Hanafī Uṣūl al-Fiqh through a Manuscript of al-ĞaṣṣāṣAuthor(s): Marie BernandReviewed work(s):Source: Journal of the American Oriental Society, Vol. 105, No. 4 (Oct. - Dec., 1985), pp. 623-635Published by: American Oriental SocietyStable URL: http://www.jstor.org/stable/602724 .Accessed: 08/12/2011 02:23

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HANAFI USUL A L-FIQH THROUGH A MANUSCRIPT OF AL-cASSAS

MARIE BERNAND

CENTRE NATIONAL DE LA RECHEIlRCHIE SCIENTIFIQUE, PARIS

The purpose of this paper is to offer an illustration of al-Gassds's original approach to legal theory. If the Risala of al-Safici must be considered the first attempt at systematization of Islamic law, we can state that al-6assais's treatise is the first known to us that provides a new stage in the rationalistic explanation of usal al-fiqh. It is noteworthy that al-Oiassas begins his treatise with a new theory of the concept of havan. The use of such notions as real and metaphorical meaning (haqfqa and niag), and social convention (hm1uwala'a al-istilah) in the treatise introduces a new

outlook providing a methodological breakthrough and new basic rules in the evolution of the theory of qiyis. Another striking point is al-6assas's analysis of the concept of daITI al-hithb, which is nothing but the corollary of his original theory of qiyiis. To my knowledge, al-6assas's typically Hanafi-Mu taziliargument is the first example of such an analysis. It may thus be ascertained that although never formulated, the Mu- tazili principle of the precedence of caq/ over nass (a!-`caqi qahi al-nass) lies at the basis of al-6assds's treatise. One may see in this work a striking interaction between usiul al-fqh/ and ushi- al-dYn, the "ust7/avn."

DESPITE THE GREAT INTEREST shown in usal al-fiqh by Orientalists throughout the world, no general and systematic work dealing with this most important Islamic science has been done. Numerous manuscripts of usfil al-/iqh are preserved in libraries and remain unpublished, both because of the inaccessability of these documents and because insufficient effort has been made to gather them.

Professor Robert Brunschvig mentioned this gap at the Fourth International Congress of Arabic and Islamic Studies (4 September 1970), calling attention to "l'interet, trop souvent meconnu, que doit avoir pour l'historien de la pensee musulmane, specialement a son stade medieval, cette branche de la theorie juridico-religieuse qui se nomme usfd al-fiqh, . un domaine que les ustdivui'n eux-memes consideraient comme le couronnement de leurs recherches specula- tives et de leur enseignement."' In fact, to neglect the study of this science is to overlook an important aspect of a famous cultural past, a past which is represented by such great names as al-Safi'T, al-Gassas, al-Dabtisi al-CiuwaynT, al-BazdawT, al-SarahsT, al-6azalT and al- AmidT. Some of them are well-known and their works already edited. This neglect holds true also for the HanafT authors al-Gassas (d. 370/980) and al-DabtisT (d. 430/1039), notwithstanding the fact that in France,

Professor R. Brunschvig has begun to examine al- Dabusi's TaDsTs al-nazar and, in particular, his theory of qiias,2 and that in recent years many scholars in Pakistan and Turkey have become interested in the works of al-Gassas. Until 1981, Ciassas's only published work was Ahkanm al-Qur'an of which there are numerous manuscripts.3 A few years ago Dr. Saeedullah Qazi edited, introduced and annotated two chapters of al-Oassas's UsuFl al-Jiqh (qiyds and igtihdd, fols. 244, 2-293r).4 My article is based on a manuscript preserved in the IDar al-Kutub and copied by Muhammad b. al-QadT in the Aqsa mosque in 748/1347. Another manuscript is preserved in the Azhar Mosque; I used Qazi's edition and a microfilm of the Dar al-Kutub manuscript (UyFil al-f iqh 229). Professor S. A. Qazi includes in his work a useful and clear introduction in English, translated from the Arabic, in which he presents al-Oiassas, assigns him a place in the HanafT school and points out the impor- tance of AbU I-Hasan al-Karhi's influence on al- Gassas's thought.

' See also, N. Shehaby, I"ll/a and Qi'vas in Ear/v Islamic Legal Theory," in JAOS, Vol. 102.1, 1982, p. 27.

2La thorie Au qihis juridique. AbU Bakr al-Gassds, Ahkdm al-Qur'dn.

4 Idem, A l-fusul fi-/-usu- (ahwih at-iktiha-d vva-/-qii7ds). Ed. Saeedullah Qazi. Peshawar, Nov. 1981. 1 am grateful to Professor M. Hamidullah, who gave me this information and permitted me to consult the book, which is not available in France. 5GAS, 1, 445.

623

624 Journal of the American Oriental Societ' 105.4 (1985)

The manuscript consists of 329 fols. recto and verso, twenty-five lines per fol., each line containing about sixteen words. It was copied in 748/1347. Even though it has no title page, the flyleaf containing the author's name and the title is preserved: Kitdb uswul al-fiqh li-l-'allma AbT Bakr al-Raz.Tal-gahTr bi-l-&assdis.

Let us begin with a short introduction to the author. Ahmad b. 'All al-Razi Abti Bakr al-6assas, character- ized by Zirikli as fidil ahl al-ra v, 6 was born in 305/9 17. He had been to Baghdad in about 325/ 937 to study with members of Abti 1-Hasan al-Karhi's school. Numerous quotations of al-Oassas's master appear in the manuscript. Later, in about 344/955, al-Oassas travelled to Ahwaz and Nsabtir, and he died in Baghdad in 370/981. About our author the sources do not tell us very much. Curiously, Ibn Haldin in his Muqaddima mentions al-DabiisI, but not al-Gassas. The article "al-Djassas" in EI2 (Vol. II, p. 498) reflects the brevity of the sources.7

The passing reference to al-6assas in Ibn al- Murtada's Tabaqdt seems to me quite significant. First, Ibn al-Murtada reminds his readers that the HanafT usWul, whose Muctazill affinities are obvious, refused to fulfill the office of qddT in Baghdad after having initially accepted it. He then mentions that although the task of al-Gassas was to produce books of fiqh, he used to compose kalam treatises for himself, arguing that it was the best way to get near to God. This detail, which we do not find in the other sources, can be put together with G. Maqdisi's remark concern- ing teachers of fiqh in the Middle Ages, whose interest in kalam compelled them to have secret meetings to discuss kalam. Ibn al-Murtada's anecdote, despite the care we must exercise in using it, demonstrates al- Gassas's interest in speculative disciplines and in usiul al-dTn. This is confirmed by his uswal al-fiqh work. His treatise is a typical example of usal al-dTn's influence on usal al-fiqh and shows the interaction between the two disciplines. Here again we mention Professor Brunschvig, whose article on Imami usW! al-fiqh begins as follows:

Au sommet des "sciences religieuses" exoteriques de

l'lslam et de leur enseignement traditionnel se situent les deux sortes d'usul, u~sl al-dTn et usuli al-fiqh, dont le jumelage est parfois souligne, au risque d'une etrangete grammaticale, par un duel de pluriel: u~silain.

