdï al-Nu'mân’s sectarian polemics.
However, it is true that despite the Shï'ï or Mu'tazilï leanings of
some Zâhirïs, they were, from a theological point of view, predominantly Sunnis
and regarded as such by other people.
[157] Stewart, “Muhammad ibn
Dawüd,” p. 150.
[158] At the end of this
section, al-Qadi mentions that what he had reported was the words of Muhammad
ibn Dawüd (ibid., p. 158). It is not clear, however, whether this refers
to the entire section or only part of it.
[159] Ibid., p. 157.
[160] Ibid., pp. 153-154.
[161] According to this, we know
that it is not permitted to do anything at the time of prayers because: (1) God
has commanded us to pray, and (2) the Prophet has explained how and when we
need to do so. In themselves, these facts do not explicitly say that it is not
permitted not to pray during the time of prayer, but we can infer this
prohibition from putting these pieces of evidence together.
[162] Stewart, “Muhammad ibn
Dawud,” p. 154 (emphasis mine).
[163] In this section, the
following sources have been used: Abü Zayd al-Dabüsï’s (d. 430/1038) Taqwm
al-Adillahfï Usul al-Fiqh; Abü al-Husayn al-Basrï’s (d. 436/1044) Mulamadfi
Usul al-Fiqh; al-Sarakhsï’s (d. 450/1058) Muharrarfi Usul al-Fiqh;
and Abü Ishâq al-Shïrâzï’s (476/1083) Tabsirahfi Usul al-Fiqh. Given
that these contemporaries of Ibn Hazm were in Iraq, it can be assumed that they
meant Dâwüd and his students when they attributed views to Zâhirïs. As a
general rule, al-Dabüsï, and to a lesser extent al-Sarakhsï, merely mention
different views on a subject without necessarily attributing them to specific
scholars (with the exception of Abü Hanïfah and other prominent Hanafï scholars
as well as al-Shâfi‘ï at times). To the best of my knowledge, Dâwüd and
individual Zâhirïs are mentioned only once in both works. In contrast, Abü
al-Husayn al-Basrï and especially Abü Ishâq al-Shïrâzï make frequent references
to Dâwüd and some Zâhirïs in their works.
[164] Al-Shïrâzï, Tabsirah,
p. 424.
[165] Abü al-Husayn al-Basrï, Mulamad,
vol. 2, p. 235.
[166] Al-Sarakhsï, Muharrar,
vol. 2, p. 92.
[167] al-Dabüsï, Taqwm,
pp. 260-262.
[168] Abü al-Husayn al-Basrï, Mulamad,
vol. 2, p. 27, and al-Shïrâzï, Tabsirah, p. 359.
[169] Abü al-Husayn al-Basri, Mu'tamad,
vol. 2, pp. 27-29.
[170] Ibid., vol. 2, p.
44.
[171] Ibid., vol. 2, p.
46.
[172] Ibid., vol. 2, p.
59.
[173] Al-Shirazi, Tabsirah,
372.
[174] Ibid., pp. 391-392.
[175] Abü al-Husayn al-Basri, Mutamad,
vol. 2, pp. 92-93, and al-Shirazi, Tabsirah, pp. 298-299.
[176] Abü al-Husayn al-Basri, Mu'tamad,
vol. 2, p. 97.
[177] Al-Shirazi, Tabsirah,
p. 303. In the view of some scholars, a report can be a valid basis of action
even if the knowledge that it yields is less than apodictic. In this case, it
is said that these reports tujibu "l-'amalwa-la tujibu ï-'ilm.
[178] Abü al-Husayn al-Basrï, Muïamad,
vol. 2, p. 143.
[179] Al-Zarkashï, al-Bahr
al-Muhit, vol. 3, p. 374.
[180] For this view of some
Zâhirïs, see al-Shïrâzï, Tabsirah, p. 177, and al-Zarkashï, al-Bahr
al-Muhit, vol. 2, p. 182. Al-Zarkashï attributes the same view to the
important Zâhirï scholar Mundhir ibn Sa'ïd al-Ballutï in his Ahkam al-Qurtm.
In fact, al-Zarkashï mentions that al-Râzï had noted that Ibn Dâwüd rejected
the presence of majaz even in Hadïth, a view that no other scholar held
(ibid., vol. 2, p. 185). This view is indeed consistent with other
Zâhirï views. If majaz does not befit the language used for
prescriptions and proscriptions, this should equally apply to Hadïth.
[181] Abü al-Husayn al-Basrï, Muhamad,
vol. 1, pp. 24-25. Dâwüd is reported to have held that the Qur’ân does not
contain ambiguous terms (al-Zarkashï, al-Bahr al-Muhit, vol. 3: p. 455).
Abü Ishâq al-Shïrâzï mentions that in a debate with Ibn Dâwüd, Ibn Surayj demonstrated
to him that majaz was in fact used in the Qur’ân (al-Shïrâzï, Tabsirah,
pp. 178179). In another context, al-Shïrâzï mentions that there were reports
about another debate between Ibn Surayj and Ibn Dâwüd, indicating that memories
of these debates were still current in Baghdad a century and a half after they
took place.
[182] Al-Shïrâzï, Tabsirah,
p. 265.
[183] Abü al-Husayn al-Basrï, Muhamad,
vol. 1, pp. 398-400.
[184] Abü al-Husayn al-Basrï, Mtilamad.
vol. 1, p. 385.
[185] Ibid, vol. 2, p.
228.
[186] Ibid, vol. 2, p.
325.
[187] Al-Shïrâzï, al-Tabsirah,
p. 526. Istishab al-hal requires two conditions, an earlier one (which
is to be assumed or argued for) and a more recent one (e.g., the innocence for
a person accused of committing a crime must be assumed). The consensus
attributed to Dâwüd here is taken as evidence of the earlier condition.
[188] Al-Zarkashï, al-Bahr
al-Muhit, vol. 1, p. 154.
[189] Ibid, vol. 1, p.
161.
[190] Ibid, vol. 3, p.
19. Al-Zarkashï adds to this list—of what we can call the Ahl al-'Umum— al-Shâfi‘ï,
Mâlik and Abü Hanïfah and their students. Acceptance of 'umum is
important, but what is more significant is how lenient or stringent jurists are
in accepting indicators that qualify the generality or default unrestrictedness
of terms.
[191] Al-Shïrâzï, Tabsirah,
pp. 77-78.
[192] Ibid, p. 127. In
another view, the plural form refers to three or more persons.
[193] Al-Zarkashi, al-Bahr
al-Muhit, vol. 2, p. 72.
[194] Some modern scholars also
seem to believe that rejection of qiyas was the defining feature of
Dâwüd’s legal thought (see, for instance, Camilla Adang, “The Beginning,” p.
118).
[195] This, of course, does not
have to contradict the other view of jma‘ al-sahabah, for Ibn Dâwüd may
have argued that complete consensus only existed in the age of the Companions.
[196] Al-Shirazi, Tabaqat,
p. 179.
[197] The following were
particularly useful sources for the research required for this part of the
chapter: Tawfiq al-Ghalbazüri’s Madrasah al-Zahiriyyah, Mazin
al-Buhsali’s Tabaqat Ahl al-Zahir (although I did not include all the
names of Zahiris that they mention for what I see as lack of enough evidence
that they were in fact following the Zahiri madhhab), as well as al-Maktabah
al-Shamilah (cd-rom) and Maktabat
Al al-Bayt (dvd-rom).
Information obtained from these sources has been checked in the primary sources
cited in this monograph. Furthermore, a few Moroccan Fahrasahs were
used, including the Fihris of Ibn ‘Atiyyah al-Andalusi (d. 541/1146),
the Fahrasah of Ibn Khayr al-Ishbili (d. 575/1179), the Fihris
Shuyukh al-Qadi 'Iyad (d. 544/1149), the BarnamajShuyukh al-Ru'ayni
of Abü al-Hasan al-Ru‘ayni al-Ishbili (d. 666/1267), the Fahrasah of
Ahmad ibn Yüsuf al-Labli (d. 691/1291), and the Thabat of AbüJa‘far
al-Balawi al-Wadi Àshi (d. 938/1532). These works are useful in mapping Zahiri
scholars and the possible circulation of their works. (I am indebted to Michael
Cook for bringing these works to my attention.) On these fahrasahs, see
‘Abd Allah al-Murabit al-Targhi, Faharis 'Ulama' al-Maghrib.
© KONINKLIJKE BRILL NV, LEIDEN, 2014 | DOI
10.1163/9789004279650_004
[198] For examples of
this, Adang refers to Abü ‘Umar Ahmad ibn Duhaym (d. 338/949) and argues that
although the sources do not mention that he was Zâhirï, “this does not necessarily
exclude the possibility of his having divulged Dâwüd’s writings after his
return to his native land [in Andalus]” (“The Beginnings of the Zahiri Madhhab
in al-Andalus,” p. 119). This remains a speculation that needs demonstration in
order to support Adang’s aim of proving that “Zâhirism in Andalus had a living
tradition in the period before Ibn Hazm” (ibid., p. 125). Likewise, in
his Madrasah al-Zahiriyyah, Ghalbazürï mentions many figures who were
considered Zâhirïs by medieval scholars mainly on account of their rejection of
taqlld (Ghalbazürï, al-Madrasah al-Zahiriyyah, pp. 52, 223ff).
Ghalbazürï himself would include scholars among Zâhirïs on unconvincing
grounds. For example, he includes the famous grammarian Ahmad ibn ‘Abd
al-Rahmân ibn Madâ’ (d. 592/1195) among Zâhirïs primarily on the basis of his
appointment as chief judge by Abü Ya‘qüb Yüsuf al-Muwahhidï (d. 580/1184) and
his son Ya‘qüb al-Mansür who leaned towards the Zâhirï madhhab (ibid.,
p. 286). Similarly, Rabïh ‘Ammâr assumes Ibn Madâ’s Zâhirism and speaks of his
“revolution” in Arabic Grammar (echoing Ibn Hazm’s revolution in jurisprudence)
and “Zâhirï” polemics against eastern Grammarians (Rabïh ‘Ammâr, “Ibn Madâ’
al-Qurtubï: Thawrah fï al-Fiqh, Thawrah fï al-Nahw”). See also, Kees Versteegh,
“Ibn Madâ’ as a Zâhirï Grammarian,” in Camilla Adang et al., Ibn Hazm of
Cordoba, pp. 208-231, where Versteegh argues that Ibn Madâ’—who, he notes,
did not call himself a Zâhirï and was not referred to as such by
biographers—was Zâhirï only if Zâhirism meant strict adherence to the “obvious
meaning” and the rejection of “divergence of opinions” (ibid., p. 229).
Considering other evidence, Adang came to the conclusion that Ibn Madâ’ can, at
best, be considered “semi-Zâhirï” (Adang, “Zahirls”’ pp. 429-432). Given
his status as an accomplished grammarian, Ibn Madâ’s case is symptomatic of
the problem of determining the affiliation of many scholars with the Zâhirï madhhab.
[199] Al-Dhahabï, Tadhkirat
al-Huffaz, vol. 1, pp. 158-159.
[200] Al-Dhahabï, Siyar,
vol. 13, p. 431.
[201] Ibn Hajar, Lisan,
vol. 7, p. 20.
[202] Al-Dhahabi, Siyar,
vol. 13, p. 431.
[203] Ibid, vol. 13, p.
431.
[204] Ibn al-Nadim, Fihrist,
p. 218.
[205] For this, see Ghalbazüri, al-Madrasah
al-Zahiriyyah, p. 83.
[206] Al-Suyüti, Tabaqat
al-Mufassirln, pp. 117-118.
[207] For this, see al-Dhahabi, Siyar,
vol. 13, p. 110, where he mentions a chain of transmission in which al-Tanükhi
describes Ibn al-Mughallis as “al-Dawüdi.” Al-Dhahabi himself presents Ibn
al-Mughallis as “al-Dawüdi al-Zahiri” (ibid, vol. 15, p. 77). It is
possible, of course, that referring to Ibn al-Mughallis as al-Zahiri was done
retrospectively, when “Zahiri” replaced “Dawüdi” for reference to scholars
following Dawüd’s madhhab.
[208] Wa-'an ibn al-Mughallis
intashara 'ilm Dawudfl-l-bilad (al-Khatib al-Baghdadi, Tarlkh, vol.
9, p. 385). It is not clear what al-Khatib al-Baghdadi means by bilad
here; this could indicate various regions of the Muslim world at that time or
simply various cities in Iraq itself.
[209] Al-Shirazi, Tabaqat,
p. 177.
[210] Al-Dhahabi, Tarlkh,
vol. 33, p. 150. Ibn al-Nadim also attributes to Ibn al-Mughallis a Kitab
al-Muzanl (Ibn al-Nadim, Fihrist, p. 218). This title is not indicative
in itself of the content of the work. However, among the works that Ibn
al-Nadim attributes to Ibn Surayj is one in which he apparently seeks to
reconcile differences between al-Muzani and al-Shafi‘i (Kitab al-Taqrlb
bayna al-Muzanl wa-l-ShaJTl) (ibid, p. 213). There is a possibility, which
remains a mere speculation, that the first title is an abridgment of the
second.
[211] Ibn ‘Abd al-Barr, al-Istidhkar
li-Madhahib Fuqaha’ al-Amsar wa-'Ulama‘ al-Aqtarfl-ma Tadammanahu al-Muwatta’
min Ma'anlal-Ray wa-l-Athar, vol. 1, p. 106. Ibn ‘Abd al-Barr also makes
reference here to a work by a certain Ahmad ibn Muhammad al-Dawüdi al-Baghdadi
(whose name, to the best of my knowledge, does not appear in any biographical
dictionary) the title of which is Jami' Madhhab Abl Sulayman DawUd ibn
'Aliibn Khalaf al-Isbahanl, and which evidently had chapters on legal
rulings (ibid.., vol. 1, p. 213). Al-Zarkashi makes reference to another
work by the same Ahmad entitle Usul al-Futya, which he presents as the
most solid work for the Zahiris on the views of Dawüd and his son. It seems
that al-Zarkashi had a copy of the book which he cites verbatim (al-Zarkashi,
al-Bahr al-Muhlt, vol. 2, p. 187).
[212] Kitab al-Radd 'ala Ibn
al-Mughallis, Ibn al-Nadim, Fihrist, p. 235.
[213] Al-Dhahabi, Tarlkh,
vol. 33, p. 149.
[214] For this, see al-Dhahabi, Siyar,
vol. 13, p. 110.
[215] Shams al-Din al-Jazari, Ghayat
al-Nihayah fl Tabaqat al-Qurra‘, vol. 2, p. 149. See also Khalaf ibn ‘Abd
Allah ibn Bashkuwal, al-Silah, vol. 2, p. 599.
[216] Al-Dhahabi, Tarlkh,
vol. 43, p. 114.
[217] Al-Khatib al-Baghdadi, Tankh,
vol. 5, p. 258.
[218] Ahmad ibn Muhammad
al-Maqqari, Nafh al-Tib min Ghusn al-Andalus al-Ratib, vol. 3, p. 66.
[219] Al-Dhahabi, Tadhkirat,
vol. 3, pp. 56-57.
[220] Al-Dhahabi, Tarikh,
vol. 34, p. 354.
[221] Ibn ‘Asakir, Tarikh,
vol. 5, pp. 353-357.
[222] Ibn Hajar, Lisan,
vol. 1, p. 414.
[223] Yamilu ila madhhab
ashab al-hadith wa-l-zahir (Ibn ‘Asakir, Tarikh, vol. 5, p. 355).
[224] Al-Shirazi, Tabaqat,
p. 177.
[225] Al-Khatib al-Baghdadi, Tarikh,
vol. 5, p. 258.
[226] Al-Dhahabï, Tarlkh,
vol. 36, p. 132.
[227] For this, see Miskawayh, Tajarib
al-Umam, vol. 6, pp. 399-400.
[228] Al-Shïrâzï, Tabaqat,
pp. 177-178.
[229] Al-Tanükhï, Nishwar,
vol. 3, p. 227.
[230] Al-Dhahabï, al-'Ibar
flKhabar man Ghabar, vol. 2, pp. 302-303.
[231] Ibn al-Faradï, Tarlkh,
vol. 2, pp. 181-182, and al-Humaydï,Jadhwat, vol. 2, pp. 555-557.
[232] For this, see Ghalbazürï, al-Madrasah
al-Zahiriyyah, p. 206. Ibn Hazm also knew al-Mundhir’s son Hakam, who may
have been Zâhirï like his father (for this, see al-Dhahabï, Siyar, vol.
16, p. 175).
[233] Hâjï Khalïfah, Kashf
al-Zunün, vol. 1, p. 56. Ahkam al-Qur‘an is mentioned by Khayr
al-Dïn al-Ishbïlï among the books he studied in Andalus. The title of this book
does not indicate its exact subject (other than being related to the Qur’ân),
and it could very well be the same book as al-Ibanah. Al-Ballütï studied
Ahkam al-Qur‘an with Yünus ibn Muhammad ibn Mughïth (d. 532/1138), who
had studied it with Ahmad ibn Muhammad ibn al-Hadhdhâ’ (d. 467/1074), who in
his turn had studied it with 'Abd al-Wârith ibn Sufyân (d. 395/1005). This is
the same chain of transmission that links Ibn Khayr to the early great
Andalusian traditionist Muhammad ibn Waddâh (d. 287/900) (for this, see, for
example, Ibn Kahyr, Fahrasah, p. 191). For the contribution of Ibn
Waddâh to the introduction of Hadïth into Andalus, see Isabel Fierro,
“Introduction of Hadïth to al-Andalus,” pp. 79-81. Ibn al-Hadhdha’ also appears
in a chain of transmission of the Zâhirï scholar Abü Sa‘ïd ibn al-A‘râbï (see
above) (Ibn Khayr, Fahrasah, p. 390). However, none of the scholars in
this chain is reported to have had any Zâhirï leanings (for Ibn al-Hadhdhâ’,
see al-Dhahabï, Siyar, vol. 18, pp. 344-345; for ‘Abd al-Wârith, see ibid.,
vol. 17, pp. 84-85; and for Yünus ibn Muhammad ibn Mugïth, see ibid.,
vol. 20, pp. 123-124).
[234] Adang, “The Beginnings,”
p. 121.
[235] Al-Dhahabï, Tarlkh,
vol. 36, p. 153, and Siyar, vol. 16, p. 77.
[236] Al-Shïrâzï, Tabaqat,
p. 179.
[237] In fact, it is not clear
here whether al-Dhahabï was quoting this himself from a work of Yüsuf that he
had or was just reporting it from Ibn Hazm.
[238] Al-Dhahabï, Tarlkh,
vol. 36, p. 154.
[239] Al-Buhsalï reads
“al-Zandawardï”, after Zandaward, a neighborhood in Baghdad (al-Buhsalï, TabaqatAhlal-Zahir,
p. 56).
[240] Al-Khatïb al-Baghdâdï, Tarlkh,
vol. 8, p. 273.
[241] Ibn al-Nadim, Fihrist,
p. 219.
[242] Al-Qurashi, Jawahir,
vol. 2, p. 159. Al-Qurashi adds that Haydarah then became fascinated with the
Hanafi scholar Muhammad ibn al-Hasan al-Shaybani (ibid., p. 159).
[243] Al-Dhahabi, ‘Ibar,
vol. 2, p. 31. See also al-Dhahabi, Siyar, vol. 16, p. 61.
[244] Al-Dhahabi, Tarïkh,
vol. 36, pp. 281-282.
[245] Al-Tüsi, Fihrist,
p. 268. I own this reference to Hossein Modarressi.
[246] Ibn Hajar, Lisan,
vol. 3, pp. 304-305.
[247] Al-Dhahabi, Tarïkh,
vol. 36, p. 416. To the best of my knowledge, none of ‘Abd Allah’s works has
survived.
[248] Al-Dhahabi, Siyar,
vol. 16, pp. 225-226.
[249] Hamzah ibn Yüsuf al-Sahmi,
TarlkhJur/an, p. 102.
[250] Al-Khatib al-Baghdadi, Tarlkh,
vol. 5, p. 258.
[251] Ibn Maküla, Ikmal
al-Ikmal, vol. 5, p. 281.
[252] Al-Tanükhi, Nishwar,
vol. 8, p. 186.
[253] Al-Sam‘ani, Ansab,
vol. 2, p. 449.
[254] Al-Safadi, Wafl,
vol. 5, p. 86.
[255] Ibn al-Nadim, Fihrist,
p. 219.
[256] Al-Shirazi, Tabaqat,
p. 178.
[257] Al-Khatib al-Baghdadi, Tarlkh,
vol. 10, p. 466.
[258] Al-Dhahabi, Tadhkirat,
vol. 3, p. 152, and Al-Dhahabi, Tarlkh, vol. 39, pp. 256-257.
[259] Al-Shlrazl, Tabaqat,
p. 178.
[260] Ibn al-Nadlm, Fihrist,
p. 219.
[261] Al-Shlrazl, Tab aqat,
p. 179.
[262] Ibid., p. 179.
[263] Muhammad ibn Ahmad
al-Muqaddasi, Ahsan al-Taqasimfi Ma'rifat al-Aqahm, p. 334.
[264] Ibid., p. 152.
[265] This does not exclude the
possibility that they may have belonged to other madhhabs. For the
distribution and percentage of scholars belonging to various madhhabs in
the first centuries of Islam, see Monique Bernards and John Nawas, “The
Geographic Distribution of Muslim Jurists during the First Four Centuries ah .”
[266] Al-Muqaddasi, Ahsan
al-Taqaslm, p. 44.
[267] Ibn Hajar, Lisan, vol. 2,
p. 482.
[268] Al-Shïrâzï, Tabaqat,
p. 179.
[269] Ibn Bashkuwal, Silah,
vol. 1, p. 183.
[270] Ibid., vol. 2, pp.
598-599. In fact, Ibn Bashkuwal, who describes Muhammad as Zahiri, says that he
was following madhhab Dawüd al-qiyasl. As noted earlier, this kind of
statements raises questions about the grounds on which scholar were included by
medieval biographers and historians among Zahiris.
[271] Ibn Hazm, Ihkam,
vol. 2, p. 674.
[272] Al-Humaydi,Jadhwat,
vol. 2, p. 558.
[273] Ibn al-Nadim, Fihrist,
p. 218.
[274] Ibid., p. 218.
[275] Ibid., p. 218.
[276] Ibn Bashkuwal, Silah,
vol. 2, p. 652.
[277] Al-Shirazi, Tabaqat,
pp. 178-179.
[278] Al-Khatib al-Baghdadi, Tarlkh,
vol. 3, p. 38.
[279] Muhammad ibn ‘Abd Allah
ibn al-Abbar, Takmilat al-Takmilah li-Kitab al-Silah, vol. 1,
pp. 288-289. Ibn al-Abbar mentions that Ibn Hazm wrote an elegy when Jabir
died.
[280] Al-Marrakushi, Dhayl,
vol. 4, p. 1.
[281] Ibn Hazm, Ihkam,
vol. 2, p. 674.
[282] Ibn Hajar, Lisan,
vol. 5, p. 36.
[283] Al-Shirazi, Tabaqat,
p. 179.
[284] Muhammad ibn Muhammad
al-Marrakushi, al-Dhaylwa-l-Takmilah li-Kitabayy al-Mawsül wa-l-Silah,
vol. 5, part 2, p. 540.
[285] Ibid., vol. 5, part
2, pp. 538-539.
[286] Al-Dhahabi, Ibar,
vol. 3, p. 323.
[287] Ibn ‘Asakir, Tarlkh,
vol. 55, pp. 77-81.
[288] Ibn Bashkuwal, Silah,
vol. 2, pp. 422-423.
[289] For this, see al-Dhahabi, Siyar,
vol. 13, p. 115, where al-Dhahabi mentions a chain of transmission of a
Prophetic tradition that is apparently predominantly Zahiri, starting with Ibn
DawUd. I could not find information about al-Qasim or the intermediary between
him and Muhammad ibn DawUd, Wahb ibnJami' al-Attar. This Wahb could be
al-Qasim’s father or, as al-Dhahabi says, the same Muhammad ibn Jami'
al-Saydalani with whom Muhammad ibn DawUd was reportedly in love. Al-MansUri
transmitted this tradition to a certain Muhammad ibn Ja'far al-Zahiri, another
possible Zahiri scholar. Muhammad ibn Ja'far himself may have been from Shiraz,
similar to his grandson (and al-Dhahabi’s informant of the Prophetic tradition)
'Abd al-Karim ibn Muhammad ibn Ahmad al-Shirazi.
