‘the concept of sunna in the early shafi’i madhhab.’ in duderija, adis (ed.) the sunna and...

Chapter 7

The Concept of sunna in the Early Sh ā fi ʿī Madhhab

Gavin N. Picken

Introduction

Mu � ammad b. Idr ī s al-Sh ā fi ʿī (150/767–204/820) occupies a preeminent position in the field of Islamic Law, and is considered highly influential in the articulation of its formative phase of development, especially with regard to the genesis of the religion’s legal theory ( u �ū l al-fiqh ). A cursory glance at early Islamic history may cause one to assume that al-Sh ā fi ʿī occu-pies this elevated status due to the fact that he was the eponym of a distinct legal school within the Sunni context, which has afforded him the position of an “iconoclast jurist” until the current period. Although this is certainly true, al-Sh ā fi ʿī ’s contribution to the development of Islamic law was much more far reaching than even this substantial feat.

Indeed, one may observe that since al-Sh ā fi ʿī is still considered the epon-ymous founder of a Sunni legal school that he defined a unique juristic methodology ( u �ū l al-fiqh ) and he articulated this achievement by applying it to the individual cases that make up positive law ( fur ūʿ al-fiqh ). This was also the case with other juristic luminaries of the formative period but what distinguishes al-Sh ā fi ʿī is that he authored a seminal text in the realm of legal theory, namely his Ris ā la , and at the same time codified its application in the context of positive law in his voluminous work Kit ā b al-Umm . Thus, al-Sh ā fi ʿī left an unparalleled written legacy that would provide future jurists with reference works to draw upon. Moreover, al-Sh ā fi ʿī was fortunate to

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be endowed with that rarest of commodities—a small group of dedicated students—who would not only propagate his teachings but also develop his ideas and consequently, form a formal school affiliated with their great master.

In addition to these considerable achievements, al-Sh ā fi ʿī is credited with creating a paradigm shift in the understanding of what constitutes the Prophetic practice ( sunna ) and associating it with the tradition of narrations associated with Prophet, known as � ad ī th , which would, in turn—in con-junction with the Qur ʾā n—determine Islamic law. It is to this latter accom-plishment of al-Sh ā fi ʿī that the current chapter is primarily dedicated.

The Life of and Works of Al-Sh ā fi ʿ ī

Al-Sh ā fi ʿī ’s success was far from fortuitous, but rather was the product of a noble lineage, a life dedicated to learning, constant travel in search of knowl-edge, a comprehensive grasp of Islamic scholarship, and considerable legal acumen. The sources are consistent in that al-Sh ā fi ʿī was born in Palestine in 150/767, but differ as to whether he was born in Gazza or ʿ Asqal ā n. It is also worthy of note that he was born in to a H ā shim ī family, his lineage coinciding with the Prophet’s grandfather, ʿ Abd al-Mu alib. This noble origin did not stop the young al-Sh ā fi ʿī from living in rather difficult circumstances, since his father died when he was very young, and his mother moved him from Palestine at the age of two. Later al-Sh ā fi ʿī would move to Mecca where he would use his prodigious memory to memorize the Qur ʾā n by the age of seven and further commit to memory M ā lik b. Ana’s (d. 179/795) al-Muwa �� a ʾ by the age of ten. 2 As he matured, his teachers in Mecca became the mufti of the city, Muslim b. Kh ā lid al-Zanji (d. 180/796) and the renowned � ad ī th scholar Sufy ā n b. ʿ Uyayna (d. 198/813). Later, in his early teens, he would then move to Medina to study with the author of al-Muwa �� a ʾ and learn Malik’s juristic technique that was understood to be an extension of the tex-tually orientated method of the traditionists ( al-mu � addith ū n ), 3 which was said to be dominant in Hijaz. 4

Al-Sh ā fi ʿī never met the other foremost just of the age, namely, Ab ū � an ī fa b. Nu ʿ m ā n (d. 150/767), as he was born in the same year that the great scholar died. Nevertheless, he spent time in the company of his foremost stu-dents, Mu � ammad b. al- � asan al-Shayb ā n ī (d. 189/805), who presumably educated al-Sh ā fi ʿī regarding the competing “rationalist” system in Iraq that was characterized by the exercising of “personal opinion” ( al-ra ʾ y ). 5

Al-Sh ā fi ʿī eventually found his way to the ʿ Abb ā sid capital of Baghdad and it was there that he met some of its greatest scholars and many of

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its brightest minds became his students. Such personalities included Ab ū Thawr al-Kalb ī (d. 240/854), Ahmad b. � anbal (d. 241/855), al- � usayn al-Kar ā b ī s ī (d. 248/862) and al- � asan al-Za ʿ far ā n ī (d. 260/874). It was also in Iraq that it is said that he began authoring the early versions of his great works, including a text titled Kit ā b al- ujja and a preliminary draft of the Ris ā la , which would constitute the basis of his “prior” jurisprudence ( al-qad ī m ). 6

After a sojourn in Baghdad that lasted approximately three to four years, al-Sh ā fi ʿī then moved to Egypt where M ā lik’s teaching was para-mount. That al-Sh ā fi ʿī refuted M ā lik’s opinions and in particular the evidential source of “Medinan precedent” ( ʿ amal ahl al-Madina ), drew criticism from some jurists but others, who seemed more open minded, embraced al-Sh ā fi ʿī ’s teaching and a new circle of students grew in his lat-est domicile. This group of devotees included Y ū suf b. Ya � y ā al-Buway ī (d. 231/845), Rab īʿ b. Sulaym ā n al-Mur ā d ī (d. 270/880), and Ism āʿī l b. Ya � y ā al-Muzan ī (d. 274/877). More importantly, it was in Egypt that al-Sh ā fi ʿī crystalized his juristic Weltanschauung , finalizing his work on the Ris ā la and completing reviewing his opinions on positive law with the exception of twenty-two legal cases, which would be the basis of his multi-volume work Kit ā b al-Umm and would be referred to as his “revised” jurisprudence ( al-jad ī d ). 7

In addition to the Ris ā la and Kit ā b al-Umm a number of other texts are also attributed to al-Sh ā fi ʿī . 8 Some of these works may be considered polemical writings, as they primarily deal with refutations of contem-poraneous jurists and include critiques of M ā lik and al-Shayb ā n ī . The topic of legal theory was also addressed by al-Sh ā fi ʿī in a text other than the Ris ā la , namely Jim āʿ al- ʿ Ilm and a separate treatise was dedicated to reconciling disparity in � ad ī th transmission, titled Ikhtil ā f al- ad ī th . Moreover, given al-Sh ā fi ʿī ’s exceptional linguistic ability and talent for memorizing poetry, he is also credited with an anthology of verse ( d ī w ā n ). 9

After a period of exceptionally productive authorship during his five-year stay in Egypt, al-Sh ā fi ʿī died in 204/820 and was buried in the Qar ā fa al-Sughr ā cemetery of modern Cairo. In later times his burial site played an active role in the Ayy ū bid revival of Sunnism in the wake of the F ā timid collapse, as his grave was transformed by the Ayy ū bid sultan al ā� al-D ī n (r. 569/1174–589/1193) and his later Ayy ū bid successor al-Malik al-K ā mil (r. 614/1218–635/1238). These rulers erected a large mausoleum in al-Sh ā fi ʿī ’s honor and a college ( madrasa ) in its associated environs. The mausoleum complex remains a place of visitation and veneration up until today and many Cairenes consider al-Sh ā fi ʿī to be the “patron saint” of their city. 10

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Al-Sh ā fi ʿī ’s Theory of Bay ā n

In the classical conception of legal theory, Islamic law is commonly held to consist of four sources upon which all schools of jurisprudence agree, namely the Qur ʾā n, Prophetic practice ( sunna ), scholarly consensus ( ijm āʿ ) and analogical deduction ( qiy ā s ). Moreover, these four sources are held to maintain a hierarchical structure such that primacy is given to the Qur ʾā n then the sunna , then ijm āʿ and finally qiy ā s . This theory is attributed to al-Sh ā fi ʿī and is said to originate in his seminal treatise on legal theory, the Ris ā la . 11 Even though al-Sh ā fi ʿī does indeed discuss the four sources in the Ris ā la to suggest that this is his only contribution to legal theory would be incredibly misleading and would seriously underestimate the contribution of al-Sh ā fi ʿī and undermine the overall value of the Ris ā la . 12

In fact, one of the most novel concepts in the Ris ā la , and one of al-Sh ā fi ʿī ’s greatest contributions to the genesis of legal theory is the notion of what he terms “ bay ā n .” Although one may naturally assume this carries the implica-tion of “clarification,” or “elucidation,” al-Sh ā fi ʿī did not expressly intend its linguistic or rhetorical value. 13 On the contrary, al-Sh ā fi ʿī defined the term in his own very specific manner and seems to have implied the concept of “revelatory address.” 14 In his conceptualization of bay ā n al-Sh ā fi ʿī pro-poses the notion that revelation addresses the legally responsible individual and that this address is intelligible from a legislative perspective, even if the there is more than one address, and they seem apparently contradictory. Thus, al-Sh ā fi ʿī ’s primary concern is with how the legal sources interact and interplay with one another and his main focus is to produce a legal herme-neutic to mitigate the apparent contradictions that seem inherent in the sources. 15