I1 leur arrive, en fait, de se recouper, de se chevaucher en quelques points; ii est notamment des positions dogmatiques du domaine theologique propre aux usuil al-din, qui ne manquent pas d'exercer leur influence sur les usu- freres; mais ces derniers, a difaut d'une independance totale, inconcevable au demeurant dans un systeme global, conservent en definitive, et tiennent meme parfois A afficher, face au kalam theologique, une suffisante autonomie.'

It is for this reason that an usFlT was often also a mutakallim who composed usul al-dTn as well as usu! al-fiqh. We find examples of such cases among HanafT usuliv van. First, we know that Abui Hanifa's Fiqh al- Akbar I is an usuil al-dTn treatise, as was suggested by the learned Orientalist Wensinck.9 This fact is con- firmed by the statement of Abu 1-'Usr al-BazdawT (d. 484/ 1089) in his UJsl al-fiqh. wa qad sannafa Abui .HanTfa fT dalika [i.e., 'ilm al-tawhid] kitab al-fiqh al-akbar.'?

Abui l-'Usr's brother, Abui 1-Yusr al-Bazdawi (d. 493/ 1099), whose usal al-din, edited by H. Peters Linss, is well known, composed a short treatise on usul al-flqh which is preserved in the Dar al-Kutub and is entitled Kitab al-hugag al-?ar'ivvXa (usul al-fiqh, 233). A later Hanaf!, Ahmad Abu l-Barakat al-Nasaf! (d. 710/ 131 1), composed usul al-dTn as well as usu! al-fiqh treatises. The author of the MugnT f-iabwvb al-tawhTd wa-l-'adl, 'Abd al-Ciabbar (d. 415/1024), wrote a Nihdva ft usuil al-fiqh, which he mentions in the MuknT, vol. XVII, p. 115. His work al-'Umad is also an uls! al-fiqh treatise, which he frequently mentions in his MugnT. 11

As far as I know, no Hanaf i usu! al-fiqh manuscript older than that of al-ciassas has been found. Two Hanafi masters who are mentioned very often are Abu 1-Hasan al-Karhi(260/863-340/952) and 'Tsa b. Aban (d. 221/836). Moreover, the Fihrist attributes to al- SaybanT (d. 189/804) a Kitab usal al-fiqh. The same source mentions that Ibn Sama'a (d. 233/847) is a Hanaf! author of usal al-fiqh and that 'Isa b. Aban wrote a K. al-qivds. 12 By these remarks I mean to suggest that even if the Risala of al-Safiic (d. 204/819) is considered the first treatise on usuil al-fiqh, we cannot definitely affirm that no other work concerning

6 A'/-m I, 165.

7 In his article "Hanafiyya," in El2, Vol. 111, pp. 166-67, J. Schacht does not mention al-Gassas, although in G. Maqdisi's I/n 'Aqf/ et la resurgence de Islam traditionaliste au Xle siecle, we find the great usul1T mentioned several times.

8Islamologie 11, p. 323. 9 See J. Schacht, "AbU Hanifa," in El2, Vol. 1, p. 127. 1' Bazdawi, usu-I al-din, Paris 4541. See also K fi'a, 27. Be MugnT XVII, 305, 7; 312, 5; 314, 8; 337, 9; 354, 4; et

passim. 12 Fihrist, Tagaddud, 258-259.

BERNAND: Hanafj Usul al-Fiqh 625

this subject was written by other scholars. Moreover, it is likely that the Hanafi school knew, before al- Gassas's usWi al-fiqh, some works anticipating it. Since the development of the science of fiqh needed to have a solid basis, it is conceivable that Hanafi authors were compelled to meditate on the questions of usWl al-fiqh. In fact, notwithstanding the accepted idea that usCil al-fiqh is later than fiqh I think that these two disciplines might have grown together even if, as a praxis, fiqh originated with the beginning of Islam. UsJl al-fiqh, as well as kaldm, which appears in very early writings, as J. van Ess has shown, might have begun to develop as soon as problems of fiqh began to be discussed.'3

To illustrate these remarks and to introduce al- Ciassas's Usal al-fiqh, it will be useful to recall definitions of fiqh and us-1 al-fiqh. Abu l-Yusr al- Bazdaw!, whose grandfather was a disciple of Maturadi (d. 333/944), begins his treatise Ma'rifatu l-hugag al- sar'ii} a with the definitions of basic notions occurring in the work, such as fiqh, usWl al-fiqh, 'ilia, and hurhdn. This is the lexicon of technical terms we usually find on the first pages of such writings from about the 4th/ 10th century. "Fiqh," says AbU l-Yusr, "is the name given to a specific religious science, which is the science of all that determines the s~arz'a's legal rules [al-ahkam al-s~ar'ivya]; it is found in the Qur'an, sunna and igma'. Usul al-fiqh is the science of those three roots, and it is so called because fiqh is [contained] within them."4 This is a most significant conception of usul al-fiqh. The absence of any reference to the term qivds is also significant even though Abu l-Yusr examines this concept through twenty folios of the 88 forming the manuscript. The absence of qiyas in the definition is probably intended to assert that qivas adds nothing to the Qur'an, sunna or igmac. As we shall see, the basic postulate assumed by Abil l-Yusr was expressly formulated by al-Ciassas. However, although the priority of nass and scriptural sources is adopted by al-Ciassds, it is obvious that the plan of the treatise is organized around one main principle: huggatu 1- caql's efficacy when applied to the scriptural sources. "Al-6assas's starting point is the necessity in law and legal theory for mental investigation (nazar) and the important role rational proofs (hugag al- 'uqul) play in them." 15 The best proof of this necessity is that one who denies the validity of rational arguments

is himself obliged to resort to reason to justify his denial. This assertion, which is typical of the ahl al- 'ilm wa-l-nazar argumentation against traditionalism and skepticism, appears in the chapter entitled Al-qawl fi wugkb al-nazar wa damm al-taqlid, which precedes the chapter on qiyas. 6 The chapter continues with a critical analysis of the notion of 'ilm, which strangely recalls early Muc'tazilT arguments, such as 6ahiz's Masi'il, a fragment of his Kitdb al-ma 'rifa, edited by C. Pellat in Machriq.'7 This mode of argumentation appears in further treatises of Mu'tazilikalam, such as the Mugnl and Sarh usu- al-hamsa of 'Abd al-6abbar (d. 415/1024), the Magmii' of Ibn Mattawayh (d. 469/ 1076) and al-Fa'iq of Maldhim! (d. 532/ 1137). We can say that through early Mu'tazilT ideas a new method- ology of usul al- fiqh was established by al-Oassas. Comparing this mode of argumentation with that found in al-9SficT's Risdla, it is obvious that the HanafT treatise of al-Ciassas inaugurates a new line of usul al-fiqh literature.