[290] Ibn Hajar, Lisan,
vol. 1, pp. 377-378.
[291] Ibn al-Hayy al-Hasani
refers to Ahmad as al-MansUri al-Sindi (al-Hasani, Nuzhat al-Khawatir,
p. 65). Al-Hasan also mentions that al-Muqaddasi (d. 380/990), in his Ahsan
al-Taqaslm, reported that he had met Ahmad in MansUrah (Ahsan
al-Taqaslm, p. 65). I could not find this reference in the edition of Ahsan
al-Taqasm that is available to me.
[292] Burhan al-Din al-Halabi, al-Kashf
al-Hathlth ‘amman Rumiya bi-Wadal-Hadith, pp. 79-80. In this tradition the
Prophet is reported to have said: “Iblis was the first to have practiced qiyas,
so do not practice it.”
[293] Ibn al-Nadim, Fihrist,
p. 218. These are Kitab al-Misbah, Kitab al-Hadl, Kitab al-Nayyir.
[294] Ibn ‘Asakir, Tankh,
vol. 22, pp. 323-324.
[295] Ibn al-Abbar, Takmilah,
vol. 1, p. 257.
[296] Al-Dhahabi, Tadhkirat,
vol. 4, p. 29. Al-Dhahabi attributes this information to al-Sam‘ani, who
learned it from the Shafi‘i scholar Abü al-Hasan al-Karaji (d. 532/1137).
[297] Ahmad ibn Yahya al-Dabbi, Bughyat
al-Multamis fl Tarlkh RijalAhl al-Andalus, p. 294.
[298] Al-Dhahabi, ‘Ibar,
vol. 4, p. 57.
[299] Ibn ‘Asakir, Tarlkh,
vol. 53, pp. 59-61.
[300] Ibn Bashkuwal, Silah,
vol. 1, p. 294.
[301] Ibid, pp. 581-582.
See also Biblioteca de al-Andalus, vol. 3, p. 486.
[302] Al-Maqqari, Nafh,
vol. 2, p. 155; Ibn al-Abbar, Takmilah, vol. 1, no. 1259.
[303] Lisan al-Din ibn
al-Khatib, al-Ihatah fl Akhbar Gharnatah, vol. 3, p. 190.
[304] Al-Dhahabi, Tarlkh,
vol. 54, p. 554.
[305] Al-Safadi, Wafayat,
vol. 6, p. 391.
[306] Ibn al-Abbar, Takmilah,
vol. 1, p. 72; al-Marrakushi, Dhayl, vol. 1, pt. 1, p. 266. See also,
Adang, “Zahirls”’ p. 418.
[307] Ibn al-Abbar, Takmilah,
vol. 1, p. 72.
[308] Ibid., vol. 1, p.
60.
[309] Al-Marrakushi, Dhayl,
vol. 6, p. 456.
[310] Ibn al-Abbar, Takmilah,
vol. 2, p. 463.
[311] Al-Ghalbazürï, al-Madrasah
al-Zahiriyyah, p. 272.
[312] Ibn al-Zubayr, Silah,
vol. 3, p. 190.
[313] Al-Marrakushï, Dhayl,
vol. 4, pp. 185-186.
[314] Ibid, vol. 4, pp.
18-21.
[315] Ibid, vol. 4, pp.
185-187. Al-Marrakushï does not mention ‘Abd Allah’s date of death, but he
states that he studied with Sa‘d al-Su‘üd ibn Ahmad (ibid, vol. 4, pp.
18-21).
[316] Al-Qadï ‘Iyad, Fihrist,
pp. 84-85.
[317] Ibn Kathïr, Bidayah,
vol. 13, p. 19.
[318] Al-Dabbi, Bughyat,
p. 263. See also Adang, “Zahiris,” p. 422.
[319] For this, see Adang,
“Zahiris of Almohad times,” p. 423.
[320] Ibn al-Abbar, Takmilah,
vol. 2, p. 646.
[321] Ibn Hajar, Lisan,
vol. 1, p. 151. Ibn Hajar obviously disliked Ibn Dihyah and regarded him as a
liar, whereas he defends Ibrahim whom he thought was unjustly humiliated by
al-Kamil (more about him below). Ibn Hajar explains that the opinion of people
of the Maghrib on Ibn Dihyah was different from the opinion of the Egyptians.
[322] Ibn al-Zubayr, Silah,
vol. 3, p. 136; Ibn al-Khatib, Ihatah, vol. 3, p. 416; and al-Suyüti, Bughyat
al-Wu'ah, vol. 2, p. 44.
[323] Ibn Hajar, Lisan,
vol. 2, p. 492.
[324] Al-Dhahabi, Tarlkh,
vol. 45, p. 65. See also, Adang, “Zahiris,” p. 443.
[325] On Baqi ibn Makhlad’s role
in introducing Hadith in al-Andalus, see Fierro, “Introduction,” pp. 78-79.
[326] Ibn al-Zubayr, Silah,
vol. 5, p. 348. See also, Adang, “Zahiris,” pp. 444-448.
[327] Ibn al-Abbar, Takmilah,
vol. 2, p. 680; Ibn al-Zubayr, Silah, vol. 4, p. 122.
[328] Al-Marrakushi, Dhayl,
vol. 1, pp. 476-477.
[329] Ibn Hajar, Lisan,
vol. 4, p. 340.
[330] Dihyah al-Kalbi was a
Companion whom the Prophet is reported to have sent to the Byzantine Emperor.
It is reported that the angel Gabriel used to assume Dihyah’s shape when he
appeared before the Companions. Dihyah died during the rule of the Umayyad
Mu'awiyah ibn Abi Sufyan (r. 41/661-60/680).
[331] Ibn Hajar, Lisan,
vol. 4, p. 336.
[332] Ibid., vol. 4, pp.
336 and 338.
[333] Ibn al-Abbar, Takmilah,
vol. 1, p. 159.
[334] Cited in Adang, “Zahiris,”
p. 460. Ibn al-Zubayr mentions ‘Umar ibn Ahmad but does not say anything about
his Zahiri affiliation (Ibn al-Zubayr, Silah, p. 70).
[335] Al-Maqqari, Nafh,
vol. 2, pp. 597-598.
[336] Al-Dhahabi, Tadhkirat,
vol. 4, p. 146.
[337] For this, see
al-Ghalbazüri, al-Madrasah al-Zahiriyyah, pp. 351-353.
[338] Ibn al-Abbar, Takmilah,
vol. 5, p. 440.
[339] Al-Dhahabi, Tadhkirat,
vol. 4, pp. 161-162.
[340] Al-Suyüti, Tabaqat,
p. 534.
[341] Al-Marrakushi, Dhayl,
vol. 1, part 2, pp. 437-439.
[342] Al-Ru‘ayni, Barnamaj,
p. 142.
[343] Ibn al-Khatib, Ihatah,
vol. 4, pp. 18-20.
[344] For other possible chains
of transmission of Zahiri knowledge, see Adang, “Zahiris.”
[345] Al-Marrakushi, Dhayl,
vol. 1, part 1, pp. 407-408.
[346] Ibid., vol. 7, p.
265.
[347] Al-Maqqari, Nafh,
vol. 2, p. 59.
[348] Ibn Hajar al-‘Asqalani, al-Durar
al-Kaminah fl A'yan al-Mfah al-Thaminah, vol. 4, pp. 296-297.
[349] Al-Ghalbazüri, al-Madrasah
al-Zahiriyyah, p. 373. Al-Ghalbazüri cites a book, edited by 'Abd al-Salam
Shaqqür, with new entries from Ibn al-Khatib’s Ihatah (reference is to
pp. 233-234 in this book). I could not find this book.
[350] For Ibn Hayyan’s life and
career, see al-Maqqari, Nafh, vol. 2, pp. 535-584.
[351] Al-Maqqari, Nafh,
vol. 2, p. 541. Ghalbazüri argues that Abü Hayyan remained Zahiri until his
death (al-Madrasah al-Zahiriyyah, pp. 411ff). For an especially
interesting biographical account, see al-Safadi’s biography of Abü Hayyan
(al-Safadi, A'yan al-Asr, vol. 5, pp. 325-327). For Ibn Hayyan’s
Zahirism, see Ahmad Wadi' Tantawi, “Shawahid al-Madhhab al-Zahiri fi al-Dars
al-Nahwi 'inda Abi Hayyan.”
[352] Ibn Hajar al-'Asqalani, Inba‘al-Ghumr
bi-Anbalal-'Umr, vol. 1, p. 45.
[353] Ibid, vol. 1, p.
330.
[354] Ibid, vol. 1, p.
484.
[355] Ibn Hajar al-‘Asqalani, Inba‘
al-Ghumr, vol. 2, p. 331.
[356] Ibid., vol. 2, pp.
332-333.
[357] Ibid., pp. 333-334.
For a discussion of Ibn al-Burhân’s revolt, see Lutz Wiederhold, “Legal-
Religious Elite, Temporal Authority, and the Caliphate in Mamluk Society:
Conclusions Drawn from the Examination of a ‘Zâhirï Revolt’ in Damascus in
1386.”
[358] Ibn Hajar, Inba‘
al-Ghumr, vol. 2, p. 393.
[359] Ibid., vol. 3, p.
428.
[360] Al-Maqqari, Nafh,
vol. 2, p. 655.
[361] Cited in Michael Cook, Commanding
Right and Forbidding Wrong in Islamic Thought, p. 355, n. 138. I owe this
reference to Michael Cook.
[362] For Ibn ‘Arabi’s Zahirism,
see al-Ghalbazüri, al-Madrasah al-Zahiriyyah, pp. 377ft and Adang,
“Zahirism,” pp. 461-464. This, of course, is not to downplay the importance of
studying how Ibn ‘Arabi’s Zahirism could have affected his views.
[363] For the Zâhirism of
Almohads, see Adang, “Zâhirism,” pp. 429ff; Abd al-Bâqï al-Sayyid Abd al-Hâdï, “Al-Madhhab
al-Zahiri wa-Nashatuhu wa-Tatawwuruhu bi-l-Maghrib wa-l- Andalus hatta Nihayat
al-Muwahhidin’’ pp. 202-214; and Camilla Adang, “Zâhirïs,” pp. 413417, and
468. For the Zâhirism ofYa'qüb ibn Yüsuf (d. 595/1199)—the third Almohad ruler—
see Ibn al-Athïr, al-Kamil, vol. 10, pp. 161-162, where Ibn Athïr
mentions that the many Zâhirïs in Maghrib rose in prominence under Ya‘qüb and
were known as “al-Jarmiyyah” (or “al-Kharmiyyah,” according to another
manuscript), after their head Muhammad ibn Jarm (or Kharm). This is most likely
a corruption: these people were probably known as al-Hazmiyyah, after Ibn Hazm.
There is also some evidence that ‘Adud al-Dawlah al-Buwayhï (d. 372/983) was
“Dâwüdï” (for this, see al-Muqaddasï, Ahsan al-Taqasm, p. 334), and we
have noted that he appointed Bishr ibn al-Husayn as his chief judge. It is also
reported that Zâhirism was the official madhhab of al-dawlah
al-Bihariyyah, which ruled in Sind from 247/861 to 417/1026 (For this, see
Subhï al-Mahmasânï, Falsafat al-Tashrifi al-Islam, p. 72 (I owe this
reference to Hossein Modarressi). Generally speaking, the available evidence
about the status of the Zâhirï madhhab in these dynasties is too
uncertain to allow for solid conclusions. Adang’s study of Zâhirïs under
Almohad rule, for instance, led her to conclude that “[w]e do not find a
significantly greater number of Zâhirïs in the Almohad period than in the
preceding, Almoravid period, when tolerance towards non-Mâlikï systems was
supposedly limited” (Adang, “Zâhirïs,” p. 469).
[364] For this, see al-Buhsalï, Tabaqat,
pp. 214-215.
[365] For a list of Ibn Hazm’s
works, see al-Dhahabi, Siyar, vol. 18, pp. 193-196. For a chronology of
some of these works, see Ljami, Ibn Hazm et la Polémique Islamo-Chrétienne
dans L’Histoire de L’Islam, pp. 43-79.
[366] For an 11th/17th-century
biography of Ibn Hazm, see al-Maqqari, Nafh, vol. 2, pp. 77-85. For an
overview of Ibn Hazm’s time, life and works, see Sa‘id al-Afghani, Ibn Hazm
al-Andalusi, pp. 4-150. Interestingly, the only book of Ibn Hazm that Ibn
Khayr al-Ishbili studied was Risalah fi Fadl al-Andalus, a work that
obviously does not tackle any religious issue (Ibn Khayr, Fahrasah, p.
194). Al-Ishbili also studied works by Ibn Hazm’s student al-Humaydi: Jadhwatal-Muqtabis
(on history) and al-Jam'bayna al-Sahihayn (on Hadith) (ibid., pp.
101 and 195 respectively). Other Zahiri works that Ibn Khayr mentions are not
strictly legal in nature, such as Kitab al-Du'afa’wa-l-Mansübin ila
al-Bid'ah min al-Muhaddithin and Kitab al-'Ilal (on traditions) by
the Zahiri scholar Zakariyya ibn Yahya al-Saji (ibid.., p. 178) as well
as a number of works by Niftawayh (ibid., pp. 331, 335, and 366) and one
of al-Humaydi’s works on Hadith (ibid., p. 101). Similarly, he mentions
a number of works by the Zahiri scholar Sa‘id ibn al-A‘rabi, all of which
apparently deal with asceticism and divine love (ibid.., p. 251). The
chains of transmission of these works do not seem to contain any Zahiri names.
For a detailed exposition of Ibn Hazm’s debates with his contemporaries and
anti- Zahiri polemics before and after him, see Samir Qaddüri, “Al-Rudüd ‘ala
Ibn Hazm bi-l- Andalus wa-l-Maghrib min khilal Mu’allafat ‘Ulama’
al-Malikiyyah.”
[367] For this, see, al-Maqqari,
Nafh, vol. 2, p. 78.
[368] See, for instance, Ibn
Hazm, Ihkam, vol. 8, p. 40, and vol. 12, p. 250, where he refers to the
Zâhirïs as ashabuna al-Zahiriyyün.
[369] Ibn Hazm, Ihkam,
vol. 2, pp. 1146-1147.
[370] Ibid., vol. 2, p.
850. Remarkably, Ibn Hazm seems to have also held Abü Thawr in high esteem,
praising his scholarly independence and excellence in religious knowledge (ibid..,
vol. 2, p. 674).
[371] Ibid., vol. 2, p.
840.
[372] Ibn Hazm, Risalah
al-Bahirah, p. 47.
[373] Ibn Hazm did disagree with
Dâwüd on many issues and said that he erred in many of his fatwas (ibid,
pp. 49-50).
[374] To demonstrate that Ibn
Hazm was a truly independent scholar (muytahid mutlaq) who regarded Zâhirism
a methodology rather than a school of law, Ibrâhïm Muhammad ‘Abd al-Rahïm (a
contemporary Egyptian scholar) mentions a long list of theoretical and
substantive legal views in which Ibn Hazm contradicted Dâwüd and other Zâhirïs.
In most of the theoretical issues that he mentions, Ibn Hazm rejects views held
by earlier Zâhirïs other than Dâwüd, with whom he disagrees on only one issue
related to consensus and politely wonders how he could have held it (wa-ma
nadri kayfa waqa'a li-Abl Sulayman hadha ï-wahm al-zahir) (Ibrâhïm Muhammad
‘Abd al-Rahïm, al-Fikr al-Fiqhi li-Ibn Hazm al-Zahiri, pp. 538-548).
(For Ibn Hazm’s discussion of this issue, see al-Muhalla, vol. 1, p.
577.) Furthermore, when he disagrees with Dâwüd on minor substantial issues,
Ibn Hazm may refrain from commenting on Dâwüd’s view or mention a textual basis
on which he could have relied on (for an example of the former case, see Ibn
Hazm, al-Muhalla,
vol. 1, p. 170, and of the latter, see ibid., vol. 1, pp. 190
and 213). Ibn Hazm does not seem to care to be as polite with other Zâhirï
scholars. But generally speaking, his criticism of other scholars is notably
less harsh when he discusses substantive rather than theoretical legal issues.
180 See, for example, Ibn Hazm, Ihkam, vol.
8, p. 546. Ibn Hazm at times refers to Dâwüd by his name, but more often by his
patronymic (kunyah), especially where he refers to Dâwüd’s views that
support his. Reference to someone by his kunyah usually indicates
respect and closeness.
[380] Among Ibn Hazm’s works
that al-Dhahabï lists in his Siyar (vol. 18, p. 194) is Mukhtasar
al-Mudah, an abridgement of Ibn al-Mughallis’ Mudah, as al-Dhahabï
points out. Ibn Hazm also attributes a view to Muhammad ibn Dâwüd from the
latter’s Usul, and he may well be quoting it from this work (for this,
see Ibn Hazm, al-Muhalla, vol. 1, p. 167).
[381] See, for example, Ibn
Hazm, Ihkam, vol. 8, p. 130.
[382] Abdel-Magid Turki dates Ihkam
to the year 430/1038, at least fifteen years after Ibn Hazm had devoted his
life to religious studies (‘Abd al-Magid Turki, “Notes sur l’évolution du
zâhirisme d’Ibn Hazm (456/1063) du Taqrib à l’Ihkâm” pp. 183, and
185).
[383] Ibn Hazm, Ihkam,
vol. 2, p. 931.
[384] Ibid., vol. 1, pp.
338-339.
[385] Ibid., vol. 1, p.
259.
[386] Ibid., vol. 1, p.
422.
[387] Ibid., vol. 2, p.
887.
[388] In dalll al-khitab (argumentum
a contrario), instead of ruling on a new case on the basis of a resemblance
to an existing one (which qiyas does), the opposite ruling of an
established case is given in the new case on the basis of a difference noted
between the two cases.
[389] Ibid., vol. 2, p.
921.
[390] Ibn Hazm, Ihkam,
vol. 2, p. 1110. In fact, Ibn Hazm rejects 'illah also as a basis of
studying the etymology of words on the basis of derivation (ishtiqaq),
as in the view that horses are called khayl because of their khuyalal
(pride), or that al-Rahman is a divine name derived from rahmah
(compassion and mercy) (ibid.., vol. 2, pp. 1123 and 1148). Further on
the issue of qiyas, Vishanoff has noted a relationship between Roger
Arnaldez’s (in his Grammaire et théologie chez Ibn Hazm de Cordoue)
characterization of Ibn Hazm’s linguistic theory as “nominalism” and the Zâhirï
rejection of qiyas (Vishanoff, The Formation, p. 88). According
to this, if words and names refer to particular things rather than any
qualities that they share with other things, then analogy cannot be drawn
between things. Vishanoff, however, demonstrates that Ibn Hazm did recognize
the presence of universals (kulliyyat) and cannot therefore be
considered a nominalist (ibid, p. 91). In other words, Ibn Hazm rejected
qiyas on grounds other than being a nominalist.
[391] Ibn Hazm, Ihkam,
vol. 2, p. 1110.
[392] Ibid., vol. 1, pp.
233-234.
[393] Ibid., vol. 1, p.
539.
[394] Ibid., vol. 1, p.
509.
[395] Ibid, vol. 1, p.
193.
[396] Ibn Hazm, Ihkam,
vol. 1, p. 466.
[397] Ibid., vol. 1, pp.
166 and 379.
[398] Vishanoff has reached the
same conclusion regarding Ibn Hazm’s role in establishing Hadith as a primary
source of law and legal evidence (Vishanoff, The Formation, p. 100).
However, his statement that Ibn Hazm sought to reconcile conflicting texts is
problematic. As will be discussed later, Ibn Hazm seems to have been more
willing than “mainstream” scholars to reject pieces of evidence (notably
Prophetic traditions) that could not be easily reconciled with what they
identify as the valid evidence in each case. Since he believed that there must
exist only one valid piece of evidence in each case, it was difficult for him
to reconcile conflicting ones. Therefore, if one piece of evidence did not seem
to fit with others, he did not hesitate to question its authenticity or
relevance and dismiss it. It was Hanbalis, however, who accepted and sought to
reconcile all available pieces of evidence no matter how contradictory they
might be.
[399] I assume here that if any
earlier Zâhiri scholar, including Dâwüd, had left behind an extensive legal
literature, at least part of it would have survived. In all circumstances, what
we know about the works attributed to other Zâhiris does not indicate that any
of them was as prolific as was Ibn Hazm.
[400] ‘Abd al-Rahïm argues that
Ibn Hazm’s legal thought must be understood in light of the political
environment in which he lived in Andalus. Witnessing the fall of the Umayyad
Caliphate and the emerging states which divided the Muslim community, Ibn Hazm
thought that uniting Muslims in legal and religious matters was a prerequisite
for reuniting them politically. To do this, he shunned all legal views and
insisted that the authoritative texts should be the sole basis of any legal
issue. If a relevant text is lacking, that legal issue is considered outside
the purview of the religious law. In this view, Ibn Hazm’s polemics against the
Jews and Christians was meant, among other things, to show how religious
divisions lead to sectarian strife and political division and weakness (‘Abd
al-Rahïm, al-Fikr al-Fiqhi, pp. 537-538).
[401] ‘Abd al-Rahim argues that
Ibn Hazm and the Zahiris in general never regarded themselves as belonging to a
certain madhhab, but rather as mujtahids who only had in common
their commitment to a certain methodology (‘Abd al-Rahim, al-Fikr al-Fiqhl,
p. 545). A similar conclusion was reached by al-Ghalbazüri, who argues that
Zahirism is about ijtihad and the rejection of taqlld more than
being a legal school (al-Ghalbazüri, al-Madrasah al-Zahiriyyah, p. 338).
[402] Many scholars actually
held that in cases where all scholars agreed but only Zahiris dissented,
consensus remains valid nonetheless. For a presentation of these views, see,
for instance, al-Zarkashi, al-Bahr al-Muhlt, vol. 3, pp. 472-474.
Al-Zarkashi himself seems to be among the scholars who did not give much weight
to Zahiri disagreement apropos the validity of consensus (ibid.., vol.
6, p. 291).
[403] It is therefore difficult
to accept Vishanoff’s statements regarding what he considers “major
concessions” that Ibn Hazm made to and his “dramatic shift” toward mainstream
Sunni legal paradigm (Vishanoff, The Formation, pp. 104-105), even if
this only applies to one of the four hermeneutical levels that Vishanoff
discusses. It will be noted later that Zahirism only sought to be consistent in
applying rules most of which they shared with at least one other madhhab.
More often than not, therefore, Ibn Hazm emphasized the contradictions of the
other madhhabs in order to demonstrate that they were not faithful to
their professed views, which Zahirism shared with them to begin with.
[404] In his Forward to ‘Abd
al-Rahmân ibn ‘Aqïl’s Ibn Hazm khilalAlf'Amm, p. 8, Ihsân ‘Abbâs argues
that “at its core, Zâhirism is a revolt against taqlld’’ ‘Abd al-Rahmân
ibn Aqïl is a contemporary Saudi Zâhirï scholar who is the most prominent among
contemporary Zâhirïs.
[405] Al-Ghalbazûrï, al-Madrasah
al-Zahiriyyah, pp. 729-30.
[406] A similar conclusion was
reached by Y. Linant de Bellefonds in “Ibn Hazm et le Zâhirisme juridique.”
[407] De Bellefonds, “Ibn
Hazm,” p. 7.
[408] Cited in Sabra, “Ibn
Hazm,” p. 9. Admittedly, Sabra does not reject Arnaldez’s view categorically,
but rather seeks to qualify it by asserting that since Islamic law in Ibn
Hazm’s view is “finite in scope,” what it covers in his understanding was much
less than what it covers for other jurists. It has been noted, however, that
Ibn Hazm does allow a degree of doubt in his jurisprudence. His certainty is
conditional on the assumption that he had all the relevant evidence on a given
case. What is beyond the scope of the law (i.e., what the sources do not seem
to be tackling) according to the evidence available to him could easily come
under its purview should additional textual evidence—a Prophetic tradition, for
instance—be brought to his attention, which always remains a theoretical
possibility.