In this context, al-Sh ā fi ʿī proposes what may be referred to as a “revela-tory matrix” such that Divine will is communicated to the temporal realm via revelation. The recipient of this Divine manifestation is none other than the Prophet but the manner in which he receives this communication can vary between God’s precise articulation, embodied in the Qur ʾā n, and other forms of address communicated to the Prophet and reported in the sunna . Thus, al-Sh ā fi ʿī reduces the identifiable sources of law to their revelatory foundations and in fact, does not consider a third possibility except in the case of extreme necessity. Al-Sh ā fi ʿī suggests that the Qur ʾā n and sunna express legal rulings in the following five ways: 1) the Qur ʾā n alone, such that the text is completely self-sufficient and requires no further elabora-tion; 2) the Qur ʾā n and sunna together, where the sunna merely reiterates the Qur ʾā nic injunction; 3) the Qur ʾā n and sunna together, where the sunna elaborates the Qur ʾā nic injunction; 4) the sunna alone, where there is no


precedent from the Qur ʾā n; and 5) none of the aforementioned scenarios, such that the ruling is not apparent and in which case one much resort to a form of juristic reasoning ( ijtih ā d ), 16 primarily through the medium of analogical deduction ( qiy ā s ). 17

Through this schema, al-Sh ā fi ʿī elaborates every possibility of how the revelatory matrix may feasibly address a particular legal case and in the event that the intended legislative purport remains unintelligible, then analogy will be employed to find a solution. One will note here that even in this final scenario, when no apparent deduction can be made, the jurist remains inextricably tied to the revelatory sources, as analogy can only be made in reference to an existing precedent in the Qur ʾā n and sunna with an identifiable common cause of legislation ( ma ʿ n ā ). 18 It can be determined, therefore, that al-Sh ā fi ʿī restricts the sources of law to those of purely Divine origin and consequently grounds the law in what may be tangibly received by the Prophet in terms of “revelatory address.” In addition, it can also be observed that al-Sh ā fi ʿī ’s bay ā n schema displays what may be referred to as an “architectural symmetry,” since it relies on the Qur ʾā n alone (Q), the Qur ʾā n and sunna in conjunction (Q/S) and then the sunna alone (S). 19 As Lowry observes:

Thus, al-Sh ā fi ʿī ’s concept of the bay ā n complements his claim that the divine law is all-encompassing, by showing that the divine law exhausts all the pos-sible permutations of revealed authority, and by showing that it does so in an orderly and aesthetically satisfying manner. 20

It should be noted here that al-Sh ā fi ʿī did not consider the dual revela-tory sources of Islamic law to be contradictory in any way and hence any apparent discrepancy between them was entirely superficial. 21 The ques-tion becomes then, how to explain such apparent contradictions when they occur. Al-Sh ā fi ʿī responds by elaborating a number of hermeneutical rubrics within the overarching bay ā n schema to mitigate such apparent contradic-tions, namely the dichotomous pairings of ʿā mm and kh ā�� and jumla/ and na �� , and the individual rubric of naskh . 22

In considering first the duality proposed by ʿā mm and kh ā�� , a text is deemed “general” ( ʿā mm ) when it apples to the entirety of a given class and in fact, upon primary examination all texts appear this way initially. However, upon closer examination, one may be presented with another text that applies to a sub category within the general perception of the original class and hence, this second text applies a restriction to its initial implication and this is referred to as “specific” ( kh ā�� ). Although this rubric has a wide-ranging application, it is particularly prevalent in cases where the Qur ʾā n, being a finite and primarily universal text, presents a case that is “general”

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( ʿā mm ) and then is restricted by an evidence from the sunna , which is spe-cific ( kh ā�� ). In this way al-Sh ā fi ʿī is able to harmonize texts that, on the surface of it, appear to be contradictory and, more importantly, he diffuses any potential tension between the two revelatory sources by demonstrating their compatibility. 23

The second pairing in al-Sh ā fi ʿī ’s hermeneutical rubrics is jumla and na �� , which concerns whether an evidence is self-sufficient in terms of it legal implication, or whether it requires further elucidation. If a text is deemed self-sufficient, such that its legal purport is conclusive and it requires no further elaboration, then it is termed “definitive” ( na �� ). If, however, on the other hand a text requires further detail or supplementary explanation, then it is referred to as “ambiguous” ( jumla ). Thus, this hermeneutical rubric concerns the necessity of interpretation of a text, or its independence as legislative evidence. In the context of al-Sh ā fi ʿī ’s conception of bay ā n , the jumla and na �� device is perhaps the most apparent since the Qur ʾā n will either provide a text that is unequivocal, which obviates the need for supple-mentary material from the sunna , or remain ambiguous, in which case the sunna will define the perceived Qur ʾā nic ambiguity. Once again, this is a further method of harmonizing the revelatory sources in a complementary manner but perhaps, more significantly, it cements the role of the sunna in the revelatory matrix, as it proffers it an essential role as the primary and essential interpretative tool to understand the Qur ʾā n. 24

Naskh refers to the theory that certain revelatory injunctions were repealed by later ones and is said to be indicated by Q. 2:106. 25 Like the aforementioned hermeneutic rubrics, abrogation also relies on the juxtapo-sition of texts but in this instance, it depends entirely on a revelatory time-line. Thus, whereas the hermeneutical devices discussed so far are attempts to demonstrate the complementarity of apparently contradictory texts, as a means of harmonization, abrogation recognizes the disparity between a pair of evidences and mitigates the inconsistency by placing them in a histori-cally chronological sequence.

Perhaps the most interesting feature of al-Sh ā fi ʿī ’s articulation of abroga-tion is that he holds that only intra-source abrogation can occur and he denies the possibility of inter-source abrogation. In other words, the Qur ʾā n can abrogate the Qur ʾā n and the sunna can abrogate the sunna , but they cannot abrogate one another. 26 Al-Sh ā fi ʿī bases this on Q. 2:106, which, he claims, implies that only the Qur ʾā n can abrogate the Qur ʾā n. In addi-tion, based on his bay ā n schema, he understands that the Qur ʾā n and the sunna are two ontologically different yet complementary entities. Practically speaking, if they were in competition with one another, the Qur ʾā n would always outweigh the sunna and hence, they cannot act upon another in terms of inter-source abrogation. 27


Al-Sh ā fi ʿī ’s Conception of sunna vis-a-vis ad ī th

Thus far, it has been tangible that al-Sh ā fi ʿī reveres the sunna as part of Islam’s revelatory matrix and hence, a fundamental source of law—second only to the absolute authority of the Qur ʾā n. Yet, a fundamental question needs to be raised: what constituted the sunna for al-Sh ā fi ʿī and how did he determine it? This question is pertinent and essential, as many terminologi-cal usages displayed considerable mutability during the nascent period of Islamic legal history. 28 Moreover, the concept of sunna was often particu-larly flexible as it encompassed the practice of the companions and succes-sors, the customs of specific communities and regional traditions, as well as the practice of the Prophet. 29

Of particular concern to al-Sh ā fi ʿī was the concept of sunna associated with “Medinan precedent” ( ʿ amal ahl al-Madina ) in the legal theory of his teacher M ā lik. This notion posited the idea that the practice of the people in Medina at the time of M ā lik was separated from the time of the Prophet by only a minimal time lag and hence, given the large number of compan-ions that resided in the city after the death of the Prophet, it could be safely assumed that the practices that were prevalent in the city were of Prophetic origin. Thus, M ā lik believed a form of localized consensus that was con-firmed by consistency in the practice of the generations that succeeded the Prophet in his final abode.