As we have already noted, the colophon and the first folio of the manuscript are missing. We now follow the plan of the work in outlining the manuscript's contents, emphasizing the points which seem to us important in illustrating Abu Bakr's original methodology.

The general plan of al-6asas.'s Usu4l al-fiqh is as follows.

In the first part, the author examines the divine speech (nass), its different modes, and its linguistic aspects which are: I) the general and particular declaration (al- 'amm wa-l-hass) and different ways of particularizing the general declaration; 2) the general concept (mugmal); 3) the linguistic function of the particle of negation (harf al-nafy); and, 4) real meaning and metaphoric meaning (haqTqa wa magaz), clear and obscure concepts (muhkam wa mutasa-bih). Then the author defines bavan (elucidation), indicates its dif- ferent modes and determines those cases in which we must have recourse to it (fol. 7v-9lv).

Having elaborated the linguistic framework, the author examines a special mode of locution, the importance of which is easy to understand in this context: command (amr), its qualifications and tem- poral determinations (fol. 91v- Is 5v).

Then comes the problem of abrogation (nash) and the question of the relationship between the Qur'an and sunna from the point of view of abrogation. In the fourth chapter, the notion of habar (report) is examined: the reliability of the habar al-wahid (one transmitter's report), conditions of such reliability, the

'3 See also S. A. Qazi, Principles of Muslim Jurisprudence, p. 1.

1' Dar al-kutub, usil al-fiqh, 232 fol. 3r. No mention of this manuscript in Brockelmann's GAL SI, 678.

'5 Cf. Nabil Shehaby, loc. cit. p. 34. 16Fol. 237r-241r.

1I7Baqdva kitab ham. See also, Ein Unbekanntes fragment.

626 Jurna-17l oft he Amewruic Oriental Socieii 105.4 (1985)

problem of a n7ursal report (transmitted by an incom- plete chain of trustworthy transmitters), particular cases, and especially the problem of the Prophet's traditions (sunan) (fol. 1 15r-212v). Then ignma` is examined (fol. 212'-235"), after which comes the question of taql-tl (reliance on the teaching of a master), which is censured (dLlatmi) in favor of nazar, except for the saha-b's taqlTd if nobody contradicts it. But if contradiction appears, it is important to notice that the sahah-'s qii'as and igtihad make knowledge triumphant (fol. 235'-244"). This section ends with the definition and the status of the ndfl (the denier who discusses rational or scriptural proofs).

The way is thus paved for the elaboration of the rules of qi i'a-s and discussion of the problems which this question raises (fol. 244"-292"). Then comes the chapter on istihsan, which is adopted as a valid source of legal effects (ahkalm ) and which is a particular Hanafi doctrine (fol. 294r-299r).8 Lastly, the treatise ends with eight short chapters concerning such corollary questions as the inugtahid's status and reliance on his teaching (ItaqlTd al-Muitahid) (fol. 299r -326v).

Introducing the chapter which deals with general and particular declaration, AbU Bakr gives the defini- tion of two concepts which are fundamental for the elaboration of his doctrine: haqfqa and ,nagka- (real and metaphorical meaning) (fol. 2'-7'). Everything, he says, must be referred to a real meaning (haqTqa). A vocable has in fact two meanings, a real one and a metaphorical one; but, to be understood, the latter must be referred to the former so that it can be known by way of tlalla (quality of demonstration). One can guess that such a principle will provide the theory of qii'ds with its basic tool. These important notions are reexamined from fol. 63r to 65v and are discussed in due course.

The different modes of particularization which al- Gassas examines from fol. 19v to fol. 32v are as follows:

1. Specification of the Qur'an by the Qur'an. A Qur'anic general declaration can be specified by another Qur'anic statement. God says in IV, 3, "Marry such of the women as seem good to you...." This is a general declaration whose literal meaning implies license to marry all women. But, in Qur'an IV, 23, God says, "Forbidden to you are your mothers, your daughters, your sisters.... We can infer then that verse 3 must be understood as excepting among women, mothers, daughters and sisters.

2. Specification of the Qur'an by the sunna. Qur'dan I V, 12 says, "A half of what your wives leave belongs to you," but the Prophet said, "The Muslim cannot

inherit from the kafir, nor can the kdfir from the Muslim."

3. Specification of the Qur'dn by ignaC'. Qur'dn II, 24 says, "The fornicatress and the fornicator, scourge each of them with a hundred stripes." The community then decided that the punishment for the slave should be fifty lashes, according to general Qur'anic pre- scriptions concerning slaves.

4. Specification of the Qur'an by rational argumen- tation (dalulatu /- Caql) or rather, rational indications. This means of tahsis is so important for al-Gassas that he confers upon caql as much dignity as he does the Qur'an and sunna, pointing out that the Qur-an is nothing but God's revealed arguments, which are fundamentally rational. The author quotes Qur'an IV, 1: "Oh ye people!" explaining that it would not be reasonable to address a speech to children or mad people; it would be foolishness (safah) to do so. We may consider then that the verse can be specified by reason and that na-s means only reasonable people. The purpose of the a iva is elucidated (tab_'n) by rational arguments. There is no difference indeed, concludes the author, between rational specification and specifica- tion by the Qur'an or by the sunna (fol. 20 in fine).

5. Next comes a chapter on specification of a general declaration by the habar al-wvahid (one transmitter's report) (fol. 21-32v). In this regard, Abui Bakr quotes cIsa b. Ab2n,20 to whom he attributes, in a further chapter (fol. 161V), the book A/-radd cala Bi.r al- Mar-?f /-a hir.2' This is probably the work men- tioned in the Fihrist (Tagaddud, 258). Al-Ciassds agrees with cTsa b. Aban on specification by hahar al-wdahid, as by qiYals, and distinguishes two possibilities: 1) literal meaning (zahir) whose purpose is obvious and does not need elucidation (ha vn), and 2) literal meaning of the Qur'an and sunna which is equivocal and can be interpreted in different ways (kana fi-l-lafz ihtimal al- ma anT). In such a case particularization by tahar al- wahid22 is reasonable (macqiul). This rule is based on a

18 Cf. R. Paret, "Istihsa-n," in E12 IV, 267-268.

'9 Concerning the different meanings of the term daldla, see J. van Ess, Logical Structure, p. 26, n. 25. dalalatu l-caql

must be understood as "the demonstrative force" of a rational sign.

20 This master of AbU Bakr professed, according to Ibn al- Murtada, Mu'tazilite doctrine (qdla bi-l-'adl). Tabaqat 128. He wrote a refutation of al-Safi'!'s doctrine.

21 Bisr al-Marisi (d. 218/833) is a Mu'tazilT-Murgi'c of Baghdad. Al-Bagdadd says in the Farq, 363, that Bisr was a disciple of AbU Hanifa and that he agreed with the Mu'tazil-I's on the creation of the Qur'an but he accused them of infidelity (akfara) for their belief in the creation of the act.

