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The ¶ÊhirÒs
Brill Classics
in Islam
VOLUME 3
The ¶ÊhirÒs
By
Dr. Ignaz Goldziher
With an Introduction by
Camilla Adang
LEIDEN • BOSTON
2008
This book is printed on acid-free paper.
A C.I.P. record for this book is available from the Library of Congress
ISSN 1872–5481
ISBN 978 90 04 16241 9
Foreword ..................................................................................... xi
Preface ......................................................................................... xiii
Ignaz Goldziher and the ¶ÊhirÒs ................................................ xvii
Camilla Adang
Chapter One
Chapter Two
Chapter Three
Chapter Four
Chapter Five
Chapter Six
Chapter Seven
Chapter Eight
Gone is the time when Islamic studies were the domain of “unhur-
ried eccentrics with a wide and deep background in the conventional
humanities”. Despite our improved communications, the ability to
read German protably is rapidly becoming a phenomenon of a past
era. While the fruits of the coryphaeus of the discipline were always a
living legacy for our teachers, a younger generation has often only a
second-hand acquaintance with the writings of Ignaz Goldziher. The
ftieth anniversary of his death seems a tting occasion to present the
English translation of a widely quoted, fundamental work on Islamic
jurisprudence.
Since Goldziher himself was aware of some of the shortcomings
of the work, it would not have been fair to his scholarship merely to
translate it. Yet, although I have corrected all the errors that I could
detect, I cannot claim to have done more than he would have done if
he had worked under more favourable conditions. What I have done,
then, is to indicate the foot-notes, in cases in which they were omitted
(e.g. p. 69), and to correct incorrectly quoted passages (e.g. p. 21) and
those which were outright wrong (e.g. 139 n. 5). Incorporated in the
translation are also Goldziher’s corrections from his preface and those
from his other works. May it be mentioned here that, in at least one
instance, this edition is more complete than the 1967 reprint in which
the foot-note on p. 131 is omitted. The marginal pagination refers to
the original 1884 edition.
In order to facilitate the work of the printer, as much of the Arabic
which appeared in the German edition in the Arabic script has been
transliterated. In passages in which both the Arabic original and its
transliterated form occurred, the former has been omitted. The spelling
of the Arabic names and terms conforms to current English practice
and is not always identical with that of Goldziher, e.g. Ba¢alyawsÒ.
These inconsequential corrections are not indicated; all other changes
or additions have been marked by triangular brackets.
Goldziher’s choice of name has been retained in the text, while in
the index an attempt has been made to list persons under that part
of their name under which they are now generally known. However,
since many of them were identied only at the time of compiling the
xii foreword
index, these fuller names could not always be incorporated in the text.
Usually, more complete forms such as these appear in the index only.
But in these instances, cross-references have been provided. The bib-
liography lists only those editions used by Goldziher; in many cases,
better ones are now available. Index and bibliography suffer from some
minor inconsistencies since both were prepared after the type was set.
I trust it will cause no serious inconvenience if, for example, the foot-
notes refer to AbÖ al-MaÊsin when he is actually listed as Ibn TaghrÒ
BirdÒ in the bibliography. The point did not seem to warrant major
changes from the printer.
When now, at the end, I come to thank my many friends, particu-
larly Mrs. Anne Bembenek and Miss Jane Fletcher, for their help, it is
more than a routine courtesy. I had to wait a long time to acknowledge
publicly their assistance and encouragement. As a matter of fact, if it
had not been for Mrs. A. Bembenek, who during one summer helped
me with indefatigable regularity, I would not have brought the task
to a nish. However, if there are faults, they are entirely my own,
since I often stubbornly insisted on my version contrary to their better
judgement.
Toronto W.B.
PREFACE
ÂaÒ; text and commentary are quoted according to the Cairo edition
of 1289 in ve volumes. The work of the same author, published by
Wüstenfeld, I shall quote according to that edition as: “TahdhÒb”.—“al-
Qas¢allÊnÒ” = this author’s work IrshÊd al-sÊrÒ li-shar ÉaÒ al-BukhÊrÒ,
BÖlÊq 1293 in ten volumes.—“al-ÆuÉrÒ” = the author’s Zahr al-ÊdÊb
(a work which has not yet been sufciently utilized for the history of
literature), marginal edition to the KitÊb al-{iqd, BÖlÊq 1293 in three
volumes.—“al-Sha{rÊnÒ” = this author’s KitÊb al-mÒzÊn, ed. Cairo,
Castelli 1279 in two volumes.—Al-DamÒrÒ’s ÆayÊt al-ayawÊn is listed
according to the second BÖlÊq edition of 1284 in two volumes.—
“Ibn al-Mulaqqin” = this scholar’s ¢abaqÊt of the ShÊ{ite school with
the title al-{Iqd al-mudhahhab fÒ ¢abaqÊt amalat al-madhhab (MS. Leiden
University Library Leg. Warner no. 532).—“al-JÊiØ” = KitÊb al-
ayawÊn of this Mu{tazilite (MS. Imperial Hofbibliothek Vienna, N.F.
no. 151).—“WaraqÊt” = ImÊm al-Æaramayn’s work on uÉÖl with Ibn
al-FirkÊ’s commentary of the same title (MS. Herzogliche Bibliothek
Gotha no. 922).