Al-Sh ā fi ʿī rejects the idea that “Medinan precedent” engendered a sense of consensus and, more critically, he was of the opinion that adopting such an approach would be detrimental to status of � ad ī th as a whole 30 :

This is the method of those who invalidate � ad ī th in its entirety: they say we follow consensus except that they only claim that there is consensus. You claim the consensus of a particular locality where in fact the people there are in a state of disagreement as you yourself have admitted. 31

Al-Sh ā fi ʿī also voices his opposition to Medinan precedent as constituting the part of the notion of sunna :

You claim that the sunna is established from two perspectives: the first is that you found the scholarly companions conforming to it and secondly, you did not find people disputing it. Equally, you reject it if you do not find that the scholars have an opinion regarding it and you find that people disputed regarding it. 32

Indeed, he considers M ā lik’s application of this principle to lack consistency due to the disparate sources he draws upon and, having surveyed M ā lik’s

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opinion on a given case, he demonstrates his frustration by stating, “Where is Medinan precedent here ( ayna al- ʿ amal )?” 33 Moreover, he did not con-sider that a localized tradition could be given such a primary position in determining law. He criticizes this aspect of M ā lik’s system commenting:

You seem to claim that knowledge is restricted to you, such that whatever you permit is permitted, and whatever you reject is rejected. Do you not offer this privilege to others? There is no Muslim land that is divested of knowledge and scholars who were emulated by their local communities. Do you not consider people of Mecca to be justified in their emulation of ʿ A āʾ [b. Ab ū Rab ā� (d. 114/732)]? Whatever opinion he held, if it was in agreement with attested � ad ī th then they agreed with him and if not, they disagreed with him. Equally, would you not consider the people of Basra to be justified in their emulation of al- � asan [al-Ba � r ī (d. 110/728)] and [Mu � ammad] Ibn S ī r ī n (d. 110/728)? Or that the people of Kufa were justified in emulating [ ʿĀ mir b. Shar ā�ī l] al-Sha ʿ b ī (d. 103/721) and Ibr ā him [al-Nakha ʿī (d. 96/715)], or similarly the people of Syria [for emulating their scholars]? Everyone we have mentioned was a scholar and an imam in his time and some of them were better than others. In fact the only knowledge that is binding is that of the Book and the sunna and it is incumbent on every Muslim to follow them. 34

It is also noticeable from this quote that al-Sh ā fi ʿī regards the Medinan prec-edent to be little more than the collective opinions of the scholars of a par-ticular locale, rather than an organic tradition developed out of Prophetic practice and a legally binding precedent constituting sunna .

In addition to the concept of Medinan precedent developed and champi-oned by M ā lik, there were other hermeneutical devices that also attempted to provide an interpretive response to determining the law. Of paramount importance in this regard was the genesis of “juristic preference” ( al-isti � s ā n ) by the jurists of Iraq and especially Ab ū � an ī fa. Isti � s ā n was the setting aside of the apparent meaning of an evidence, or an analogy based on an apparent evidence, in favor of exercising a personal judgment to facilitate some form of perceived public benefit, or a ruling that appeared to be more equitable. 35 From al-Sh ā fi ʿī ’s perspective, the revelation was entirely self-sufficient, such that it either provided an evidence in the form of a definitive text ( na �� ), or an evidence from which a ruling could be inferred ( dil ā la ). Therefore, for a jurist to exercise his personal opinion and “preference” for something other than revelation indicated was simply unacceptable and indeed, was completely prohibited:

It is not permissible for anyone who is appointed to be a judge or a mufti to make a decision based on anything other than a binding evidential proof, constituted by the Book and sunna , or the undisputed opinion of the


scholarly elite, or via analogy and it is not permissible for him to judge or make a decision based on isti � s ā n , as isti � s ā n is not binding in any way, in the way that the rest of these are. 36

Moreover, al-Sh ā fi ʿī also considers this practice dangerous with regard to the sanctity of the law, “If it was permissible to invalidate analogy it would possible, when there is no binding evidential proof, for intelligent people who are not from the scholarly elite to say whatever they want based on isti � s ā n .” 37 As with Medinan precedent, al-Sh ā fi ʿī considered isti � s ā n to be equally arbitrary and in his most damning statement says, “ Isti � s ā n is little more than a “matter of taste” ( taladhdhudh ).” 38

In the Ris ā la , al-Sh ā fi ʿī ’s responds to these competing juristic methodolo-gies by grounding the law within the confines of the revelatory matrix. More specifically, with regard to the notion of sunna , his response is unequivocal: the sunna is restricted to the Prophet only. It is noticeable in the Ris ā la that relatively little discussion is afforded to the Qur ʿā n, most probably because as a source of law, it was undisputed among jurists. Al-Sh ā fi ʿī uses this to his advantage in attempting to prove the authority of the Prophetic sunna by quoting verses from the Qur ʿā n that link God with the Prophet, or instances where God is mentioned in association with the Prophet and more spe-cifically, verses that mention that it is part of “true faith” to believe deeply in God and His Prophet as a coherent theological principle. 39 Thereafter, al-Sh ā fi ʿī quotes verses where either obedience or forms of legal authority are denoted as being both the realm of God and His Messenger. 40 Thus, al-Sh ā fi ʿī builds his argument from the Qur ʾā n sequentially and in a way that, at each stage, augments the status of the Prophet as an authoritative source in Islam generally, and in the law specifically. 41 The ultimate conclu-sion of this presentation could not be clearer—the Prophet is an extension of God’s authority in the phenomenal realm. 42

In addition, al-Sh ā fi ʿī provides an additional exegetical intervention to bolster his argument. Having established that God is continually men-tioned in the Qur ʾā n in conjunction with His Prophet, al-Sh ā fi ʿī invokes the revelatory matrix by identifying instances in the Qur ʾā n where God’s “Book” ( al-kit ā b ) is mentioned in juxtaposition with the term “wisdom” ( al- � ikma ). 43 It is also noticeable that four of the seven verses quoted (Q. 2:129, Q. 2:151, Q. 3:164, Q. 62:2) elaborate three functions of prophethood, namely, “recitation” ( til ā wa ), “instruction” ( ta ʿ l ī m ), and “purification” ( tazkiya ). The second function of instruction is where the incidences of “Book” ( al-kit ā b ) and “wisdom” ( al- � ikma ) occur, and even though it would appear that “teaching the Book” might be axiomatic, “teaching wisdom” is not so obvious. It is here that al-Sh ā fi ʿī intervenes with an interpretive gloss and suggests that � ikma actually refers to the sunna

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since, by analogy, it is a natural extension of verses in the Qurʾān that refer to God and His Prophet in conjunction, giving the quoted verses the mean-ing of “teaches the Qur ʾā n and the sunna .” 44 Moreover, given the explicative role of the sunna in the bay ā n schema one may posit that these verses actu-ally imply four functions of prophethood rather than three, that is, “recita-tion,” “instruction,” “application,” and “purification” ( tazkiya ). 45

The very next verse, Q. 2:231, reiterates verse Q. 3:164 discussed above and alludes to the revelation of “Book” ( al-kit ā b ) and “wisdom” ( al- � ikma ) as a Divine blessing to the nascent Muslim community. Similarly, the sub-sequent verse quoted by al-Sh ā fi ʿī (Q. 4:113) indicates that the revelation of the “Book” ( al-kit ā b ) and “wisdom” ( al- � ikma ) are a Divine favor bestowed upon the Prophet specifically. Given that al-Sh ā fi ʿī has already determined that the “wisdom” to be the sunna , it is certainly significant that both verses mention the sunna as being “revealed” ( anzala ), proving for al-Sh ā fi ʿī that the sunna is of revelatory origin and consequently, is authoritative as a source of law. The final verse (Q. 33:34) is addressed to the wives of the Prophet and is also a reminder to them that they witness the “recounting of ‘God’s signs’ ( ā y ā t All ā h ) and ‘wisdom’( al- � ikma )” in their homes. Again for al-Sh ā fi ʿī this would seem to mean that the Prophet’s wives heard the recital of the Qur ʿā n and experienced the Prophet’s application of it in his own household. 46

Thus, with regard to the concept of sunna , judging from the presentation provided in the Ris ā la , al-Sh ā fi ʿī ’s contention is clear: the Qur ʿā n evinces a cogent demonstration of the Prophet’s status; that the status of the Prophet is an immutable theological tenet of faith; that the term sunna is restricted to the Prophet only; that the legal authority of the sunna of the Prophet is an undeniable fact, and that it is only through the harmonizing of the Qur ʾā n of sunna that Islamic law can be truly understood. As al-Sh ā fi ʿī concludes:

The sunna of the Messenger of God clarifies the meaning that God intended and is a definitive evidence that is binding upon all. Moreover, God affiliated the term “wisdom” with His Book and then made it concomitant with His Prophet. This is something that He did not bestow upon anyone else from His creation other than His Messenger. 47

The question remains, however, having established the significance of the sunna , how does one determine what constitutes the sunna ? As was men-tioned earlier, this was a critical epistemological question during al-Sh ā fi ʿī ’s lifetime due to the competing conceptualizations of what the sunna meant. As has also already been established, al-Sh ā fi ʿī determined that the sunna could only be the sunna of the Prophet, and in parallel to the utilization of the Qur ʾā n in Islamic law as evidence, he decided that only a rigorously


attested text regarding the Prophet could serve as proof. Thus, al-Sh ā fi ʿī established the sunna via narrated texts regarding the statements, actions and tacit approval of the Prophet, which were commonly referred to as � ad ī th . 48

Establishing an evidential text from the Qur ʾā n, however, was a relatively straightforward process, since it was an undisputed source and because the text was well established. ad ī th on the other hand were an entirely differ-ent matter, as there were regional variations regarding narration of � ad ī th , and differing attitudes toward the level of probity of such narrations. Thus, al-Sh ā fi ʿī ’s next task was to establish the validity of � ad ī th , in terms of both their intrinsic authenticity and their force as legislative proof. This was no easy task since, whereas the Qur ʾā n was a finite text, � ad ī th were volumi-nous and unevenly distributed. In addition, even though the collection of � ad ī th had most certainly begun, the compilation of compendia such as the canonical works of al-Bukh ā r ī (d. 256/870) and Muslim (d. 261/875), were still many years away.

