Bridging the Gap: Two Early Texts of Islamic Legal Theory.

Author:Shamsy, Ahmed El
Position:Critical essay


The purpose of this paper is twofold: to introduce two surviving, very early legal-theoretical texts, written by Ibn Surayj (d. 306/918) and al-Khaffaf (fl. first half of the fourth/tenth century) respectively, and to demonstrate that the existence and content of these texts can critically inform current debates on the early history of Islamic legal theory (usul al-fiqh). Specifically, I seek to make two contributions--first, to show that these early texts were not self-standing works but rather formed part of larger works on positive law, thus calling into question the almost exclusive focus on legal theory as a stand-alone genre in previous historiography; and second, to shed new light on the continuities and discontinuities in this genre in its earliest stages since the two texts fall squarely within what has been seen as a gap in the literature between the Risala of al-Shafi[??]i (d. 204/820) and the so-called classical literature on legal theory that arose in the late fourth/tenth century. (1) To this end I first introduce each text, its surviving manuscripts, and its author. I then discuss the topics each work treats and describe how the contents relate to al-Shafi[??]i's Risala, to each other, and to later legal theory in order to highlight similarities, differences, and change over time. Finally, I provide a complete edition of both texts.

One of the most vexing questions in the historiography of Islamic legal theory is the development of the discipline between its first surviving articulation by al-Shafi[??]i at the beginning of the third/ninth century and the next cluster of surviving legal-theoretical works written in the second half of the fourth/tenth century. (2) The long hiatus separating al-Shafi[??]i's Risala from its successors and the obvious differences in structure and content that distinguish the later works from the Risala have prompted several speculative explanations. In the 1980s George Makdisi argued that al-Shafi[??]i's legal theory had been conceived as an alternative to theology and that what we see in the second stage of legal-theoretical writing in the late fourth/tenth century is the theologians' Trojan horse-like appropriation of legal theory through the injection of their own concerns and methods into the discipline. (3) In a 1993 article Wael Hallaq used the observation that al-Shafi[??]i's work differs in important respects from later works to deny the existence of a genealogical relationship between the Risala and the classical genre of legal theory. (4) He argued instead that the Risala is primarily a theoretical work whose aim is to establish the authority of hadith, while the discipline of legal theory concerns itself with theorizing the relationship between reason and revelation. His search in Ibn al-Nadim's Fihrist for early works with the word usul in the title having been unsuccessful, Hallaq concluded that there is no evidence of legal-theoretical literature before the generation of Ibn Surayj, a full century later. Accordingly, Hallaq proposed an alternative genealogy of the discipline by locating its origins in the work of Ibn Surayj and his students.

In the last decade, careful studies of various legal-theoretical issues by, for example, Hans-Thomas Tillschneider, (5) David Vishanoff, (6) and Ahmet Temel (7) have demonstrated that the thesis of a radical discontinuity between the Risala and the later literature is not tenable and that beyond the undeniable differences a clear sense of continuity can be detected. In order to illuminate the intervening period, Devin Stewart has successfully reconstructed several fragments of otherwise lost legal-theoretical works from the third/ninth century, including writings by Dawud al-Zahiri (d. 270/883f.), his son Abu Bakr Muhammad al-Zahiri (d. ca. 297/909), and Muhammad b. Jarir al-Tabari (d. 310/923). (8) In addition, I have demonstrated elsewhere that extensive legal-theoretical discussions can be found in surviving third-/ninth-century texts of positive law (fiqh), exegesis (tafsir), and hadith. (9) The following analysis of two treatises on legal theory, written in the late third/ninth or early fourth/tenth century as either introductions or conclusions to short works of positive law, continues this line of inquiry. The first treatise is contained in Ibn Surayj's al-Wada[??]i[??] li-mansus al-shara[??]i[??], the second in al-Khaffaf's al-Aqsam wa-l-khisal.