[409] The 3rd/gth century is
generally considered key to understanding the development of Islamic law. For
most modern Muslim scholars, it witnessed the crystallization of the main
doctrines and methodologies of the existing schools of law. For this, see, for
instance, ‘All al-Khafif, Muhadarat fi Asbab Ikhtilaf al-Fuqaha\ pp.
269-284, where the author argues that the basics of the four Sunni schools of
law go back to their eponymous founders and their immediate students in the
late 2nd century ah (the Hanafi
and Maliki schools), or the 3rd century ah
(the Shafi‘i and Hanbali schools). (Al-Khafif notes that Abü Bakr al-Khallal
(d. 311/923) was to Ahmad what Muhammad ibn al-Hasan al-Shaybani was to Abü
Hanifah and al-Rabi‘ ibn Sulayman al-Muradi to al-Shafi‘i (p. 280), meaning
that whereas the Hanafi and Shafi‘i schools took shape in the 3rd century ah, the Hanbali school did that in the
4th century.) See also Muhammad ibn al-Hasan al-Fasi, al-Fikr al-Samifi
Tarikh al-Fiqh al-Islami, where the author makes a similar argument about
the Hanafi (pp. 424(f), Maliki (pp. 453ff.) and Shafi‘i (pp. 468ff.) schools.
For some Western views on the same subject, see Wael Hallaq, “From Regional to
Personal Schools of Law: A Reevaluation,” and Christopher Melchert, “The
Formation of the Sunni Schools of Law.” For an idea about the legal affiliation
(or the lack thereof) of scholars in the early Muslim centuries, see Monique
Bernard and John Nawas, “The Geographical Distribution of Muslim Jurists during
the First Four Centuries ah.”
[410] Ashab al-Ra’y
and Ashab al-Hadith are also used occasionally.
© KONINKLIJKE BRILL NV, LEIDEN, 2014 | DOI
10.1163/9789004279650_005
[411] This presentation of some
medieval Muslim views avoids some early works—such as al-Shafi‘ï’s Risalah,
al-Shaybanï’s al-Radd 'ala Siyar al-Awza'i, al-Hujjah 'ala Ahl al-Madinah,
Ikhtilaf Abi Hanifah wa-Ibn Abi Layla, as well as some early biographical
works such as Ibn Sa‘d’s al-Tabaqat al-Kabir. Whereas there is no
assumption here that later scholars did not have their own biases, the
polemical nature of some of these early sources would unnecessarily complicate
the picture for our purposes here.
[412] Ibn Qutaybah al-Dïnawarï, TaWil
Mukhtalif al-Hadith, pp. 114-120. Responding to these charges was Ibn
Qutaybah’s basic concern in this work. For some examples of these traditions,
see ibid. pp. 107-114. Remarkably, regarding himself a member of the Ahl
al-Hadith, Ibn Qutaybah was aware of how his TaWil could be easily
considered polemical, and he promises the reader at its beginning that his
exposition of the views of the Ahl al-Hadith and the Ahl al-Kalam
would not involve deliberate conceit or misrepresentation (ibid., p.
120).
[413] Ibid., pp. 122-126. The
Ahl al-Hadith that Ibn Qutaybah mentions include ‘Abd al-Rahman
al-Awzâ‘ï, Sufyan al-Thawrï, al-Layth ibn Sa‘d, Malik ibn Anas, and Ahmad ibn
Hanbal (ibid, pp. 127-128). Notably, Ibn Qutaybah’s attack on analogy
here is similar to al-Nazzam’s, which was also used later by Ibn Hazm (and
possibly by Dâwûd himself). For an overview of al-Nazzam’s and some other
critiques of analogy, see Aaron Zysow, The Economy of Certainty: An
Introduction to the Typology of Islamic Legal Theory, pp. 167-173.
[414] Ibn Qutaybah, TaWil,
pp. 197-205.
[415] Ibid., pp. 174-180.
Al-Awza‘i’s statement says: “We do not hold it against Abü Hanifah that he uses
his opinion, for we all do so. What we hold against him, however, is that when
a tradition from the Prophet reaches him, he abandons it for something else.”
For a fuller account of Abü Hanifah’s reported rejection of traditions, see Ibn
Abi Shaybah’s chapter on “The cases in which Abü Hanifah contradicted some
Prophetic traditions” in his Musannaf (vol. 13, pp. 8o-195).
[416] Ibn Qutaybah, TaWil,
pp. 180-185.
[417] Ibid., p.
206.
[418] In his A'lam
al-Muwaqqi'in, Ibn Qayyim al-Jawziyyah offers a similar presentation of the
reports that Ibn ‘Abd al-Barr mentions in his Jami', for which reason A'lam
al-Muwaqqi'in is not discussed here.
[419] Ibn ‘Abd al-Barr,Jami'Bayan
al-'Ilm wa-Fadlihi, vol. 2, p. 1074.
[420] Iyyakum
wa-l-muqayasah,fa-wa-’lladhi nafsi bi-yadihi, la-in akhadhtum bi-l-muqayasah
la-tuhillunna l-haram wa-la-tuharrimunna l-halal (ibid., vol. 2, p. 1047).
[421] Inna ‘l-sunnah sabaqat
qiyasakum, fa-ittabi'ü wa-la tabtadiü, fa-innakum lan tadillü ma akhadhtum
bi-l-athar (ibid, vol. 2, p. 1050).
[422] Ibid, vol. 2, p.
1079. Despite his Maliki affiliation, Ibn ‘Abd al-Barr seems rather keen to
defend Abü Hanifah. Maintaining that the Ashab al-Hadlth exceeded in
censuring him, he points out that Abü Hanifah mixed ra’y and qiyas
with traditions (idkhalihi ‘l-ray wa-l-qiyas 'ala ’l-athar). However,
whereas the majority of scholars assessed the
soundness of traditions on the basis of its chain of transmitters,
he rejected them on the basis of “plausible interpretations” (bi-taWll
muhtamal), following the example of the Companion ‘Abd Allah ibn Mas‘ûd and
the Successor Ibrahim al-Nakha‘i (d. 96/714). There was hardly any scholar, Ibn
‘Abd al-Barr notes, who did not abandon a tradition for another or by a
plausible interpretation. Similar charges of abandoning Prophetic traditions
were made against no less an authority than Malik himself; al-Layth ibn Sa‘d is
reported to have said that he counted 70 cases in which Malik contradicted the
Sunnah of the Prophet. Furthermore, it is true that Abû Hanifah and his ilk
were excessive in using ra’y and istihsan, disagreeing in many of
these with the forebears. This notwithstanding, it was the Ahl al-Hadith’s
envy of Abû Hanifah in Ibn ‘Abd al-Barr’s view that dominated them so much as
to allege that he held heretical Murj’i views. This defense of Abû Hanifah is
followed by the testimonies of a number of Hadith scholars in his favor. In one
significant report, Yahya ibn Ma‘in, the famous Hadith critic and associate of
Ibn Hanbal’s, concedes: “Our companions have exaggerated in what they say about
Abû Hanifah and his followers.” When asked if Abû Hanifah was a liar, he
replied emphatically that he was more honorable than that (kana anbal min
dhalika). In another report, Ibn Ma‘in mentions that he did not like
al-Shafi‘i’s traditions, and would not transmit from Abû Yûsuf (d. 182/798)—Abû
Hanifah’s famous disciple—although he was not a liar. When asked about Abû
Hanifah, he said: “Good people have transmitted from him.” Ibn ‘Abd al-Barr
takes these disagreements about Abû Hanifah as indicative of his intelligence (wa-yustadallu
'ala nabahat al-rajulmin al-madin bi-tabayun al-nas fl-hi), comparing him
to ‘Ali ibn Abi Talib (d. 40/661), “with regard to whom two [groups of] people
went astray: an excessive lover, and an excessive detractor.” (ibid..,
pp. 1080-1084). In a chapter on “The judgment on what the scholars say about
each other,” Ibn ‘Abd al-Barr mentions that when Ibn Hanbal learned that Yahya
ibn Ma‘in was speaking ill of al-Shafi‘i, he accused him of having been
ignorant of al-Shafi‘i, adding that “one is antagonistic toward that of which
one is ignorant” (wa-manjahila shay’ 'ada.hu) (ibid., p. 1114).
15 Ibid., vol. 2,
p. 1082. Note that these are the Hadith scholars that Ibn Qutaybah had
mentioned.
[424] Al-Shahrastani, al-Milalwa-l-Nihal,
vol. 1, p. 243.
[425] Ibid, vol. 1, p.
245. Scholars of Islamic law distinguish between two kinds of qiyas. In al-qiyas
al-jall—which is usually what is meant when qiyas is mentioned—the ïllah
(ratio legis) used to draw analogy between an existing ruling and a new
case is deemed “obvious.” In al-qiyas al-khafl (also called qiyas
al-shabah), however, the analogy between the two cases is based on a
certain resemblance (hence shabah) between them (for the various kinds
of qiyas, see Muhammad Abü Zahrah, Usül al-Fiqh, pp. 237-239).
Hanafi scholars argued that istihsan meant abandoning a more obvious
analogy for a more nuanced one for “good reasons” (for this, see, for example,
al-Jassas, al-Fusül, vol. 2, pp. 344ff., and Abü Zahrah, Abü Hanfah,
pp. 342-344).
[426] ‘Abd al-Rahman ibn
Khaldün, al-Muqaddlmah, pp. 416-418.
[427] Fa-amma Ahmad lbn
Hanbal fa-muqalllduhu qalllun ll-bu'd madhhablhl 'an al-jtlhad
wa-asalatlhlflmu'adadat al-rlwayatwa-l-akhbar ba'dlha bl-ba'd (lbld., p.
419).
[428] Ibld., p. 419.
[429] Ibld., pp. 417-418.
[430] Ahmad Amin, Fajr
al-Islam, pp. 240-244.
[431] Muhammad ibn al-Hasan
al-Hijwi, al-Fikr al-Samifi Tarikh al-Fiqh al-Islami, pp. 378-383.
Al-Hijwi points out that whereas some Iraqi scholars, such as al-Sha‘bi,
rejected ray, some Medinese scholars accepted and used it, such as
Rabi‘at al-Ra’y. But to reconcile this with the strict dichotomy he draws
between the two regions, al-Hijwi suggests that Rabi‘at al-Ra’y was most likely
influenced by the Iraqis when he served as wazir to Abü al-‘Abbas
al-Saffah (the first Abbasid Caliph, d. 136/754).
[432] Ibid., pp. 385-386.
[433] Salim ibn ‘Alï
al-Thaqafï, Asbab Ikhtilaf al-Fuqaha‘, pp. 79-81.
[434] Goldziher, The
Zahiris, p. 3 (emphasis mine). I rely here on Goldziher’s Zahiris
because it was among his latest contributions to the field of Islamic legal
history. Furthermore, given its subject, his discussion of the doctrines of the
Ahl al-Ra’y and the Ahl al-Hadith here should be more nuanced
than in his other works.
[435] Ibid, p. 7
(emphasis mine).
[436] Ibid, p. 3.
[437] Goldziher, The
Zahirls, pp. 3-4. Motzki argues that the sharp distinction that Goldziher
made between the Ahl al-Ra’y and the Ahl al-Hadlth was central in
his overall theory about the development of Islamic law, and particularly the
idea that Prophetic traditions only came into existence and gained wide and
authoritative use in the late 2nd century ah.
Therefore, Goldziher failed to realize that we cannot categorize some early
works, such as Malik’s Muwatta’, as belonging solely to either camp, for
these were works of “Tradition,” in the broader sense of not being limited only
to the Prophetic traditions like later compilations of Hadith (Harald Motzki, The
Origins of IslamicJurisprudence:Meccan Fiqh before the Classical Schools,
p. 16).
[438] Goldziher must have been
aware that some medieval scholars—such as al-Tabari—did not recognize people
like Ibn Hanbal as jurists. Any treatment of this issue of whether the Ahl
al-Hadlth were also jurists or only Hadith scholars, therefore, should be
rather nuanced, giving equal attention to the Ahl al-Hadlths
jurisprudence, just as they often do when discussing the Ahl al-Ra’y.
[439] Schacht, “Ashab al-Ra’y,” ei2, vol. 1, p. 691. In Schacht’s view, the Ahl al-Hadlth movement
emerged in the second half of the 2nd century ah
in opposition to the use of ra’y in the ancient schools of law (Schacht,
The Origins of Muhammadan Jurisprudence, p. 253).
[440] Schacht, Origins,
p. 254.
[441] Schacht, An
Introduction to Islamic Law, p. 35 (emphasis mine).
[442] Schacht, Origins,
p. 253.
[443] In commenting on their
acceptance and rejection of traditions, Schacht held that traditionists
rejected some traditions “for reasons of their own.” It is not clear whether
this means subjective reasons or reasons that had to do with their career as
Hadïth critics, who, at least in theory, only accepted and rejected traditions
according to their isnads. While others did not consider this method
sufficient, the fact that traditionists had a methodology means that their
overall assessment was intended to be objective. Arguably, the subjectivity
involved in assessing transmitters’ reliability is not significantly different
from that involved in accepting and rejecting traditions on the basis of their
contents.
[444] Schacht, “Ashab al-Ra’y,” ei2. vol. 1, p. 691. The Ahl al-Hadlth must have held that
subordinating legal issues to moral and religious considerations was not as
subjective an exercise as it sounds. These considerations, they maintained,
were not their own product but were rather based on principles that, in their
view, were integral to Islam and thus binding to all Muslims.
[445] Jeseph Schacht, “Ashab
al-Hadïth,” ei2,
vol. 1, p. 258 (italics added).
[446] Schacht, Introduction,
p. 34 (emphasis mine).
[447] Schacht, Origins,
p. 254.
[448] G. H. A. Juynboll, Muslim
Tradition: Studies in Chronology, Provenance, and Authorship of Early Hadith,
p. 33. I am following Juynboll’s order here. If made consciously, this would
suggest that, for one reason or another, what would come to a Companion’s mind
first would be an opinion from another Companion, and then a precedent from the
Prophet.
[449] Ibid., p. 33
(emphasis mine). When talking about Abü Hanifah’s circle elsewhere, Juynboll
states that “if on some occasions it so happened that a tradition was readily
at hand to be adduced, it was not disregarded altogether but it never
seemed to play a crucial part in the decision making” (ibid., p. 120,
italics mine). This statement, of course, remains an unsubstantiated
speculation.
[450] Ibid., p. 15 (emphasis
mine). Juynboll makes a reference here to a later part of the book where he
shows that most of the rulings of the first four Caliphs were not based on
Prophetic traditions, but were mostly their own ra’y and judgment.
[451] Juynboll seems to endorse
the Ahl al-Hadith’s view regarding Abü Hanifah. In another context, he
argues that “[t]here are several reports in which Abü Hanifah appears to
ridicule prophetic sayings, especially those which have taken the form of legal
maxims or slogans” (ibid., p. 121). However, if Abü Hanifah “ridiculed”
those sayings, it stands to reason that he must not have considered them
Prophetic in the first place. According to Juynboll, by the time of Abü
Hanifah, one could reject a saying attributed to the Prophet only on the basis
of its isnad, or by dismissing its authenticity on account of its
presumed contradiction with the Qur’an or another tradition that is considered
authentic.
[452] Juynboll, Muslim
Tradition, p. 67.
[453] It is not clear, for
instance, how a jurist would use the “spirit” of any legal system absent enough
precedents that illustrate it.
[454] Incidentally, when
defining them, Juynboll states unreservedly that the Ahl al-Hadlth were
an “early Islamic faction propagating the transmission and promotion of
traditions” (ibid., p. 257; emphasis mine). Jurisprudence is not even
alluded to here.
[455] Melchert, Formation,
p. 1. Emphasis on “common sense” mine.
[456] Melchert, Ahmad ibn
Hanbal, p. 62.
[457] Melchert, Formation,
pp. 9-10.
[458] Ibid, p. 16. This
particular feature of the Ahl al-Hadlth will be brought up in a later
context.
[459] Melchert, Ahmad ibn
Hanbal, p. 77.
[460] Melchert, Formation,
pp. 3-4.
[461] Hallaq, Origins,
pp. 74-75. Two other modern Muslim views on our present subject will be
discussed in a separate section later in this chapter.
[462] See, for instance, Abü
Zahrah, Abu Hanlfah, pp. 299-303. The traditions mentioned here are mursal,
traditions in the chain of transmitters of which a transmitter is missing,
mostly the Companion. These were accepted by Hanafis, but remarkably rejected
by most traditionists (for this, see, for instance, al-Khatib al-Baghdadi, al-Kifayah
fl 'Ilm al-Riwayah, p. 423).
[463] Motzki, Origins, p.
20.
[464] That ‘Umar ibn al-Khattab
used his discretionary opinion frequently is beyond doubt, although some
scholars account for this on the basis of his prerogatives and responsibilities
as Caliph (see, for instance, Abü Zahrah, Tarlkh al-Madhahib al-Islamiyyah,
vol. 2, pp. 16-17). On the contrary, his son, ‘Abd Allah ibn ‘Umar, is reported
to have been conservative in giving his opinion if he did not recall a relevant
Prophetic tradition. Some scholars hold that ‘Umar’s approach was carried to
Iraq by ‘Abd Allah ibn Mas‘üd (who is said to have been a staunch admirer of
‘Umar), while Ibn ‘Umar’s was maintained by the Hijazis, whose head among the
Successors was Sa‘id ibn al-Musayyab. Ibn ‘Umar’s conservatism, however, does
not necessarily mean that he never used ra’y. This is even more so in
the case of Ibn al-Musayyab who did not hesitate to give his own opinion even when
no text existed and felt at liberty to choose from among various pieces of
evidence (for this, see, for example, Abd al-Majid Mahmüd Abd al-Majid, al-Ittijahat
al-Fiqhiyyah li-Ahl al-Hadlthflal-Qarn al-Thalith al-Hijrl).
[465] See, for instance,
Muhammad Yousuf Gouraya, Origins of Islamic Jurisprudence (with Special
Reference to Muwatta’ Imam Malik), making a strong case that Malik never
bound himself either by the consensus of the scholars of Medina or even the
practice of the Medinese (Jamal ahl al-Madlnah), and that his fatwas
reflected only his own personal views. See also Khalifah Babakr al-Hasan, al-Ijtihad
bi-l-Ray fl Madrasat al-Hijaz al-Fiqhiyyah, pp. 463^ and passim.
This may actually account for the bitterness of the confrontation between
Zahiris and Malikis in Andalus, whereas the former’s confrontation with the
Hanafis in Iraq was apparently less intense. Arguably, Zahiris may have
regarded Malikis more arbitrary and less consistent than Hanafis.
[466] Abü Zahrah, for example,
argues that ra’y in Iraq, which was influenced by ‘Abd Allah ibn Mas‘üd
and ‘Abd Allah ibn ‘Abbas, was mostly inclined toward qiyas, whereas ra’y
in the Hijaz, which relied on ‘Umar’sjuridical legacy, was based on
considerations pertaining mostly to personal and social interests (masalih)
(Tarlkh al-Madhahib al-Islamiyyah, pp. 31-34).
[467] For this, and for the
various views on this issue, see, Wael Hallaq, “From Personal to Doctrinal
Schools of Law: A Reevaluation.”
[468] It is unfortunate that
al-Hasan’s and ‘Abd al-Majid’s writings have not received attention
in Western scholarship. I owe reference to ‘Abd al-Majid’s work to Hossein
Modarressi.
[469] Al-Hasan, al-Ijtihad,
pp. 253-254.
[470] Al-Hasan, al-Ijtihad,
p. 268.
[471] Ibid, p. 270.
[472] Ibid, pp. 261-263.
For a good presentation of this, see Ibn ‘Abd al-Barr,Jami'Bayan al-'Ilm, vol.
2, pp. ii0off., where the author mentions many anecdotes and reports of what
the Companions used to say about and against each other.
[473] Al-Hasan, al-Ijtihad,
p. 320.
[474] Al-Hasan draws here on Ibn
Taymiyyah’s Sihhat Usül Madhhab Ahl al-Madlnah.
[475] Ibid., pp. 268-269.
[476] Ibid., pp. 263-264.
[477] Ibid, p. 269.
[478] Al-Hasan, al-Ijtihad,
pp. 266-267.
[479] Ibid., p. 265.
[480] Ibid., pp. 269 and 272.
[481] Ibid., pp. 272-273.
[482] Ibid., pp. 279-280.
[483] Ibid., pp. 290-295.
[484] Ibid., p. 300.
[485] ‘Abd al-Majid is not
skeptical about what medieval sources attribute to early authorities, nor does
he try to reconcile these seemingly contradictory attributions. Rather, in line
with his theory, he tends to take them to indicate that early scholars were still
in the process of working through various views and that we should not expect
them to have had a coherent juridical thought at that point.
[486] ‘Abd al-Majid, al-Madrasah
al-Fiqhiyyah li-l-Muhaddithin, pp. 20-21.
[487] Ibid, pp. 21-22.
[488] Ibid, pp. 39-40.
[489] Ibid, pp. 49-50.
[490] Ibid, pp. 29-30 and 33-36.
[491] Ibid, pp. 47-48.
[492] ‘Abd al-Majid, al-Madrasah
al-Fiqhiyyah, pp. 31-33.
[493] Ibid., p. 110. This
is an interesting reference to how these personal features may have affected
the willingness of different Companions to give fatwas.
[494] Ibid., pp. 146-184.
[495] For example, the dire
statements attributed to Sha‘bi against ra’y and scholars who used it
probably resulted from his competition with Hammad, who was not Arab, rather
than with Hammad’s teacher Ibrahim al-Nakha‘i, who was, like al-Sha‘bi, an Arab
(ibid., pp. 37-39).
[496] Ibid., pp. 43-45.
[497] Ibid., p. 48. This
connection between qiyas and the need to pose hypothetical questions to
test Ullah was made by other scholars (see, for instance, Abü Zahrah, Abü
Hanfah, pp. 229-234). However, it does not seem to have caught the
attention of some scholars who wrote about the early Hanafi school of law and
its casuistry. For the Hanafi casuistry, see Baber Johansen, “Casuistry:
Between Legal Concept and Social Praxis,” p. 149, where Johansen describes it
as a useful tool in “reconciling the requirements of practical life with those
of legal doctrine.”
[498] 'Abd al-Majid, al-Ittjahat,
p. 47. For a similar view on the difference between the use of ray in
the Hijaz and Iraq, and the Hanafi and Maliki notions of istihsan, see
Abü Zahrah, Tarlkh al-Madhahib al-Islamiyyah, pp. 31-34, and 342.
[499] 'Abd al-Majid, Ittijahat,
pp. 57-58.
[500] Ibid, pp. 78-80.
[501] Ibid., pp. 59-61.
[502] Ibid, pp. 116-117.
[503] Ibid, pp. 65-66.
[504] ‘Abd al-Majid, Ittijahat,
p. 120. In ‘Abd al-Majid’s view, this explains the fact the more often
than not, more than one view were attributed to Ibn Hanbal (ibid., pp.
125-126).
[505] Ibid., pp. 1ooff.
[506] Ibid., p. 126.
[507] Ibid., p. 7.
[508] ‘Abd al-Majid studied the opening chapters of these
compilations, the kinds of reports
that they include (Prophetic only or also include opinions of the
Companions and Successors), the titles of their chapters, the comments made on
some traditions and their authenticity, and the Qur’anic verses mentioned and how
they are ordered (ibid, pp. 291-331). Ibn Hajar al-‘Asqalani engaged in
a similar exercise to study al-Bukhari’s jurisprudence relying on the headings
and sub-headings in his Sahih (for this, see Mohammad Fadel, “Ibn
Hajar’s Hady al-Sari”).
[509] The first of these
features is the Ahl al-Hadith’s attitude toward the Qur’an and Hadith.
Despite their disagreement on the hierarchy of the Qur’an and Hadith as two
textual sources (Ibn Hanbal and al-Bukhari held that both were on a par with
each other whereas others gave Hadith precedence over the Qur’an on the ground
that it can qualify it in various manners), they agreed that both were two
independent yet inter-connected kinds of revelation and must therefore be used
in conjunction with each other (‘Abd al-Majid, Ittijahat, p. 191).