Faced with a huge corpus of irregular texts al-Sh ā fi ʿī ’s solution was quite ingenious. Rather than focus on � ad ī th s that were deemed “consecutive in their transmission” ( mutaw ā tir ), which were less problematic as they were generally considered authentic, he focused his attention on a disputed type of � ad ī th that had a limited number of narrators at some point in their chain of transmission, termed khabar al-w ā� id . This type of � ad ī th was considered problematic, as it was less well attested to and hence, engendered a sense of doubt regarding its authenticity and reliability. Thus, al-Sh ā fi ʿī ’s rationale was that if he could prove the validity of khabar al-w ā� id , he would have— de facto —proven the validity of any type of � ad ī th that was better authenticated.

Al-Sh ā fi ʿī dedicates a considerable amount of space in the Ris ā la to the discussion of khabar al-w ā� id and provides a number of discussions to sup-port his position of accepting this form of � ad ī th . 49 Al-Sh ā fi ʿī ’s first point is taken from the Qur ʾā n, where he posits that God on most occasions sent an individual prophet to deliver His divine message to a given people. In addition, the Prophet, on several occasions sent an individual emissary to represent him to other tribes and peoples in Arabia. Moreover, caliphal suc-cession, particularly in the case of the second caliph ʿ Umar b. al-Kha ā b (r. 13/634–23/644), was based on the selection of an individual. Similarly, judges have been appointed in the same way and on many occasions, the companions accepted the testimony of an individual in judicial mat-ters. Thus, in each example that al-Sh ā fi ʿī provides the gravity of the task involved is certainly intelligible and at the same time, it was entrusted to one person. Therefore, in transmitting details relating to the Prophet, which is also an evidently important task, to receive a narration from an individual

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is acceptable given that it is a well-established religious norm and with the proviso that the person in question is reliable. 50

A second argument that al-Sh ā fi ʿī develops is to compare the transmis-sion of � ad ī th to determining the acceptability of witness testimony in court. Al-Sh ā fi ʿī is careful here to point out both the similarities and differences in both scenarios so as not to weaken his overall argument. At the same time, however, al-Sh ā fi ʿī stresses that the fundamental role of both processes is to produce a reliable report that can be utilized in a legal context. Indeed al-Sh ā fi ʿī laments the fact that, oftentimes, people are more exacting with regard to witness testimony than they are with the narration of � ad ī th . In reality, however, the narration of � ad ī th is a much more significant activity given that it relates to religious knowledge, may record incidences of revela-tion, and the consequences of inaccuracy are severe in this world and the next. 51

In addition to proffering arguments to augment the premise of accept-ing khabar al-w ā� id , al-Sh ā fi ʿī also provides clear criteria to determine the authenticity of � ad ī th with regard to their formal structure. 52 The first set of standards relates to the transmitters of � ad ī th , and al-Sh ā fi ʿī provides six criteria in this regard; any given transmitter must be:

1. Trustworthy in his religion; 2. Known for accuracy in his transmission of � ad ī th s; 3. Cognizant of what he transmits; 4. Someone who reports � ad ī th s exactly as he heard them rather than

someone who paraphrases so as not to distort their meaning; 5. Someone who transmits from memory ( hif � ) or from written notes

( kit ā b ); and 6. Someone who is not known to disguise defects in sanad s ( mudalis ). 53

Therefore, al-Sh ā fi ʿī provides a means to determine the reliability of nar-rators in a given chain of transmission ( sanad ). At the same time, however, he still needed to determine the consistency of the transmission between narrators, which was another feature of his discussion in the Ris ā la .

In this context, al-Sh ā fi ʿī appears to pre-date the later works on � ad ī th science, as he readily discusses a number of vernacular usages that would become the staple of this nascent discipline. For example, he readily describes those chains of transmission that are uninterrupted to the Prophet as “linked” ( mutta � il ), and contrasts this with interrupted chains of trans-mission termed, referred to as “severed” ( munqa � i ʿ ). He also discusses chains of transmission that are attributed to the Prophet but in reality are only attested to by one of the companions—termed “circumvented” ( mursal )—and provides further criteria for their acceptance as evidence. 54


Given that now al-Sh ā fi ʿī effectively equates the sunna of the Prophet with � ad ī th related about him, he still faces one last hurdle in providing an indisputable theory. What happens when a � ad ī th seemingly disagrees with another � ad ī th ? 55 In addition to the possibility that these two narrations may be subject to the bay ā n hermeneutics of ʿā mm and kh ā�� , jumla and na �� , and naskh , al-Sh ā fi ʿī provides several criteria of how to select between seemingly competing � ad ī th s suggesting that desired narrations should be:

1. Those that resemble the Qur ʾā n most in terms of diction ( laf � ); 2. Those that are better attested to in terms of authenticity; 3. Those that are transmitted by more erudite authorities in the disci-

pline of � ad ī th ; 4. Those that are transmitted through more than one chain of

transmission; 5. Those that resemble the Qur ʾā n most in terms of implicit meaning

( ma ʿ na ); 6. Those that most resemble the established sunna ; 7. Those that accord with scholarly knowledge; 8. Those that are closer in terms of analogy; and 9. Those that accord with the majority of the companions’ opinions. 56

Thus, al-Sh ā fi ʿī was not only familiar with subtleties that concerned the reliability of narrators and the necessity of there being a sound link-age between them, but also had systematized an entire set of criteria to govern these two essential features of � ad ī th transmission. Moreover, the least attested of such transmissions and hence, the least forceful as a legal evidence was considered the khabar al-w ā� id . Therefore, having estab-lished the probity of this type of transmission from the Prophet, al-Sh ā fi ʿī could argue that every � ad ī th that was corroborated even more rigorously could function as a perfectly acceptable legal text and hence, be informative regarding the sunna of the Messenger of God.

The Reception of Al-Sh ā fi ʿ ī ’s Teachings

As significant and novel as al-Sh ā fi ʿī ’s proposed theory was, it would have been relegated to the annals of history if it had not been preserved and pro-mulgated by those who came after him. In this regard, al-Sh ā fi ʿī ’s thought and teachings were maintained after his death by three of his main students, namely Rab īʿ b. Sulaym ā n al-Mur ā d ī , 57 Y ū suf b. Ya � y ā al-Buway ī , and Ism āʿī l b. Ya � y ā al-Muzan ī . Al-Mur ā d ī ’s role was one of preservation since,

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even though he was not al-Sh ā fi ʿī ’s most gifted student, he was selected to receive the eminent jurist’s teachings via dictation, and it is through him that the manuscripts for al-Ris ā la and Kit ā b al-Umm remained extant. 58 In many ways al-Buway ī was al-Sh ā fi ʿī ’s direct heir as he took over his teach-ing position and remained in that role for over a quarter of a century. 59 Al-Muzan ī on the other hand was arguably al-Sh ā fi ʿī ’s most talented student but courted considerable controversy due the fact that, in exercising his own juristic acumen, he opposed the opinion of his teacher. 60 What is signifi-cant, however, is that each of al-Buway ī and al-Muzan ī wrote an “abridg-ment” ( mukhta � ar ) summarizing their teacher’s views to make them more accessible to a wider audience. 61 Despite the mukhta � ar of al-Muzan ī being an excellent example to illustrate the immediate reception of al-Sh ā fi ʿī ’s thoughts, the discussion here will focus on the mukhta � ar of al-Buway ī , as it summarized not only al-Sh ā fi ʿī ’s views on positive law derived from his Kit ā b al-Umm , but also abridged the legal theory espoused by the Ris ā la . 62

Al-Buway ī contributed considerably to the establishment of a Sh ā fi ʿī “school,” not only by teaching and promulgating the teachings of al-Sh ā fi ʿī , but also by producing an abridgment of his most important texts. As was noted above, al-Sh ā fi ʿī ’s works were voluminous and this made them inac-cessible to many, so al-Buway ī summarized the Ris ā la and Kit ā b al-Umm into a manageable treatise that could be easily taught. 63 Thus, with regard to the Ris ā la , which has been under discussion thus far, it was reduced from 1821 paragraphs to just 26. 64 Al-Buway ī ’s contribution was not, however, only an exercise in abridgment but also a considerable adjustment to the way in which al-Sh ā fi ʿī ’s teachings were interpreted. The first thing to be considered in this regard is what criteria did al-Buway ī use to undertake his abridgment? Firstly, he does not quote al-Sh ā fi ʿī directly even though he states “al-Sh ā fi ʿī said” ( q ā la al-Sh ā fi ʿī ), but paraphrases his opinions, and this makes up the majority of the text. Secondly, al-Buway ī ’s editorial pattern displays a distinct inclination to � ad ī th , which is indicative of a traditionist approach and which, as was noted above, is a salient feature of al-Sh ā fi ʿī ’s juristic Weltanschauung . In this context, he also employs what El Shamsy refers to as the “ � ad ī th principle,” a statement attributed to al-Sh ā fi ʿī with the purport of, “if a � ad ī th is found to be authentic then it is my view.” 65 Thus, the � ad ī th principle becomes carte blanch for al-Buway ī to add, delete, or amend any of al-Sh ā fi ʿī ’s opinions based on a concept provided by al-Sh ā fi ʿī himself. On this basis, al-Buway ī would add narrations, provide additional transmissions, and occasionally disagree with his teacher. It is observable, therefore, that al-Buway ī uses � ad ī th even more profusely than his own teacher does, but at the same time, one could equally argue that he also loses some of the sophistication of al-Sh ā fi ʿī ’s distinguished legal discourse. 66