The designation “Ibn Æazm” refers to this author’s KitÊb al-milal
wa-al-ni#l (Leiden MS. Leg. Warner no. 480). “Ib¢Êl” designates Ibn
Æazm’s Ib¢Êl al-qiyÊs wa-al-raxy wa-al-istisÊn wa-al-ta{lÒl (MS. Herzogliche
Bibliothek Gotha no. 640). Since I thought it expedient to offer here
VII a description of the theological and literary peculiarities of Ibn Æazm,
the most startling representative of the school with which this work is
concerned, the reader will nd on the following pages ample excerpts
from these two works. Often I had considerable difculties in quoting
these works from a single manuscript. If the manuscript of the Milal
lacks diacritical marks, often to dangerous proportions, then this is
even more evident in the Ib¢Êl. Pertsch has described the graphic style
of this manuscript as “interlaced NaskhÒ which is devoid of diacriti-
cal marks except for some rare exceptions”. Under such conditions it
was in many cases a truly difcult task to arrive at an acceptable text.
Sometimes it could not be avoided, particularly in the Ib¢Êl, that pas-
sages have remained either unclear or had to be explained by plau-
sible conjectures.1 At other times, additions to the apparently decient
1
I like to indicate here that there is only an apparent contradiction between my
conjectures on p. 191, n. 11 and p. 197, l. 12. In the former passage, not Shu{bah
himself is called Óa{Òf but only the fact that this saying is quoted on the authority of
his name. It can be noted that this particular statement is transmitted by Shu{bah on
the authority of {¹Éim (cf. ab. uff., IV, 46) and of ÆajjÊj. It would be impossible to
read al-ijÊj.
preface xv
2
<The corrections which appear in the German edition as a footnote are incor-
porated in the text>.
3
C. Landberg, Catalogue de manuscrits arabes provenant d’une bibliothèque privée à el-Medîna,
p. 177, no. 646.
xvi preface
4
<The corrections which follow here in the German edition have been incorpo-
rated in the text>.
IGNAZ GOLDZIHER AND THE ¶¹HIRÁ
Introduction
1
The latest addition to the ever growing list of Goldziheriana is Peter Haber,
Zwischen jüdischer Tradition und Wissenschaft. Der ungarische Orientalist Ignác Goldziher
xviii ignaz goldziher and the qhir{s
Ignaz Goldziher
3
See, apart from the edition by Patai mentioned in note 2, also Lawrence I. Conrad,
“The Near East Study Tour diary of Ignaz Goldziher,” Journal of the Royal Asiatic Society
1990, 105–126; id., “The Pilgrim from Pest: Goldziher’s Study Tour to the Near East
xx ignaz goldziher and the qhir{s
(1873–1874)”, in: Ian Richard Netton (ed.), Golden Roads. Migration, Pilgrimage and Travel
in Mediaeval and Modern Islam. Richmond: Curzon Press, 1993, 110–159.
4
Ignaz Goldziher, Tagebuch, ed. Alexander Scheiber. Leiden: E.J. Brill, 1978.
ignaz goldziher and the qhir{s xxi
families. He mentions that he was loath to abandon his desk with its
heaps of notes from Ibn Æazm and other polemicists, and that it was
only because of the pressure put on him by his mother and his own
desire briey to escape his duties at the ofce, that he nally consented
to “go and meet a girl”.
At the Leiden conference, Goldziher presented an extensive summary
of his book on the ¶ÊhirÒs, which was to appear in Leipzig several
months later. According to the compte-rendu of the session, he managed
to discuss the conict between ahl al-raxy and ahl al-adÒth, DÊwÖd al-
¶ÊhirÒ’s approach to the QurxÊn and ÆadÒth, the difference between
his hermeneutical principles and those of his predecessors; Ibn Æazm’s
attempts to apply these principles to dogmatics, and the history of the
madhhab from its founder, DÊwÖd, up to al-MaqrÒzÒ. This more or less
covers the entire book. An Arab participant who attended the lecture
was much taken by the fact that Goldziher added the customary Arabic
eulogies after the name of the Prophet MuÆammad and those of
famous Muslim scholars.