22 To which igtihad is applied.

BERNAND: Hanaf- Usul al-Fiqh 627

principle clearly expressed and repeated several times in the treatise: "Whatever is established by means which necessitates ascertained knowledge ('ilm) cannot be rejected in favour of that which does not necessitate it"23 (fol. 24v, 16; 32V, 21 et passim). This is the opinion of al-KarhT, who probably adopted it from al-SaybanT. Consequently, according to this principle, there is no fundamental difference between abrogation (nash) and specification (tahsTs), the former and the latter being different modes of ha van. But we must not forget that abrogation only delimits the duration of a rule's efficacy (mnuddatu I-hukni) since God cannot give an order and then withdraw it (fol. 25V, 16-18).

The preceding implies two conditions: 1) the prin- ciple adopted by the Hanafi school, kullu mugtahid mnusTh (the soundness of the specialist's opinion), which is discussed at the end of the treatise (fol. 305v-325r), and 2) a positive opinion concerning the transmitter's reliability (husn al-zann hi-l-riu l') (fol. 33V, 1 1 passim). According to this, tahs.s hi-l-qil'ds and tahtss hi hahar al-wihid have the same status (fol. 32v, 5). It is SaybanT's opinion that opens the chapter entitled "Specification of general declaration by way of qiias," whose importance rests on the fact that Abu Bakr defines here the rank accorded to qii'iis in the hierarchy of proofs. Although rational argumentation is con- sidered as being of divine origin, we may not prefer it to scriptural sources. Abii Bakr says that any general declaration that cannot be specified by a hahar al- wiahid, cannot be specified by qivas, for the very reason that hahar al-vwvhid comes before qi'as (t9ahar al- ua-hid muqaddam 'ala l-qi ds) with regard to the unIUm specification. Consequently, there is all the

more reason that what cannot be specified at all (i.e., whose specification would involve a modification of the rule), cannot be specified by qivyds. We must anticipate and notice here that concerning the Cilla in the implementation of qiviis, al-6assas assumes that "general declaration is a basic source" (al- 'umjim aslun).24 When al-Ciasas says that hahar al-wdhid comes before qiyis, he means that habar al-wdhid is preponderant in the hierarchy of proofs, from an absolute point of view, so that appealing to qivas is allowed only when no other scriptural proof provides certainty. The proof of hahar is prior to the argumenta- tion of qiyiis in validity.25 Also, in general, al-Oassas

wants to point out that qivais cannot operate actively on revelation; it can only be used if firmly based on revelation (wa la 'astaqim al-ra 'I wa-l-qivisf (1-tanzii

innamd l uqds 'ala I-tanzTl wa ammd l-tanz-TIft 'a Vnih la vuqiis).26 The Qur'an and scriptural sources cannot be modified by human reasoning; human reason can only enact new rules according to the divine declaration, which is alone certain and unchangeable. In his Risila, al-Safi'T also insisted on this principle point: "Revela- tion must never include scholarly judgement but must remain solely an object of scholarly investigation," as was pointed out by Professor Bernard Weiss.27 Another consequence of al-KarIhT's principle, with which al- Gassas entirely agrees, is that a qiv'as which specifies a general declaration ('umam) must be based on an asl which is a nass or the conclusion of an igma' (fol. 32V, 19-20). Any rule that proceeds from a general declara- tion, being a nass, is more certain than a rule which proceeds from qijias (hukm al- Cumjm akad min hukm al-qiYas) (fol. 33V, 17-18); we cannot neglect the first by means of qiYCas (fa lavsa gt'diz tarkuh hih). The main idea in this context is that a nass has a more solid basis than a conclusion from qiivas.

A nays, however general, is more certain than a decision based on qiyds. In plain language, qiyds is not allowed at every turn (laysa isti'mid al-qiyds kd'izanJ T kulli mawdi'in) (fol. 33V, 16). The same principle is applied in the short chapter concerning a similar formulation in consensus and the Qur'an (fol. 48V, 2- 49, 12). "A Qur'anic rule which is connected with a formulation included in a sunna or in the conclusion of an igmai' must be considered as having issued from the Qur'an and as being God's will expressed by the designated formulation." When, for instance, the Prophet orders that a thief's hand be cut off, it is according to the Qur'anic rule and its formulation (V, 38). The same may be said concerning the Prophet's practice of the five prayers, of Ramadan, of fasting, and so forth. The Prophet's practice and the umma's decision are apprehended according to the Qur'dan (ma'qjla 'an al-qur'dn), because they are classified and ordered in it (ii anna fthi j'untazamu Mdika wa v'ugibuh) (fol. 48v, 13-14).

Here ends the first rukn of the treatise in which two main principles are put forth, namely, the necessity and validity of qiYias, based on the postulate that "revealed declaration . . . is the paramount criterion of authen- ticity.

23 Kullu mna uhatu min farTqin yfigibu l-'ilma fa-gayru da'izin tarkuh hi-md la I vgihbu-l-'ilma. 24 Principles of Muslim Jurisprudence, p. 168, 16. 25 See fol. 1. Concerning habar al-wdhid, Mdlik b. Anas

(d. 179/ 795) professed that a "valid analogy takes precedence over such traditions." See N. Shehaby, loc. cit., p. 28.

26 Fol. 32v, 1-14; 38v, 7

7The Triumph of Shafisis Legac , p. 5. 28 Bernard Weiss, loc. cit., p. 18.

628 Journal of the American Oriental Societl' 105.4 (1985)

Another rukn scrutinizes and defines the concepts of haqiqa and magaz, considered as the basic notions of hajv'n. So Abui Bakr is led logically to discuss a notion the implementation of which would risk making qiyas impossible by adding to the nass what it does not embody. This is why he denies the soundness of the so-called dalIT al-hitdh, whose linguistic~and logical validity he rejects (fol. 49r, 13-58r, 8). For al-6assas,

da/TI al-hitah means nothing other than fahuwd I-hith. Clear definitions of these two technical expressions are given by Professor Brunschvig:

En arabe, le fahwi7 /-khitah, raisonnement a fortiori a partir d'un texte, s'appuie couramment sur l'interdic- tion coranique (XVII,23, XLVI, 17) de dire uff, c'est-a- dire de marquer son dedain, a ses pere et mere devenus vieux; donc, a plus forte raison, soulignent les corn- mentaires, de les insulter ou de les frapper. En face de lui, I'argument a contrario, dalhI al-khitalh, a divise les maitres sunnites sur sa validite. Leur debat-type s'est deroule au sujet d'un hadlth: "sur le betail qui pature (sd'ima) prelevez la dime aumoni&re". Est-ce a dire que le betail n'est pas soumis a la dime s'il ne pature pas? Les adversaires d'une pareille consequence ont argue notamment de l'injonction coranique (VI,151, XVII,31): "Ne tuez pas vos enfants, par peur de la misere"; ne serait-elle plus valable quand la peur de la misere n'existe pas?29