In this context, we have a different perspective on how early jurists understood their relationships with their teachers. One may assume that


they faithfully follow every aspect of the teachings of their eponymous, iconoclast scholars but, in reality, they gave considerable consideration to the application of their methodology, rather than mere emulation of their every ruling. Thus, al-Buway ī disagreed with al-Sh ā fi ʿī based on the very principles that his teacher formulated and how could he not when al-Sh ā fi ʿ ī had laid so much emphasis on the legal force of � ad ī th ? 67 To put it another way, al-Buway ī ’s writing of his abridgment was a new step in the develop-ment of al-Sh ā fi ʿī ’s teachings, as it was the canonization of school rather than the legal articulation of a single scholar. As El Shamsy observes:

unlike the Umm , the Mukhta � ar is concerned with representing the posi-tions not of al-Sh ā fi ʿī the individual, but of Sh ā fi ʿ ism, an abstracted body of legal thought that is embodied in but not equivalent to the actual writings of al-Sh ā fi ʿī . 68

Perhaps an unexpected effect of al-Buway ī ’s Mukhta � ar is that it appealed directly to traditionists of the period, who up until that point had been opposed to study of jurisprudence due to its association with “excessive” rational and personal opinion. 69 Thus, al-Buway ī ’s Mukhta � ar created a bridge between the reason that law requires to function and the revelation that is its very foundation—a goal that perhaps al-Sh ā fi ʿī had in mind when he wrote the Ris ā la .

Conclusion

There can be little doubt that al-Sh ā fi ʿī ’s continuous travel during the formative period of Islamic history afforded him a unique perspective on the formation of legal thought. He journeyed to Hijaz in his youth, Yemen as a young man, Iraq on two occasions, and finally, Egypt, where he ended his life. Consequently, he became familiarized with the nascent juristic traditions of these regional intel-lectual centers and particularly, with the “scripturalist” trend of Hijaz epito-mized by M ā lik and the “rationalist” trend of Iraq, represented by Ab ū � an ī fa. While this must have been beneficial in exposing him to differing perceptions of how Islamic jurisprudence could be articulated, he must have also seen the discrepancies and inconsistencies in the practice of law among these traditions. Of specific concern to al-Sh ā fi ʿī was the variance in how the term sunna was understood and, in particular, how this could be equated with non-scriptural sources evinced by the regional practice of “Medinan precedent” ( ʿ amal ahl al-Madina ), established by M ā lik. Similarly, al-Sh ā fi ʿī was equally perturbed by the utilization of “excessive” “personal opinion” ( ra ʾ y ) and its primacy within the concept of “juristic preference” ( isti � s ā n ), favored by Ab ū � an ī fa. 70

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Thus, al-Sh ā fi ʿī focused on devising his own system that needed to affirm the meaning of sunna as being that of the Prophet only and at the same time, provide a systematic way of allowing space for the expression juristic reasoning, but one that could be controlled through basing it on a revelatory precedent, namely, qiy ā s . Another main concern for al-Sh ā fi ʿī was to further restrict the concept of sunna to a scriptural foundation and therefore, he set about proving the validity and reliability of � ad ī th so that it could function as a textual source. Al-Sh ā fi ʿī ’s final project was to ensure that sunna —now restricted to the Prophet and determined by � ad ī th —was compatible with primary source of revelation and hence, he developed various hermeneuti-cal rubrics for harmonizing apparent discrepancies between the Qur ʾā n and sunna that were articulated in his theory of bay ā n .

This system was also readily adopted by al-Sh ā fi ʿī ’s students such as al-Buway ī and al-Muzan ī . Indeed, they embraced it in the spirit that it was meant, not in terms of indiscriminate emulation, but rather, in the expres-sion of discerning ijtih ā d that characterized much of the period. 71 Moreover, it is also interesting to note that many of the subjects that al-Sh ā fi ʿī raises in the theory of bay ā n became standard discussion in the later works of u �ū l al-fiqh within the school context. 72 Therefore, we find references to ʿā mm and kh ā�� ; 73 jumla and na �� ; 74 naskh ; 75 khabar al-w ā� id ; 76 criteria for � ad ī th transmission; 77 criteria for the approval of � ad ī th narrators; 78 qiy ā s ; 79 ijm ā ʿ ; 80 ijtih ā d ; 81 and the fallaciousness of isti � s ā n . 82

Despite this, much has been made regarding the influence of al-Sh ā fi ʿī in academic studies, particularly in the discipline of “legal theory” or u �ū l al-fiqh ; there are those like Schacht who consider his influence to be consid-erable, and Coulson who lauded upon him the honorific epithet of “Master Architect.” 83 Others, like Hallaq have argued that al-Sh ā fi ʿī ’s influence on later u �ū l al-fiqh was minimal at best, and Lowry has provided a more bal-anced approach to this conclusion. 84 Hallaq’s premise was that al-Sh ā fi ʿī ’s Ris ā la bears little resemblance to the works of mature u �ū l al-fiqh that appeared approximately a century or more after al-Sh ā fi ʿī ’s death. Moreover, Hallaq places somewhat exacting criteria for the basis of his conclusion:

The most striking fact about the 9th century is that it yields no single work on u �ū l al-fiqh . By that we mean a work whose primary task is to lay down a systematic, comprehensive, and organically structured legal methodology whose purpose in turn is to derive legal rulings from the material sources-as was clearly the case in the 10th century and thereafter. 85

One may comment here that to compare a preliminary attempt to codify legal theory with its later mature state is a somewhat unfair exercise, as most works of the early third/ninth century rarely displayed such organizational


and theoretical precision. 86 Indeed, having discussed al-Sh ā fi ʿī ’s theory of bay ā n as represented in the Ris ā la , one might say that it does indeed qualify as, “a systematic, comprehensive, and organically structured legal method-ology whose purpose in turn is to derive legal rulings from the material sources,” albeit in a developmental form.

Moreover, attempting to juxtapose al-Sh ā fi ʿī with the later u �ū l al-fiqh tradition may have fundamentally missed the point. As Lowry notes, approximately eighty per cent of the Ris ā la is devoted to two main areas, namely harmonizing source interaction and issues related to the sunna as a source of law. 87 In other words, the Ris ā la is dedicated to subject of what constitutes the sunna , how the sunna interacts with the Qur ʾā n, and the status of the sunna within law. It is clear, as mentioned earlier, that this was a response to the juristic milieu of the second/eighth century and the issues that arose therein. It is also evident that al-Sh ā fi ʿī wanted the law to be more consistent and to be directly related to revelatory material rather than human influence, or as Hallaq puts it—somewhat melodramatically—that al-Sh ā fi ʿī was, “ . . . the victor-jurist who brought the eighth-century unbri-dled law down to the knees of revelation.” 88 Al-Sh ā fi ʿī —as a scripturalist par excellence —was successful, in that he forced jurists to return the law to its revelatory origins, reconsider the concept and status of sunna and especially, the position of � ad ī th as a proof text. 89

Although recognition of al-Sh ā fi ʿī ’s impact on the articulation of Islamic law was not so forthcoming in academic studies, traditional Muslim scholars have long lauded his contribution. For example, Ibn ʿ Aq ī l (d. 513/1119)—despite being affiliated with the � anbal ī school—referred to al-Sh ā fi ʿī as both the “father” and the “mother” of u �ū l al-fiqh . 90 Similarly, al-Sh ā fi ʿī ’s position with reference to the development of legal theory has been likened to that of Aristotle in relation to logic, and Khal ī l b. A � mad (d. between 160/777 and 175/791) in relation to Arabic prosody. 91 Moreover, with regard to the theological concept of the “renewer” ( mujaddid ), who will revive the fortunes of the Muslim world at the beginning of every century, al-Sh ā fi ʿī was considered to occupy this elevated status in the second century of the Islamic era. 92 Thus, with regard to the concept of sunna and its asso-ciated � ad ī th , al-Sh ā fi ʿī is regarded as someone who revived religion in his time, nurtured legal theory and breathed life into Islamic law.

