Al-Shafi'i's written corpus: a source-critical study.

• Author: Shamsy, Ahmed El
• Position: Critical essay

1. NORMAN CALDER'S THESIS REVISITED

   The publication of Muhammad b. Idris al-Shafi'i's (d. 204/820) multi-volume magnum opus Kitab al-Umm and his groundbreaking legal-theoretical treatise al-Risala more than a century ago (1) opened up an unprecedented view into Islamic legal thought in the formative period of the late second/eighth century. In addition to the ideas of al-Shafi'i himself, the Umm preserves a wealth of legal material, including works or fragments of works by al-Awza'i (d. 157/774), Malik b. Anas (d. 179/796), Abu Yusuf (d. 182/798), and Muhammad b. al-Hasan al-Shaybani (d. 189/804 or 805), as well as countless debates between al-Shafici and various named and unnamed but identifiable scholars. The text is further elucidated by the inserted comments of al-Rabi' b. Sulayman al-Muradi (d. 270/884), al-Shaffi's student and the compiler of the Umm. Al-Shafi'i's corpus is thus by far the richest source available for the study of early Islamic law, (2) and has been used as such for seminal works on the subject, most notably Joseph Schacht's The Origins of Muhammadan Jurisprudence.

   In his 1993 book Studies in Early Muslim Jurisprudence, the late Norman Calder put forward the radically revisionist thesis that the Umm, along with the founding texts of the Maliki and Hanafi schools of law, is in fact the product of organic textual growth, "the end-product of school discussions arising generations after [al-Shafi'i's] death." (3) Far from representing the work of al-Shafi'i, Calder argued, the Umm is a composite text, born of the collective juristic efforts of later, anonymous Shafi'i scholars, who simply attributed their writings back to the "founder." For Calder, the mechanism behind this process of textual accumulation and misattribution lies in the non-public nature of early Islamic scholarship, whereby scholars wrote and circulated private notebooks based on oral lectures they had attended. Each scholar acquiring such a notebook, Calder believed, felt at ease to amend and add to its contents anonymously, because a robust concept of individual authorship had not yet developed. (4) In this context, books, like ancient cities, accrued layers upon layers of sedimented elements. Later generations of scholars then accepted as real the nominal attribution of the accumulated texts to the school founders, and subsequently treated them as the works of identifiable individuals.

   Since Calder's bold dismissal of the authenticity of the Umm and other key early works, a half-hearted agnosticism regarding the reliability of al-Shafi'i's corpus as a source has descended upon the field of Islamic legal history. Subsequent studies have challenged Calder's claims with respect to Malik's Muwatta', al-Shaybani's Athar, and al-Shafi'i's Risala, and its immediate textual history, (5) but to date there has been no systematic study of the Umm, probably due to the work's sheer size as well as its complex, even chaotic, structure. As a result, books on early Islam that draw on the Umm tend to begin with a caveat acknowledging that the work's authorship and origin are disputed and can probably never be established with confidence, but then proceed without further reference to this point. (6) This phenomenon has led Chase Robinson to note that Calder's results "continue to be wished away." (7)

   It is high time, therefore, for a source-critical study of al-Shafi'i's corpus to assess the authenticity of this text that so stubbornly continues to shape our vision of early Islamic law. This paper offers such a study. Through a detailed analysis of the Umm and a broad survey of third/ninth-century legal literature, I demonstrate that (1) Calder's textual arguments rest on untenable assumptions and on a misunderstanding of the text; (2) the sophisticated and critical culture of scholarship in the third/ninth century makes a misattribution of the texts comprising the Umm to al-Shafi'i's an extremely unlikely proposition; and (3) a vast body of evidence, in the form of numerous accurate quotations, lists of contents, and abridgments of al-Shafi'i's corpus dating to the third/ninth and early fourth/tenth centuries, overwhelmingly supports the conclusion that the text of today's Umm is substantially unchanged from the form in which al-Shafi'i's originally composed it. More broadly, the evidence presented in this paper provides a detailed portrait of the written culture of ninth-century Muslim scholarship and its practices of authorship, transmission, and quotation.