Secondly, they refused to judge Hadith on the basis of the Qur’an, which could
lead to the rejection of many traditions (ibid., pp. 205-207). Thirdly,
Hadith could and did establish rulings that did not exist in the Qur’an (ibid,
p. 213). Fourthly, each of the Qur’an and Hadith could abrogate each other (ibid.,
p. 227). Fifthly, while they differed on the question of whether khabar
al-wahid established solid knowledge (the majority of them thought that it
did not), they were agreed that it provided a sufficient basis for action ( 'amal)
(ibid., p. 242). Sixthly, they did not accept mursal
traditions—except when the missing transmitter in the isnad was a
Companion—due to the disconnectedness of its isnad (ibid., pp. 260-262).
Seventhly, they gave much weight to the opinions of the Companions when they
agreed, and selected from their views when they differed (ibid, p. 269).
Furthermore, they abstained from giving an opinion when they did not find a
tradition in a certain case. Finally, they rejected qiyas and
“hypothetical jurisprudence” (al-fiqh al-taqdlrl), and refused to put
their legal opinions into writing (pp. 284ff.).
[510] While the rejection of mursal
traditions by the Hadith scholars does not seem to support this view, it could
only be taken to refer to a tension that existed between being Hadith scholars
as well as jurists at the same time. This notwithstanding, traditionists
managed to find ways to incorporate many mursal traditions (for this,
see al-Khatib al-Baghdadi, al-Kifayah, pp. 423ff.).
[511] ‘Abd al-Majid, Ittijahat,
p. 413.
[512] Ibid, p. 431.
[513] Ibid, pp. 421-422.
When they discussed charity (zakah), for example, the Ahl al-Hadlth were
not primarily concerned with its value or beneficiaries, or how a person
refusing to pay it should be dealt with. Instead, they placed greater emphasis
on how to encourage people to love the poor, have the desire to give them, and
hate to be stingy, selfish, and careless about others. They linked charity to
social and moral dimensions in a way that would motivate people to think of
their communities and the value of cooperation and solidarity, rather than
thinking only of their own self-interest, ‘Abd al-Majid argues (ibid.,
pp. 224-225). These statements needed further demonstration, nonetheless.
[514] Ibid, p. 451.
[515] Ibid., pp. 444-445.
[516] Susan Spectorsky, Chapters
on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh, p. 7.
[517] Q. 4:22 reads: “And marry
not (wa-la tankihu) women whom you father married.” Most scholars
(jurists and Qur’an exegetes) take the word nikah here to refer to
marriage, although it is a homonym that refers to marriage as well as sexual
intercourse. Obviously, Ibn Hanbal restricted the meaning of nikah to
marriage. For a discussion of the various views on this issue, see Ibn Hazm, al-Muhalla,
vol. 9, pp. 147-151, where he discusses whether involving in illicit sexual
relationship can generally invalidate some kinds of marriage.
[518] Spectorsky, Chapters,
p. 23.
[519] Ibid., p. 24.
[520] Melchert, Ahmad ibn
Hanbal, p. 78.
[521] For this, see, for
instance, Abû Zahrah, Ahmad ibn Hanbal, pp. 64ff; Melchert, Ahmad ibn
Hanbal, pp. 103-120; and Nimrod Hurvitz, The Formation of Hanbalism:
Piety into Power, pp. 147-149.
[522] For this, see Eerik
Dickinson, The Development of Early Sunnite Hadith Criticism: The Taqdima of
Ibn Abi Hdtim al-Rdzi, pp. 68-78. This may have been an influence of the Ahl
al-Hadith’s engagement in Hadith criticism. They assessed and disqualified
Hadith transmitters on moral grounds, at times for reasons that other scholars
found trivial and surpassing “reasonable” limits of observing the behavior of
transmitters. For Hadith critics, however, these reasons sufficed to question
their morality and integrity (for an overview of the various notions and
practices of the Hadith critics, see al-Khatib al-Baghdadi, al-Kifdyah,
pp. 138-142, and passim).
[523] Ignaz Goldziher, The
Zahiris: Their Doctrine and their History, p. 81.
[524] Joseph Schacht, “Dâwüd B.
'Alï B. Khalaf al-Isfahânï, Abü Sulaymân,” ei2, vol. 2, p. 182.
[525] Ibid., vol. 2, p.
182. Schacht held that al-Shâfi'ï was a traditionalist whose main concern was
to assert the overriding authority of Prophetic traditions against the living
traditions and the “opinions of men” that were dominant at that time. For this,
see Schacht, Origins, pp. 6-20.
[526] Schacht, “Dâwüd B. 'Alï,” ei2, vol.
2, p. 182.
[527] N. J. Coulson, A
History of Islamic Law, p. 71.
[528] Hallaq, Origins,
pp. 124-127.
[529] Abdel Magid Turki,
“al-Zâhiriyya,” ei2, vol.
11, p. 394. This in itself only means that Dâwüdism was traditionalist if
“orthodoxy” means traditionalism, which is most likely what Turki had in mind.
Orthodoxy here refers to both theological as well as legal beliefs. For the
relationship between Muslim orthodoxy and law, see George Makdisi, “Hanbalite
Islam,” p. 264, where Makdisi argues that “[i]t is now time to rethink our idea
of Muslim Orthodoxy. For the only orthodoxy which is certified in Islam by the
consensus of the community (jmat ) is Sunni orthodoxy, represented since
the third/ninth century by the four schools of Sunni law . . . In the realm of
[the] religion [of Islam], everything must be legitimized through the schools
of law. For Islam is nomocratic and nomocentric.” On the relationship between
Ahmad ibn Hanbal in particular and various aspects of “orthodox” (Sunni) Islam,
see Hurvitz, Formation. Remarkably, Hurvitz believes that
“traditionalism” was introduced to jurisprudence by al-Shâfi'ï and maintained
by Ibn Hanbal and Dâwüd, although the former delegated qiyas to the last
position among the sources of the law, whereas Dâwüd rejected it altogether
(Hurvitz, Formation, pp. 103, 186). Hurvitz’s discussion of Ibn Hanbal’s
jurisprudence leads him to say that it was his acceptance of views of
Companions and Successors (which Dâwüd did not do) and his giving them precedence
over qiyas that characterized his thought (ibid., p. 156).
[530] ei2, vol.
11, p. 395 (emphasis mine). Remarkably, Turki relies here entirely on Ibn Hazm,
holding that this is “inevitable” for lack of other sources on Zâhirism. He
also relies, at times uncritically, on modern studies on Zâhiris, particularly
Abü Zahrah’s, Goldziher’s, Brunschvig’s, and Schacht’s.
[531] Ibid., vol. 11, p.
395.
[532] Ibid, vol. 11, p.
395 (emphasis mine). The assumption here is that this “Tradition” was the one
the cause of which the Ahl al-Hadith were supporting, since this was the
Tradition that differed from that of the ancient schools of law.
[533] Mahmud Makki’s view on the
origin of Zâhirism is similar to Turki’s in its indirect but evident
association of Zâhirism with “Traditionalism”. In his view, “El sâfi'ismo—ya lo
hemos señalado—era un término medio entre el Razonamiento y la Tradición. Pero
los 'iraqíes partidarios de la Tradición, no se sintieron satisfechos de la
forma en que al-Safi'i intentaba conciliar los dos principios. Hubo algunos
exremistas que exigieron basarse más en la Tradición. Claro que el gran
florecimiento de lose studios tradicionistas en 'Irâq, a fines del siglo III,
favorecía mucho a este partido, que acabó por formar una nueva escuela: la
zâhiri, que reclamó unareformajurídical a base de limitarse a la utilización
del Corán y la Tradición y restringir la Unanimidad, al-Iymâ', concelando por
completo el Razonamiento y la Analogía” (Makki, Ensayo, p. 205).
[534] Muhammad al-Shatti,
“Risâlah fi Masâ’il al-Imâm Dâwüd al-Zâhiri,” in Majmü'yashtamilu 'ala
Risalatayn, p. 3.
[535] Muhammad Abü Zahrah, Ibn
Hazm: Hayatuhuwa-Asruhu, Ara’uhuwa-Fiqhuhu, p. 264.
[536] Abü 'Id, al-Imam Dawud,
p. 102.
[537] Ibid., pp. 133-135.
[538] ‘Abd al-Majïd, Ittljahat,
pp. 350-359.
[539] Ibld, pp. 361-362.
Other differences that ‘Abd al-Majïd mentions are technical. For instance, when
a Companion says “we were commanded” or “we were prohibited,” Zâhirïs would not
accept this as valid textual and legal evidence. The Ahl al-Hadlth,
however, treated this as a kind of marfu' traditions that are Prophetic
in origin even if the Prophet himself is not explicitly mentioned (for marfu'
traditions, see al-Khatïb al-Baghdâdï, al-Klfayah, p. 10). Secondly,
whereas the imperative mood (al-amr) denotes obligation for both sides,
Zâhirïs would take it to establish recommendation or permission only when there
is solid textual evidence, while the Ahl al-Hadlth would change its
default sense on other grounds that are not strictly textual in nature (‘Abd
al-Majïd, Ittljahat, pp. 366-367).
[540] Ibld, p. 417.
According to this, it would therefore be rather hasty to say that Ibn Hanbal
was “careless” in not always distinguishing between what was “required” and
“recommended,” as Melchert argues (Melchert, Ahmadlbn Hanbal, p. 76), for
this was done on purpose and not without good reasons in Ibn Hanbal’s view.
[541] ‘Abd al-Majid, Ittjahat,
p. 447.
[542] Ibid., p. 357.
[543] Christopher Melchert, Formation,
pp. 179-180. As noted earlier, in their view, valid jma‘ was only the
consensus of the Prophet’s Companions.
[544] Ibid., pp. 180-184.
The issue of khalq al-Qur‘an dealt with the question of whether or not
the Qur’an was “created.” This issue was raised in the late 2nd century and
continued to be controversial for most of the first half of the 3rd. During
that time, Ibn Hanbal and some other scholars refused to subscribe to the
“official” view (influenced by Mu‘tazili connections with the Caliph) on the
created nature of the Qur’ân. Ibn Hanbal is thought to have emerged from this Mihnah
(inquisition) as the champion of what became orthodox Sunni Islam (for Ibn
Hanbal’s life and status in the aftermath of Mihnah, see, Hurvitz, Formation,
pp. 145ff. For the view that Mihnah did not play such a significant role
in the intellectual history of Islam, see Scott Lucas, Constructive Critics:
Hadith Literature and the Articulation of Sunni Islam, pp. 192-202).
[545] Vishanoff, The
Formation, p. 37.
[546] Ibid., pp. 66ff.
[547] Ibid, p. 68
(emphasis mine).
[548] Ibid, p. 68.
[549] Spectorsky, Chapters,
p. 7 (emphasis mine).
[550] Ibid., p. 23.
[551] Ibn Rahawayh, for
instance, would argue that not using siwak (a piece of wood that the
Prophet used to brush his teeth with before the prayers) and washing in between
the hair of the beard (takhlll al-lihyah) void the prayers, on the basis
that the Prophet said that a Muslim should?/must? do these before praying (‘Abd
al-Majid, Ittijahat, p. 349). It is, of course, clear that what is at
stake here is whether the Prophet, when he issued that command, meant that it
was obligatory or only praiseworthy. Ibn Rahawayh’s views here are based on the
notion that the imperative denotes obligation, a central notion in the
jurisprudence of both Zahiris and the Ahlal-Ray, as will be discussed in
chapter five.
[552] ‘Abd al-Majid notes
aspects of similarity between al-Bukhari’s and Zahiris’ legal methodology.
[553] The only exception to this may
be al-Qâdï al-Nu‘mân. As noted in chapter
one, he mentioned that istidlal, a clearly hermeneutical tool,
was the pillar of the jurisprudence of a certain group of jurists whom Stewart
takes to be the Zâhirïs. This chapter will demonstrate that this could in fact
be a reference to them.
[554] For examples of
scholars who define the zahir meaning as the “apparent” or “evident”
meaning, see Abdel Magid Turki, “al-Zâhiriyya” (ei2, vol. 11, p. 395), where he argues that Zâhirïs sought to confine
jurisprudence “within the narrow limits of the evident meaning of the sacred
text”. See also, Arnaldez, Grammaire et théologie, p. 26. To identify
“le sens apparent,” Arnaldez argues, one does not need to search “en dehors de
la définition nominale, lexi- cographique.” These scholars do not explain what
the apparent or evident meaning is. Nor do they demonstrate that this was the
understanding of zahir by Zâhirïs. “Literal,” of course, is also widely
used, which will be discussed in the next chapter. To my knowledge, the only
modern scholar who attempted to explain the meaning of zahir is Tawfïq
al-Ghalbazürï. He, however, only mentions that zahir for the scholars of
usül al-fiqh is any term or word the meaning of which does not require
an indicator other than itself (an yaküna al-lafz bi-haythu yadullu ma'nah
bi-slghatihi min ghayr tawaqquf 'ala qarlnah kharijiyyah). He does not, however,
demonstrate that this is how Zâhirïs understood it, nor does he argue that this
was the sense of the term as it was used in the 3rd/9th century. In fact, he
admits that it is one of “the most ambiguous terms” (akhfa l-mustalahat)
in Ibn Hazm’s writings (al-Ghalbazürï, al- Madrasah al-Zahiriyyah, p.
549).
© KONINKLIJKE
BRILL NV, LEIDEN, 2014 | DOI 10.1163/9789004279650_006
[555] Lane, An
Arabic-English Lexicon, vol. 5, p. 1926.
[556] For this, see al-Khalïl ibn
Ahmad, Kitab al-Ayn, pp. 505-506, and Ibn Manzür, Lisan al-Arab, vol.
8, p. 277. I will refer to Ibn Manzür for the other derivatives of z-h-r.
Other lexica, such as Kitab al-Ayn of al-Khalïl ibn Ahmad al-Farâhïdï
(d. 175/774), Jamharat al-Lughah of Ibn Durayd (Abü Bakr Muhammad ibn
al-Hasan al-Azdï) (d. 321/933), al-Sihah of Ismâ'ïl ibn Hammad
al-Jawharï (d. 400/1010), al-Qamus al-Muhit of Majd al-Dïn Muhammad
al-Fïrüzâbâdï (d. 816/1414), and Taj al-Arus of Muhammad Murtada
al-Zabïdï (d. 1205/1791) do not add much to what Ibn Manzür mentions.
[557] Ibn Manzür, Lisan,
vol. 8, p. 274.
[558] Ibid., vol.
8, pp. 277-279.
[559] Ibid., vol. 8, pp.
278-279. Other meanings of zahir have to do with zahr, meaning
back. Ironically, the Arabs used zahr for back, not face, which suggests
that it was coined in reference to animals, whose zahr is usually more
apparent than their bellies (batn), especially for those mounting them.
For human beings, however, batn rather than zahr is what people
usually see of each other when they interact.
8
Al-zahru
ma ghaba 'an-ka (Ibn Manzûr, Lisan, vol. 8,
p. 279). In al-Zabidi’s view, this is a figurative use of zahara
(al-Zabidi, Taj al-Arus, vol. 7, p. 170).
9
Lane, An
Arabic-English Lexicon, vol. 5, p. 1930.
10
Ibn
Manzûr, Lisan, vol. 8, p. 274.
[561] Lane, An Arabic-English
Lexicon, vol. 5, p. 1927.
12
Ibn
Manzûr, Lisan, vol. 8, p. 277.
13
This view
is attributed to the Shafi'i scholar al-Ghazzali (for this, see Abû Hamid
al-Ghazzali, al-Mustasfa min 'Ilm al-Usul, vol. 2, pp. 713-714).
14
Sayf
al-Din al-Àmidi, al-Ihkam fl Usul al-Ahkam, vol. 2, pp. 197-198.
[562] Ibid., vol. 2, pp.
199-207. A nass is any statement the meaning of which does not need any
further indication beyond itself. For various meanings and uses of this term,
see A. J. Wensinck (and J. Burton), “Nass,” ei2, vol. 7, p. 1029.
[563] For a complete list of
this root and its derivatives in the Qur’an, see Muhammad Fu’ad ‘Abd al-Baqi, al-Mujam
al-Mufahras li-Alfaz al-QurOm al-Karlm, pp. 559-560.
[564] See, for instance, Q.
6:94, Q. 6:138, Q. 35:45, and Q. 42:33. Some of these instances have to do with
zihar, a declaration by a husband that his wife is to him like the back (zahr,
hence zihar) of his mother (for this, see Q. 33:4, Q. 58:2, and Q.
58:3). (For zihar, see Ibn Qudamah al-Maqdisi, al-Mugh.nl, pp.
54ff.)
[565] See, for instance, Q. 9:8:
“How [can there be any treaty for the others] when, if they prevail
over you (kayfawa-innyazharu 'alaykum)..’ See also Q. 18:20, Q. 40:20,
and Q. 48:28.
[566] See, for instance, Q. 9:4:
“Except those of the idolaters with whom you [Muslims] have a treaty, and who
have since abated nothing of your right nor have supported anyone against you (wa-lamyuzahiru
'alay-kum ahadan)” See also Q. 33:26 and Q. 60:9.
[567] For example, all exegetes
take zahara in Q. 30:41 (Corruption has appeared (zahara) on land
and sea) to mean “to appear,” and in Q. 40:26 (...he will make mischief to
appear (yuzhir) in the land) to mean “to cause to appear.” Furthermore,
all exegetes take azhara "ala. in Q. 66:3 (...and God made it known
to him (azharahu ’ala) [i.e., the Prophet Muhammad]” and Q. 72:26 ([He
is] the Knower of the Unseen and he does not reveal
(yuzhiru 'ala) His secret to any) to mean “to reveal to” or
“to inform someone” or “to make someone aware of something.”
[569] These are Jami'
al-Bayan fl TaWll Ay al-Qur‘an of Muhammad ibn Jarir al-Tabari (d.
310/922), al-Tafslr al-Kablr of Fakhr al-Din al-Râzi (d. 606/1209), al-Jami'
li-Ahkam al-Qur'an of Abû ‘Abd Allâh al-Qurtubi (d. 671/1272), and Tafslr
al-Qur‘an al-Azlm of Isma'il ibn ‘Umar ibn Kathir (d. 774/1372).
[570] Other Qur’ânic verses
that contrast zahir al-ithm and batin al-ithm include Q. 7:33,
(“Say: My Lord forbids indecencies, ma zahara min-hawa-ma batana”), Q.
6:151, and Q. 7:33. For other verses that contrast zahir and batin,
see, for instance, Q. 57:3 and Q. 31:20.
[571] Muqâtil ibn Sulaymân, TafslrMuqatil,
vol. 1, p. 586.
[572] Al-Tabari, Jami'
al-Bayan, vol. 8, pp. 13-15.
[573] Fakhr al-Din al-Râzi, al-Tafslr
al-Kablr, vol. 13, pp. 167-168.
[574] Al-Qurtubi, al-Jami',
vol. 7, p. 74.
[575] Ibn Kathir, Tafsir,
vol. 6, pp. 145-146.
[576] Mujahid ibn Jabr, TafsirMujahid.,
vol. 1, p. 329.
[577] Muqatil ibn Sulayman, TafsirMuqatil,
vol. 2, p. 381.
[578] Al-Tabari,Jamic
al-Bayan, vol. 12, p. 359.
[579] Al-Razi, al-Tafsir
al-Kabir, vol. 19, p. 56.
[580] Al-Qurtubi, al-JamC,
vol. 9, p. 323.
[581] Ibn Kathir, Tafsir,
vol. 8, p. 154.
[582] Muqatil ibn Sulayman, TafsirMuqatil,
vol. 3, p. 407.
[583] Al-Tabari,Jamic
al-Bayan, vol. 21, pp. 22-23.
[584] Al-Qurtubi, al-JamC,
vol. 14, pp. 7-8; Ibn Kathir, Tafsir, vol. 11, p. 15.
[585] Al-Razi, al-Tafslr
al-Kablr, vol. 25, p. 97.
[586] Muqatil ibn Sulayman, TafslrMuqatil,
vol. 4, p. 240.
[587] Al-Tabari,Jami'al-Bayan,
vol. 27, pp. 225-227.
[588] Fakhr al-Din al-Razi, al-Tafslr
al-Kablr, vol. 29, p. 226.
[589] Al-Qurtubi, al-Jami',
vol. 17, p. 246.
[590] Ibn Kathir, Tafslr ibn
Kathlr, vol. 13, pp. 419-420.
[591] Earlier Qur’an
commentaries are usually succinct, only give the “meaning” of Qur’anic verses
without much discussion. Indeed, the term zahir does not appear in other
early tafslrs such as those of Mujahid ibn Jabr and Muqatil ibn
Sulayman.
[592] Not all instances in
which zahir appears in al-Risalah are discussed here. Some of
these do not seem to have a particular relevance to or significance for this
discussion. In his discussion of qiyas, for instance, al-Shafi'i speaks
about our knowledge of zahir and batin. Khadduri—mistakenly, in
my view—translates this as the “literal” and “implicit” meaning respectively (al-Risalah
(1961), pp. 288ff). Al-Shafi'i’s discussion, however, strongly indicates that zahir
here means that of which we are certain (through a mutawatir text or i/ma)
whereas batin refers to what is real, even if we do not know it for
certain— i.e., what is hidden from us (for this, see al-Risalah (1938),
pp. 476ff, §§i32iff). For example, when jurists draw a certain analogy between
a new case that resembles more than one existing case and the 'illah of
which is disputed among scholars, each jurist’s qiyas in this case is
“apparently” ( fl l-zahir) correct. Whether it is truly correct in
reality ( fl Tbatin), however, is beyond our certainty (al-Risalah
(1938), p. 479, §1332). The same point applies to testimonies. Testimonies are
valid on the basis of what appears to us of the reliability of the witnesses (al-zahir
min hal al-shuhüd), but their batin (i.e., the truth about their
testimonies and integrity) is beyond our ability to ascertain (ibid.,
pp. 478479, §1330). A third example is when a man unknowingly marries his
sister. In the unknown (flTmughayyab), she is his sister. But in what
appears to us and what we know (fl’l-zahir), she can perfectly be his
wife (ibid., pp. 499-500, §§1430-1439). See also ibid., pp.
481-482, §§1350-1354, for a similar discussion and use of zahir in
reference to 'adalah (integrity and reliability).
[593] fa-inna-ma khataba Allah
bi-kitabihi lArab bi-lisaniha 'ala ma ta'rifu min ma'anlha, wa-kana mimma
ta'rifu min ma'anlha ittisa'lisaniha, wa-annaftratahu anyukhataba bi-l- shay‘min-hu
'dmm zahir yuradu bi-hi l-'amm al-zahir, wa-yustaghna bi-awwalhadha min- hu 'an
akhirihi, wa-'amm zahiryuradu bi-hi l-'amm wa-yadkhuluhu 1-khass, fa-yustadallu
'ala hadha bi-ba'd ma khütiba bi-hi fl-hi, wa-'amm zahir yuradu bi-hi 1-khass,
wa-zahir yu'rafu fl siyaqihi anna-hu yuradu bi-hi ghayr zahirihi. Fa-kull hadha
mawjüd 'ilmuhufl awwal al-kalam awwasatihi aw akhirihi. Al-Risalah (1938),
§173, pp. 51-52. For the translation of the quoted passages from al-Risalah,
I use the translations of Khadduri (al-Risalah, 1961) and Joseph Lowry (Early
Islamic Legal Theory) with at times significant changes. For example, in
this passage, Lowry translates zahir as “appears to be” (Lowry, Early
Islamic Legal Theory, p. 73). Obviously, Lowry does not hold that zahir
is used technically here. I also takefitrah in this passage to be a
reference to an Arab, and not to God. The evidence is a reference later in the
passage to an addressee (mukhatab, in bi-ba'dma khütiba bi-hi), which
cannot be God if He is the speaker (mukhatib). Therefore, I do not
follow Shakir’s vocalization of the verb in the third line of this paragraph as
yukhatiba, which is translated accordingly by both Khadduri and Lowry.
[594] For the various
translations of the terms 'amm and khass, see Lowry, Early
Islamic Legal Theory, p. 69. Arguing that other translations could be
clumsy at times, Lowry suggests translating 'amm as unrestricted, and khass
as restricted. Arguably, however, for those who maintain that “all texts
appear at first to be, or in fact are at one level, 'amm, but some are
then shown to have an import that should be described as khass” (ibid..,
p. 70), it is redundant to qualify any term by descrbing it as 'amm. Any
term should be presumed to be 'amm unless there is a valid indicator
that suggests otherwise, in which case it undergoes restriction or
particularization (takhsis) and becomes restricted (khass). This,
of course, does not apply to terms that are restricted or specific by their
nature, such as proper names as well as personal and demonstrative pronouns
(for this, and for an overview of this subject, see Bernard Weiss, “'Umûm
wa-Khusûs,” ei2, vol. 10, p. 866).