Notes

1 . The life of al-Sh ā fi ʿī has been the subject of a number of disparate and multifari-ous materials, and although one cannot disregard the possibility of hagiographic

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embellishment, the basic details of his life are recounted fairly consistently. Sources that relate his life include works of chronography such as al-Kha ī b al-Baghd ā d ī ’s (d. 463/1070) T ā r ī kh Baghdad and works of prosopography such as al-Dhahab ī ’s (d. 748/1347) Siyar A ʿ l ā m al-Nubal āʾ . The biography of the eponymous imam was also included in the introductory sections of some later multi-volume juristic texts and representative examples of these include al- ʿ Imr ā n ī ’s (d. 558/1162) al-Bay ā n and al-Nawaw ī ’s (d. 686/1287) al-Majm ūʿ . In equal acts of devotion, there are several dedicated biographies such as al-R ā z ī ’s (d. 606/1209) Man ā qib al-Im ā m al-Sh ā fi ʿī , which has been replicated in the modern period by the Azharite scholar Ab ū Zahra (d. 1394/1974). See A � mad b. ʿ Al ī al-Kha ī b al-Baghd ā d ī , T ā r ī kh Baghdad aw Mad ī nat al-Sal ā m , edited by Mu � af ā ʿ Abd al-Q ā dir ʿ A āʾ , 24 vols (Beirut: D ā r al-Kutub al- ʿ Ilmiyya, 2004), 2:54–75; Mu � ammad b. A � mad al-Dhahab ī , Siyar ʿ Al ā m al-Nubal āʾ , edited by Mu � af ā ʿ Abd al-Q ā dir ʿ A āʾ , 16 vols (Beirut: D ā r al-Kutub al- ʿ Ilmiyya, 2004), 7:335–70; Ya � y ā b. Ab ū ’l-Khayr al- ʿ Imr ā n ī , al-Bay ā n f ī Madhhab al-Im ā m al-Sh ā fi ʿī , edited by Q ā sim al-N ū r ī , 14 vols, second edition (Jeddah: D ā r al-Minh ā j, 2008), 1:4–7; Ya � y ā b. Sharaf al-Nawaw ī , Kit ā b al-Majm ūʿ Shar � al-Muhadhdhab , edited by Mu � ammad al-Mu īʿī , 24 vols (Beirut: D ā r I � y āʾ al-Tur ā th al- ʿ Arab ī , 2001), 1:30–42; Mu � ammad b. ʿ Umar ‘Fakhr al-D ī n al-R ā z ī , Man ā qib al-Im ā m al-Sh ā fi ʿī : Irsh ā d al- �ā lib ī n il ā al-Minhaj al-Qaw ī m , edited by A � mad Maj ā z ī al-Saq ā (Cairo: al-Maktaba al-Azhariyya li ’l-Tur ā th, 2008), 23–94; Mu � ammad Ab ū Zahra, al-Sh ā fi ʿ ī : ay ā tuhu wa ʿ A � ruhu, Ar āʾ uhu wa Fiqhuhu (Cairo: D ā r al-Fikr al- ʿ Arab ī , 1996), 15–46; and cf. Mu � ammad b. Idr ī s al-Sh ā fi ʿī , al-Ris ā la , Translated as al-Sh ā fi ʿī ’s Ris ā la: Treatise on the Foundations of Islamic Jurisprudence by Majid Khadduri (Cambridge: Islamic Texts Society, 2003), 8–9.

2 . See: al- ʿ Imr ā n ī , al-Bay ā n , 1:4; al-Nawaw ī , al-Majm ūʿ , 1:31–2; al-R ā z ī , Man ā qib , 23–37; al-Dhahab ī , Siyar , 7: 335–6; Ab ū Zahra, al-Sh ā fi ʿī , 15–19; al-Sh ā fi ʿī , al-Ris ā la , trans. Khadduri, 9–10 and Mu � ammad b. Idr ī s al-Sh ā fi ʿī , al-Ris ā la , edited and translated as al-Sh ā fi ʿī : The Epistle on Legal Theory by Joseph E. Lowry, Library of Arabic Literature (New York: New York University Press, 2013), xviii.

3 . On the Hijaz school see Ahmad Hasan, The Early Development of Islamic Jurisprudence (Islamabad: Islamic Research Institute, 1970), 115–151; Knut S. Vik ø r, Between God and the Sultan: A History of Islamic Law (London: Hurst, 2005), 22–23 and 25–27 and Wael Hallaq, Shari‘a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 46–49.

4 . See al- ʿ Imr ā n ī , al-Bay ā n , 1:4–5; al-Nawaw ī , al-Majm ūʿ , 1:32–33; al-R ā z ī , Man ā qib , 38–43; al-Dhahab ī , Siyar , 7:336–7; Ab ū Zahra, al-Sh ā fi ʿī , 19–21; al-Sh ā fi ʿī , al-Ris ā la , trans. Khadduri, 11 and al-Sh ā fi ʿī , al-Ris ā la , edited by Lowry, xviii.

5 . On the Iraq school see: Hasan, Early Development , 115–151; Noel James Coulson, A History of Islamic Law , Islamic Surveys—2 (Edinburgh: Edinburgh University Press, 1964), 36–52; Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge: Cambridge University Press, 1997), 17–20; Christopher Melchert, The Formation of the Sunni Schools


of Law, 9th–10th Centuries C.E. , Studies in Islamic Law and Society, Vol. 4 (Leiden: Brill, 1997), 1–31; Vik ø r, God and the Sultan , 23 and 25–27 and Hallaq, Shari‘a , 49–50.

6 . See al- ʿ Imr ā n ī , al-Bay ā n , 1:5; al-Nawaw ī , al-Majm ūʿ , 1:34; al-Dhahab ī , Siyar , 7: 337; Ab ū Zahra, al-Sh ā fi ʿī , 26–7; al-Sh ā fi ʿī , al-Ris ā la , trans. Khadduri, 13–14 and al-Sh ā fi ʿī , al-Ris ā la , edited by Lowry, xix.

7 . See al- ʿ Imr ā n ī , al-Bay ā n , 1:5; al-Nawaw ī , al-Majm ūʿ , 1:38; al-Dhahab ī , Siyar , 7: 337; Ab ū Zahra, al-Sh ā fi ʿī , 28–31; al-Sh ā fi ʿī , al-Ris ā la , trans. Khadduri, 13 and al-Sh ā fi ʿī , al-Ris ā la , edited by Lowry, xix–xx.

8 . It is of little surprise that a figure such as al-Sh ā fi ʿ i, who has such a large corpus associated with him in the early phase of the development of Islamic jurispru-dence, has caught the attention of a number of academic studies. It was per-haps Schacht in his The Origins of Muhammadan Jurisprudence who provided the earliest appraisal of al-Sh ā fi ʿ i’s role in supporting the sunna as a primary legal source based on � ad ī th and even though he appears to have misinterpreted some of al-Sh ā fi ʿ i’s teachings, his study remains an important early contribu-tion. Coulson followed by offering an appraisal of al-Sh ā fi ʿ i’s legal theory and afforded him the laudatory epithet of “Master Architect” in an entire chapter dedicated to the eminent jurist in his A History of Islamic Law . Makdisi followed an entirely different trajectory with an article examining the anti-rationalist trends in al-Sh ā fi ʿ i’s Ris ā la to suggest an anti-Mu ʿ tazilite rhetoric that underpins the text. Following the familiar Orientalist trope of “back dating,” Calder con-cluded, somewhat controversially, in his Studies in Early Muslim Jurisprudence , that the texts attributed to the scholar were of a much later date and most prob-ably effort of his students. Many of the aforementioned studies have been revised and challenged by Hallaq who has not only disputed the notion that al-Sh ā fi ʿ i was the “Master Architect” of nascent Islamic legal theory, but has even sug-gested that al-Sh ā fi ʿ i’s Ris ā la had little effect on the maturation of later u �ū l al-fiqh . Further contributions by Kelsay and Melchert have been useful in shedding light on al-Sh ā fi ʿ i’s position in early Islamic intellectual history generally and legal thought specifically. Moreover, al-Sh ā fi ʿ i’s contribution to the conceptual-ization of � ad ī th , in the context of both constituting law and revelation, has been treated in useful studies by Aisha Musa and Aron Zysow. Joseph Lowry’s publi-cations, however, have arguably been the most significant in recent times, as he has single-handedly and comprehensively examined the content of al-Sh ā fi ʿī ’s Ris ā la . Lowry’s valuable contribution has been supplemented by the exceptional work of El Shamsy who is the only scholar to date to be brave enough to tackle al-Sh ā fi ʿī ’s voluminous al-Umm in any great depth. For details of these studies see Lowry, Early Islamic Legal Theory , 8–16 and cf. the bibliography.

9 . Mu � ammad b. Idr ī s al-Sh ā fi ʿī , al-Umm , 8 vols (Beirut: D ā r al-Fikr, 2002), 7:210–395; Mu � ammad b. Idr ī s al-Sh ā fi ʿī , Ikhtil ā f al- ad ī th , edited by Mu � ammad ʿ Abd al- ʿ Az ī z (Beirut: D ā r al-Kutub al- ʿ Ilmiyya, 1986) and Mu � ammad b. Idr ī s al-Sh ā fi ʿī , D ī w ā n al-Im ā m al-Sh ā fi ʿī , edited by Im ī l Ya ʿ q ū b, 5th ed. (Beirut: D ā r al-Kit ā b al- ʿ Arab ī , 2000).

10 . See: al- ʿ Imr ā n ī , al-Bay ā n , 1:5; al-Nawaw ī , al-Majm ūʿ , 1:31; al-Sh ā fi ʿ ī , al-Ris ā la , trans. Khadduri, 16.