The ¶ÊhirÒs5
The work presented here is not usually cited as one of Goldziher’s most
important writings, pride of place being taken by his Muhammedanische
Studien (1889–1890), Vorlesungen über den Islam (1910) and Die Richtungen
der islamischen Koranauslegung (1920). Yet it is a milestone not only in the
career of Goldziher himself, but also in the study of Islamic law. For
despite what is perhaps suggested by its title, the book is much more
than a description of the rise and decline of an ephemeral madhhab
that had virtually ceased to exist by the 15th century CE; rather, it
is one of the rst scholarly discussions of uÉÖl al-qh in a western
language. Goldziher emphasizes this himself in his Tagebuch, where
he declares himself to be quite pleased with the work. He adds that
the work gained him the respect of colleagues in Germany and led a
number of eminent scholars to start a correspondence with him. At
5
Both in the German original and in the English subtitle of the book, the term
“theology” is used. This is somewhat misleading, for the subject matter of the work
is rst and foremost, though by no means exclusively, Islamic law. However, the term
covers both law (which Goldziher calls Gesetzwissenschaft) and theology proper (which
he calls Dogmatik).
xxii ignaz goldziher and the qhir{s
the same time, however, it obviously did not have the impact he had
hoped for: in a letter from 1895 to Martin Hartmann of Berlin, who
tried to encourage him to write a much-needed monograph on uÉÖl
al-qh—for hadn’t he already gathered much material on that topic in
his book on the ¶ÊhirÒs—Goldziher states that as much as he would
like to write such a volume, there does not seem to be much interest
among his colleagues in uÉÖl al-qh; the ¶ÊhirÒ book had been regarded
as a mere curiosity.
The reason for the limited success of the work may be the fact that
it was simply eclipsed by Goldziher’s later writings of a more general
interest, especially his Vorlesungen. This work, which is regarded by
many as the rst textbook on the religion of Islam, contains a lengthy
chapter on the development of Islamic law in which a synthesis is
given of its history and contents. Moreover, Goldziher’s well-known
scepticism with regard to the historicity of sayings attributed to the
Prophet Muammad, which can be encountered in Die ¶âhiriten (where
the term “pious fraud” is already used), was argued more forcefully and
coherently in the second volume of his Muhammedanische Studien.
Among the ¶ÊhirÒs that Goldziher was able to trace in historical
chronicles, geographical descriptions, legal tracts and ¢abaqÊt works—
many of them still unpublished at the time—he pays a great deal of
attention to Ibn Æazm. This was inevitable, for no work by any ¶ÊhirÒ
other than Ibn Æazm had come to light.6 And whereas over twenty
works by Ibn Æazm are now available in print that Goldziher had never
heard of, or that he presumed were lost forever when his books were
burned in Seville towards the end of his life, the author of Die ¶âhiriten
had to make do with two works by the famous Andalusi literalist as
well as with some non-¶ÊhirÒ sources, not all of them sympathetic,
such as al-NawawÒ’s Shar to Muslim’s ÂaÒ. This obviously has certain
implications for the reliability and scope of Goldziher’s information
on the madhhab, and despite the fact that his comments are mostly
amazingly close to the mark, he sometimes overstates his case.
Because Goldziher only had Ibn Æazm’s KitÊb al-Milal wa-Nial and
(MulakhkhaÉ) Ib¢Êl al-qiyÊs at his disposal and not, for example, his MuallÊ
(a part of which became accessible to him only after completion of the
manuscript of Die ¶âhiriten), he was understandably led to regard Ibn
6
Unfortunately, more than 120 years after the publication of Goldziher’s book this
situation has remained virtually unchanged.
ignaz goldziher and the qhir{s xxiii
7
C. Snouck Hurgronje, “Ignaz Goldziher, Die ¶Êhiriten”, Literatur-Blatt für orientalische
Philologie 1 (1883–1884), 417–429.
8
Some recent additions to the bibliography on ¶Êhirism which supplement
Goldziher’s ndings are Abdel-Magid Turki, “al-¶Êhiriyya”, EI, 2nd ed., XI, 394–396;
Lutz Wiederhold, “Legal-Religious Elite, Temporal Authority, and the Caliphate in
Mamluk Society: Conclusions Drawn from the Examination of a ‘Zahiri Revolt’ in
ignaz goldziher and the qhir{s xxv
such as the similarities and differences between the ÆanbalÒ and ¶ÊhirÒ
schools, and the fact that contrary to what might perhaps have been
expected, quite a number of ÂÖfÒs embraced the principles of the ¶ÊhirÒ
school in jurisprudence.
But not only historians of Islamic law have rediscovered the ¶ÊhirÒ
school. For several decades now, a erce polemic has been raging in the
Middle East about the question whether performing and listening to
music are allowed. The most prominent partisan of the lenient view
is Shaykh YÖsuf al-QaraÓÊwÒ, whose views are accepted by millions of
Muslims throughout the world, and who explicitly quotes Ibn Æazm
as his authority on this point. When Goldziher wrote that the ¶ÊhirÒs
were soon considered irrelevant, and that their opinions were not taken
into account when establishing the consensus of legal scholars, he could
not have guessed to what extent Muslims in the modern period would
derive inspiration from their principles and points of view.