   Calder's thesis is based on two principal claims: first, that al-Shafi'i's putative intellectual contributions "had no tangible influence on juristic thought, before perhaps the beginning of the fourth century"; (8) and second, that the Umm exhibits textual features that betray its heterogeneous and layered nature. I will first examine the latter claim, pointing out the overall weaknesses of Calder's approach, and then turn to an evaluation of the evidence regarding the reception and impact of al-Shafi'i's work in the third/ninth century.

   Calder's methodology for proving his hypothesis of organic textual accumulation consists of the application of literary analysis to a short section at the very beginning of the Umm that deals with ritual purity. Using tools borrowed from the methodology of biblical criticism, (9) Calder dissects al-Shafi'i's prose, searching for narrative breaks, inconsistencies, and repetition which, he argues, indicate fissures between passages originating from different authors and periods. However, the unrefined application of techniques developed to analyze biblical narrative texts to al-Shafi'i's legal discussions is highly problematic. This is because al-Shafi'i's writing in the sample passage (and in much of the Umm as a whole) is not structured around a single sustained argument or narrative. Instead it is marked by a characteristic written style that is best described as segmented, consisting of a succession of concise, seemingly self-sufficient discussions on individual points of law (masa'il, sing. mas'ala), which are grouped loosely according to the area of the law with which they deal. Calder's approach is thus flawed from the outset, as there is no reason to expect that a series of individual, generally disconnected masa'il in a legal text would exhibit the continuity of a narrative text.

   In addition, many of Calder's specific points are based on an incorrect reading of the text or on neglect of its context. I will give two examples. Calder points to two consecutive passages in the Umm's chapter on ritual purity that in his view are contradictory and thus reveal different origins. (10) According to the first passage (1.2), a dead fish or locust falling into a small quantity of water does not render the water ritually impure, while the next passage (1.3), in Calder's interpretation, claims that any living creature that falls into a small quantity of water after its death renders the water impure. However, the apparent contradiction is the product of a misreading of the text:

   Calder's Calder's reading The correct The correct reading of in translation reading of reading in the text (Studies, 69) the text translation (Umm. 2: 12) 1.2. If a dead 1.2. If a dead fish falls into fish falls into a small quantity a small quantity of water, or a of water, or a dead locust, it dead locust, it does not become does not become impure: because impure; because they are they are permissible when permissible when dead. dead. 1.3. Likewise This applies all things also to all possessed of things possessed life, whether of life that they live in live in water. water or 1.3. Those otherwise, if things possessed they fall into of life that do water that is not live in susceptible to water, if one impurity, being tails into water dead, they that is render the water susceptible to impure. impurity. being 1.4. That is if dead, it renders they have a the water blood-system. impure, if it has a blood-system. Once the misreading is corrected, the resulting argument is fully consistent: The corpses of animals that are not water-dwellers and possess a developed circulatory system (11) do impart impurity, whereas those of water-dwelling animals do not. (Land animals without a circulatory system, such as insects, are discussed in subsequent sections.) The fish and the locust, as animals that can be eaten even though they cannot be ritually slaughtered, form a special case.

   In another instance, Calder argues that an apparent interjection by al-Rabi' in al-Shafi'i's discussion on purity in reality represents the earliest layer of the text, around which grew the other layers that were later falsely attributed to al-Shafi'i's. Calder's sole evidence for this claim is the obviously simpler form and content of al-Rabi's interjection in comparison to the surrounding material attributed to al-Shafi'i's. (12) Calder's implicit, but unjustified, assumption is that comments on a text must necessarily be more sophisticated than the original text to which they relate. However, the history of transmission and teaching of the Umm suggests a more plausible and straightforward explanation for this feature. Given the explicit context of some of al-Rabic's interjections in the text, (13) it seems likely that these comments originated as oral commentary that al-Rabi's gave while teaching the text to his students, who wrote it down and appended it to the text. Since oral comments are not intended to extend or elaborate on the text, but rather seek to explain complicated and long-winded arguments succinctly, they are generally simpler in form and argument than the text being discussed. (14) In addition, oral comments provide answers to questions raised by students during instruction. In the instance discussed by Calder, for example, al-Rabi''s additional comment confirms the ritual purity of the sweat of menstruating Jewish or Christian women. This is an eminently practical question. One...