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11 . See: Joseph E. Lowry, “Does Sh ā fi ʿī have a Theory of Four Sources of Law? ,” in Studies in Islamic Legal Theory , edited by Bernard Weiss, Studies in Islamic Law and Society—15 (Leiden: Brill, 2002), 25–30.

12 . Lowry, “Does Sh ā fi ʿī ,” 31–45. 13 . Joseph E. Lowry, Early Islamic Legal Theory: the Ris ā la of Mu � ammad Ibn Idr ī s

al-Sh ā fi ʿī , Studies in Islamic Law and Society—30 (Leiden: E. J. Brill, 2007), 25:fn. 3.

14 . Mu � ammad b. Idr ī s al-Sh ā fi ʿī , al-Ris ā la , edited by ʿ Abd al-Fat ā� Kabb ā ra, sec-ond edition (Beirut: D ā r al-Naf āʾ is, 2010), 35–40 and cf. Lowry, Early Islamic Legal Theory , 25–26 and Joseph E. Lowry, “Some Preliminary Observations on al- Šā fi ʿī and Later U �ū l al-Fiqh : The Case of the Term bay ā n ,” Arabica , 55 (2008): 507.

15 . Lowry, “Does Sh ā fi ʿī ,” 49; Lowry, “Preliminary Observations,” 507. 16 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 40–57; Lowry, “Does Sh ā fi ʿī ,” 47;

Lowry, Early Islamic Legal Theory , 26–33; Lowry, “Preliminary Observations,” 507–508.

17 . It should be noted that al-Sh ā fi ʿī picks up the themes of qiy ā s and ijtih ā d later in the Ris ā la as distinct hermeneutical rubrics. See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 242–255 and cf. Lowry, Early Islamic Legal Theory , 142–163.

18 . Al-Sh ā fi ʿī uses the term ‘ ma ʿ n ā ’ whereas as the cognate usage in later u �ū l al-fiqh for ratio legis would be ‘ ʿ illa ’. See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence , third edition (Cambridge: Islamic Texts Society, 2003), 274–284.

19 . Lowry, Early Islamic Legal Theory , 33–34; Lowry, “Preliminary Observations,” 508–509.

20 . Lowry, “Does Sh ā fi ʿī ,” 47. 21 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 102. 22 . Lowry, Early Islamic Legal Theory , 61–69. 23 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 58–69 and cf. Lowry, Early Islamic

Legal Theory , 69–87. 24 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 103–131 and cf. Lowry, Early Islamic

Legal Theory , 104–118. 25 . The theory of naskh and Sh ā fi ʿī ’s understanding of it has been treated exten-

sively by Burton and more recently supplemented by Melchert. See John Burton, The Collection of the Qur’ ā n (Cambridge: Cambridge University Press, 1977), 46–113; John Burton, The Sources of Islamic Law: Islamic Theories of Abrogation (Edinburgh: Edinburgh University Press, 1990) and Christopher Melchert, “Qur ʾā nic Abrogation across the Ninth Century: Sh ā fi ʿī , Ab ū ʿ Ubayd, Mu �ā sib ī , and Ibn Qutaybah,” in Studies in Islamic Legal Theory , edited by Bernard Weiss, Studies in Islamic Law and Society—15 (Leiden: Brill, 2002), 75–98.

26 . This is a perspective that even later Sh ā fi ʿī jurists would challenge as is evi-dent from the discussions of al-Ghaz ā l ī (d. 505/111), al-R ā z ī (d. 606/1209) and al- Ā mid ī (d. 631/1233). See Mu � ammad al-Ghaz ā l ī , al-Musta � f ā f ī ʿ Ilm al-U �ū l , edited by Mu � ammad al-Ashqar, 2 vols (Beirut: Mu ʾ assassat al-Ris ā la, 1997), 1:236–239; Mu � ammad b. ʿ Umar Fakhr al-D ī n al-R ā z ī , al-Ma ��ū l f ī ʿ Ilm


al-U �ū l , edited by �ā ha al- ʿ Alw ā n ī , 6 vols, second edition (Beirut: Mu ʾ assassat al-Ris ā la, 1992), 3:347–354 and ʿ Al ī b. Mu � ammad al- Ā mid ī , al-I � k ā m f ī U �ū l al-A � k ā m , edited by Sayyid al-Jam ī l ī , third edition, 4 parts in 2 vols. (Beirut: D ā r al-Kit ā b al- ʿ Arab ī , 1998), 3:162–165.

27 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 82–102 and cf. Lowry, Early Islamic Legal Theory , 87–104.

28 . See for example Zafar Ishaq Ansari, “Islamic Juristic Terminology Before Šā fi ʿī : A Semantic Analysis with Special Reference to Kufa,” Arabica , 19(3) (1972): 255–300.

29 . In addition to the chapters in the current volume, a plethora of studies exist discussing the early concept of sunna in Islamic legal history. See for example: Hasan, Early Development , 85–114; Fazlur Rahman, “The Living Sunnah and al-Sunnah wa’l Jam ā ‘ah ,” in ad ī th and Sunnah: Ideals and Realities , edited by P. K. Koya (Kuala Lumpur: Islamic Book Trust, 1996), 129–189; Yaseen Dutton, The Origins of Islamic Law: The Qur ʾ an, The Muwa �� a ʾ and Madinan ʿ Amal , Culture and Civilization in the Middle East (Abingdon: RoutledgeCurzon, 2002), 32–52 and 168–177; Daniel Brown, Rethinking Tradition in Modern Islamic Thought , Cambridge Middle East Studies (Cambridge: Cambridge University Press, 2003), 6–20; Lowry, Early Islamic Legal Theory , 167–170; Adis Duderija, “Toward a Methodology of Understanding the Nature and Scope of the Concept of Sunnah,” Arab Law Quarterly , 21 (2007): 1–12; Adis Duderija, “Evolution in the Canonical Sunni � adith Body of Literature and the Concept of an Authentic � adith During the Formative Period of Islamic Thought as Based on Recent Western Scholarship,” Arab Law Quarterly , 23 (2009): 1–27; and Adis Duderija, “Evolution in the Concept of Sunnah dur-ing the First Four Generations of Muslims in Relation to the Development of the Concept of an Authentic � ad ī th as based on Recent Western Scholarship,” Arab Law Quarterly , 26 (2012): 393–437.

30 . It should be noted here that al-Sh ā fi ʿī is not responding to his teacher M ā lik directly in this exchange, but rather to a M ā lik ī interlocutor who replies to his challenges.

31 . Al-Sh ā fi ʿī , al-Umm , 7:284–285. 32 . Ibid., 7:283. 33 . Ibid., 7:282–3. 34 . Ibid., 7:289. 35 . See Hasan, Early Development , 145–151 and Kamali, Principles , 323–331. 36 . Al-Sh ā fi ʿī , al-Umm , 7:319 and cf. al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra,

255–257. 37 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 257. 38 . Ibid. 39 . These verses are Q. 4:171 and Q. 24:62. See al-Sh ā fi ʿī , al-Ris ā la , edited by

Kabb ā ra, 70–71 and cf. Lowry, Early Islamic Legal Theory , 171. Regrettably Lowry misquotes the first of these verses.

40 . These verses are Q. 33:36, Q. 4:59, Q. 4:69 and Q. 8:20. See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 73–74 and cf. Lowry, Early Islamic Legal Theory , 172.

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41 . It is interesting to note that al-Sh ā fi ʿī does not restrict his discussion to the Qur ʾā n only, however, but also quotes a � ad ī th from his own teacher M ā lik. See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 71.

42 . Further Qur ʾā nic references are given in the consequent chapter of the Ris ā la to illustrate the same point. These verses include: Q. 48:10, Q. 4:80, Q. 4:65, Q. 24:63, Q. 24:48–52. See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 74–75 and cf. Lowry, Early Islamic Legal Theory , 173.

43 . These verses are Q. 2:129, Q. 2:151, Q. 3:164, Q. 62:2, Q. 2:231, Q. 4:113, and Q. 33:34. The final verse of this sequence (Q. 33:34) states ‘ ā y ā t All ā h ’ rather than ‘ al-kit ā b ’ but like al-Sh ā fi ʿī we may consider it a cognate mean-ing. See al-Sh ā fi ʿī , al-Ris ā la , ed. Kabb ā ra, 72 and cf. Lowry, Early Islamic Legal Theory , 177–180.

44 . Lowry notes that this was not a popular interpretation in the exegetical com-mentaries on the Qur ʾā n prior to al-Sh ā fi ʿī , but his interpretation certainly displays an appealing and compelling lucidity. See Lowry, Early Islamic Legal Theory , 180–187.