1 The legal school which is the subject of the following study is known
in the theological literature of Islam as madhhab al-ØÊhir or madhhab
DÊwÖd. The individual who adheres to its principles is called ¶ÊhirÒ or
DÊwÖdÒ; the school, as a whole, is called ahl al-ØÊhir al-ØÊhirÒyah.1
At the beginning of our century,2 European orientalists still knew
very little about the nature and tendency of the madhhab al-ØÊhir. In
this regard, it is sufcient to point out that Silvestre de Sacy, the
scholar who, at that time, represented the embodiment and sum of all
knowledge about the Muslim East in Europe, quite frankly confesses
in his Arabic chrestomathy on the occasion of his editing MaqrÒzÒ’s
biography: “Je ne saurais dire précisément ce que c’est que cette secte
nommée ma¦hab al-Øâhir”. However, in his translation of the passage
in which MaqrÒzÒ is accused of ¶Êhirite tendencies, he is attempting
the following interpretation: “On lui attribua les dogmes de la secte,
qui fait consister toute la vertu dans les pratiques extérieures.” He
contrasts this “doctrine extérieure” to the ma¦hab al-bâ¢in, i.e. “doctrine
intérieure”,3 an antithesis which, as it has been found since, belongs
to a fundamentally different concept of theological teaching. In 1835,
2 Freytag seems to have borrowed his “madhhab al-ØÊhir, cogitandi ratio
eorum, quibus externus religionis cultus praecipua res esse videtur”
from this reference by de Sacy without giving the source. Even in
1877, the faulty interpretation of the old Freytag is still reproduced in
Adolf Wahrmund’s Handwörterbuch der arabischen und deutschen Sprache as
“madhhab ØÊhir, äusserlicher Wandel”, externalism.
1
Not al-ØÊhirÖna like Houtsma, De strijd over het dogma in den Islam tot op el-Ash{ari,
p. 85.
2
To avoid going back to an earlier period. We mention only one date of previ-
ous times in order to show the confusion which prevailed concerning the fundamen-
tals of our question. Mouradgea d’Ohsson (Tableau général de l’Empire othoman, I, Paris
1788, p. 17) names Davoud Tayi Eba Suleyman “mort en 165/781” besides SufyÊn
al-ThawrÒ as founder of a sixth orthodox school. About the former, he can relate only
this much: “Comme ils n’ont eu l’un et l’autre qu’un certain nombre d’adhérens, leurs
opinions particulières évanouirent presque à leur naissance”. Here, DÊwÖd al-ÊxÒ (Ibn
Qutaybah, Ma{Êrif, p. 257) is confused with DÊwÖd al-¶ÊhirÒ.
3
Chrestomathie arabe, 1st ed., II, p. 411, 422 ff.; 2rd ed., p. 113, 122 ff.
2 introduction
4
Histoire des Sultans Mamlouks de l’Egypte, vol. 1, pt. 2, p. 269–270.
5
After re-examination we have utilized in chapter VIII the passage of the Arabic
manuscript no. 687 of this library for the history of the ¶Êhirite movement in the eighth
century.
6
Culturgeschichte des Orients unter den Chalifen, I, p. 500, n. 3.
7
Op. cit., We shall come back to Houtsma’s version below.
8
Zur Geschichte Abu-l-Æasan Al-Au{arî’s, p. 80.
CHAPTER ONE
1
al-Sha{rÊnÒ, I, p. 63:
2
!"!# $ %&'() * +,-) ./ 0
Culturgeschichte des Orients unter den Chalifen, I, p. 470–500.
3
Zur ältesten Geschichte des muhammedanischen Rechts, Wien 1870. (Akademie der
Wissenschaften. Philosophisch-historische Klasse. Sitzungsberichte. Vol. 65).
4 chapter one
raxy while the latter, at least in his early teachings, refutes any justication
for this. MÊlik b. Anas, al-ShÊ{Ò, and Amad b. Æanbal have taken
the position between these two, not just chronologically, but also with
respect to their recognition of raxy. In the course of the development of
these schools, this difference diminished through gradual concessions so
that wide-spread confusion whether to consider a school as belonging
either to ahl al-adÒth or to ahl al-raxy dominates the historical literature.