[595] Al-Risalah (1938),
p. 322, §882. Lowry translates batin here as the “objectively correct
meaning,” and zahir as the “apparent meaning,” a translation he seems to
consider standard (Lowry, Early Islamic Legal Theory, p. 328). Lowry
argues, rightly, in my view, that the 'amm/khdss dichotomy deals with
the scope of application of rules. In this view, a rule is 'amm when it
“applies to the entirety of a class,” and is said to be khass when it
“applies only to a subset of the class” (Lowry, Early Islamic Legal Theory,
p. 69).
[596] Al-Risalah (1938),
p. 29, §87.
[597] Ibid., p. 196,
§534.
[598] It befits here to mention
an additional example of al-Shâfi'ï’s use of zahir that demonstrates
what appears to be a corruption in both the wording of al-Risalah and
the translation of Khadduri. “Had it not been for the evidence of the Sunnah
and our decision on the [basis of the] zahir [meaning of the Qur’ân],”
al-Shâfi'ï argues, “we should have been in favor of punishing everyone to whom
the term stealing applies by the cutting off [of the hand]” (al-Risalah
(1961), p. 107; (1938), pp. 72-73, §235). Apparently, both Shâkir and Khadduri
did not notice that this passage, as it stands, contradicts the points that
al-Shâfi'ï seeks to make here. What al-Shâfi'ï must be saying here is: “Had it
not been for the evidence of the Sunnah, and if we decide on the basis
of the zahir meaning of the Qur’ân, we should have been in favor of
punishing everyone to whom the term stealing applies by the cutting off [of the
hand].” This passage as it is in Shâkir’s edition of al-Risalah would
make sense only if al-Shâfi'ï held that al-khass rather than al-'amm
was the zahir meaning, which nothing else that he mentions indicates. In
fact, in another context, al-Shâfi'ï argues that “the term ‘theft’ is binding
upon whoever steals, regardless of the value of the stolen article or of its
security” (al-Risalah (1938), pp. 112-113, §333). This means that without
the Sunnah evidence—which identifies the minimum value of the stolen
article and the circumstances of the theft that warrants cutting off the
hand—any person who steals anything in any circumstance would be treated as a
thief whose hand must be amputated.
[599] Al-Risalah (1938),
pp. 201-202, §547.
[600] Ibid., pp. 206-207,
§557.
[601] Al-Risalah (1938),
pp. 222ff, §§6ioff, and (1961), p. 185.
[602] This is consistent with
Lowry’s argument that, more often than not, al-Shâfi'ï uses the ‘amm/khass
dichotomy to reconcile the Qur’ân and Sunnah. The Qur’ânic text is
usually 'amm, and evidence from the Sunnah restricts its
generality (Lowry, “The Legal Hermeneutics,” p. 10). For a detailed discussion
of the issue of the Hmm/khass dichotomy, see Lowry, Early Islamic
Legal Theory, pp. 69-87. Lowry’s discussion of this issue is important,
but what renders it less relevant for us here is his interest in the 'amm/khass
dichotomy itself, while we are interested in it insofar as it relates to what
al-Shâfi'ï regards as the zahir meaning. Otherwise, Lowry does not say
anything about this issue that seems to contradict what is mentioned here.
[603] Al-Risalah (1938),
p. 64; (1961), p. 103.
[604] Ibid., p. 64,
§§212-213.
[605] Ghuslyawm al-jumu'ah
wajib (al-Risalah (1938), p. 303, §841).
[606] Al-Risalah (1938),
p. 303, §841.
[607] Layakhtub ahadukum 'ala
khitbat akhlhi (al-Risalah (1938), p. 307, §847).
[608] Al-Risalah (1938),
pp. 307-308, §849.
[609] Al-Risalah (1938),
pp. 217-218, §594. This passage in al-Risalah is difficult to construe,
but Khadduri’s translation is obviously inaccurate here.
[610] Al-Risalah (1938),
p. 218, §595.
[611] For this, see al-Àmidï, al-Ihkam,
vol. 3, pp. 95-96.
[612] For this, see chapter one
above.
[613] Al-Tabarï,Jamic
al-Bayan, vol. 1, p. 7.
[614] Ibid, vol. 1, p. 7.
[615] Al-khabar 'an al-khass
ft al-muradbi-l-'amm al-zahir, wa-'an al-'amm.fial-muradbi-l-khass al-zahir
(al-Tabari,Jami' al-Bayan, vol. 1, p. 7).
[616] Ibid., vol. 1, p.
11.
[617] Ibid., vol. 1, p.
12. For a presentation of various views on this tradition, see ibid.,
pp. 11ff.
[618] Fa-zahruhu ‘l-zahirfi
ï-tilawah, wa-batnuhu ma batana min taWllihi (ibid., vol. 1, p. 32).
[619] Ibid., vol. 1, pp.
33-34.
[620] Zahir and its
variants appear in al-Tabari’s entire tafslr approximately 500 times. I
will focus on the first half of sürat al-Baqarah, avoiding some
instances of the use of zahir which would require lengthy and
hair-splitting discussions that are not relevant to our purposes here.
[621] Al-Tabari, Jami'
al-Bayan, vol. 1, p. 91.
[622] The complete verse reads:
“And He taught Adam all the names (al-asma‘kulla-ha), then showed them
to the angels, saying: Inform Me of the names of these, if you are truthful.”
75
Al-Tabari,
Jami' al-Bayan, vol. 1, pp. 261-267. Ubayy ibn Ka‘b was an early Medinan
Companion known for his mastery in reading the Qur’an. His date of death is
disputed, but he certainly died before 35/655 and possibly in 19/640 (for his
biography, see, for example, Jamal al-Din al-Mizzi, Tahdhlb al-KamalflAsma'
al-Rijal, vol. 2, pp. 262-273).
76
The verse
reads: “Seek help in patience and prayers; and truly it is hard (kablrah')
save for the humble-minded.”
77
Al-Tabari,Jamic
al-Bayan, vol. 1, p. 261.
78
The verse
reads: “We said: Go down, all of you, from hence; but verily there comes unto
you from Me a guidance; and whoso follows My guidance, there shall no fear come
upon them neither shall they grieve.”
79
Al-Tabari,Jamic
al-Bayan, vol. 1, p. 247.
[624] The verse reads: “Those
who break the covenant of Allah after ratifying it, and sever that which Allah
ordered to be joined, and (who) make mischief in the earth: Those are they who
are the losers.”
[625] Al-Tabari, Jami'
al-Bayan, vol. 1, p. 185.
[626] Ibid, vol. 1, p.
185.
[627] The verse says: “Nay, but
whosoever has done evil and his sin (khatVatuhu) surrounds him; such are
rightful owners of the Fire; they will abide therein [forever].”
[628] Al-Taban,Jamic
al-Bayan, vol. 1, pp. 386-387.
[629] The verse reads: “They
[Moses’ people] said: Pray for us unto your Lord that He make clear to us what
(cow) it is. Lo! Cows are much alike to us; and Lo! If Allah wills, we may be
led aright.”
[630] Al-Tabari mentions that he
discussed this at length in a work of his entitled al-Risalah.
[631] Al-Tabari, Jami'
al-Bayan, vol. 1, pp. 348-349. Al-Tabari believes that when the scope of a 'amm
statement is restricted, this restriction applies only to that particular part
of the statement that is subject to that restriction. For example, when the
Jews asked God about the cow, he gave them some description. According to
al-Tabari, they would have obeyed the order had they slaughtered any cow with
the new description only (ibid, p. 349). In other words, the first
command (slaughter any cow) lost only one part of its unrestrictedness, and
that is the part that is being specifically identified as restricting the
generality of the statement. If the description has to do with the color of the
cow, for instance, any cow with the specified color would do. If it has to do
with age, any cow of any color that meets the age criterion would do.
[632] The verse says: “And you
know of those of you who broke the Sabbath, how We said to them: Be you apes,
despised and hated!”
[633] Al-Taban,Jamic
al-Bayan, vol. 1, pp. 331-332.
[634] The verse reads: “And when
your Lord said to the angels, I am going to place in the earth a khallfah,
they said: Will you place therein one who will do harm therein and will shed
blood, while we, we hymn Your praise and sanctify You? He said: Surely I know
that which you know not.”
[635] Al-Tabari, Jami'
al-Bayan, vol. 1, p. 209.
[636] The verse reads: “And
believe in that which I have revealed, confirming that which you possess
already (of the Scripture), and be not first to disbelieve therein, and part
not with My revelations for a trifling price, and keep your duty unto Me.”
[637] Al-Taban,Jamic
al-Bayan, vol. 1, pp. 234-235.
[638] See, for instance,
al-Tabari, Jami' al-Bayan, vol. 1, p. 537, where al-Tabari says: wa-dhalika
anna ï-kalam mahmül ma'nah 'ala zahirihi Jma'rüf düna batinihi
ï-majhül hatta yatya mayadullu 'ala khilaf dhalika mimmayajibu t-tasllm la-hu.
[639] Roger Arnaldez came to a
similar conclusion regarding the meaning of zahir. He argues that “pour
le penseur zahirite [Ibn Hazm], un terme doit d’abord être pris dans toute
l’étendue de ses significations, c’est-à-dire dans son zâhir” (Arnaldez, Grammaire
et théologie, p. 128). His keenness to demonstrate Ibn Hazm’s consistency
and the universality of his Zâhirism (in that it permeates his legal and
non-legal thinking, such as his linguistic, psychological, logical and
metaphysical) (ibid, p. 226), however, has distracted him from focusing on
the meaning of zahir itself. This notwithstanding, he points out that
“ce qui sépare Ibn Hazm des autres zâhirites, c’est qu’il a systématizé la
doctrine, et qu’il en a étendu le principe à tous les domains de la
spéculation. Or la question logico-grammaticale de la nature du sens général,
est chez lui à la base de son interprétation des texts et de sa théologie.” In
any case, Arnaldez does not seek to determine how Dâwüd himself have understood
zahir, although he does examine al-Shâfi'ï’s use of it and discusses the
relationship between “le sens général” and “le sens immédiatement manifeste (zahir)”
(ibid., p. 225).
[640] It must be pointed out
that investigating the authenticity and historicity of views attributed to Abu
Hanifah, Ahmad ibn Hanbal, and DawUd al-Zahiri in medieval sources is beyond
the scope of this study. While we do not have specific statements on usul
attributed to them, it is here assumed that if medieval sources are consistent
in attributing a certain view to any of them, there is a reasonable chance that
that was his view if he ever had one. This may perhaps be the only possible way
we can speak meaningfully about their legal thought. Without ruling out the
obvious possibility that medieval scholars may have retrospectively read some of
their own views on usul into the masaïl (cases, rulings, and
views) that reached them from the founders of their schools, only views that
they attribute unanimously to these founders or presented as being a matter of
consensus among earlier scholars will be referred to. For our purposes here,
even if these usul rules were deduced from the masaïl of earlier
scholars, we should be able to proceed on the reasonable assumption that if
later scholars were able to deduce similar principles from these masaïl,
they probably deduced the right principles. After all, if these scholars agree
on any principle, it becomes the principle of their school, regardless
of what the founder himself may have thought. In brief, what this part seeks to
demonstrate is that if we assume that there existed jurists named Abu Hanifah
and Ibn Hanbal who held particular legal views, it is erroneous to perceive
DawUd as having been intellectually closer to the latter than to the former.
[641] Aaron Zysow, Economy,
pp. 2-3.
[642] Ibid., pp. 2-4.
[643] Ibn Hazm, Ihkam,
vol. 1, p. 21.
[644] Ibid., vol. 1, p.
67 and vol. 2, p. 657.
[645] Ibid., vol. 2, p.
829.
[646] Some medieval scholars,
like Ibn Khaldün, distinguished between two methods of writing on usul
al-fiqh. The first is the “the method of the jurists” (tarlqat
al-fuqaha‘), which was mostly the method of Hanafi scholars. Here, the
rules of usul al-fiqh are deduced from thefurul (or the legal
rulings on individual cases) that were inherited from the founder(s) of the
school (such as Abü Hanifah and his two famous disciples, Abü Yüsuf and
Muhammad ibn al-Hasan al-Shaybani in the Hanafi madhhab). In the “method
of the dialecticians/theologians” (tarlqat al-mutakallimln), mostly
developed and followed by Shafi‘i scholars, the rules of usül are
expounded in a more theoretical and dialectical manner, with relative
independence from thefiní (for this, see, ‘Abd al-Rahman ibn Khaldün, al-Muqaddimah,
pp. 426-427). Al-Jassas’s work is a good example of the first method, as he
seeks to demonstrate how his theoretical discussions are built on or related to
specific rulings that were attributed to the early masters of his madhhab.
[647] Al-Jassas defines istidlalas
“the search for the evidence” (talab al-dalalah) and studying it (wa-l-nazar
fl-ha), to reach the knowledge of what is referred to (li-l-wusülila
'l-'ilm bi-l- madlül). Thus, istidlal here is used in a general way
that refers to the process of identifying legal rulings (ahkam). As will
be discussed later, “obvious” or “literal” meanings of a term or a text are
inseparable from the linguistic convictions of the reader. Nothing in the law,
we can understand from al-Jassas, is not in need for evidence, although pieces
of evidence differ in their clarity, and, consequently, how much certainty they
can yield (Abü Bakr al-Jassas, al-Fusülflal-Usül, vol. 2, p. 200).
[648] This category of istidlal
deals with, in al-Jassas’s words, kathlr min dala'il ahkam
al-hawadith allatl laysa 'alay-ha illa dalll wahid qad kullifnafl-ha isabat
al-matlüb.
[649] Ibid, p. 200.
[650] For this and for some
examples on it, see al-Jassas, al-Fusül, vol. 1, pp. 14-15.
[651] Ibid, vol. 1, p.
449.
[652] For this, see Ibn Hazm, Ihkam,
vol. 2, pp. 132ft. On the possibility of the Qur’an being abrogated by the Sunnah
and the Sunnah by the Qur’an, see ibid., vol. 1, pp. 617ft.
[653] Goldziher, The Zahiris,
pp. 89ft
[654] Ibn ‘Abd al-Barr,Jami'Bayan
al-'Ilm wa-Fadlihi, vol. 2, p. 886.
[655] Ibn ‘Abd al-Barr, Jami',
p. 908. Ibn ‘Abd al-Barr argues that Abü Hanifah probably held that opinion on
the basis of the zahir of the tradition in which the Prophet says: “My
Companions are like the stars” (ashablka-l-niyüm, ibid., p. 909). The
rest of the tradition reads: “whomever of them you follow you will be rightly
guided” (bi-ayyihim iqtadaytum ihtadaytum).
[656] It is worth noting here
that in his letter to the Basran scholar ‘Uthman al-Batti, Abü Hanifah argued
with regards the civil wars between the Companions that only one side must have
been right and the other wrong, even if we cannot know for certain who was
right and who was wrong (for this, see Amr Osman, “ Adalat al-Sahaba:
The Construction of a Religious Doctrine,” pp. 297-298 and passim).
Whereas this does not necessarily have to reflect his view on the juridical
opinions of the Companions, it could be an indication that Abü Hanifah thought
that there existed always one right view, even if determining it was not
necessarily attainable. The Ahl al-Hadlth, for their part, held that all
the Companions on both sides in each conflict followed what they sincerely
believed was right and in the interest of Islam, for which they will be
rewarded.
[657] For this, see Ibn Hazm, Ihkam,
vol. 2, pp. 845ft.
[658] For this, see, Abû Zahrah,
UsUl al-Fiqh, pp. 227-233 and pp. 339-341.
[659] Al-Jassas, al-FusUl,
vol. 2, p. 291.
[660] For this, see, for
instance, al-Àmidi, Ihkam, vol. 2, pp. 261-263; Ibn Hazm, Ihkam,
vol. 1, pp. 6o2ff. Remarkably, Ibn Hazm mentions that even some Zahiris had
subscribed to the view that God would not abrogate a ruling (mostly a duty to
either do or avoid doing something) by imposing a heavier one (ibid.,
vol. 1, pp. 602(f).
[661] Al-Jassas, al-Fusül,
vol. 1, p. 368. For Zahiris’ similar argument, see Ibn Hazm, Ihkam, vol.
1, p. 602.
[662] See, for instance, Abü
Zahrah, Abü Hanifah, pp. 224-227, where Abü Zahrah mentions this view to
refute it, although he agrees that Abü Hanifah inherited Ibrahim al-Nakha'i’s
legal thought through Hammad.
[663] Al-Fasi, al-Fikr
al-Sami, p. 386.
[664] Muhammad Mukhtar al-Qadi, al-Rayfl
al-Fiqh al-Islami, p. 131. Al-Qadi argues that all Hanbalis, including
Ahmad ibn Hanbal himself, not only recognized the notion of al-masalih
al-mursalah, but also used it extensively (ibid., pp. 154-155).
[665] Abü Zahrah, for instance,
argues that Abü Hanifah used istihsan “too often” (Abü Zahrah, Abü
Hanifah, p. 342). Further research is needed to investigate how
significantly istihsan actually contributed to Abü Hanifah’s juridical
thinking.
[666] On the relation between hiyal
and maslahah, see al-Fasi, al-Fikr al-Saml, pp. 433-435.
[667] Muhammad ibn al-Hasan
al-Shaybani, Kitab al-Makharij flal-Hiyal.
[668] This distinction, of
course, does not have to be sophisticated, but the view that Abü Hanifah may
have regarded cases differently on the basis of the available evidence is not
unlikely.
[669] For this, see Ibn Hazm, Ihkam,
vol. 2, pp. 1426ft.
[670] See, for instance, Abü
Zahrah, Ibn Hazm, pp. 261-262, and 394ff.
[671] For the importance of the
Arabic language for Islamic law, see, for instance, Bernard
Weiss, “Language and Law: the Linguistic
Premises of Islamic Legal Science,” p. 15.
[672] Zysow, Economy, p.
58. (italics added).
[673] Ibid., p. 59.
[674] Abü Ishaq al-Shirazi, al-Tabsirah;
Al-Sarakhsi, al-Muharrar; and al-Musawwadah.fi Usül al-Fiqh of
Majd al-Din, Shihab al-Din, and Taqi al-Din ibn Taymiyyah.
[675] Al-Sarakhsi, al-Muharrar,
vol. 1, p. 6.
[676] For a brief discussion of
the issue of the imperative, see Weiss, “Language and Law,” pp. 19-20.
[677] Bernard Weiss, The
Searchfor God’s Law, p. 350 (italics added).
[678] Al-Sarakhsi, al-Muharrar,
pp. 8-13.
[679] Ibn Hazm, al-Muhalla,
vol. 1, p. 330. This view on language is consistent with another important
Zahiri view, that is, God is not testing us on whether we would be able to
determine the right ruling in each case, but on whether or not we would abide
by his rulings which, by following the right methodology, we should be able to
determine.
[680] For the Hanafi view, see
al-Jassas, al-Fusül, vol. 1, p. 283. For the Zahiri view, see Ibn Hazm, Ihkam,
vol. 1, p. 329.
[681] For the Hanafi view, see
al-Jassas, al-Fusül, vol. 1, p. 295. For the Zahiri view, see Ibn Hazm, Ihkam,
vol. 1, p. 375.
[682] For the Hanafi view, see
al-Jassas, al-Fusül, vol. 1, p. 314. For the Zahiri view, see Ibn Hazm, Ihkam,
vol. 1, p. 401.
[683] While falling in the
category of the akhbar al-ahad, this tradition was accepted almost
unanimously by Muslim scholars.
[684] Zysow, Economy, p.
78.
[685] Ibid, p. 79. As
noted earlier, it is redundant to describe a term as “general.” If scholars
agree that a certain term is general (meaning unrestricted), they would not
disagree on its scope of application.
[686] Al-Jassas, al-Fusül,
vol. 1, p. 40.
[687] Ibid, vol. 1, p.
79.
[688] Al-Jassas, al-Fusül,
vol. 1, p. 84.
[689] Ibn Hazm, al-Muhalla,
vol. 1, p. 431.
[690] Ibid., vol. 1, p.
471. Significantly, targeting the Hanafis with his bitter polemics in his I'rab
'an al-Hayrah wa-l-Iltibas al-Mawjüdayn fl Madhahib Ahl al-Ray wa-l-Qiyas,
Ibn Hazm censures them primarily for their inconsistency and arbitrariness in
applying their rules rather than rejecting the rules themselves.
[691] Idha thabata I-khabar
'an al-nablwajaba I-'amal bi-hi (Ibn Abi Ya‘la al-Farra’, al-Uddah, vol.
1, p. 224). Obviously, Ibn Hanbal may not have had the issue of the imperative
in mind when he made this statement. But to put al-Farra’s discussion here into
perspective, specific statements from Ahmad ibn Hanbal on usül issues
did not exist. Later Hanbali scholars, who must have been influenced by views
of other madhhabs, sought to infer what Ibn Hanbal may have thought
about various usül issues. More often than not, however, more than one
view were reached by studying his cases. We will discuss what this suggests
about his juridical thinking, but it must be pointed out here that if we regard
Ibn Hanbal as a legal scholar, it is unlikely that he did not have at least
some theoretical views, even if rudimentary.
[692] The tradition in Arabic: ma
amartukum bi-hifa-ttü min-hu ma istata'tum, wa-ma nahaytu- kum
'an-hufa-ijtanibühu.
[693] Al-amr ashal 'indi min
al-nahy (al-Farra’, al-Uddah, vol. 1, p. 228).
[694] This work is attributed to
three scholars of the Taymiyyah family: Majd al-Din (‘Abd al-Salam ibn ‘Abd
Allah, d. 652/1254), Shihab al-Din (‘Abd al-Halim ibn ‘Abd al-Salam, d.
682/1283), and Taqi al-Din (Ahmad ibn ‘Abd al-Halim, or the celebrated scholar
Ibn Taymiyyah, d. 728/1328).
[695] Àl Taymiyyah, al-Musawwadah,
p. 5.
[696] Ibid, p. 15.
1-53 Al-Jassas, al-Fusül, vol. 1, p. 281. For a
complete list of the uses of the imperative form, see
[699] For this, see al-Farra’, al-'Uddah,
vol. 1, p. 248, and Àl Taymiyyah, al-Musawwadah, pp. 6-7.
[700] Ibn ‘Aqil, al-Wadihfl
Usül al-Fiqh, vol. 2, p. 17.
[701] Al-Farra’, al-'Uddah,
vol. 1, p. 281.
[702] Most works on Hanbali usül
al-fiqh follow the tarlqat al-fuqaha' (see p. 149, fn. 102 above)
and rely on Ibn Hanbal’s masaïl to infer his legal principles.
[703] Ibn ‘Aqil, al-Wadih,
vol. 3, p. 17.
[704] Ibid., vol. 3, p.
17.
[705] Al-Farra’, al-'Uddah,
vol. 2, pp. 264-265; Ibn ‘Aqil, al-Wadih, vol. 2, pp. 545-546.
[706] Abü al-Husayn al-Basri, al-Mu'tamadfi
Usül al-Fiqh, vol. 1, p. 102.
[707] Al-Farra’, al-'Uddah,
vol. 2, p. 485; Àl Taymiyyah, al-Musawwadah, p. 89.
[708] Àl Taymiyyah, al-Musawwadah,
p. 89.
[709] For this, see, for
instance, al-Farra’, al-'Uddah, vol. 2, p. 489, and al-Shirazi, al-Tabsirah,
vol. 1, p. 22.
[710] The same opinion was
attributed to al-Shafi'i by the Shafi'i scholar Ibn Surayj, but is
rejected by all other Shafi'is (for this, see, for instance, al-Sarakhsi, al-Muharrar,
p. 11).
[711] Ibn 'Aqil, al-Wadih,
vol. 2, p. 495. This is the view that most scholars of usül attribute to
Mu'tazilis. In al-Mu'tamad, however, Abü al-Husayn al-Basri argues that
the imperative establishes absolute obligation, but he also mentions that Abü
'Ali al-Jubba’i (d. 303/915) held the view that it only suggested
recommendation. In both circumstances, however, it is noteworthy that every
Mu'tazili scholar held one view or another on the degree of obligation that the
imperative establishes. None of them was hesitant about it.