45 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 72–73. 46 . Ibid. 47 . Ibid. 48 . See: Muhammad Mustafa Azami, Studies in Had ī th Methodology and Literature

(Plainfield: American Trust Publications, 1993), 1–3. 49 . Al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 196–239. 50 . See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 210–234 and cf. Lowry, Early Islamic

Legal Theory , 189–190. 51 . See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 197–203 and cf. Lowry, Early Islamic

Legal Theory , 194–197. 52 . The similarities between what al-Sh ā fi ʿī denotes as his criteria and later formu-

lations of sanad criticism are striking, and it would appear that he was the first author to codify this aspect of � ad ī th science. See Lowry, Early Islamic Legal Theory , 187–188.

53 . See: al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 197 and cf. Lowry, Early Islamic Legal Theory , 193.

54 . See: al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 235–239 and cf. al-R ā z ī , Man ā qib , 60 and Lowry, Early Islamic Legal Theory , 197–200.

55 . As was mentioned previously, it would not be conceivable for al-Sh ā fi ʿī that an authenticated � ad ī th would contradict the Qur ʾā n and in a case where this would appear to happen, he would invoke the bay ā n hermeneutics of ʿā mm and kh ā�� , jumla and na �� , and naskh . See al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 131–44 and cf. Lowry, Early Islamic Legal Theory , 119–126.

56 . See: al-Sh ā fi ʿī , al-Ris ā la , edited by Kabb ā ra, 163–171 and cf. Lowry, Early Islamic Legal Theory , 126–128.

57 . I refer to him as “al-Mur ā d ī ” rather than the more common “Rab īʿ ” to distin-guish him from Rab īʿ b. Sulayman al-J ī z ī (d. 256/872) who was also a student of al-Sh ā fi ʿī . See R. Kevin Jaques, “The Other Rab īʿ : Biographical Traditions and the Development of Early Sh ā fi ʿī Authority,” Islamic Law and Society , 14(2) (2007): 143–179.


58 . See: Joseph E. Lowry, “Reception of al-Sh ā fi ʿī ’s concept of Amr and Nahy in the thought of his student al-Muzan ī ,” in Law and Education in Medieval Islam: Studies in Memory of Professor George Makdisi , edited by Lowry et al. (Cambridge: E.J.W. Gibb Memorial Trust, 2004), 129–130; R. Kevin Jaques, Authority, Conflict, and the Transmission of Diversity in Medieval Islamic Law , Studies in Islamic Law and Society—26 (Leiden: Brill, 2006), 10; Ahmed El-Shamsy, “The First Sh ā fi ʿī : The Traditionalist Legal Thought of Ab ū Ya ʿ q ū b al-Buway ī (d. 231/846),” Islamic Law and Society , 14(3) (2007): 311 and Ahmed El-Shamsy, “Al-Sh ā fi ʿī ’s Written Corpus: A Source-Critical Study,” Journal of the American Oriental Society , 132(2) (2012): 199–205 passim .

59 . See: Jaques, Authority , 107; El-Shamsy, “The First Sh ā fi ʿī ,” 311 and Ahmed El-Shamsy, “Rethinking Taql ī d in the Early Sh ā fi ʿī School,” Journal of the American Oriental Society , 128(1) (2008): 9.

60 . See: Lowry, “Reception,” 130–132; Jaques, Authority , 107–108; El-Shamsy, “The First Sh ā fi ʿī ,” 303–311 passim ; El-Shamsy, “Rethinking”, 9; El-Shamsy, “Written Corpus,” 204–206 and Ahmed El-Shamsy and Aron Zysow, “Al-Buway ī ’s Abridgment of al-Sh ā fi ʿī ’s Ris ā la : Edition and Translation,” Islamic Law and Society , 19(4) (2012): 329–330.

61 . See: El-Shamsy, “The First Sh ā fi ʿī ,” 323–336; El-Shamsy, “Rethinking”, 9 and El-Shamsy and Zysow, “Al-Buway ī ’s Abridgment,” 330.

62 . El-Shamsy and Zysow, “Al-Buway ī ’s Abridgment,” 330–333. 63 . El-Shamsy, “The First Sh ā fi ʿī ,” 304–311; El-Shamsy, “Rethinking”, 9;

El-Shamsy and Zysow, “Al-Buway ī ’s Abridgment,” 329–331. 64 . El-Shamsy, “The First Sh ā fi ʿī ,” 315–316; El-Shamsy and Zysow, “Al-Buway ī ’s

Abridgment,” 334–345. 65 . El-Shamsy, “The First Sh ā fi ʿī ,” 320. 66 . El-Shamsy, “The First Sh ā fi ʿī ,” 314–316 and 319; El-Shamsy, “Rethinking”,

9–10. 67 . El-Shamsy, “The First Sh ā fi ʿī ,” 320–321. 68 . Ibid., 314. 69 . Ibid., 323–338. 70 . The traditional account has ʿ Abd al-Ra � m ā n b. al-Mahd ī (d. 198/813) as the

instigator of the Ris ā la , as he is said to have requested al-Sh ā fi ʿī to write a work to bridge the gap between the methodologies employed by jurists in Iraq and Hijaz, but this account is far from being well attested. Equally, we do not have a definitive chronology of al-Sh ā fi ʿī ’s writings and one wonders, therefore, if the Ris ā la was a rejoinder to his earlier “polemical” treatises? This may well have been the case, as it is said to have been finalized in Egypt near the end of al-Sh ā fi ʿī ’s life and incorporates an interlocutor who regularly challenges al-Sh ā fi ʿī , which is reminiscent of the later ʿ ilm al-kal ā m style of argumentation. See al-R ā z ī , Man ā qib , 58–59; al-Sh ā fi ʿī , al-Ris ā la , trans. Khadduri, 19–21; and Schacht, Origins , 330.

71 . See: Gavin N. Picken ed., Islamic Law , Critical Concepts in Islamic Studies, 4 vols (Abingdon: Routledge, 2010), 1:5–7.

72 . Although Lowry quite rightly observes the term bay ā n took on a new connota-tion in later u �ū l al-fiqh , the discussion of this subject in al-Ghaz ā l ī ’s al-Musta � f ā

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occasionally bears a striking resemblance to al-Sh ā fi ʿī ’s conceptualization. See Lowry, “Some Preliminary Observations,” 509–510 and cf. al-Ghaz ā l ī , al-Musta � f ā , 2:39.

73 . Al-Ghaz ā l ī , al-Musta � f ā , 2:106–178. 74 . Ibid., 2:28–38. 75 . Ibid., 1:207–245. 76 . Ibid., 1:272–290. 77 . Ibid., 1:309–324. 78 . Ibid., 1:290–309. 79 . Ibid., 2:235–378. 80 . Ibid., 1:325–376. 81 . Ibid., 2:382–470. 82 . Ibid., 1:409–414. 83 . See Schacht, Origins , 6–20, 36–81 and 315–29 and Coulson, History , 53–61. 84 . See: Hallaq, “Was al-Shafi ʿ i,” 587–605 and Lowry, Early Islamic Legal Theory ,

359–368. 85 . Hallaq, “Was al-Shafi ʿ i,” 588. 86 . I bring to mind here my own reading of al- �ā rith al-Mu �ā sib ī ’s (d. 243/857)

writings, who was a contemporary of al-Sh ā fi ʿī ’s student, Ahmad b. � anbal. Despite al-Mu �ā sib ī enjoying considerable influence in the later Sufi tra-dition, his writings bear only a passing resemblance, in terms of form and structure, if compared to the later development of mature Sufi science ( ʿ ilm al-ta � awwuf ), which would be epitomized by works such as the Ris ā la of Ab ū ’l-Q ā sim b. Haw ā zin al-Qushayr ī (d. 465/1074). See Gavin N. Picken, Spiritual Purification in Islam: The Life and Works of al-Mu �ā sib ī , Routledge Sufi Series (Abingdon: Routledge, 2011), 216–220, and Gavin N. Picken, “Ibn � anbal and al-Mu �ā sib ī : A Study of Early Conflicting Scholarly Methodologies,” Arabica , 55(3) (2008): 338.

87 . Lowry denotes approximately one-third of the Ris ā la is devoted to source inter-action and around one half of the text is related to the sunna . Lowry, Early Islamic Legal Theory , 118.

88 . Hallaq, “Was al-Shafi ʿ i,” 588. 89 . See Sherman A. Jackson, “Getting the Record Straight: Ibn Al-Labbad’s

Refutation of al-Sh ā fi ʿī ,” Journal of Islamic Studies , 11(2) (2000): 121–146 and cf. Christopher Melchert, “Traditionist-Jurisprudents and the Framing of Islamic Law,” Islamic Law and Society, 8(3) (2001): 383–406.

90 . See Lowry, Early Islamic Legal Theory , 57. 91 . See al-R ā z ī , Man ā qib , 158; Hasan, Early Development , 179 and cf. Hallaq,

“Was al-Shafi ʿ i,” 590. 92 . See al-R ā z ī , Man ā qib , 60 and Asma Afsaruddin, “Renewal (tajdid),” in

Medieval Islamic Civilization: An Encyclopedia , edited by Josef Meri, 2 vols, Routledge Encyclopedias of the Middle Ages–13 (Abingdon: Routledge, 2006), 2:678–679.

‘the concept of sunna in the early shafi’i madhhab.’ in duderija, adis (ed.) the sunna and...

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