Ibn Qutaybah takes into account among the aÉÊb al-raxy all the found-
ers of the legal schools with the exception of Amad b. Æanbal, whom
he does not mention, and DÊwÖd, whom he could not have known
yet; among the aÉÊb al-adÒth he lists famous traditionists only.4 Al-
MaqdisÒ considers Amad b. Æanbal’s followers, together with those
of IsÊq b. RÊhwayhi, a famous ShÊ{ite, as aÉÊb al-adÒth and not at
all as belonging to the madhÊhib al-qh to which Æanates, MÊlikites,
ShÊ{ites, and ¶ÊhirÒs5 belong.6 In a different passage, the same author
mentions the ShÊ{ites in contrast to the followers of AbÖ ÆanÒfah as
aÉÊb al-adÒth,7 and to complete the confusion, in a third passage,8
al-ShÊ{Ò and AbÖ ÆanÒfah are considered as belonging to raxy in op-
position to Amad b. Æanbal. By excluding Amad b. Æanbal from
among the founders of madhÊhib al-qh, al-MaqdisÒ seems to conform
to older opinions. We know, for example, that the famous AbÖ Ja{far
al-abarÒ had to endure considerable animosity since, in his KitÊb ikhtilÊf
al-fuqahÊx, he did not consider the teachings of the ImÊm Amad. The
reason for this attitude was that this imÊm was considered a traditionist
5 but not a faqÒh.9 In Ibn {AsÊkir, we nd: “Amad b. Æanbal wa-ghayruhu
min ahl al-adÒth”; the other schools are classied not according to the
type of the legal methods but according to their regional afliation.10
In al-ShahrastÊnÒ we nd MÊlik, al-ShÊ{Ò, Amad, and DÊwÖd
4
KitÊb al-ma{Êrif, p. 248–251, cf. Sachau, op. cit., p. 16.
5
Unjustly, I think, de Goeje concluded from this in Glossarium zur Bibl. geogr. arabico-
rum, p. 243, that the DÊwÖdÒs were aÉÊb al-raxy. Nothing more opposing could be imag-
ined than madhhab al-ØÊhir and raxy. Al-MaqdisÒ is no longer familiar with the identity of
fiqh and raxy.
6
Descriptio imperii moslemici, ed. de Goeje, p. 37, l. 5–7.
7
About AbÖ Muammad al-SÒrÊfÒ, ibid., p. 127, l. 3.
8
Ibid., p. 142, l. 11.
9
AbÖ al-FidÊx, Annales, ed. Reiske, II, p. 344. Among the older authorities of the
science of traditions, Ibn Æanbal is considered the one who best utilized traditions for
jurisprudence: afqahuhum fÒ-hi AbÖ al-MaÊsin, Annales, ed. Juynboll, I, p. 710.
10
Exposé de la réforme de l’Islamisme, p. 91, l. 15.
chapter one 5
classied as aÉÊb al-adÒth while from among the legal schools which
survived their founder, only AbÖ ÆanÒfah is listed among the aÉÊb al-
raxy.11 Ibn KhaldÖn accepted this division, but with the difference that
he places DÊwÖd b. {AlÒ at the top of a separate third class.12
First of all, it is necessary to make note of the position raxy occupies
in Islamic jurisprudence. This will enable us to dene the position taken
by DÊwÖd and the school founded by him, and named after him, in
the controversy between the rigid traditionalism and the sect whose
adherents v. Kremer appropriately calls the speculative legists (aÉÊb
al-raxy),13 a branch which was constantly gaining greater inuence.
11
KitÊb al-milal, ed. Cureton, p. 160–161; cf. Sachau, op. cit., p. 15.
12
Muqaddimah, ed. BÖlÊq, p. 372 ff. All three classes together are madhÊhib al-jumhÖr.
13
Some curious translations of this expression from various periods might
be mentioned here. Joh. Fr. Gmelin, in his translation of Alexander and Patrick
Russell’s Nachrichten von dem Zustand der Gelehrsamkeit zu Aleppo (Göttingen 1798), gives
“Vernunftsgläubige”, men of reason, as equivalent of this term which, however, was not
properly recognized at the time. We nd this as “consiliari” in Flügel’s ÆÊjjÒ KhalÒfah,
IV, p. 47: 12)
34 5 : quae in libris consiliariorum occurrunt. Yet, the strangest
interpretation of all is offered by Ad. Wahrmund, the German Arabic lexicographer,
with his oracle: aÉÊb al-raxy, metaphysists, idealists. (Consistent with this would be: aÉÊb
al-adÒth, natural scientists, materialists!). And this after the correct denition of the term
had already penetrated the European Arabic lexicography, at least since Lane’s article
of 1867!
CHAPTER TWO
3
'4F> '6) GHCI ? +46 +)J,K 12). Cf. the text of JurjÊnÒ from which the preceding
remarks have been extracted. JAOS, vol. 7, p. 116. <“Opinion is carrion—when need
requires, eat it”>.
4
abaqÊt al-uffÊz, ed. Wüstenfeld, VI, no. 46.
