Innovation, Influence, and Borrowing in Mamluk-Era Legal Maxim Collections: The Case of Ibn (')Abd al-Salam and al-Qarafi.

• Author: Sheibani, Mariam
• Position: Shihab al-Din Ahmad b. Idris al-Qarafi - Critical essay

INTRODUCTION

In his groundbreaking work The Anxiety of Influence, Harold Bloom observes that Romantic poets display an abiding anxiety about being seen as derivative, leading them to avoid being associated with the source of their influence. A similar anxiety is sometimes palpable in the writing of premodern Islamic writers, who frequently borrowed material or selectively omitted their sources for specific ends. In Islamic legal literature, the heavy debt owed to an earlier authority, or even to a contemporary or direct teacher, was at times intentionally obfuscated. Jurists did this to shore up their own authority by claiming original ideas as their own, to avoid being associated with controversial ideas or individuals, or to legitimize their participation in a discourse associated with a rival legal school.

This article utilizes Bloom's insight to explore the relationship between the original thought of a leading seventh/thirteenth-century Shafici jurist, Ibn (')Abd al-Salam (d. 660/1262), and the cognate contribution of his close student, the Maliki jurist Shihab al-Din Ahmad b. Idris al-Qarafi (d. 684/1285). Ibn (')Abd al-Salam was a pioneering figure in the development of a discursive analysis of the law through its higher aims and structuring principles, which he articulated in the form of legal maxims or canons (qawa'id), distinctions (furuq), and a discourse about how the law realizes human interest (maslaha). His magnum opus, Qawa'id al-ahkam fi masalih [or islah] al-anam, known as al-Qawa (')id al-kubra for short, (1) is an early collection of Shafi (')i legal maxims that prompted the disciplined interest in maxims among Mamluk-era jurists across the legal schools. Although his influence on al-Qarafi is evident in many of the latter's works, this article focuses on a close comparison between Ibn (')Abd al-Salam's al-Qawa'id and al-Qarafi's four-volume collection of legal distinctions, Anwar al-buruq fi anwa' al-furuq (hereafter, al-Furuq), which offers a unique window into the reception and interpretation of Ibn (')Abd al-Salam's original analysis of the law through the prism of its maxims. Furthermore, as one of the last works that al-Qarafi authored, al-Furuq represents the culmination of his legal thought, thus further illuminating our knowledge of the intellectual production of one of the better-known Muslim jurists in Western historiography of Islamic law. (2)

At first glance, al-Furuq may appear unrelated to al-Qawa'id, and the close connection between the teacher and student has been largely overlooked. The primary reason for this is that al-Qarafi never cites al-Qawa'id and rarely quotes his teacher. When he does, it is almost always to refer to individual substantive views that Ibn (')Abd al-Salam held on contentious issues. Even so, he borrows many maxims from al-Qawa (')id, duplicates long passages from the book without citation, and further obscures his heavy debt to Ibn (')Abd al-Salam by substantially reordering and refining the material that he borrowed. Moreover, he effectively "Malikizes" borrowed maxims by substituting Maliki authorities and detailing and championing Maliki doctrines in place of the Shafi (')i sources and doctrines discussed by his teacher.

Below I will reconstruct how al-Qarafi incorporates Ibn (')Abd al-Salam's maxims and adapts them to conform with the expectations of his Maliki audience. I first demonstrate that al-Furuq is heavily indebted to al-Qawa'id as evidenced by the extensive incorporated material. I analyze al-Qarafi's borrowings under three rubrics: adapted maxims, gaps addressed, and maxims contested. For each category I analyze a representative example in detail and I highlight al-Qarafi's literary techniques of concealing the borrowed maxims. Then I show how al-Qarafi "Malikizes" them, arguing that he intended thereby to claim normative authority for maxims in Maliki law and a long-standing pedigree of maxim development in Maliki reasoning, which he is merely the first to compile in al-Furuq. Accordingly, he does not cite Ibn (')Abd al-Salam in order not to appear derivative or unoriginal vis-a-vis the Shafi (')is, whose dominance in seventh/thirteenth-century Cairo was attained at the expense of the waning prestige of Malikism.

1. IBN 'ABD AL-SALAM AND AL-QARAFI

   Ibn (')Abd al-Salam was born in Damascus in 577/1181 f. to a poor and otherwise obscure family of North African origin. (3) Despite not being born into a scholarly family and a late start to his studies, he was apparently a gifted student who consistently surpassed his teachers' expectations. Apart from a month spent collecting hadith transmissions in Baghdad, his scholarly formation took place exclusively in his native Damascus at the hands of the city's two leading Shafi (')i jurists: Fakhr al-Din 'Abd al-Rahman b. Muhammad b. (')Asakir (d. 620/1223) and Jamal al-Din (')Abd al-Samad b. Muhammad al-Harastani (d. 614/1218). (4) When Sayf al-Din (')Ali al-Amidi (d. 631/1233) arrived in Damascus in 617/1220f., (5) Ibn (')Abd al-Salam kept close company with him, and lauded his ingenuity and the benefits he personally derived from his classes. (6)