Denying this distinction, Abui Bakr and, as we have already noticed, after him the HanafT scholars30 do not consider dafT! al-hitab as a dafT!. Abii 1-Husayn al- BasrT al-Mu'tazilT (d. 436/1046) evokes this contro- versy in his Mu'tamad:

The dalTi al-hitab is not included in chapters concerning general and determined concepts (al-mugmal wa-i-mu-

baYian). In fact, divergence among people does not involve the following question: Is dalTI al-hitab a dalTI mugmal or a dal/ll mubayyan? Divergence among people concerns the question: Is it a dalTi or not?3'

In al-AmidT's Ihkam we find a list of arguments in favor of da/TI al-hitdh and another list of objections against the validity of this notion probably inspired by Abu 1-Husayn al-Basri's list.32 "He who professes dalTI

al-hitab," says al-Amidl, "assumes that it indicates, in case of silence, a hukm which is contrary to the one expressed (in the nass)."33 On this point al-6assas disagrees entirely. Introducing his long chapter on da/TI al-hitdb, he says: "Every speech, divine or prophetic, has a useful meaning (fd'ida). Some utter- ances have a meaning which is apprehended by the term itself (ma 'qjla hi I-laf;); some other may signify a rule and a meaning which is specified by another speech" (fol. 49r, 14-15).

In the first group, some expressions involve a meaning which is not literally expressed, but only indicated (min gihati l-dalhla). Thus, God saying, "Say not to them 'Uff"' (XVII,23) is a speech conveying two meanings (afdda ma'na n). The first one forbids saying "Uff!" to the parents. The other meaning is an indicative one, a sign forbidding more than saying "Uff!", forbidding also insulting parents, beating parents, killing parents. Then al-Ciassas gives many other examples.34 All these diat expressly specify definite quantities but, in fact, imply the multiplication (tadc'f) of these numbers. "That is," concludes al-Oassas, "the dali! al-hitab." The first example (XVII, 23) is the classical one, chosen to illustrate an a fortiori argument (fahwd l--hitb). 35 Two arguments are adduced to support al-6assas's theory. The first one is logical. When a nass specifies a hukm, this hukm is restricted to the case specified, and thus nothing indicates that the opposite case is ruled by the opposite hukm (fol. 29V, 4 sq). It is absolutely erroneous to assume that the specific cases which are not mentioned in a nass have necessarily a status distinct from the one which governs the mentioned specific cases (fol. 49v, 9-1 1 and 54r). "He who makes this error cannot refer to any linguistic proof." The second argument is linguistic. The words dali! al-hitah, says al-Oassas, convey a meaning which contradicts the meaning attributed to it. DaITi al-hitah cannot mean argument a contrario (fol. 49v, 8-9). Further on he says, "The reasonable and recognized function of the expression dalIT al-hitab consists in defining the case's hukm, which the nass formulates, and in indicating the similar cases and their relationship to this hukm" (fol. 5 , 2-4).

For this very reason it is wrong to pretend that the dalTI al-hita-h allows one to "exclude from the hukm

29 Hermnneutique normative, p. 11; Islamologie I1, 183 and 361.

30 And also al-Bdqilldni and most of the Mu'tazilis. Ihkdm 111, 68.

31 Mu'tamad 11, 316 in fine. 32 Ihknm 111, 68 sq. Mu'tamad 1, 161 sq.

33 Ihkam 111, 70, 1314: wa man qala hi da/il al-hitahfahuwa qc'i/un hi-annah vadulla 'ala naqTdi hukmi-l-mantiuq fi mahall al-sukat.

34 Qur'dn IV, 49 and 124, 20; III, 75; XVIII, 23-24; IX, 80. 3 See R. Brunschvig, loc. cit. and Studia Islamica (1971),

n. 34, p. 62.

BERNAND: Hanaf- Usul al-Fiqh 629

what is not uttered in the nass." The expression dalIl al-hitub means nothing other than what the specialists' expression fahwi I-hitib, means. Summarizing his thought, AbU Bakr concludes that da/TI al-hitab, as it is understood, inverts the meaning which the words convey and reverses the rule (decreed) (fa-ammd an yadulla 'ala hildfi bukmih fa-hada caks al-ma'nd wa qaib al-wagib).36 In other words, a text signifies nothing other than what the words convey. Consequently, one can never assume that when we get a text enacting a rule we can decide that the opposite text enacts the opposite rule (hukm).

The da/Ti al-hitib is rejected in its notional validity as in its denominative soundness. Many Qur'anic examples are given by Abui Bakr to illustrate his arguments; one of them is XVII, 31: God forbids the killing of children for fear of poverty; nevertheless, the prohibition remains in force in other cases (fol. 50r,

17-18). It is plausible that an usuli, who can be considered to

have fixed and systematized qiyds theory would, probably after his master al-Karhi, nourish such a prejudice against dalTi al-hitab. The assumption occur- ing in fol. 54r, 7 and following, apparently implies the defense of the principle of qivzas. "We do not deny," says Abfi Bakr, "that the rule which governs a case different from the one mentioned (hi hilf al-madkuir) is different from the one which governs the case mentioned, this latter rule being established by an explicit formulation, the former depending on a sign (dlalla). But we deny that the explicit formulation of a case is a binding sign which entails that a different case is governed by a different rule." What is at stake here is the possibility of tracing back a far' to an asl so as to deduce its hukm, that should be the consequence of a systematic use of da/TI al-hitah, leading to replacing qiVlds with arbitrary generalization, as in Qur'dan XVII, 31.37

In conclusion, in this important chapter which deserves a special study, Abfi Bakr's arguments are numerous and subtle; we can surmise that al-6assas's refutation is the original argumentation adopted by HanafT scholars against the validity of da/Ti al-hitah.38

The invalidation of dalil al-hitdb as a way of tahsls being solidly established, Abui Bakr comes back to the question of haqiqa and magiz to introduce his explana- tion of bayan and to point out that the garl'a refers to metaphoric meaning (magaz). The real meaning of a word is the one by which a thing is named; it is its original acceptation in the language. The metaphoric meaning of a word is the one whose acceptation is allowed by the original real meaning (fol. 63r, 1 sq).39 "We mean," says al-Oassas, "that the word haqiqa indicates the thing to which language gives its name ... and magaz indicates other denominations of the thing whose acceptations are not the original one in the language." The content of fol. IV-2v is concerned with a technical problem; in the chapter which precedes the explanation of haydn, it is the fundamental question of the origin of language which is raised, and which often appears in books of usCi al-fiqh.40 The notion of magaz has been accepted and studied by specialists of lan- guage. But we cannot refer to a metaphorical meaning unless we have a dalil which allows us to do so, as the original function of a term consists in referring to real meaning.