5
Ib¢Êl, fol. 6a. Ibn Æazm refutes this interpretation as follows: “God did not make it
our duty to pass judgement on witnesses’ evidence and on oath. A judge is not obliged to
investigate whether they are true or false. If he were to do this, indeed, the door would
be wide opened to his individual interpretation in legal decisions. May God protect
us from this! Let us assume that there are two quarrelling parties before us, the one a
pious, God-fearing, trustworthy Muslim, the other, however, a Christian who recognizes
three persons in the deity and who is known to fabricate lies about God and people and
8 chapter two
who, in private life, is a volatile, frivolous individual. Now, the Muslim demands from
the Christian payment of a debt, no matter how large or small, the title to which the
Christian denies; or, conversely, the Christian were the plaintiff and the Muslim the
defendant protesting the claim of the Christian plaintiff. If things were to be decided
according to the judge’s personal view whioh does not agree with the facts, then the
Muslim is to be awarded right over the Christian. But there is no argument that we
must not be guided by our view of the situation, rather that we must make a decision
on the basis of evidences as decreed by God according to which the plaintiff must
assert his claim by producing credible witnesses, and the defendent his denial on oath.
‘Conjectures’, however, we must dismiss altogether”. Ib¢Êl, fol. 18b.
6
Contrary to his custom, Ibn Æazm approves the validity of this tradition, but
interprets the words fal-yajtahid raxyah that one must search diligently for authentic
traditions if they are not easily available at rst sight.
7
Ib¢Êl, fol. 5b.
chapter two 9
8
Cf. the passages in Sachau, ibid., p. 6. In al-MÊwardÒ, Constitutiones politicae, ed. Enger,
p. 111, 1. 1, rasÖl AllÊh ought to be corrected to rasÖl rasÖl AllÊh. Ib¢Êl, fol. 6a seems to
have been endowed with the oldest version of this story. There, Mu{Êdh says: ajtahidu
raxyÒ wa-lÊ Êlw; the last two words are missing in the other versions of the account.
9
KitÊb al-aghÊnÒ, XVI, p. 32: 0,L - ; :M N O4 0MP Q5 RS 6I5 0 T
; 2H '4P +,-) *# $ +,-) J) N O4 *D4-M $
.U
10 O4 0 VWFD $ XHY ZF[F4 ,L R') R')
al-{Iqd, I, p. 33: 06 D" +, N
.\ ''D] 0)!H N ,L 'D ^ _ RS X,L H! `5 aD] Qb cL; RTFY
10 chapter two
11
E.g. AghÊnÒ, X, p. 109, 1. 18, in one of AbÖ {AlÒ al-{AblÒ’s panegyric poems about
the Umayyad caliphs: ![-) R'F6) !6d J 12H8e 8f H',) !TC( .
12 l H8e A"
E.g. a proverb اﳍﻮىk kCk 12 k ?m al-MaydÊnÒ (ed. BÖlÊq), I, p. 51.
13
12) = heretical view, al-BukhÊrÒ, KitÊb al-adab, no. 79 12H 0) PH ,6 ; arbitrary
view. TafsÒr, no. 15 to II v. 192 $ RTFY N Q!H o ,FT N O4 +T4 + p =)J"
.%&] 0 2 PH Q5 G 4 0,L 0, $ 0d 5 QJ,
14
Cf. al-GhazÊlÒ, IyÊx, I, p. 276; in elucidating the well-known tradition p() - *
.H ,) * aT( 2!D46F 0 2, he voices the opinion that the word 12), considered lexically,
can be understood either in a favourable or unfavourable sense, but that theological
linguistic usage gives preference to the phrase in malam partem: 12) 12) !#
q Arl 5 1!'F) \! ) s6tA) Q ,4 12) s6tA) '4P 1!'F) \! )
u12) R. Cf. also n. 1.
chapter two 11
15
Ib¢Êl, fol. 2b, 3a.
16
al-TalwÒ ilÊ kashf aqÊxiq al-tanqÒ by Sa{d al-DÒn al-TaftazÊnÒ (MS of the
Kais. Hofbibliothek Vienna, A.F. 167[251] fol. 181a): u6FT4) L @!A,) Y
Y 65 u6FT4 ) 6) !58v w4 6FT4) L Y 6( 3x +TH yL V)? !F4z
6FT4) Y 65 u{TD) *L " P! 4 06) R# +I s)Y |Y # 6FT4 )
'4] 5 uN 0.H T/) ^ V)? 3-" cY *6 * aJ6} 6) * *#) |Y!
12 chapter two
Even though the introduction of qiyÊs put a formal limit to the indis-
criminate application of raxy, istisÊn cancelled this effect in favour of
uncontrolled raxy. The word istisÊn itself denes the subject matter: to
consider something preferable. AbÖ Bakr al-SarakhsÒ denes it as follows:
It is “abandoning qiyÊs in consideration of what is easier for man”.17
In view of the dearth of non-partisan sources for the history of the
earliest development of Islamic jurisprudence on which such a history
could be built, in view of the partial colouring of the facts which were, to
a large extent, ad hoc fabrications, it is difcult to determine precisely the
date when the above-mentioned Islamic legal sources were introduced.