   After completing his scholarly training, Ibn (')Abd al-Salam taught in Damascus, where he quickly garnered a reputation as an outspoken social reformer. He reached the apex of his career in Damascus when he was appointed to the prestigious position of preacher of the Umayyad Mosque, where he railed against ritual and social innovations, raising the ire of his colleagues and of the Ayyubid sultans whom he repeatedly defied. (7) When he and his Maliki colleague Abu (')Amr (')Uthman Ibn al-Hajib (d. 646/1249) criticized the emir of Damascus for colluding with the Crusaders against his nephew al-Salih Najm al-Din Ayyub b. al-Kamil (r. 637-647/1240-1249), they were exiled from Damascus and found shelter with al-Salih Ayyub in Cairo. He appointed Ibn (')Abd al-Salam as chief justice and preacher of the revered (')Amr b. al- (')As mosque (jami' Misr).

   His tenure as chief justice lasted for a little less than a year, during which his intransigence embroiled him in recurring conflicts with the sultan and his entourage. (8) Al-Salih Ayyub accepted his resignation and assigned him as the first chair of Shafi (')i law at the newly built Salihiyya madrasa, which quickly became the most prestigious and influential madrasa in the city. (9) The notes that have reached us from his classes suggest that he lectured on an array of topics, from Shafi (')i law, jurisprudence and theology, to hadith, quranic exegesis, and Sufism; (10) it is likely also where he dictated al-Qawa'id. Largely withdrawing from public life from that moment on," Ibn (')Abd al-Salam held this position until his death in 660/1262.

   Ibn (')Abd al-Salam's classes attracted students from other legal schools, which signaled his renown and the dexterity and appeal of his thought across school lines. (12) The largest contingent of his students were Shafi (')is, and included the leaders of the school in Cairo and Upper and Lower Egypt in the next generation. Alongside them sat a sizeable group of Malikis--the second largest contingent. Al-Qarafi stands out as one of Ibn (')Abd al-Salam's closest students, and he was certainly his most prominent Maliki heir. (13)

   Al-Qarafi was born in Cairo in 626/1228, into a Berber family that originated from the environs of Marrakesh. (14) His primary Maliki teacher was al-Sharif al-Karaki (d. 688 or 689/1290 or 1291), who had mastered Shafi (')i law under Ibn (')Abd al-Salam's tutelage. Al-Qarafi also associated with Ibn al-Hajib, whom he referred to as "our master" (shaykhuna) and highly esteemed as the leading Maliki jurist of his generation. (15) He was also deeply influenced by Shams al-Din al-Khusrushahi (d. 652/1254), a scholar of Asr'ari theology and Shafici jurisprudence who trained directly with Fakhr al-DTn al-RazT (d. 606/1209) and spread al-Razi's teachings in Cairo and Damascus. (16) Notwithstanding these teachers' influence, al-Qarafi's most important and influential teacher was undoubtedly Ibn (')Abd al-Salam, despite their differing school affiliations.

   We know little about the tenor of their relationship, but in his writings al-Qarafi occasionally comments on their interactions and discussions, offering an eyewitness account of Ibn (')Abd al-Salam's conduct, noting a significant point he heard his teacher state or recording his answers to questions. (I7) In some instances, al-Qarafi upholds Ibn (')Abd al-Salam's view as the solution to a vexing question, (18) while elsewhere he jettisons his teacher's opinion in favor of his own. (I9) Yet even when disagreeing, he expresses only the highest admiration for his teacher's legal acumen, about which he states: "I have seen no one throw questions into relief as did Shaykh (')Izz al-Din ibn (')Abd al-Salam.... Indeed, he had a striking ability to resolve difficult legal questions, both theoretical and textual, and was blessed with insights totally unknown to others." (20)

   Al-Qarafi's career centered on teaching and writing, and his written works were decisive for postformative Maliki law. Though he never served in the judiciary, al-Qarafi held three teaching appointments as chair of Maliki law in Cairo: at the Taybarsiyya, at the mosque of (')Amr b. al-'As, and most importantly, at the Salihiyya. His primary written contribution to Maliki substantive law is al-Dhakhira, which he wrote early in his career. (21) A second important book is al-Ihkam fi tamyiz al-fatawa (')an al-ahkam wa-tasarrufat al-qadi wa-l-imam, which addresses crucial questions of institutional divisions of power and their legal implications. (22) Importantly, al-Qarafi incorporates maxims first discussed in al-Dhakhira and al-Tamyiz into al-Furuq, which represents the crowning achievement of his intellectual career and is the most influential and commented upon of his works. (23)

2. MAXIMS AND DISTINCTIONS: AL-QAWA'ID AND...