[712] See, for instance, al-Tabsirah,
vol. 1, p. 105.
[713] Al-Basri, al-Muïamad,
vol. 1, p. 189.
[714] A modern scholar who
sought to find a connection between the principle of istishab al-hal, on
the one hand, and the rejection of qiyas, on the other hand, is Y.
Linant de Bellefonds. He argues that from the Zâhiri point of view, since
permissibility (ibahah) is the rule and prohibition is the exception,
only a clear text can establish prohibition. This view is thus inconsistent
with qiyas which is not direct textual evidence yet is nonetheless used
to prohibit that which is not textually forbidden (de Bellefonds, “Ibn Hazm,”
p. 18).
[715] This part of the verse
reads: “O you who believe, obey God and obey the Messenger and those in
authority among you.”
[716] Al-thayyib
bi-l-thayyib, jaldmi’ah wa-l-rajm. Ibn Hazm, Ihkam, vol. 1, pp.
497-498.
[717] Fa-idha uhsinna fa-in
atayna bi-fahishah fa-'alay-hinna nisf ma 'ala ï-muhsanat min al-adhab (and
if when they [slave girls] are married they commit lewdness, their punishment
is half that of free women).
[718] Ibn Hazm, al-Muhalla,
vol. 12, pp. 181-182. It is remarkable here that it Hadith that provides the
general rule and the Qur’an the restriction.
[719] Ibn Hazm, Ihkam,
vol. 1, pp. 85-86.
[720] Ya ayyuha tladhina
amanü idha tadayantum bi-dayn ila ajal musamma fa-iktubühu
(O you who believe, when you contract a debt to a fixed term, record it in
writing).
[721] The views that al-Tabarï
attributes to earlier authorities on the meaning of this verse suggest that
there existed an attitude that sought to restrict it to certain items (hintah,
or wheat), or to certain values (hence, the view that all debts, be they
significant or otherwise (saghiran awkabiran), should be written down).
[722] In al-Shâfi‘ï’s view, the
prohibition applies only when a woman accepts a marriage offer from a man. In
this case, no other Muslim should seek to marry her. If, however, a man offers
to marry a woman and she does not give him a word, other men can ask her for
marriage (al-Shâfi‘ï, al-Risalah (1938), pp. 308-309, §§851-859).
[723] The verse reads: wa-in
kuntum 'ala safar wa-lam tajidü katibfa-rihan maqbüdah, fa-in amina ba'dukum
ba'dfa-l-yu‘addi ïladhi ktumina amanatahu.
[724] For this, see al-Tabari,Jamic
al-Bayan, vol. 3, pp. 117-119.
[725] For modern scholars, see, for instance, Goldziher, The
Zahiris, p. 117; Turki, “al-Zahiriyya,” in ei2, vol. 11, p. 394,
and his Polémiques entre Ibn Hazm et Bagi sur les principes de la loi
musulmane: Essai sur le littéralisme zahirite et la finalité malikite, p.
72; Coulson, History, p. 71; Melchert, Formation, p. 179; Adang,
“The Beginning of the Zahiri Madhhab in al-Andalus,” p. 116, and her “Ibn Hazm
on Homosexuality,” p. 13, where Adang says that “[a]s their name indicates, the
Zahiris advocate the literal interpretation of the revealed sources”
(italics added); and al-Shehabi, “Illa and Qiyas,” p. 29. More recently, Adam
Sabra (“Ibn Hazm’s Literalism,” p. 7) has discussed how Ibn Hazm was
misunderstood because of his “insistence that the Qur’an and Sunnah be
interpreted literally” (italics added). Likewise, Sa'id al-Afghani (Ibn
Hazm al-Andalusi, p. 66) speaks of Ibn Hazm’s fixation on the “letter” of
texts (wuqufihi 'ala harfiyyat al-nusus). Even Mohamed Yunis Ali, who
uses modern pragmatics theory to study some aspects of Ibn Taymiyyah’s
juridical thought in his Medieval Islamic Pragmatics, continues to use
“surface” and “literal” for zahir, assuming that the zahir
statements can yield meaning without the need for contextual clues, which only
change the surface meaning: “The surface meaning of a given utterance
must be taken in principle as the intended meaning of the utterance unless
there is some contextual... evidence to the contrary” (Ali, Medieval
[726] This section deals
with constitutional interpretation in the United States. I find American
textualism, as articulated by Justice Antonin Scalia in particular, a useful
interpretative theory to compare with (and to) Zâhirism. There has been a
previous attempt by Asifa Quraishi to draw some analogies between textualism
and Zâhirism (“Interpreting the Qur’ân and the Constitution: Similarities in
the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence,”
pp. 76-80). Quraishi’s almost complete reliance on secondary sources for
Islamic law, however, has limited her ability to comprehend some of its
aspects. For example, she believes that Mâlik can be compared to American
originalists who focus on the practice at the time when the us Constitution was written to identify the
intent of its authors. She then compares Mâlik with al-Shâfi‘ï, who, for his
part, focused on the verbal traditions that were transmitted from the Prophet.
This comparison is problematic, for Mâlik did not use the practice of the
Medinese (amal ahl al-Madmah) to determine the meaning of verbal traditions,
nor did al-Shâfi‘ï neglect the historical context in determining the meaning of
the Prophet’s utterances. We have seen earlier that al-Shâfi‘ï stressed that
the Qur’ân was revealed in the language of its direct audience (the Arabs), and
that full mastery of this language as it was used by the Arabs during the time
of the Prophet was absolutely required to understand legal/religious texts.
Furthermore, unlike American originalists who use history to determine the
intended meaning of texts by examining how the “Americans” who lived in the
late 18th century would have understood the Constitution (i.e., they use
history to determine meaning rather than practice), Mâlik usually used history
to determine the law, not the interpretation thereof. Mâlik simply
rejected any textual evidence that contradicted Medinan ‘amal. Arguably,
Shâfi'ï would have given weight to Medinan ‘amal that would support one
understanding of a certain reading of a textual evidence rather than the
other. In addition, Quraishi compares reliance on Prophetic traditions to using
other textual evidence from the period when the us
Constitution was written to determine the intent of its authors. This, however,
does not take into account that the Prophetic Sunnah did not just explain
general or ambiguous Qur’ânic statements. However it was also considered an
independent source of the law. Moreover, if we use Prophetic traditions to
determine the intent of God in the Qur’ân, by
which methodology can we verify that our understanding of the
Prophet’s intent is correct if he is using the same language that God uses? Or,
if there is a means by which we can determine the Prophet’s intent, can we not
use the same methodology to directly determine God’s? In brief, Quraishi’s
attempt was a step in the right direction, but more remains to be said about
this subject, which is what this chapter seeks to contribute to.
[728] Crapanzano, Serving
the Word: Literalism in Americafrom the Pulpit to the Bench, p. 10.
[729] Antonin Scalia, Matter
of Interpretation, p. 24.
[730] Ibn Hazm also held that the
first language could not have been developed by people, for developing a
language requires a high degree of reason and knowledge, which can only be
obtained through the use of language (Ibn Hazm, Ihkdm, vol. 1, p. 28).
[731] Ibn Hazm, Ihkdm,
vol. 1, pp. 28-29.
[732] Ibid., vol. 1, p. 30.
Ibn Hazm argues that we do not know now what that language was, and against the
“arbitrary” view of some scholars that it was Arabic (a view that he believes
is highly unlikely) (ibid., vol. 1, pp. 30-31).
[733] Ibid., vol.
1, pp. 30-31.
[734] Ibn Hazm, Ihkam,
vol. 1, p. 260.
[735] Ibid, vol. 2, p.
693.
[736] Ibid., vol. 1, p.
44. Apparently, Ibn Hazm did not notice that this view would lead to a conclusion
that he would have wanted to avoid, for if God uses a certain word to refer to
something other than the meaning that people know, how do we know the meaning
that God intends when he uses the same word elsewhere? In this case, it could
be argued, a willful jurist would be able to pick up the meaning that serves
his preference to a certain legal ruling, something that is in sharp
contradiction with Ibn Hazm’s perception of the law as explained below.
Furthermore, it stands to reason that God was the one who assigned words to
things in the first language, which Ibn Hazm does not believe was the Arabic
language. It is not clear, however, why Ibn Hazm says here that God’s use of an
Arabic word to refer to a thing other than its original referent would not be a
case of figurative use of language as he defines it.
[737] Scalia, Matter of
Interpretation, p. 40.
[738] Fort this, see Ibn Hazm, al-Nubdhah
al-Kafiyahfi UsülAhkam al-Dm, p. 17.
[739] Scalia, Matter of
Interpretation, p. 35.
[740] Ibid., p. 23.
[741] Ibn Hazm, Ihkam,
vol. 2, p. 659.
[742] Ring, Scalia Dissents:
Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, pp. 8 and
25.
[743] Nelson, “What is
Textualism,” p. 370.
[744] Ibid, p. 358.
[745] Eskridge, “Textualism,
the Unknown Ideal?,” p. 1510.
[746] Quoted in Ring, Scalia
Dissents, p. 25 (emphasis mine).
[747] John F. Manning,
“Textualism and Legislative Intent,” pp. 339-340.
[748] Ibid, p. 447
(emphasis mine).
[749] Ring, Scalia Dissents,
p. 25.
[750] Scalia, “Originalism: The
Lesser Evil,” p. 856.
[751] Manning, “Textualism,” p.
433.
[752] Nelson, “What is Textualism,”
p. 356 (emphasis mine).
[753] Manning, “Textualism,” p.
433.
[754] Ibid., pp. 432-433.
[755] Scalia, Matter of
Interpretation, p. 17.
[756] Ibid., p. 18
(emphasis in original).
[757] In Ibn Hazm’s view,
disagreement among people is natural given their different personal
characteristics, ideas, and preferences. Since they usually do not agree on a
view, following them is impossible. Therefore, only God and his Messenger
should be followed, and the Muslim community has agreed on this principle
despite their disagreement on how to carry it out (for this, see Ibn Hazm, Ihkam,
vol. 1, pp. 502-503).
[758] Scalia, Matter of
Interpretation, p. 27.
[759] Ibid., pp. 27-28.
[760] Nelson, “What is
Textualism,” p. 411 (emphasis mine).
[761] Manning, “Textualism,” pp.
429 and 440.
[762] Paul J. Weithman, “The
Precise Word,” p. 181.
[763] Manning, “Textualism,” pp.
424ff.
[764] Nelson, “What is
Textualism,” p. 352.
[765] As explained earlier, if
intoxication is the 'illah of prohibiting wine, any intoxicating beverage
would be similarly prohibited on the basis of this 'illah. Why
intoxication should be avoided in the first place, however, is a question that
Muslim jurists referred to as the hikmah, or the wisdom of the law.
[766] Scalia, A Matter of
Interpretation, p. 22.
[767] Ibn Hazm, Ihkam,
vol. 1, p. 293.
[768] Ibid., vol. 2, p.
1137.
[769] Ibid., vol. 1, p.
8.
[770] Ibid., vol. 1, p.
30.
[771] This is not to say that
Ibn Hazm thought that everyone can understand legal texts. He argues that “bayan”
has several degrees, some of which can only be comprehended by a few scholars
who have mastered the language well enough to understand them (ibid., vol.
1, p. 79).
[772] Ibn Hazm, Ihkam,
vol. 1, p. 75. For an example of Ibn Hazm’s rejection of the view that God may
impose on people a duty without explaining it, see ibid., vol. 9, p. 56.
[773] Ibn Hazm’s argument here
is not purely theological. It relies on textual evidence to proceed through
reason to specific conclusions. The belief of American textualists that lawmakers
choose their language carefully and their ruling out the possibility of scrivener’s
errors, however, seem to be assumptions based on their understanding of how
laws are made.
[774] Nelson, “Originalism,” p.
557.
[775] Nelson, “What is
Textualism,” p. 380.
[776] Ibid., p. 356.
[777] This possibility was, of
course, not entertained by most Muslim scholars with respect to the Qur’an.
[778] Ibn Hazm, Ihkam,
vol. 1, pp. 205-206. Many Hadith scholars held that a transmitter can change
the wording of a tradition if he knows that the words that he uses mean exactly
the same thing as the words they replace (for this, see al-Khatib
al-Baghdadi, al-Kifayah, pp. 232ff.).
[780] Nelson, “What is
Textualism,” p. 357.
[781] Ring, Scalia Dissents,
p. 1.
[782] Nelson, “What is
Textualism,” p. 407.
[783] Ibn Hazm, Ihkam,
vol. 1, p. 64.
[784] By practical sunnah
I mean the deeds of the Prophet Muhammad, in contrast to his sayings, or
Hadith in its strict sense.
[785] Ibn Hazm, Ihkdm,
vol. 1, pp. 138-139.
[786] Quoted in Nelson, “What
is Textualism,” p. 374.
[787] Ibid, p. 375.
[788] For some hermeneutical
tools of American Originalism, see Nelson, “Originalism,” pp. 561ff.
[789] Eskridge, “Textualism,” p.
1542.
[790] According to Frederick
Schauer (“Formalism,” p. 510), “at the heart of the word ‘formalism,’ in many
of its various uses, lies the concept of decisionmaking according to rule. Formalism
is the way in which rules achieve their ‘ruleness’ precisely by doing what is
supposed to be the failing of formalism: screening off from a decisionmaker
factors that a sensitive decisionmaker would otherwise take into account”
(italics in original).
[791] Nelson, “What is Textualism,”
p. 413.
[792] Quoted in ibid.,
p. 376.
[793] Eskridge, “Textualism,” p.
1512.
[794] Ring, Scalia Dissents,
p. 2.
[795] Paul Weizer, The
Opinions of Antonin Scalia: The Caustic Conservative, p. 16.
[796] Manning, “Textualism,” pp.
424-425 (italics mine).
[797] Ring, Scalia Dissents,
pp. 12-13.
[798] Nelson, “What is
Textualism,” p. 355.
[799] On the different methods
according to which two seemingly contradictory pieces of textual evidence can
be reconciled, see Ibn Hazm, Ihkam, vol. 1, pp. 152ft
[800] Ibid, vol. 1, p.
151.
[801] In his discussion of
prohibited beverages, for instance, Ibn Hazm dismisses more than twenty
traditions related to this issue alone (for this, see Ibn Hazm, al-Muhalla,
vol. 6, pp. 177-186).
[802] Ibn Hazm, Ihkam,
vol. 1, p. 233, and vol. 2, p. 893.
[803] Nelson, “What is
Textualism,” p. 409.
[804] Ibid., p. 348.
[805] Eskridge, “Textualism,”
1512.
[806] Nelson, “What is
Textualism,” p. 365.
[807] Ibid, p. 391.
[808] Ibid, p. 377.
[809] Ibid, p. 371.
[810] Weizer, Opinions of
Antonin Scalia, p. 9.
[811] Scalia, Matter of
Interpretation, pp. 20-21.
[812] Nelson, “What is
Textualism,” p. 376.
[813] Eskridge, “Textualism,” p.
1520.
[814] Ibid., p. 1516.
[815] Manning, “Textualism,” p.
434.
[816] I am aware of only one
citation of Arabic poetry in al-Ihkam to demonstrate a linguistic point
(Ibn Hazm, Ihkam, vol. 1, p. 392).
[817] A modern Tunisian scholar,
Ahmad Bakir Mahmûd, mentions that Zahiris did not condone the use of Jahili
Arabic, pre-Islamic poetry, or poetry of non-Muslims to make conclusions about
the use of the Arabic language (Mahmûd, al-Madrasah al-Zahiriyyah, p. 27).
Unfortunately, Mahmûd does not mention his evidence for this contention.
[818] Ibn Hazm, Ihkam,
vol. 1, pp. 46-47 and p. 319, where Ibn Hazm argues that even those with
minimal knowledge of Arabic cannot be ignorant of his understanding of the
function of “aw.” No evidence is given here for this understanding.
[819] Ibn Hazm, Ihkam,
vol. 1, p. 324.
[820] Ibid., vol. 1, p.
395.
[821] Ibid, vol. 1, p.
141.
[822] Eskridge, “Textualism,” p.
1512.
[823] Ring, Scalia Dissents,
p. 24.
[824] See page 186.
[825] A pdf file for the syllabus and concurring and dissenting
opinions in SMITH vs. UNITED STATES, 508 U.S. 223 (1993) is available on http://supreme.justia.com/cases/federal/
us/508/223/ (last
accessed 15/03/2014). References are made to the pagination in this file.
[826] For a more detailed
description of the events of this case, see Crapanzano, Serving the Word,
pp. 262-263.
[827] “SMITH vs. UNITED STATES,”
pp. 228-229.
[828] Ibid., p. 241.
[829] Ibid., pp. 241-242.
[830] “SMITH vs. UNITED STATES,”
pp. 244-245.
[831] Ibid, pp. 242-244.
[832] Crapanzano, Serving the
Word, pp. 263-264.
[833] “SMITH vs. UNITED STATES,”
p. 245. Scalia adds that “[t]he word ‘use’ in the ‘crimes of violence’ context
has the unmistakable import of use as a weapon, and that import carries over
...to the subsequently added phrase ‘or drug trafficking crime.’ Surely the
word ‘use’ means the same thing as to both, and surely the 1986 addition of
‘drug trafficking crime’ would have been a peculiar way to expand its
meaning (beyond ‘use as a weapon’) for crimes of violence” (ibid., p.
246. Italics in original).
[834] According to this, “In all
criminal prosecutions, the accused shall enjoy the right ...to be confronted
with the witnesses against him...” (see Crapanzano, Serving the Word, p.
264). The case (497 U.S. 836, 1990) can be reviewed here: http://supreme.justia.com/cases/
federal/us/497/836/case.html
(last accessed 15/03/2014).
[835] For a more detailed
description of the events of this case, see Crapanzano, Serving the Word,
pp. 264-265.
[836] Weizer, The Opinions of
Justice Antonin Scalia, p. 212.
[837] Ibid., p. 211.
[838] Ibid., p. 212
(italics mine).
[839] Ibid., p. 214.
[840] Ibid., p. 211.
[841] Scalia argues that “no
extrinsic factors have changed since that provision was adopted in 1791.”
“Sexual abuse,” he points out, “existed then, as it does now; little children
were more easily upset than adults, then as now; a means of placing the
defendant out of sight of the witness existed then as now” (quoted in
Crapanzano, Serving the Word, p. 266).
[842] Weizer, The Opinions of
Justice Antonin Scalia, p. 212.
[843] Ibid., p. 211.
[844] Ibid., p. 216.
Scalia adds here that if we do not apply the Confrontation Clause on the ground
that the pressure on the allegedly abused child could cause the witness to
testify, why not deprive the defendant of his right to counsel if this would
save him? For Scalia, this logic only reflects what he believes to be the
typical State’s interest: to convict as many defendants as possible (ibid.,
p. 216).
[845] Ibid, p. 216.
[846] Quoted in Crapanzano, Serving
the Word, p. 266 (italics in original). Scalia points out that the
objective of the Confrontation Clause “is to place the witness under the
sometimes hostile glare of the defendant,” which could “confound or undo the
false accuser,” as one Court’s decision that Scalia quotes says (Weizer, The
Opinions of Justice Antonin Scalia, p. 216). Scalia’s analysis of the
court’s decision is as follows: “The Confrontation Clause guarantees not only
what it explicitly provides for—face-to-face confrontation—but also implied and
collateral rights such as cross-examination, oath, and observation of demeanor
(TRUE); the purpose of this entire cluster of rights is to ensure the
reliability of evidence (TRUE); the Maryland procedure preserves the implied
and collateral rights (TRUE), which adequately ensure the reliability of
evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by
what it explicitly provides for—‘face-to-face’ confrontation (unquestionably
FALSE).” In Scalia’s view “[t]his reasoning abstracts from the right to its purposes,
and then eliminate the right. It is wrong because the Confrontation Clause does
not guarantee reliable evidence; it guarantees specific trial procedures that
were thought to ensure reliable evidence, undeniably among which was
‘face-to-face’ confrontation” (ibid, p. 212).
[847] Weizer, The Opinions of
Justice Antonin Scalia, p. 216.
[848] Ibid, p. 218.
123
The
distinction that Crapanzano makes between the “ordinary” and “literal” meanings
here is not clear to me.
124
Crapanzano,
Serving the Word, p. 260.
125
Ibid., p. 261.
126
Ibid., p. 266.
[850] I am assuming here that a
judge may seek to show how his understanding of the law is justifiable on the
basis of what he considers the purpose or logic of the law. This, however,
does not necessarily mean that this understanding plays a role in the actual
process of interpreting the law. In other words, this could only be a process
of post-facto ratiocination.
[851] Crapanzano, Serving the
Word, p. 262.
[852] Ibid, p. 264
(italics added).
[853] “SMITH vs. UNITED STATES,”
p. 246.
[854] Crapanzano, Serving the
Word, pp. 287-288.
[855] Nelson, “Originalism,” p.
553.
[856] Ibid., p. 520.
[857] Eskridge, “Textualism,” p.
1553.
[858] Scalia, Matter of
Interpretation, p. 25.
[859] Ibid, pp. 25-26.
[860] Ibn Hazm, Ihkam,
vol. 1, p. 17.
[861] Ibid, vol. 1, p.
100.
[862] Ibid, vol. 2, p.
642. Ironically, Ibn Hazm makes these points notwithstanding his unconditional
rejection of dalil al-khitab, according to which, what is not stated in
the textual sources has the opposite ruling of what is (for this, see, ibid.,
vol. 2, pp. 887ff.). In this example, since it is stated that disagreement is
mercy, then it follows that agreement is the opposite. In explaining his point
concerning this tradition, Ibn Hazm argues that there is either agreement or
disagreement, on the one hand, and mercy and anger, on the other hand. If
disagreement is mercy, agreement must be a source of God’s anger. On the issue
of testimony, however, he seems to be suggesting that testimonies of all
persons are acceptable except for those excluded by textual evidence, such as
impious people according to the verse he quotes here. As such, he seems to be
avoiding using dalil al-khitab. This logic of assuming a general rule
and excluding exceptions that are based on textual evidence, to my mind, is
difficult to apply to the example of legal disagreements among Muslims, and we
probably have to take this as an inconsistency on the part of Ibn Hazm who is
unequivocal about his belief that any proposition establishes a ruling only for
that to which it refers and nothing about what is similar to or different from
its referent (for which reason qiyas, which depends on similarity
between two things, and dalil al-khitab, which depends on difference,
are both invalid). It is also possible (but unlikely, given that he states it
when he uses a certain view for the sake of argument) that he is using dalil
al-khitab that his adversaries accept to demonstrate their inconsistency.
Both Vishanoff (The Formation, pp. 95ft.) and Nûr al-Dïn al-Khadimï have
observed that Ibn Hazm does make conclusions on the basis of textual evidence
that does not explicitly state them. The most important examples in this
respect are mafum al-mukhalafah and mafhum al-muwafaqah. Unlike
al-Khadimï, however, Vishanoff is obviously aware that what is dealt with here
are essentially different forms of syllogism, where conclusions are contained
in the premises. This applies to almost all kinds of “textual evidence” (al-dalil
al-nassi) that he mentions (al-Khadimï, al-Dalil 'Inda al-Zahiriyyah,
pp. 92ft).
[863] Ibn Hazm, Ihkam,
vol. 1, pp. 27-28.
[864] Ibid., vol. 1, p.
52.
[865] Scalia, Matter of
Interpretation, p. 23.
[866] Ring, Scalia Dissents,
p. 5. Legal activism has gained a derogatory connotation in legal studies
because it suggests the manipulation of law by judges to produce rulings that do
not solidly rely on the Constitution (ibid, p. 15).
[867] I am talking here about
the texts themselves, not the interpretation thereof, which, of course, can and
does change. Admittedly, there have been attempts to do away with either part
of or the entire Hadith corpus. The prospects of success of these attempts,
however, do not seem to be high.
[868] Scalia, “Originalism,” p.
862.
[869] Scalia, Matter of
Interpretation, p. 37.
[870] Ibn Hazm, Ihkam,
vol. 1, p. 20. He points that good scholars should be confident, indeed
certain, of their tools before they are certain of their conclusions. It was
imperative for Zahiris, had they wanted to be true to their methodology, to
legitimize it, and that, arguably, could be done in two ways. The first was to
refer to an authoritative text. This, however, would lead to a circular
argument, for Zahiris would interpret that text by the same methodology the
soundness of which they seek to prove. The other method was to refer to
extra-textual factors (such as reason, for instance), or to a general theory of
the nature of divine command and the human capacity to comprehend it. This,
however, would be self-defeating for Zahiris who dismissed the methodologies of
other schools precisely on the basis of their reliance on this kind of factors.