Furthermore, it can hardly be determined to what extent usage of those
sources for decision had developed in AbÖ ÆanÒfah’s time, and what
were the new facts which he added to Islamic jurisprudence in order
to dene the spheres of raxy and qiyÊs. There even prevails uncertainty
concerning how AbÖ ÆanÒfah utilized the speculative components of
legal deduction, and what degree of justication he permitted them
beside the traditional legal sources. Opponents of his legal system
are inclined to maintain that he did not attach much importance to
tradition, rather that he emphasized predominantly the application
13 of free speculation in legal deduction. They cite minutely the small
number of traditions which he used for establishing his legal system.
In his time, four companions were still alive, but he made no efforts
to hear traditions from these authorities.18 His advocates refute this
accusation and claim to know denitely that he resorted to raxy only
in cases in which written and orally transmitted sources failed. Even
sayings are cited from AbÖ ÆanÒfah in which he mentions the branch
attributed to himself reprehensibly: “Urinating in the mosque is less
reprehensible than some of their qiyÊsÊt”. Once the ImÊm is supposed
to have said to his son: “He who does not abstain from applying qiyÊs
in legal proceedings is no legist”.19
20
AbÖ al-MaÊsin, Annales ed. Juynboll, I, p. 316.
21
abaqÊt al-uffÊØ, IV, no. 12. It is said also about another of AbÖ ÆanÒfah’s teachers,
about {A¢Êx b. AbÒ Muslim (d. 135) who represented jurisprudence in KhurÊsÊn, in
AbÖal-MaÊsin, ibid., 366 ( z 06(): R!) 6b %1H abaqÊt al-uff.,
ibid., no. 37.
22
AbÖ al-MaÊsin, I, p. 405.
14 chapter two
23
MafÊtÒ, VIII, p. 617.
24
KitÊb al-aghÊnÒ, XVI, p. 169. Cf. also my Beiträge zur Literaturgeschichte der tG{a,
p. 65.
25
We encounter also poetical eulogies for AbÖ ÆanÒfah, Fihrist, p. 202; also for
MÊlik ibn Anas in al-ÆuÉrÒ, I, p. 69; for the poet {Abd AllÊh b. SÊlim, called Ibn
al-KhayyÊ¢, in al-JÊiØ, fol. 181a; and for seven fuqahÊx of Medina in a love poem in
AghÊnÒ, VIII, p. 93.
26
ÆayÊt al-ayawÊn, II, p. 124 s.v. D.
27
Ibn Æazm, too, knows this account, Ib¢Êl, fol. 15b.
28
AbÖ al-MaÊsin, I, p. 390.
chapter two 15
“Just tell me which, in the eyes of God, is the more serious crime
homicide or adultery?”
“No doubt, homicide is a greater crime”, replied AbÖ ÆanÒfah.
“Yet homicide is judged on the basis of two witnesses’ evidence while
adultery is proven only by statements from four witnesses. How does
your analogy apply in this case? And what is more meritorious before
God: fasting or praying?”
“Prayer is denitely more meritorious”, replied AbÖ ÆanÒfah.
“Nevertheless, a woman must interrupt fasting during menstruation
although she is not forbidden to pray in this state.29 Fear God, o servant
of God, and do not produce arbitrarily analogies in religious matters,
for we and our opponents may be summoned before God’s tribunal
to-morrow. Then we on our part shall say: {AllÊh has said; the Prophet
of AllÊh has said’. You and your companions, however, shall say: ‘We
have heard such; we have guessed such’. But AllÊh shall treat us and
you as He wills”.
At times idle casuistry, too, has been falsely attributed to the founder
of the “speculative” school. Thus it is related that at the time when
the traditionist QatÊdah—who was particularly versed in Biblical
legends—came to Kufa, a large crowd gathered around him in order
to meet the famous BaÉran. Upon his offer to explain any question ex
abrupto, AbÖ ÆanÒfah, who at that time was still a youth, came forward
with this question: “What might have been the sex of Solomon’s
ant?” (SÖrah XXVII). This embarrassed the learned QatÊdah and he
confessed to be unable to answer this question. Then the youthful
questioner himself gave the reply: “It was a female ant because it
16 says in verse 18 {qÊlat (she said) an ant’. If it had been a male, then,
the masculine form (qÊla) ought to have been used because namlah is
gen. epic”.30 Also typical of attitudes towards AbÖ ÆanÒfah’s school
shortly after its establishment is the following anecdote which ÆammÊd
b. SalÊmah relates: “In the time of ignorance, there was a highway
robber who used to take the possessions of pilgrims with the aid of a
cane. When accused of robbery, he would use the excuse that not he
but the cane had acquired foreign property”. ÆammÊd comments:
“If this man were still alive to-day, he would certainly be one of the
followers of AbÖ ÆanÒfah”.31 The following verdict is cited on the
29
This objection to analogy is also encountered in al-BukhÊrÒ’s KitÊb al-Éawm, no. 41.