The names in divine law (al-asmd' al1-sar'iyya) hold the position of asma ' al-magaz and their specifications are tested by revelation and consensus (la vuhas~su ithbtuhd illd min gihati l-tawqTf wa-l-ittifdq) (fol. 64V in fine).' One can consider these lines as providing the methodological basis for the validity of qiyas. The implementation of qivys, based upon a nass which needs to be interpreted and specified, depends on changing haqiqa to magaz (sarf al-haqrqa ila l-magaz) (fol. 79V). This mode of interpretation is one of the aspects of havan. The word hayjan finds its origin in common language, where it means cutting off and parting (al-qat ' wa-l-fasl). The manifestation of mean- ing and its elucidation is called havan because the

36 Fol. 51, 4. It is striking to notice that in the Kafkafi-l- gadal, al-GuwaynT does not really distinguish between daMiN al-hitah and fahiva al-hitdh (K4fiia, p. 51, 15-16).

37 The Zahiri school, which denies the legacy of qiva's, substitutes for it implementation of the mafhum, which is nothing but an extension of the faht' 1-hitah meaning of the text.

38 According to Ibn Rugd, Biddha I1, 119, Abti Hanifa himself denied dalTi al-hiutah.

39 Underlying this distinction we can guess that al-Ciassds's conception of language is in some ways a mudlaq conception. This is a basic linguistic structure whose expressions are absolutely related to clearly defined meanings. As we shall further see, such a conception allows him to assume that, for instance, the imperative form is used to indicate a command and nothing else (fol. 92V infra p. 630).

40 See Bernard Weiss, Medieval Muslim Discussions, p. 34 and n. 3; the author quotes Fahr al-Din al-RazT and Amidi. See also Mu'tamad 1, 16, 17.

41 The notion of ittifdq, which occurs several times and means here consensus, can also be understood as muvidda'a in another context. For muwtdda 'a, see God's Created Speech, pp. 386-387.

630 Journal of the American Oriental Societi' 105.4 (1985)

meaning is then dissociated from others which would make it ambiguous and obscure (fol. 76v, 10 sq).

Al-Safi'c identified bayan and usCi al-fiqh, and considered it to be the elucidation of the sarT'a by the different sources of divine law. "Bayan is a collective term for a variety of meanings which have common roots but different ramifications."42 According to al- 6assas, al-Safi'! mistakes the wasf for the hadd. A real definition is the following one: "the displaying of a meaning and its elucidation so that it can be dis- tinguished from any reason (ma 'anT-) which could cause in it obscurity or ambiguity" (fol. 77V, 12 sq). It is interesting to mention that Abti l-Husayn al-Basr! al- Mu'tazilT (d. 436/1044) made the same objection (hadd lai'sa hi haddin wa innamd huwa wasfun li-l-baviin).3 A definition of ba'vdn is more than a kind of enumera- tion of barmn; it should explain the nature of the intellectual function it implies and then establish its different modes (wuiCh) (fol. 79V, 1-10). One of them being tahfsl alcumnam, qiyas can be considered as one possible source of baydn (fol. 80', 1).44

Everything that has a divine origin can be a subject of taba'vun. The theory of baydn, based on a specific linguistic doctrine, enables us to distinguish in matters of obligation, amr (command) from nadab (recom- mendation), irsdd (guidance), ibdha (permission), taqrTc (reproof) and tagwfr (reprimand) (fol. 91). There is no ambiguity in the meaning conveyed by the imperative form (ifcal), which indicates an order, as the word expressing an order is in its literal meaning specified by a real obligation (laft al-amr yahtassu bi-l-Tgab haqT- qatan). It cannot be an order if it does not coincide with an obligation (matd lam vusadaf wvgiban). He who uses a precise language, says Abii Bakr, necessarily finds in it a linguistic form the function of which is to convey an order (amr) compelling duty (wdgib), for the same reason that he necessarily finds a word meaning information (habar) and another one meaning instruc- tion (iswihbdr). This naturalist theory of language45 understands muwIda'a as the human counterpart of tawqtl implying that the human mind is able to find a

linguistic way of apprehending the garica.46 Conse- quently, the imperative form implies obligation which is absolutely and definitely related to a command (Jaqiqatu l-ikab anna kulla wagib ta'allaqa wugibuh bi hada l-lqft), and the real meaning of the term iTgb conveys the obligation to do what is ordered (al- ma'muir bih). This relation is absolute and definitive (gayjru ka Diz an yantafiya ddlika 'anh) (fol. 92' in fine).

One may wonder what is nash (abrogation) if the command corresponding necessarily to a hukm is enacted absolutely and definitely? We find no def- inition of nash in al-Safi'T's RisF7la (pp. 123-130). The culam ', says Abti Bakr, differ in opinion. For some of them nash consists in referring one text to another (naql ma fih ild gajrih). For others it means invalida- tion (ibtdl), as when one says that sun invalidates shadow. Another group understands making something cease (izdla). According to al-6assas, the abrogation of ahkdm is meant in a metaphorical sense, not in the real or literal one (cala waghi l-magaz duina 1-haqTqati). His method consists in showing that no one of the three real meanings of nash, especially not the third one, can be applied to the nash of the sarica. Remember Qur'an XLV, 29: ". . . we have been keeping a copy of what ye have been doing" (inna kunnd nastansihuh).

Since nash cannot be understood as i/ta71 (invalida- tion) Abi Bakr concludes as follows: nash here means defining (itbat) a hukm whose validity is not permanent and specifying retribution of acts. "Ibtdl applied to legal status (ahkdm) can be understood only in a metaphorical sense for the very reason that the initial hukm (al-hukm al-awwal) cannot in any case be invalidated. The hukm enacted a second time can absolutely not be accepted as well, if it is different from the initial one." No hukm can be invalidated by nash. In the garica, nash is nothing but elucidation (baviyn) of the temporal or occasional validity of a hukm, which we imagined and considered as having a permanent validity (fol. 115r, 18-21). Consequently, the hukm's validity depends on circumstances which must be established by the Qur'an and sunna (fol. 149v, 21-22). Al-6assas's method consists in postulating the

42 Risala, pp. 67, 12. 43 Mu'tamad 1, 317, 14 sq. 44 Probably quoting Cidhiz, al-6assas says that according to

an ancient scholar, the different modes of haYan are: speech (qawil), script (hatt), indication (ivara), calculating on the finger tips or dactylonomy ('uqad al-hi-sah) and the demon- strative proposition (al-qadilXa al-dalla (fol. 80, 3-4). See G. E. von Grunebaum, "Baydn," in E12, 1, 1148. See also N. Shehaby, Stoic Logic and al-Jassass p. 65 and n. 6.

45 B. Weiss, loc. cit., p. 34.

46 This naturalist theory is seemingly the corollary of the theory of tamkTn, an outcome of the mutakallimCM's concep- tion of caqI. On tamkTn, see my thesis, "Le problkme de la connaissance," pp. 130, 131 and 185. Concerning the appre- hension of ethico-juridical concepts, 'aqI is an apparatus of specific linguistic forms (sTga rnawdui'a), each one of them corresponding to a legal case, to an ethical situation and to a precise rule. This apparatus is the result of the linguistic specialist's work.