  1. IBN SURAYJ'S WADA[??]I[??]

    Abu l-[??]Abbas Ibn Surayj was an important Shafi[??]i jurist in Iraq. He served as a judge in Shiraz and trained the most significant Shafi[??]i jurists of the next generation, who would subsequently make Iraq and Khurasan the centers of Shafi[??]i thought. In recent scholarship Ibn Surayj has emerged as an indispensable figure in the historiography of Islamic law: he has been lauded as the true father of legal schools in general and of the Shafi[??]i school in particular, (10) and as the crucial node through which legal-theoretical thought passed to his students, who were the originators of legal theory proper. (11) However, the claims of Ibn Surayj's significance are based on biographical works written long after his death; there seems to have been no attempt to corroborate them through an analysis of his actual writings on law or legal theory. (12) The present article attempts to address this lacuna.

    Ibn Surayj's Kitab al-Wada[??]i[??] li-mansus al-shara[??]i[??] comprises 128 folios in the most complete extant manuscript and contains both positive law and legal theory. It served as one of the main sources on Ibn Surayj's ideas on the latter subject for Badr al-Din al-Zarkashi (d. 794/1392), the Mamluk-era historian of Islamic and particularly Shafi[??]i usul al-fiqh. (13) At least two manuscripts of the work survive: a complete version in Istanbul's Aya Sofya collection and a significant fragment in the collection of [??]Abd al-Hayy al-Kattani (d. 1962), now housed in the Moroccan National Library in Rabat. (14) It was edited as an MA thesis by Salih b. [??]Abd Allah b. Ibrahim al-Duwaysh at the Imam Muhammad b. Sa[??]ud University in Saudi Arabia, but the edition was never published. (15) I have used both this edition and the Istanbul manuscript. The legal theory sections are also quoted almost in full, albeit piecemeal, in Husayn al-Juburi's al-Imam Abu l-[??]Abbas ibn Surayj wa-ara[??]uhu al-usuliyya. (16)

    The section on legal theory is situated at the end of the work, but Ibn Surayj contextualizes its incorporation in the introduction, where he states:

    When I examined how many paths of transmission the people of knowledge have gathered, and how much they have differed concerning reports, and how extensive the [legal discussions] are that experts have engaged in despite the paucity of authentic prophetic traditions and [historic] precedents, I found this to be due to their refraining from clarifying their method (ibanat al-usul) and from indicating what [evidence?] they exclude. Instead, in their drive to cover all possible events they fail to provide unified guidance. I therefore decided to compose a work that brings together methods (usul al-din) and individual rules (furu[??]), so that it is easier to understand and memorize for the reader, and God is the giver of success in what he loves and is pleased by. You [...] asked me about knowledge of traditions (sunan) and rulings contained in the Quran and transmitted of the sunna of God's Messenger, peace be with him. I will make my explanation to you in the clearest possible manner, through an articulation that facilitates understanding and plants its knowledge in everyone, specialist or layman. (17) Although the bulk of the work is dedicated to fiqh, the role of a methodology (here called usul al-din) is significant. Ibn Surayj stresses that scholars have accumulated a wealth of prophetic reports and gone to great lengths in investigating the minutiae of the law, but he argues that in both of these exercises they have neglected to devote sufficient attention to justifying and structuring their work with reference to a unified methodology. In other words, the shortcomings of both the hadith scholars (ahl al-hadith) and the jurists (ahl al-fiqh) can, in his opinion, be remedied through an explicit engagement with methodology.

    The methodology that Ibn Surayj presents in his final section is remarkably similar to that found in al-Shafi[??]i's Risala. Most noticeably, the range of topics Ibn Surayj covers does not extend beyond the issues introduced by al-Shafi[??]i. The work addresses abrogation (naskh), prophetic tradition (sunna), the distinction between the general and the particular ([??]amm and khass), indeterminate vs. determinate revelatory statements (mujmal and mufassar), the status of single-transmitter reports (akhbar ahad, sg. khabar wahid), consensus (ijma[??]), and analogy (qiyas), and it concludes with an exposition on the obligation to seek knowledge. The high degree of similarity between the contents of the ###Wada[??]i[??] and those of the roughly contemporary legal-theoretical writings of Dawud and Muhammad al-Zahiri, as reconstructed by Stewart, indicates that these topics constituted the realm of legal-theoretical discussions until Ibn Surayj's...

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