Using such factors to legitimize the very methodology that dismisses them as
arbitrary and illegitimate would, of course, be contradictory and
self-destructive.
[871] Ibn Hazm, Ihkam,
vol. 1, p. 233, and vol. 2, p. 1114.
[872] Ibid., vol. 1, p.
233, and vol. 2, p. 1114.
[873] Ibn Hazm, Ihkam,
vol. 1, p. 275.
[874] Ibid., vol. 1, p.
272. For other cases, see pp. 273-274.
[875] Ibid., vol. 1, p.
412.
[876] Scalia, Matter of
Interpretation, p. 25.
[877] It is remarkable to note
that both Ibn Hazm (and some other Zâhirï scholars as noted earlier) and
Justice Scalia share a common feature for which they were notorious, that is,
their sharp and uncompromising criticism of other scholars and legal
methodologies. Just as many scholars believe that Ibn Hazm’s aggressiveness
towards earlier and contemporary scholars was responsible to a large degree
for the failure of Zâhirism, Scalia’s “sharp pen and biting comments” (Ring, Scalia
Dissents, p. 18) and his “brutal public attacks on some of his colleagues”
(Weizer, The Opinions of Justice Antonin Scalia, p. 21) are blamed for
alienating many of his colleagues from him and for leaving only few people on
his side.
[878] Crapanzano, Serving the
Word, p. xvi.
[879] Ibid., p. xvii.
Another scholar agrees with Crapanzano, arguing that “[a]lthough its days of
glory are past, the philosophical onslaughts of the past thirty years have not
entirely unseated the notion of literal meaning” (Ellen Spolsky, “The Limits of
Literal Meaning,” p. 419). Spolsky goes on to show how works that assume that
“linguistic forms have literal meaning” or that depend on the “existence of
literal meaning” are welcomed and celebrated (ibid., p. 419).
[880] Crapanzano, Serving the
Word, p. 67.
[881] Crapanzano, Serving the
Word, p. 24.
[882] Ibid, p. xviii.
[883] Ibid, p. xx.
[884] Ibid., p. 66.
[885] Monaghan, “Doing
Originalism,” p. 34, and Crapanzano, Serving the Word, p. 267.
Crapanzano contrasts this with the liberals or pragmatists who regard a text as
a living document and “try, within limits, to incorporate charge into their
understanding of it” (ibid., p. 209).
[886] Ibid, pp. 69-70.
[887] Ibid, pp. 75ff.
[888] For this, see ibid.,
pp. 75ff. and 258.
[889] Ibid., p. 16.
[890] Crapanzano, Serving the
Word, pp. 210 and 252-253.
[891] Ibid., p. 209.
[892] Ibid., pp. 209-210.
[893] Ibid., p. 210.
[894] Ibid., p. 65.
[895] Ibid., pp. 2-4.
[896] Ibid., p. 62.
[897] Ibn Hazm, Ihkam,
vol. 1, p. 15.
[898] Ibid., pp. 10-11.
According to Crapanzano (Serving the Word, p. xix), “Christian
literalism,” as a hermeneutic methodology, assumes the inerrancy of the texts
that it interprets literally— such as the Bible—and argues for the exactness of
their wording (Crapanzano, Serving the Word, p. 67). In other words,
reading these texts literally is related to the belief in their unquestionable
truthfulness (ibid., pp. 56ff). Arguably, this perception of the nature
of the Bible and their keenness to prove its authenticity, inerrancy, and the
exactness of its wording must have influenced the way they thought the Bible
should be read. In Islam, however, a similar belief in the inerrancy of the
Qur’an did not necessarily lead Muslim scholars to read the Qur’an literally;
only a minority of them approached the Qur’an as such.
[899] Ibn Hazm, Ihkam,
vol. 12, p. 407.
[900] According to Hipkiss,
“[s]emantics is derived from the Greek semaino, meaning, to signify or
mean. Semantics is part of the larger study of signs, semiotics. It is the part
that deals with words as signs (symbols) and language as a system of signs
(words as symbols)” (Hipkiss, Semantics: Defining the Discipline, p.
ix).
[901] François Recanati, Literal
Meaning, p. 2 (emphasis omitted).
[902] A speech act is any
utterance that we make. According to Keith Allan (Linguistic Meaning, vol.
2, p. 164),John Austin was first to point out that “in every utterance, [the
speaker] performs an act such as stating a fact or opinion, confirming or
denying something, making a prediction or a request, asking a question,
issuing an order, giving advice or permission, making an offer or a promise,
greeting, thanking, condoling, effecting a baptism, or declaring an umpire’s
decision—and so forth.” “[T]he list of speech acts is enormously long, and
possibly boundless,” he adds (ibid., vol. 2, p. 164).
[903] Stanford Encyclopedia
of Philosophy, c.v. “Pragmatics.” According to Hurford et al., sentence
meaning is “what a sentence means, regardless of the context and situation in
which it may be used.” In contrast, utterance meaning is “what a speaker means
when he makes an utterance in a particular situation” (Hurford et. al.,
Semantics, p. 304).
[904] Allan, Linguistic
Meaning, vol. 2, pp. 36-37.
[905] Ibid, vol. 2, p.
41. Mohamed Yunis Ali points out that whereas Arab grammarians focused on
semantics, legal theorists were pragmatists who focused on the language in use
(Ali, Medieval Islamic Pragmatics, pp. 6-7). Legal theorists were
definitely, and expectedly, pragmatists, but their strong interest in semantics
is also evident.
[906] Recanati, Literal
Meaning, p. 96.
[907] Ibid, p. 3
(emphasis omitted).
[908] Recanati, Literal
Meaning, p. 3 (emphasis in original). “Truth conditional content” is what
makes a sentence propositional, which is central to semantics. A proposition
can generally be defined as “that part of the meaning of the utterance of a
declarative sentence which describes some state of affairs” (Hurford et al.,
Semantics, p. 20). According to Hipkiss, “[f]ormal Semantics, also called
‘set theoretic semantics’ ...is a logic expressed as symbolic propositions that
include and exclude each other entirely or in part. Propositions are, by
definition, true statements, so truth and falsity are a major concern in this
form of semantics” (Hipkiss, Semantics, p. xiii). Hipkiss explains this
by referring to the founding fathers of modern linguistic philosophy—such as
Bertrand Russell (d. 1970), Ludwig Wittgenstein (d. 1951) and Rudolf Carnap (d.
1970)—who regarded metaphysical propositions as false and unworthy of
investigation, and focused not on words perse, but on how they are parts
of a larger proposition. “The propositions themselves were restricted to
matters of fact; attitudes, desires, motivations, and value judgments were all
excluded. Feelings and beliefs could not be scientifically versified, so they
were dismissed as not true” (ibid., pp. xi-xii). In this view,
accordingly, “truth and meaning [are] the same” (ibid., p. 26).
[909] Davidson, “A Nice
Derangement of Epitaghs,” p. 435. Davidson is critical of the term literal
meaning, regarding it as “too incrusted with philosophical and other extras to
do much work.” He therefore suggests “first meaning” as a good alternative that
can “appl[y] to words and sentences as uttered by a particular speaker on a
particular occasion.” “[I]f the occasion, the speaker, and the audience are
‘normal’ or standard,” he points out, “then the first meaning of an utterance
will be what should be found by consulting a dictionary based on actual usage” (ibid,
pp. 343-345).
[910] Recanati, Literal
Meaning, p. 85.
[911] Searle, “Literal Meaning,”
p. 207.
[912] Recanati, Literal
Meaning, p. 65.
[913] Ibid, p. 3.
[914] This example is of course
only modelled on Recanati’s examples.
[915] For a similar example, see
Hipkiss, Semantics, p. 28, where Hipkiss mentions that a sen-
tence like “John is late” means “very little to a person who does not know who
John is.”
[916] This, of course, assumes
that it is understood in a world in which prophets communicate with God.
[917] In semantics, an
“implicature” is “a form of reasonable inference... [that] exists by reason of
general social conventions” (Hurford et al., Semantics, p. 20).
[918] Recanati, Literal
Meaning, p. 59 (emphasis in original). For a good example on this, see ibid.,
p. 73.
[919] Recanati, Literal
Meaning, p. 160.
[920] Ibid, pp. 6-7.
[921] Stanford Encyclopedia
of Philosophy, c.v. “Pragmatics.”
[922] Recanati, Literal
Meaning, p. 6.
[923] When we discussed
al-ShafiTs and al-Tabari’s use of the term zdhir, we have seen that some
of what they say suggest that they thought that there could be more than one zdhir
meaning, and al-Tabari’s use of the superlative form of zdhir (al-azhar)
also suggests that two readings could be zdhir, yet one of them is more zdhir
than the other. This can be related to Recanati’s discussion of a continuum
between minimalism and non-minimal- ism. Pursuing this point, however, is
beyond the scope of this chapter.
[924] Ibid., pp. 7 and
10.
[925] Recanati, Literal
Meaning, p. 69. Indexicality refers to “the pervasive context-dependency of
natural language utterances, including such varied phenomena as regional accent
(indexing speaker’s identity), indicators of verbal etiquette (marking
deference and demeanor), the referential use of pronouns (I, you, we, he,
etc.), demonstratives (this, that), deictic adverbs (here, there, now, then),
and tense. In all of these cases, the interpretation of the indexical form
depends strictly on the context in which it is uttered” (William Hanks,
“Indexicality,” p. 124).
[926] Recanati, Literal
Meaning, p. 27.
[927] Ibid., pp. 28-29.
[928] Ibid., p. 38.
[929] Recanati, Literal
Meaning, p. 23.
[930] For this, see Stanford
Encyclopedia of Philosophy, s.v. “Pragmatics.”
[931] Stanley, “Literal
Meaning.”
[932] This chapter seeks to
demonstrate that Ibn Hazm was not a literalist. However, it is both
instructive and interesting to see where Zahirism stands on the continuum of
minimal- ism/non-minimalism and how this differs from the position of other madhhabs.
If this shows that Ibn Hazm was not even a minimalist (which should not be
surprising in light of our discussion here), considering Zahirism literalist
should be laid to rest once and for all.
[933] Recanati, Literal
Meaning, p. 34.
[934] Ibid., p. 26.
[935] Recanati, Literal
Meaning, pp. 29 and 33. For further discussion of this and more examples,
see ibid., pp. 61-64.
[936] Ibid, p. 24.
[937] Ibid, p. 23.
[938] Ibn Hazm, Ihkdm,
vol. 1, p. 369.
[939] Ibn Hazm, Ihkdm,
vol. 1, p. 415.
[940] In other words, this
sentence can only be read “literally” if we assume a different world in which
it is uttered. Ibn Hazm’s preference for the other interpretation, however,
demonstrates that he was in favor of interpreting the Qur’ânic text according
to the rules of our world.
[941] Ibid., vol. 1, p.
416.
[942] The verse reads in
Arabic: fa-qulnd idrib bi-'asdk al-hajar fa-infajarat min-hu ithnata
'ashrata 'ayn.
[943] In Arabic: wa-awhaynd
ild Musd an idrib bi-'asdk al-hajar fa-infalaqa.
[944] Ibn Hazm, Ihkam,
vol. 1, p. 181.
[945] Ibid, vol. 1, pp.
340 and 342.
[946] As noted earlier, Zâhirïs
do not believe that the Qur’an uses majaz. Ibn Hazm is evidently
conscious here to avoid saying that the Qur’an usesyuridu here
figuratively.
[947] Ibn Hazm, Ihkam,
vol. 1, pp. 415-416. Again, this demonstrates that Ibn Hazm was not in favor of
interpreting the Qur’an with reference to a world other than ours. For him, the
“world spoken of” is always assumed to be ours, unless a valid indicator
suggests otherwise (e.g., when we are told that something is a miracle).
[948] Ibn Hazm, Ihkam,
vol. 9, p. 162.
[949] Remarkably, Ibn Hazm does
not entertain the possibilities that these women were not wearing their rings
in the first place, or were wearing them but took them off after taking off
their gloves, for instance. Compare this example with “Mary took out her key
and opened the door.” Recanati mentions this as an example of optional
pragmatic processes. He explains that “[i]n virtue of a ‘bridging inference’,
we naturally understand the second conjunct as meaning that Mary opened the
door with the key mentioned in the first conjunct; yet this is not explicitly
articulated in the sentence.” This is an example of what some scholars
describes as “specifization,” which “consists in making the interpretation of
some expression in the sentence contextually more specific” (Recanati, Literal
Meaning, pp. 23-24).
[950] Ibn Hazm, Ihkam,
vol. 1, p. 286. This command to protect people who enter the Sacred Mosque
would therefore be inclusive of all people, Muslims as well as non-Muslims,
since “people” is not restricted by another textual evidence.
[951] Ibn Hazm, Ihkam,
vol. 1, pp. 285-286.
[952] Ibid., vol. 1, pp.
87-88.
[953] Ibid., vol. 1, p.
175. Ibn Hazm probably had to resort to this interpretation to reconcile this
tradition with another, according to which the Prophet ordered the killing of
anyone who changed his religion (man baddala dinahufa-uqtulühu).
[954] Ibn Hazm, Ihkam,
vol. 1, p. 158.
[955] Ibid, vol. 2, p.
918.
[956] Ibid, vol. 2, p.
928.
[957] Ibn Hazm, Ihkam,
vol. 1, pp. 85-86 and 362.
[958] Ibid., vol. 1, p.
40.
[959] Ibid., vol. 1, p.
259. Ibn Hazm accepts a Prophetic report that determines a minimum value for
this punishment to be applicable.
[960] Ali, Medieval Islamic
Pragmatics, p. 9.
[961] Wa-la taqul la-huma
uff wa-la tanharhuma.
[962] Inna Allah layazlimu
mithqal dharrah.
[963] Al-Shirazi, al-Tabsira,
pp. 227-228.
[964] Ibid., p. 228.
[965] To give one example of
how literalism and textualism could be easily confused, Nabil Shehabi, giving
an example of Ibn Hazm’s literalism that adheres to “what is clearly stated in
the established texts,” mentions Ibn Hazm’s rejection to attribute a body to
God since “nowhere in the Qur’an is He so described” (Shehabi, “Illa and
Qiyas,” p. 32). Obviously, this view is not based on any reading of any text;
rather, it is based on the absence of any relevant text. In other words, it is
Ibn Hazm’s textualism rather than his presumed literalism that led him to this
and other views.
[966] Crapanzano, Serving
the Word, pp. 332-333.
[967] For the
attribution of this opinion to Abü Hanifah, see, for instance, Abü Yüsuf, Kitab
al-Athar, pp. 34-35, and Abü Ja‘far al-Tahawi, Ikhtilaf al-'Ulama"
(abridged by Abü Bakr al-Jassas), vol. 1, p. 162. In his Kitab al-Asl,
Muhammad ibn al-Hasan al-Shaybani attributes to Abü Hanifah the view that
touching, even one that involves sexual desire, or even touching the genitals
of the wife, does not invalidate a man’s ritual purity. The only exception is
when a naked couple lay together skin to skin and the husband’s penis becomes
erect (idha basharaha laysa bayna-huma thawb wa-intashara la-ha) (vol.
1, pp. 47-48).
[968] This is attributed
to Dawüd in, for example, al-Qaffal al-Shashi, Hilyatal-'Ulama",
vol. 1, p. 186, and Sharaf al-Din al-Nawawi, al-Majmiï, vol. 2, p. 32.
In al-Muhalla (vol. 1, p. 227), Ibn Hazm mentions that this is the
opinion of the Ashab al-Zahir.
[969] Ahmad ibn Hanbal
did not in fact invent this argument, but it was thanks to him that it became
an established opinion on this issue. Had it not been for him, this opinion
would probably have been of minor significance in any discussion of this issue,
just as was the case with other views attributed to earlier authorities on this
and other issues. For Ibn Hanbal’s opinion on this question, see Masa’il
al-Imam Ahmad ibn Hanbal, by his sons ‘Abd Allah, pp. 19-20 and Salih, p.
160, by Ishaq ibn Mansür al-Kawsaj, 'Masaïl al-Imam Ahmad ibn Hanbalwa-Ishaq
ibn Rahawayh, p. 77, and by Ishaq ibn Hani’ al-Naysabüri, p. 10.
[970] Mujahid ibn Jabr, TafsirMujahid
ibnJabr, vol. 1, p. 159.
[971] For this, see Zayd ibn ‘Ali, TafsirZaydibn
'Ali, p. 119, and Muqatil ibn Sulayman, TafsirMuqatil ibn Sulayman,
vol. 1, p. 375.
[972] Muhammad ibn Jarir
al-Taban,Jamic al-Bayan, vol. 5, pp. 102-104.
[973] Ibid., vol. 5, pp.
104-105.
[974] Ibid., vol. 5, p.
101.
[975] Ibid., vol. 5, p.
106. For these traditions, see ibid., vol. 5, pp. 105-106.
[976] MusnadAblHanfah,
collected by Abü Nu‘aym al-Isbahani. Abü Hanifah transmitted this tradition
from the Kufan Abü Rawq ‘Atiyyah ibn al-Harith. I have not found this tradition
anywhere else.
[977] Muhammad ibn al-Hasan
al-Shaybani, Kltab al-Hujjah 'ala Ahl al-Madinah, pp. 65-66.
[978] ‘Abd al-Razzaq al-San‘ani,
al-Musannaf, vol. 1, p. 103; Ibn Abi Shaybah, al-Musannaf, vol.
1, p. 83.
[979] Ibn Majah, Sunan,
vol. 1, p. 406; Abü Dawüd, Sunan, p. 34; al-Tirmidhi, Sunan, vol.
1, p. 57; al-Nasa’i, Sunan, vol. 1, p. 74.
[980] Abü Dawüd, Sunan,
p. 34.
[981] Al-Nasa’i, Sunan,
vol. 1, p. 75.
[982] Ibn Majah, Sunan,
vol. 1, p. 406.
[983] Al-Nasa’i, Sunan,
vol. 1, pp. 73-74.
[984] Ibn Hazm, al-Muhalla,
vol. 1, p. 229.
[985] Malik ibn Anas, al-Muwatta‘,
vol. 1, p. 87.
[986] Al-qublah min al-lams.
For this, see al-San‘ani, al-Musannaf, vol. 1, pp. 101-102, and Ibn Abi
Shaybah, al-Musannaf, vol. 1, p. 84.
[987] Al-San‘ani, al-Musannaf,
vol. 1, p. 101.
[988] See, for instance, 'MasaAl
Ahmad, ibn Hanbal (by his son ‘Abd Allah), p. 20.
[989] See, for instance,
al-San‘ani, al-Musannaf, vol. 1, p. 102.
[990] See, for instance, Ibn
Abi Shaybah, al-Musannaf, vol. 1, p. 83.
[991] Al-San‘ani, al-Musannaf,
vol. 1, p. 103.
[992] In al-Majmut (vol.
2, p. 31), however, al-Nawawi mentions ‘Umar among those who held that any kind
of direct touching (mubasharah), regardless of whether or not it
involves intention or desire, invalidates ritual purity.
[993] Al-San‘ani, al-Musannaf,
vol. 1, p. 103.
[994] Ibn Abi Shaybah, al-Musannaf,
vol. 1, p. 84.
[995] Al-San‘ani, al-Musannaf,
vol. 1, p. 102.
[996] Ibid., vol. 1, p.
102.
[997] Ibn Abi Shaybah, al-Musannaf,
vol. 1, pp. 84-85.
[998] Ibid, vol. 1. pp.
83-84.
[999] Al-Marwazi, Ikhtildf
al-Fuqahd‘, p. 183.
[1000] For al-Nakha‘i’s
transmission of Ibn Mas‘üd’s tradition, see Al-San‘ani, al-Musannaf vol.
1, pp. 101-02, and for his transmission of Ibn ‘Umar’s, see Ibn Abi Shaybah, al-Musannaf,
vol. 1, p. 84.
[1001] Ibn Abi Shaybah, al-Musannaf,
vol. 1, p. 84.
[1002] Al-San‘ani, al-Musannaf,
vol. 1, p. 102. See also Ibn Abi Shaybah, al-Musannaf, vol. 1, p. 84.
[1003] Ibid, vol. 1, p. 87.
This, of course, means that he has to perform ghusl (washing the entire
body) if he ejaculates.
[1004] Ibn Abi Shaybah, al-Musannaf,
vol. 1, p. 86.
[1005] Ibid., vol. 1, p. 85.
[1006] Al-Nawawi, al-Mqjmüt,
vol. 1, p. 31.
[1007] Some scholars held that lamasa
(the first form of the verb) is a homonym, which means that even if this form
had been used, the controversy over the meaning of the verb would still have
taken place. This view was not mentioned by most of the ikhtilafworks
consulted here, although it was used by some others (see, for instance, Ibn
Rushd, Bidayat al-Mujtahid, vol. 1, pp. 77-78). Most other scholars, however,
seem to have discussed the use of the third form in this verse in terms of the haqiqah
vs. majaz dichotomy, probably following Ibn ‘Abbas’s anecdote where the
Arabs, with their genuine sense of the language, won over the mawali who
failed to differentiate between God meaning what he says or only alluding to
something else.
[1008] See Ibn Qudamah, al-Mughni,
vol. 1, p. 258.
[1009] For this, see Abü ‘Amr
al-Dani, Mukhtasar' fi Madhahib al-Qurra’ al-Sab'ah, p. 113. The verb
was read in the third form by all other readers (ibid., p. 113). In al-Muqni",
al-Dani mentions this as a case in which alif was removed for the sake
(or by way) of brevity (ma hudhifa min-hu t-alif ikhtisaran), p. 11.
[1010] It is worth noting that
although it may be expected to find traditions with clear-cut rulings on the
issue of touching, which is most likely to happen on a regular basis for both
men and women, early Muslim jurists did not invent Prophetic traditions to back
their respective legal opinions. Finding no Prophetic traditions with unequivocal
bearing on the subject, what they did was to try to find traditions that could
be helpful, even if indirectly, in supporting their views. Arguably, the fact
that no Prophetic traditions address this issue directly indicates that
disagreements among early Muslims did not necessarily lead to fabrication of
traditions. It also indicates that traditions used in this debate on the issue
of touching are probably authentic, if they do not serve as conclusive evidence
in another context.
[1011] Zayd ibn ‘All, Al-Majmiï,
p. 65. As noted earlier, there existed other versions of the tradition that
were transmitted by other wives of the Prophet which Zayd could have used, had
he been aware of them.
[1012] Malik did not have a problem
with mentioning a tradition and contradicting it, as noted in chapter four. It
is indeed striking that not a single tradition of those used in later
discussions of the subject is found in his Muwalla'. which suggests that
he either was not aware that they existed, did not think they were authentic,
or did not think that they were relevant to the issue.
[1013] Sulayman ibn Dâwûd
al-Tayâlisï, Musnad al-Taydlisi.
[1014] This is reported by
al-Tirmidhi in his Sunan (vol. 1, p. 57) in the context of his
discussion of the views on this tradition.
[1015] Ibn Qudamah, al-Mughni,
vol. 1, p. 257.
[1016] Abü Dawüd, Sunan, pp.
34-35.
[1017] Al-Tirmidhi, Sunan,
vol. 1, p. 58.
[1018] Al-Nawawi, al-Mqjmü",
vol. 2, p. 34.
[1019] Ibn Rushd, Bidayatal-Mujtahid,
vol. 1, p. 78. Most likely, sahhahahu ’l-Küfiyyün here means they were
able to authenticate it, either by finding a better isnad (viz. one that
is both connected and consists of reliable transmitters), or by supporting it
with other traditions or simply demonstrating its consistency with any other
source of the law.
[1020] Abü Dawüd, Sunan, p. 34.
Abü Dawüd mentions that this tradition is mursal for the above-mentioned
reason.
[1021] Al-Nasa’i, Sunan,
vol. 1, p. 74. In mursal traditions, the missing transmitter is usually
the Companion, but in this case it was either the Companion or the Successor who
transmitted the tradition from ‘À’ishah and from whom Ibrahim al-Taymi,
supposedly, heard the tradition.