BERNAND: Hanafi Usul al-Fiqh 631

inherent and natural validity of the language as conveying absolute and determinate concepts, so that the concept of abrogation applied to the sarica becomes a form of speech indicating the temporal and occasional relativity of hukm. The initial hukm has, of course, an absolute validity, but its application depends on temporal circumstances.

Next, the problem of reports (ahbir) comes under discussion. The first chapter, entitled Ihtildf al-nasf

-

usul al-ahbar, is interesting for it shows the great importance attributed to this problem by the usulyvyyn of the ancient period. We must remember the deep stress provoked by the challenge of al-Nazzam,47 whose critical attitude toward the authenticity of the report was shared by others. Al-pCassas methodically sets forth the different opinions concerning reports: 1) the opinion of people who deny the authenticity and validity of every report (nufat sihhati gamVc al-ahbdr) and any possibility of reaching 'ilm by means of the report; 2) Abil l-Hudayl's opinion; and, 3) the opinion of al-Nazzam. In a second chapter, Bab dikr wugiih al-ahbar wa mardfibihd wa ahkamiha, al-pCassas mentions a controversy between 'Isa b. Aban and the Mu'tazill-Murgi'l of Baghdad, Bigr al-Maris (d. 218/ 833), which is preserved in a book.48 It would take too long to give here a detailed account of these two important chapters. Let us simply remember al-Naz- zam's objection: "A habar al-wdhid entails 'ilm (only) when he who relates it was witnessing the event and when he knows it as firm knowledge because of converging reasons."

What was al-MarTsT's theory? Al-Cassds does not speak of it but only sets forth the three categories of ahbir which cIsa b. Abdn distinguishes: 1) the ahbar in which we take cognizance of their authenticity and of the transmitters' reliability; 2) the ahbbr in which we take cognizance of the locutor's and the transmitter's untruth or falsehood; and 3) the ahbbr which could contain truth or untruth.

Then follows a discussion that resembles very closely Hasan b. Sahl's way of arguing in his text, FP l-tasdTq, edited in 1970.49 In my introduction I offered the hypothesis that the author could have lived during the 4th/ 10th century. It is very likely that he was con- temporaneous with al-Cassas. The report of the latter

(fol. 162-17 1) confirms the idea that during his time an essay was written to establish a rational criterion for the credibility of information, which a century before was so vigorously attacked by al-Nazzam. We can imagine how important it was to refute his arguments; igkm', qivas and even the Qur'an were at stake. 'Isa b. Aban's method consisted in distinguishing between what is reliable, what is unreliable, and what is likely but not sure. Al-Oassas reduces the problem to two elements. He distinguishes between two groups of ahbdr al-dhdd: 1) There is the report which entails Cilm and that occurs when the report is accompanied by a proof authenticating its reliability, and 2) there is the report which does not entail cilm, and that occurs when its authenticity cannot be proven. Discussed in this context are the conditions of reliability and the qualifications of the transmitter which are needed to ascertain cilm transmitted by ahbdr al-dhdd (fol. 185 sq). Rational proofs are the basis of the arguments. For example, when a hadkt mursal comes under discussion, al-Gassas affirms that it can be admitted when transmitted by the ahl al-cilm (scholars).5'

On the other hand, to prove the authenticity of igkma we cannot rely on reason (macrifatuh -uggivati-

I-igmac min tariq al-sam Cfa ammF7 1-caql lam vakun

vamnac wuqiic al-igma c min ummatind cala hata'ka- I- vahuid wa l-nasdra wa gajrihim) (fol. 215 , 6-7). This was al-Nazzam's objection. The Malik! al-BagT (d. 474/ 1081) made the same objection.5" Therefore, the only way to preserve the Ihugginvatu /-igmdc is to rely on sam cijv1vt. Nevertheless, al-Oassas is sometimes obliged to resort to rational arguments, for instance, concerning al-qawlf -zildf al-aqall cala l-aktar. The truth can be stated by a small number of transmitters. It may happen that the ahl al- cilm do not agree with the opinion of a great number unless it can be proven by a Iugga or a dalIl (fol. 227v, 19 sq). One can see in this opinion a MuctazilT outlook.52 Since Igmdc was examined by Professor A. M. Turki, who used for this purpose al-6assds's manuscript, we will not enlarge our discussion of this question, but we will just point out that one principle which governs al-6assas's method consists of making use of rational proof in case

47 Ein unhekanntes fragment, pp. 170-201. 48 KitdhuhufT l-radd Cald Bisr al-Mar~is f~l -ahhbar, which is

probably the one attested to by the Fihrist under the title Kitah hahar al-wa-hid (Tagaddud, 258). For Bigr al-MarisT, see Farq, 363, and Maqalat, 140-141.

49 Des (riteres de la certitude.

50 See fol. 188r. 13-16, where al-Ciassas says a habar which is contradictory to a rational proof is unsound (kullu haharin tudadduh huggatu l- 'aqli fa-huwva 1asidun).

5' See A. M. Turki, L'ignia' entre la doctrine et ihistoire, forthcoming.

52 On this point, see "Iqjma'," E12 and 'LWigmc' chez 'Ahd al- Gahhir. "

632 Journal of the A merwian Oriental Societ 105.4 (1985)

of doubt concerning an effective igmd' (wagaba 1- rugku' il ma l uigibuhu 1-dalTI wa-l-hugga) (fol. 227v, 21).

Before examining the problem of qivas, Abii Bakr composes an introductory chapter in which he estab- lishes the obligation to use nazar and to censure taqlTd. He begins by examining the question of taql/d al-sahaba when no divergence exists among them (fol. 235r, in fine sq). Concerning this problem two lines of argument are evoked. To the conclusion of a qiias Abji Yiisuf prefers a Companion's report when there was no opposition to it during their generation. According to al-Karvh, this was not the opinion of AbU Hanifa, who thought that when the Companions agree on something we have to concede it to them, and when the Thbicu-n agree on something we have to consider it as preponderant and preferable. Our author is, like his master, a partisan of the opinion which has the greatest chance of being preserved in its initial version.