30
al-DamÒrÒ, II, p. 432.
31
al-JÊiØ, fol. 121a.
16 chapter two
32
al-JÊiØ, fol. 62a: *# $ ,) RFL Q( +6, : 0( *L 6 q ;
. : R'F'P
33
Also A thousand and one night, night 296–7, must be considered as part of this. There,
the excesses of the Æanate casuistry and subtleties in the person of AbÖ YÖsuf are
made the subject of humourous comic. (BÖlÊq, 1279, II, p. 159–160).
34
AbÖ al-MaÊsin, I, p. 396.
35
Ib¢Êl, fol. 13b.
36
Ibid., fol. 10b: +F; - *L DT/) =) RF- s)Y Q5 = 2H N *T) DT/) Q5
.06FL Dl k 12 UlM m Q( #,) *
chapter two 17
formula also came from the lips of the Prophet himself 37 and his pious
companions.38 From the following remark attributed to MasrÖq, it
becomes evident how much aversion the strictest traditionists entertained
towards pure casuistry which threatened to prove that many a legal
problem, although logically feasible, was not treated in the traditional
sources and could be decided only by speculative means. Whenever a
question was put before MasrÖq, he would ask the questioner: “Has
18 this case really already occurred?” When he received a negative reply,
MasrÖq would say to the questioner: “Pardon me if I do not answer
until such a case does in fact occur”.39 AbÖ Thawr al-BaghdÊdÒ, who
must be mentioned in the next chapter as being favourably disposed
towards raxy, and consequently not a fully recognized ShÊ{ite, put the
following question before another jurist: “Some one takes an egg from
each of two persons and puts both eggs into his sleeve. Now, one of
the eggs is crushed completely and becomes totally valueless. Which of
the two owners has to be compensated?” The jurist was very annoyed
with AbÖ Thawr and said: “You have to wait until compensation is
demanded”.—“So you admit”, countered AbÖ Thawr, “that you have
no answer to this”.—“I say”, replied the other, “go away, for we have
to pass legal judgements; we do not have to satisfy the curious”.40
Besides such objections against the speculative branch which
were made mockingly rather than with the intent of criticising the
principles, we meet the serious accusation in the period following the
establishment of AbÖ ÆanÒfah’s system that the speculative branch
destroys the bases of the law through arbitrary negligence of the positive
legal sources in favour of speculative innovations (bid{ah), and that it
37
JazÊx al-Éayd (Bukh.), no. 22: 046I5 4,: * V yL !) = 2H2 but this is no
question requiring explanation. In MaghÊzÒ, no. 12, MiqdÊd b. {Amr al-KindÒ puts
a casuistic question to the Prophet starting it with ) PH =6() = H2. In the
corresponding passage DiyÊt, no. 1, this = 2H2 is missing. Its occurrence in the other
passage, so argues al-Qas¢allÊnÒ (X, p. 48) against opponents, shows that it concerned
a casuistic question, not a real one.
38
KitÊb al-wuÓÖx, no. 34 (35): P) P ? = 2H2 L * bL Q ()z * ) 0"
.s,) *.l RF
39
al-Sha{rÊnÒ, I, p. 63: Q5 =k Tk5 k :;<-F) Q!( +F;- *L ; ? -
. !#M 4 ,L2 Q5
40
Ibn al-Mulaqqin, fol. 2a.
18 chapter two
41
Ibn Qutaybah, KitÊb al-ma{Êrif, p. 249: : 0l 2 |6 +,kA * R#
.+6,
42
Zur ältesten Geschichte des muhammedanischen Rechts, p. 15 ff.
43
Muslim (ÂifÊt al-munÊqÒn), V, p. 346: 6 (S (S 6]5 " +SS =6D) ,L .4P
R'"!C Rt] 6b R'!F5 0( 6F5 ]5 . Noteworthy is also the following tradition l Ak 5
P) 0( * +,k A) Q! +kDC ~l ) in Ibn al-SikkÒt, KitÊb al-alfÊØ (Leiden MS. Warner),
no. 597, p. 414. Attention must be drawn to Ibn HishÊm ed. Wüstenfeld, p. 1014, 1. 6:
) ,) c] 0() qF~M + ,-) H '" +, (M 4 ' here, ahl al-qh can
be interpreted as reasonable people or also as people who are familiar with religious
law. However, the context of the passage presupposes a time in which concern for
tradition was already well developed.
44
al-BukhÊrÒ, WuÓÖx, no. 33.
45
E.g. al-BalÊdhurÒ, p. 377, 1. 2: p() 0() ,) R6FTM yL a6Y .
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