[1022] Ibn Majah, Sunan,
vol. 1, p. 406.
[1023] Ibn Hanbal, Musnad,
vol. 6, p. 73.
[1024] Al-Nawawi, al-Majmü',
vol. 2, p. 34.
[1025] The person from whom Abü
Hanifah reportedly got the tradition was Abü Rawq, who, according to al-Nawawi
(who mentions him as a transmitter in one version of the ‘À’ishah tradition as
well), was deemed unreliable by Yahya ibn Ma‘in (ibid., vol. 2, p. 34).
[1026] For an interesting
discussion of the various kinds of touching, see Abü Ja‘far al-Hashimi, Ruds
al-Masaïl fl al-Khilaf, vol. 1, p. 62, where the author argues that the
“reality of touching” is when two “skins” meet, but it then differs according
to the skin involved. If the touching is by mouth, it is called kissing (qublah),
if by the sexual organ (farj), it is called sexual intercourse (wat’),
and if by hand, it is called touching (lams).
[1027] Hal yaghmizu ï-rajul
imra’atahu 'inda ï-sijüd li-kayyasjuda (al-Bukhari, Sahlh, vol. 1,
p. 339).
[1028] Muslim, Sahlh, vol.
1, p. 295.
[1029] Al-Bukhârï, Sahlh,
vol. 1, p. 336.
[1030] Ibn Hazm, al-Muhalla,
vol. 1, pp. 228-229.
[1031] Al-Bukhârï, Sahlh,
vol. 1, p. 338.
[1032] Ibn Hazm, al-Muhalla,
vol. 1, pp. 227-229.
[1033] Al-Nawawï, al-Mqjmüt,
vol. 2, p. 34.
[1034] Al-Tirmidhï, Sunan, vol.
1, p. 58.
[1035] For the views of Hijazi
Successors and early scholars on this issue, see al-Nawawi, al-Majmüt,
vol. 2, pp. 31-32.
[1036] Abü Yüsuf, Kitab
al-Athar, p. 5.
[1037] This is probably so because
al-Shaybani mentioned it in his Kitab al-Hujjah, pp. 65-66.
[1038] For the Hanafi notion of 'umum
al-balwa, see al-Jassas, al-Fusul, vol. 2, pp. 6-7, and al-Sarakhsi,
al-'Uddah, vol. 2, p. 276.
[1039] Pre-ejaculatory fluid is
called madhy. For this, see, for instance, Ibn Qudamah, al-Mughnl, vol.
1, p. 230 and pp. 232-233. In Ja'fari Shi‘1 law, however, madhy does not
invalidate ritual purity (for this, see al-Sharif al-Murtada, al-Intisar,
p. 30).
[1040] For this, see, for instance,
al-Qaffal al-Shashi, Hilyat al-'Ulama", vol. 1, p. 187.
[1041] Ibn Hazm, al-Muhalla,
vol. 1, p. 227.
[1042] Malikis held that kissing,
regardless of whether or not it involves desire, invalidates ritual purity.
“Regular” touching, however, only does so if it involves sexual desire. For
this, see Sahnûn, al-Mudawwanah al-Kubra, vol. 1, p. 131. Malik also
mentions the opinion of 'Umar according to which both kissing and touching (jass)
invalidate ritual purity and require new ablution.
[1043] Ibn Qudamah al-Maqdisi, al-KafifiFiqh
al-Imam Ahmad, vol. 1, p. 90.
[1044] Ibn Rushd, Bidayat
al-Mujtahid, vol. 1, p. 79.
[1045] For this, see, for instance,
Yahya ibn Muhammad ibn Hubayrah, Ikhtilaf al-Atmmah al-Ulama’, vol. 1,
p. 53, and Ibn Qudamah, al-Mughnl, vol. 1, p. 257.
[1046] Having various opinions
attributed to Ibn Hanbal on one issue is not uncommon. For possible reasons for
this, see Abü Zahrah, Ahmad ibn Hanbal, pp. 189-199.
[1047] Remarkably, from the
5th/11th century the discussion of this subject would involve many other
considerations, such as the presence of sexual desire or intention, the
presence or absence of a barrier between the two people who touch, the age of
the woman who is being touched, whether or not the woman is lawful for the man
to marry, and the organs that are being used in touching (for this, see Ibn
Qudamah, al-Mughnl, vol. 1, pp. 256-262, and al-Nawawi, al-Majmül,
vol. 2, pp. 24-35).
[1048] All schools of law have
accepted the tradition in which the Prophet is reported to have said that
“Whatever is forbidden through lineage is also forbidden through breastfeeding”
(yahrumu min al-rida‘mayahrumu min al-nasab). This tradition exists in
almost all works of Hadith and jurisprudence.
[1049] I did not find any reference
to this in the works of Abü Hanifah’s immediate students (who do not mention
the issue in the first place), but many medieval sources attribute this opinion
to him and to all the Ahlal-Ra‘y (see, for instance, al-Marwazi, Ikhtilaf
al-Fuqaha", p. 294, and al-Qaffal al-Shashi, Hilyat
al-'Ulama", vol. 7, p. 369).
[1050] For this, see, for instance,
al-Hashimi, Ruüs al-Masa’íl, vol. 2, p. 196, al-Qaffal al-Shashi, Hilyat
al-'Ulama", vol. 7, p. 369, and Ibn Qudamah, al-Mughnl, vol.
11, p. 311.
[1051] For this, see, for instance,
al-Kawsaj, Masaïl, vol. 1, p. 386, and Ibn Qudamah, al-Kafi, vol.
2, p. 218.
[1052] See, for instance,
al-San‘ani, al-Musannaf, vol. 7, p. 377, Muslim, Sahih, vol. 2,
p. 870, and Abû Dâwûd, Sunan, vol. 1, p. 517.
[1053] Al-Shafi‘i, al-Umm,
vol. 5, p. 44, al-San‘ani, al-Musannaf, vol. 7, p. 377, and Ibn Abi
Shaybah, al-Musannaf, vol. 6, p. 206.
[1054] Mussah refers to the
act of sucking by the infant, while imlaj refers to the suckling of the
nursing woman (for m-l-jand its derivatives, see Ibn Manzûr, Lisan
al-Arab, vol. 13, p. 167).
[1055] Muslim, Sahih, vol.
2, p. 870.
[1056] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 209.
[1057] See, for instance, Malik, al-Muwatta‘,
p. 411, al-Shafi‘i, al-Umm, vol. 5, p. 44, al-San‘ani, al-Musannaf,
vol. 7, p. 373, and Abü Dawüd, Sunan, vol. 1, p. 516.
[1058] Ibn Majah, Sunan,
vol. 2, 462.
[1059] A transmitter of this
tradition seems to have insertedfa-nahahu ‘an-ha to emphasize that the
Prophet made ‘Uqbah’s wife forbidden to him.
[1061] Al-Bukhari, Sahih,
vol. 3, p. 12, and al-Darimi, Sunan, vol. 2, pp. 209-210.
[1062] See,
for instance, al-San‘ani, al-Musannaf, vol. 12, pp. 366-367, and Muslim,
Sahih, vol. 2,
96
See,
for instance, Malik, al-Muwatta‘, pp. 408-409, al-Shafi‘i, al-Umm,
vol. 5, pp. 44-45, and Abü Dawüd, Sunan, vol. 1, p. 516.
97
See, for
instance, Ibn Qudamah, al-Mughni, vol. 2, p. 311.
[1072] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 211.
[1073] Abü Dawüd, Sunan,
vol. 1, p. 517.
[1074] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 210.
[1075] Al-Muti‘i, al-Takmilah
al-Thaniyah—al-Majmük, vol. 20, p. 91.
[1076] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 210.
[1077] Ibn Qudamah, al-Mughnl,
vol. 11, pp. 310-311.
[1078] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 211.
[1079] Ibn Qudamah, al-Mughnl,
vol. 11, p. 311.
[1080] Al-Shawkani, al-Dararl
al-Mudiyyah Sharh al-Durar al-Bahiyyah, p. 346.
[1081] Ibn Abi Shaybah, al-Musannaf,
vol. 6, p. 211.
[1082] Mujahid transmitted Ibn
‘Abbas’s view (considering any breastfeeding as effective), a view that was
also shared by Zayd ibn ‘Ali (see Zayd ibn ‘Ali, al-Majmü‘, p. 217). The
fact that neither Muqatil nor al-Tabari comment on this part of the verse
indicates that they held the same view.
[1083] On this, see al-Jassas, al-Fusül,
vol. 1, pp. 389ff.
[1084] Malik, al-Muwatta‘,
p. 411.
[1085] Al-Jassas, al-Fusül,
vol. 1, pp. 399-400.
[1086] For this, see, for instance,
Ibn Hazm, al-Muhalla, vol. 10, pp. 189-191.
[1087] See, for instance, ibid.,
vol. 10, p. 201, where Ibn Hazm mentions this opinion to refute it.
[1088] These traditions still stir
controversies today. In 2007, the Head of the Hadïth Unit in al-Azhar
University in Egypt was fired from his position because he argued that these
traditions could provide a solution for the prohibited khalwah—viz. a
situation where a man and an unrelated woman are alone such that they can have
a intimate relationship without being seen, which situation many Egyptian men
and women find themselves in for many reasons, especially in the work place. An
emergency meeting was called for and the Shaykh al-Azhar, the President of
al-Azhar University, and other top officials in al-Azhar University agreed that
what the Head of the Unit said disqualified him as a scholar.
[1089] Abü Yüsuf, al-Athar,
p. 134.
[1090] For this, see, for instance,
al-San‘âni, al-Musannaf, vol. 7, pp. 368-373, and Ibn Abi Shaybah, al-Musannaf,
vol. 6, pp. 215-217.
[1091] See, for instance,
al-San‘âni, al-Musannaf, vol. 7, p. 366, and Muslim, Sahih, vol.
2, p. 873.
[1092] Al-San‘âni, al-Musannaf,
vol. 7, pp. 369-370.
[1093] Ibid, vol. 7, pp.
367-368. For a full discussion of how these traditions were and could have
been used as evidence here, see al-Muti‘i, al-Takmilah al-Thaniyah, vol.
20, pp. 83ft.
[1094] Ibn Rushd argued that the
reason why the three scholars came to this opinion was the contradiction
between the 'umum of the Qur’anic verse and the traditions, and among
the traditions themselves (Ibn Rushd, Bidayat al-Mujtahid, vol. 3, p.
315).
[1095] Ibn Hazm, al-Muhalla,
vol. 10, pp. 197-198.
[1096] For this, see ibid.,
vol. 10, pp. 189-201, where Ibn Hazm also deals with other reports that other
scholars relied on to substantiate their views on this subject.
[1097] For this, see Ibn Hubayrah, al-fsah,
vol. 2, p. 148, and Taqi al-Din al-Subki, Takmilat al-Majmü', vol. 11,
p. 310.
[1098] In dhahaba dhahib ila
khamsah lam a'ibhu, wa-ajbunu 'an-hu ba'd al-jubn illa annl arahu aqwa
(al-Kawsaj, Masatt, vol. 1, p. 386).
[1099] For this, see Ibn Hani’
al-Naysabüri, MasaUal-Imam Ahmad, vol. 1, p. 202.
[1100] For this, see Ibn Qudâmah, al-Kafl,
vol. 3, p. 221.
[1101] For the attribution of this
opinion to Ibn Hanbal, see Ibn Qudâmah, al-Mughn, vol. 11, p. 314. For
the view that this is the basis of the prohibition, see ibid., vol. 11,
p. 315. Earlier than Ibn Qudâmah, the Hanbali scholar Abü Ja‘far al-Hâshimi had
argued that, contrary to Abü Hanifah, cheese made of a woman’s milk is a valid
way of breastfeeding, for what is effective as a liquid (maT) is also
effective as a hard substance (jamid). Obviously, there is an attempt
here to say that adult breastfeeding does not necessarily have to involve
direct suckling. A woman can squeeze her milk into a cup from which the man
would drink.
[1102] Ibn Hazm, al-Muhalla,
vol. 9, p. 323.
[1103] The verse reads: “And as for
those of you who die and leave wives behind, they shall keep themselves in
waiting (fa-'iddatuhunna) for four months and ten days.”
[1104] Ibn Qudamah, al-Mughnl,
vol. 11, p. 248, and Ibn Hazm, al-Muhalla, vol. 9, pp. 316-321.
[1105] Ibn Hazm, al-Muhalla,
vol. 9, p. 323.
[1106] Ibid., vol. 9, pp.
326-327.
[1107] Ibn Qudamah mentions that
those who held the view that the wife has to wait until she gets news about her
husband relied on a Prophet tradition in which the Prophet says that the wife of
a lost person remains his wife until she learns news about him (imra’at
al-mafqudimraatuhuhattayatiyaha I-khabar) (Ibn Qudamah, al-Mughnl,
vol. 11, p. 249). The authenticity of this tradition, he says, was not
confirmed and it was not mentioned by (earlier) traditionists (ibid,
vol. 11, p. 251).
[1108] This is the logic of some
scholars who held this view, Ibn Qudamah points out (ibid.., vol. 11, p.
250).
[1109] Laysat al-Udhrahfi amr
al-islamf shay". For this, see Ibn Qudamah, al-Mughm, vol. 9,
pp. 340-341.
[1110] Ibid, vol. 11, p.
249.
[1111] Ibid, vol. 10, p.
346.
[1112] Ibn Hazm, al-Muhalla,
vol. 9, p. 474.
[1113] Ibn Qudamah, al-Mugh.nl,
vol. 10, p. 346.
[1114] Kullu talaq jaïz illa
talaq al-ma"tüh (ibid, vol. 10, p. 346).
[1115] Ibn Hazm, al-Muhalla,
vol. 9, p. 475.
[1116] Wa-la taqrabü "l-salah
wa-antum sukara hatta ta'lamü ma taqülüna ([O you who believe] Do not
approach prayer while you are drunken until you know [well] that which you
say).
[1117] Ibn Hazm, al-Muhalla,
vol. 9, pp. 471-472.
[1118] For a complete discussion of
this issue, see Ibn Qudamah, al-Mughm, vol. 8, pp. 29off.
[1119] Arrfahd sanatan, fa-in
lam tu'raf fa-istanfiqhd, wa-l-takun wadkah 'inda-ka, fa-in Jd‘a tdlibuhdyawman
min al-dahr fa-idfa'hd ilay-hi (ibid., vol. 8, p. 290).
154 Ma la-ka wa-la-ha? fa-inna
ma'a-ha hidha'aha wa-siqa‘aha, taridu ‘l-ma‘ wa-ta‘kulu ‘l-shajar hattayajidaha
rabbuha (ibid, vol. 8, p. 290).
155 Khudhha fa-innama hiya la-ka aw li-akhlk aw
li-l-dhib (Ibn Qudamah, al-Mughnl, vol. 8,
p. 290).
156 Al-Mutï‘ï, al-Takmilah al-Thaniyah, vol.
14, p. 503.
157 Ibn Hazm, al-Muhalla, vol. 7, p. 115.
158 Ibid, vol. 7,
pp. 110-113. Ibn Hazm does not mention that this was Dawüd’s view, but the fact
that he does not mention any disagreement among Zahiris on this issue suggests
that this was the dominant view in his madhhab. The view that one should
take a find is attributed to Dawüd by Muhammad al-Shatti without reference to
any source (Muhammad al-Shatti, Majmül, pp. 23-24).
159 Ibn Qudamah, al-Mugh.nl, vol. 8, p. 290.
160 Ibid, vol. 8, p.
291.
[1121] See now, Vishanoff, The
Formation, p. 87, where he says that “[t]he Zâhiri movement never quite
became an institutionalized school of law, with a regular curriculum of
instruction, after the manner of the other Sunni schools, in part because of
its opposition to the very idea of a humanly constructed set of rules.”
© KONINKLIJKE
BRILL NV, LEIDEN, 2014 | DOI 10.1163/9789004279650_009
[1122] In her study of
Zahiri scholars under Almohad rule, Adang found out that the majority of their
teachers were Malikis (Adang, “Zahiris,” p. 469).
[1123] In his Rlsalah
al-Bahlrah (p. 21), Ibn Hazm argues that real jurists are the Ashab
al-Hadith who are knowledgeable about authentic traditions and can
distinguish them from weak ones that are used by the Ahl al-Ra’y.
[1124] In Hallaq’s view, the
process of “authority construction,”—viz. constructing the authority of the
four eponymous founders of the surviving Sunni schools of law—involved two
simultaneous processes: demonstrating their originality vis-à-vis earlier
scholars, and attributing later views to them. For this, see Hallaq, Authority,
pp. 24ff.
[1125] Adang, “Zâhirïs,” pp.
468-469.
[1126] Ibid., p. 472.
[1127] I could not find a
single Zâhirï scholar in al-Sakhâwï’s Daw’ al-Lami' li-Ahl al-Qarn al-Tasi',
Najm al-Dïn al-Ghazzï’s Kawakib al-Saïrah fl A'yan al-Midh al-'Ashirah,
‘Abd al-Qâdir al-'Aydarûs’ Nür al-Safir 'an Akhbar al-Qarn al-Ashir
(which covers scholars from India in the east to Morocco in the west) and its dhayl,
al-Shillï’s Sana’ al-Bahir bi-Takmll al-Nür al-Safir, which focuses
primarily on scholars in the Muslim east, including Yemen, where al-Shillï
comes from), Muhammad Amïn al-Muhibbï’s Khulasat al-Athar fl A'yan al-Qarn
al-Hadl Ashar, and Abû al-Fadl al-Murâdï’s Silk al-Durar fl A'yan
al-Qarn al-Thanl Ashar. These works, to my knowledge, are not yet on
searchable cd-roms and they may
contain Zâhirï names that I failed to notice.
[1128] In a late
igth-century work by a certain Egyptian Sufi named Ibrâhïm al-Mansûrï and known
as al-Samannûdï, the author speaks of a group of scholars who called themselves
al-Sunniyyah, al-Ahmadiyyah, and al-Muhammadiyyah and had followers in many
Muslim regions including Morocco, Egypt, Sudan, the Hijâz, and India (Ibrâhïm
al-Samannûdï, Sa'adat al-Darayn fl al-Radd 'ala al-Firqatayn al-Wahhabiyyah
wa-Muqallidat al-Zahiriyyah, vol. 2, p. 22i). Al-Samannûdï considers them
followers of “al-Zâhiriyyah” who followed Ibn Hazm, hence the title of his
book. The real identity of these scholars is not clear. According to
al-Samannûdï, they were active in various areas in Upper (the southern part of)
Egypt and the Nile Delta. They did not have leaders, although he heard that
there was one in Mudïriyyat al-Sharqiyyah (now al-Sharqiyyah governorate) in
the southern-eastern part of the Delta. He mentions some of their legal views,
most of which do not coincide with classical Zâhirï views; for example,
they shortened the daily prayers during any journey regardless of the distance,
did not fast while traveling even during the month of Ramadân, said funeral
prayers without the ritual ablution, and held that women could lead men in the
prayers (ibid., vol. 2, 40i). According to Ibn Hazm, the distance that
is considered “travel” for the purposes of prayers is one “mll”, or 2000
cubits (dhira') (Ibn Hazm, al-Muhalla, vol. 3, pp. ig2, and
2i3-2i4). Ibn Hazm reports that the distance between Mecca and Jedda, which is
about 70 kilometers, is 40 miles (ibid, vol. 3, p. ig6), which makes mll
the same distance as a mile), and the duration of travel is twenty days (ibid,
vol. 3, p. 2i6). Within these days, a traveler has to shorten his prayers and
can only fast voluntarily but not the obligatory fast of Ramadân (in other
words, if he fasts, his fast does not count as the obligatory fast and he has
to make up for the missed days later when he is no longer traveling).
Additionally, I could not find any reference that mentions that any Zâhirï
scholar ever held that ritual ablution was not needed for funeral prayers (for
Ibn Hazm’s views on funeral prayers, see ibid., vol. 3, pp. 333-4W). Ibn
Hazm, furthermore, rejects clearly and categorically the idea that a woman can
lead men in the prayers (ibid, vol. 3, pp. i35-i37). Their most
important view, however, and one that motivated the author to
refute them in this book, was their proclamation that they were mujtahids
exercising ijtihad mutlaq similarly to the founders of the legal
schools, and their rejection of taqlld by following early imams
and existing madhhabs (al-Samannüdï, Sa'adat al-Darayn, vol. 2,
pp. 221 and 348). These people were evidently actively seeking to convince
people of their views and of the invalidity of following existing madhhabs
(ibid.., vol. 2, 348), at times claiming to be Malikis to deceive people (ibid..,
vol. 2, p. 418). Al-Samannüdï, therefore, goes to great lengths to refute them
on the issue of the authority of the four madhhabs by arguing for the
scholarly authority and exceptional qualities of their founders and the
necessity of following them (ibid., vol. 2, 230-348). At the same time,
he mentions that some of them went so far as to halt the daily prayers and
fasting during Ramadan (ibid, vol. 2, p. 222), and even claimed that
they learned their legal views directly from God and met with the Prophet
Muhammad while awake and consulted him. They even claimed that their leader was
superior to Abü Bakr, the Prophet’s close Companion and successor (ibid.,
vol. 2, p. 393). These last points indicate that we are probably dealing with a
group of Sufis who also happened to perhaps build on some legal views that
al-Samannüdï takes to be characteristic of Zâhirïs. In the i4th/20th century,
a group of scholars, also existing in various parts of the Muslim world, have
espoused the Zâhirï madhhab, calling themselves al-Zâhiriyyah. For this,
see Tawfïq al-Ghalbazürï, al- Madrasah al-Zahiriyyah, pp. 909-961. More
information about these scholars is available on their website: http://www.zahereyah.com/vb/ (last
accessed 15/03/2014).
Eskridge, for example, argues that “it appears that norms are not
absent from Scalia’s interpretation of statutes; he is merely influenced by
different norms” (Eskridge, “Textualism,” p. 1553).
[1131] Al-Ghalbazüri believes that
because zahir was the core of Ibn Hazm’s madhhab and was
therefore clear in his mind, he did not need to define it in a precise way
(al-Ghalbazüri, al-Madrasah al-Zahiriyyah, p. 549).
[1132] Al-Dhahabi, Siyar,
vol. 18, p. 186.
[1133] For this view, see Ibn Hazm,
al-Muhalla, vol. 6, pp. i76ff.
[1134] To show the relationship
between morality and rules as I understand it, I would consider the possibility
that Abü Hanifah construed the Qur’anic evidence in this way on a moral ground
only if he did not have a rule on the scope of application of term. But since
he did have one, we can only assume that he simply followed his rule rather
than (or at most, in addition to) having had other considerations in mind.
[1135] Obviously, I do not share
Vishanoff’s view that usül al-fiqh emerged out of the desire to justify
and legitimize legal views that had already existed earlier (Vishanoff, The
Formation, p. 8 and passim), or his related view that al-Shâfï‘i’s
use of textual ambiguity in the Qur’an was meant to serve this purpose of
bestowing further legitimacy on earlier views (see, for instance, ibid.,
pp. 1-2 and passim). Proving these theses, I believe, requires more
research than has been done by Vishanoff himself and others. I here maintain
that there were basic linguistic and legal assumptions that all scholars must
have had. In fact, elsewhere, Vishanoff argues that the root of some linguistic
and hermeneutical issues that exist in usül al-fiqh works lie in
theological debates that took place in the 2nd/8th and 3rd/gth centuries. These
hermeneutical issues included clarity and ambiguity, the basis of verbal
meaning, the scope of general references, the interpretation of various modes
of speech, and implicit meaning, especially as regards commands. For example,
the relation between general and particular statements emerged out of a debate
over the fate of grave sinners in the Hereafter. This was adopted and used
later by scholars of usül al-fiqh in their discussions (ibid.,
pp. 25-26). In this regard, see also Vishanoff’s argument against the view that
opinions of Muslim theologians on the issue of the general and particular
statements were shaped by Greek Logic (ibid., pp. 29-30).
[1136] Ibn Hazm, Ihkam, vol.
1, p. 21.
[1137] Ibid., vol. 1, p. 67,
and vol. 2, p. 657.
[1138] Ibid., vol. 2, p.
829.
[1139] American originalists use
dictionaries that show how words were used when a certain text they examine was
written (Nelson, “Originalism,” p. 519). For the kinds of evidence that
American originalists and textualists use, see Eskridge, “Textualism,” p. 1532.