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The Zahiri Madhhab (3rd/gth-i0th/i6th Century) Studies in Islamic Law and Society

 


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.

Contents

Acknowledgements vii

Introduction 1

PART 1

The History of the Zahiri Madhhab

1           Dawüd al-Zahiri and the Beginnings of the Zahiri Madhhab 11

1                      Life and Doctrines 11

2                      Teachers and Students 22

3                      Muhammad, Son and Student 35

4                      Conclusion 45

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

5.1                               Life and Doctrines 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

1.1                               Arabic Lexica 125

1.2                               The Qur’an   127

1.3                                

1.4                                     Al-ShâfiTs Risalah 131

1.5                                     Al-Tabarl’s Tafsïr 138

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

3                             Conclusion   165

5                  Zâhirism, Literalism and Textualism 171

1                             Textualism   172

1.1                                     Textualism and Zâhirism 173

1.2                                     Case Studies 189

1.3                                     Conclusion 195

2                             Literalism 200

2.1                                     Literalism in Religion and Law 200

2.2                                     Literalism in Linguistics 205

3                             Zâhirism between Literalism and (Con)Textualism 212

6                  Case Studies 225

1                             Long Case Studies 226

1.1                                     “Touching” Women and Men’s Ritual Purity       226

1.2                                     Breastfeeding and Foster Relationships 244

2                             Short Case Studies 256

2.1                                     The Status of Imra’at al-Mafqüd    256

2.2                                     Talâq al-Sakrân 258

2.3                                     Al-Luqatah 259

3                             Conclusion 261

Conclusions 263

 

Bibliography

Index 296

283

 

Acknowledgements

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.

Introduction

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.

PART 1

The History of the Zâhirï Madhhab

CHAPTER 1

Dawud al-Zahiri and the Beginnings of the Zahiri Madhhab

As a first step toward studying the trajectory of the Zahiri madhhab, the pur­pose of this chapter is to discuss what medieval sources—which sources include biographical dictionaries and works of legal theory (usül al-fiqh) and jurisprudence ( fiqh)—report about the life and doctrines of Dâwüd al-Zahiri.

1                 Life and Doctrines

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.

2                 Teachers and Students

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.

3                Muhammad, Son and Student

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.

4                 Conclusion

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)

5.1          Life and Doctrines

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.

PART 2

Zahir ism: A Critical Review

CHAPTER 3

Jurisprudence in Third/Ninth-Century Baghdad

It has been noted that what we know about Dâwüd al-Zahiri indicates that he was closer in profile to scholars like Abü Thawr al-Kalbi and Husayn al-Karâbïsï, and that he did not maintain good relationships with prominent traditionists of his time, notably Ahmad ibn Hanbal. In 3rd/gth-century Baghdad there existed two main legal trends, the Ahl al-Ra’y and the Ahl al-Hadlth. Building on biographical information about him, this chapter discusses these two legal trends in order to examine the extent to which what we know about Dâwüd’s juridical thought is consistent with what the biographical evidence suggests, that is, that if he belonged to either of these two trends, he must have belonged to the Ahl al-Ra’y and not to the Ahl al-Hadith as has been generally assumed.

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

Ahl al-Hadlth

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

1.1          Arabic Lexica

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.

1.2           The Qur’an

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.

1.3          Al-ShafiTs Risalah

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.

1.4           Al-Tabari's Tafsir

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.

3                 Conclusion

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.

CHAPTER 5

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.

1                 Textualism

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]

1.1           Textualism and Zdhirism

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.

I.    2    Case Studies

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.

1.3            Conclusion

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.14 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.

2                Literalism

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.

CHAPTER 6

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                Long Case Studies

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                Short Case Studies

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.

2.2            Talaq al-Sakran

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.

2.3            Al-Luqatah

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.

3                 Conclusion

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.

Conclusions

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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Index

 

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,

57-              58

‘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,

252,            26918, 273, 277, 280-281

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,

253,            26818

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,

270-             272, 274, 276n15, 281

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,

271-             272

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.

181      See, for instance, Ibn Hazm, al-Muhalla, vol. 8, p. 546, and vol. 12, p. 391.

182      Rsalah fi Fada’il al-Andalus wa-Dhikr Rijaliha.

183      I could not find information about al-Dïbâjï in any biographical dictionary.

184      Ibn Hazm, Rasail, vol. 2, p. 187.

[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

ibid., vol. 1, pp. 280-281.

[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.

98        See, for instance, Muslim, Sahih, vol. 2, pp. 872-873, and al-Nasa’i, Sunan, vol. 11, pp. 77-78.

[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,

pp. 872-873.

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.

99        Malik, al-Muwatta‘, p. 407.

100      Al-Shafi‘i, al-Umm, vol. 5, pp. 44-45.

101      See, for instance, al-San‘ani, al-Musannaf, vol. 7, p. 376.

102      See, for instance, Malik, al-Muwatta‘, p. 408.

103      Ibn Abi Shaybah, al-Musannaf, vol. 6, p. 211.

104      Al-Tirmidhi, Sunan, vol. 2, p. 102.

105      Al-Bukhari, Sahih, pp. 1011-1012; al-Darimi, Sunan, vol. 2, p. 210.

[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.

In addition to the four existing Sunni madhhabs, the Assembly accepts the Ja'fari, Zaydi, Ibadi, and Zahiri madhhabs.

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  Yezidiliği yoketmek için yapılan sinsi uygulama… Yezidilik yerine EZİDİLİK kullanılarak,   bir kelime değil br topluluk   yok edilmeye çalışılıyor. Ortadoğuda geneli Şafii Kürtler arasında   Yezidiler   bir ayrıcalık gösterirken adlarının   “Ezidi” olarak değişimi   -mesnetsiz uydurmalar ile-   bir topluluk tarihinden koparılmak isteniyor. Lawrensin “Kürtleri Türklerden   koparmak için bir yüzyıl gerekir dediği gibi.” Yezidiler içinde   bir elli sene yeter gibi. Çünkü Yezidiler kapalı toplumdan yeni yeni açılım gösteriyorlar. En son İŞİD in terör faaliyetleri ile Yezidiler ağır yara aldılar. Birde bu hain plan ile 20 sene sonraki yeni nesil tarihinden kopacak ve istenilen hedef ne ise [?]  o olacaktır.   YÖK tezlerinde bile son yıllarda     Yezidilik, dipnotlarda   varken, temel metinlerde   Ezidilik   olarak yazılması ilmi ve araştırma kurallarına uygun değilken o tezler nasıl ilmi kurullardan geçmiş hayret ediyorum… İlk çıkışında İslami bir yapıya sahip iken, kapalı bir to