Next comes the chapter entitled A 1-qawl fT wugub al-na7ar wa damrn al-taqlTd (fol. 237r, in fine-24lr), which is based upon a solid demonstration of the validity of rational argumentation. Two sorts of arguments are put forward: rational arguments (fol. 236v-239V) and scriptural proofs (fol. 239v-240r). First al-Oassas shows his opponents that to deny nazar's obligation is a vicious circle; to deny the obligation to use nazar we need to appeal to na-ar and to rational arguments (hugag al- cuqfil) (fol. 237v, 4-6). Moreover, for any knowledge, intuitive, sensible or informative, one stands on a rational process. Inasmuch as reason is what distinguishes a human being (insdn) from a beast (hahTma) and allows us to distinguish between different natures in the world (tamITz) (fol. 237v, 20 sq), God has given the human being reason and senses to permit him to acquire knowledge so that even information from the Prophet might be accompanied by a sign indicating its reliability. TaqlTd must be based upon rational proofs; if not, it would contribute to a spreading divergence of opinions and contradictions between doctrines (fol. 239r). From fol. 239v to 240V the author quotes and comments on the numerous 7i'vt in which God urges men to make use of nazar (fol. 239v, 1-2) and the lp4?it where He blames sects who do not believe in its efficacy, dualists, magus and naturalists. This chapter is a systematic polemic against the nuf t al- cuqul. It is striking to notice that the treatise, whose author is a well learned faqih and muhaddit, shows also that al-6assds is familiar with the argumentation of kalam which we find in classical treatises on ustl al- din.53

We have solid reasons then to rely on rational argumentation and to assume the validity of qiycas and igtihad. A first point to be noticed is that the definition of qijis is given with reference to the problem of new cases whose statutes were not specified by revelation (tawqif) or by consensus (ittifdq). When this happens, there are two ways to provide this specification (istidrdk): 1) One of them consists in bringing out (istirudg) an indication (daldla) from the meaning of revelation (ma'nd /-tawqTf) which conveys only one meaning. 2) The second consists in applying igtihad to things whose designated object (matdIC) the mukallaf was not ordered to reach. Igtihad again can be divided into three types. The first one consists in extracting (istihrag) a cause ('illa) from a basic case (asl) bringing with it the derived case's 'illa (illatu l-far) so that the asl's hukm will be applied to the far' (istibhrg cillatin min aslin varidu bihd cillata i-farci wa vahkumu lahu bi hukmih). That is, says Abu Bakr, what we call

._ 54

As one can see, cilla, in this context, is a basic notion. It is why, in the first part of the chapter (pp. 55-59), entitled Faslft macna 1-dalTI ua-l-/cilla wa-l-qiJ 'as wa-l-igtihad, the author gives a clear definition of Cilla and of da/TI and explains the fundamental difference between Cilla caqli/ ja and cilla

sarci-vIa (p. 57 in fine), which is based upon the difference between qiyas caql/ and qiy'as ?arcT. The da/Ti is a warning (munabbih) and indicates to the nazir how to reach the object (madl/il), calling his attention to the speculative reflection so that he will be able to acquire knowledge of the madilul. But the dalU does not determine the existence of the madIlul (lavsa 1-dalTI mu~giban li-l-madlul calayh); nor is it the cause of its existence (ua ld sababan li-uuguidih). On the other hand, the cilla is the cause whose existence determines the existence of the hukm (wa amma l-'illa fa-hiya i-ma'na alladT cinda hudiuih vahdutu l-hukm).55 Thus the hukm will not exist. Concerning rational questions, this proposition is a true one (hadihi qadiyyatun sahlihatun fi /-caq/i,.yt) (p. 56 in fine). This Cilla, which determines the existence

" See supra, p. 623.

54 Principles of Muslim Jurisprudence, p. 60; see p. 58 in fine: The first meaning of igtihad is al-qiil as al-gar'i based on a deduced Cilla or a revealed one ('illatin mustanhata aw mansuisun 'ala-vhd); in this way the far' will be referred to the asl and governed by the asl's hukm, thanks to the gami' mani.

5 On the complex notion of ma'na see Frank, Al-macna; this term, which originally expresses the notion of meaning, conveys in abstract language the notion of a sort of causality.

BERNAND: HanafJ Usul al-Fiqh 633

of characteristics and qualifications (yakabu huduita ahkiim wa awsaf) is not specific to sar', as the Cilla sar'iiyva may exist in the absence of ahkdm) (p. 58, 1; cf. p.133, 1.13). This 'illa is the very instrument of

qiu'os sar'h The originality of the method consists in distinguishing different levels of the efficacy of the Cilla. The ' ila, understood as a real cause which determines the existence of effects, is the one to which qioIts 'aqlT resorts in preference to allowing an infer- ence. This qivias has an ontological efficacy. On the other hand, the Cilla sarcivra allows one to make use of analogy between the new cases and the original case. The cilla operating in this process is not the real one (fa-lajisa bicillatin 'ala i-haqTqati).56 In this case the Cilla does not necessitate a bukm; it is only an indication for it, a signal, a sign that it could exist (amara, dalLi, simn, fa g'diz an tug ala lah amaratan~f fT Mlin wa la wgcalu amiraan /ah fT uhra) (p. 58, 6-7).

But the problem having been explained and those fundamental distinctions established, an important question remains: what is that Vilia? In his paper on al-DabUsT, Professor R. Brunschvig raises this question and gives the answer: "Cette 'ilia quelle est-elle? Probl&me majeur. Elle est l'un des traits ou caracteres (awsdf ) de l'objet ou de l'acte reglemente dans le cas de base."57 This problem is widely examined by al-Oassas from p. 155 to p. 164, where we learn the distinction made between a wasf inherent in the asl and a was..f understood as a feature or characteristic resulting from a custom (dCada) or even as being just the name (nabs al-ism) which can be transferred to the asl. The cilla can also be one of the asl's ahkam.

If there is any contradiction between two Vi/al inferred from the same hukm, we have principles of prevalence (targTh) which are explained from p. 165 to p. 171.

The first one is the principle of the priority of the nass which was applied to the question of tahsis.58 The Cilla which is given by a nass prevails over the one which is extracted by deduction (istinbat) so that when a nass exists, istinbat is of no value (/a hazza li-I- istinbat ma'a 1-nass). The second principle considers the Cilia which is a particularization of general declara- tion (cumiin1) to be worthier than the one which

contradicts this 'umam. The reason is that the 'umnim is a basic source (ii anna 1- 'umum asl).59

To conclude our analysis of this chapter we should point out that although al-Ciassas attempted a systema- tic elucidation of all the concepts used in qivds, he never, as far as we know, tried to explain the real reason for distinguishing between qij'ts s'arCTand qiias caqly. This question, which is an ontological one and implies a theological background, was nevertheless raised by the Mcari al-Giuwayni in his Kqfiia fT 1- gadal. Speaking of Val s'arci )a he says, "I/ll/a applied to sarc does not induce a hukm by itself, but by virtue of the sarTca author's determination to make it an Cilia of the ksarc. Consequently, this qualification depends on the creator's choice." (al- Cilla fT/-lsaric Id tusapi'iru l-hukmna bi na fihd kIkin bi ga'li sdhibi I-s'arfca laha cu/allan lahu fa yaqifu dalika cala ihtij'ari /g-cjjili).6 This is a most important detail which, we presume, could not have been in harmony with al-Ciassas's assumptions (p. 38, 6-7).6"

Before ending the exposition of this huge treatise, it must be noted that isihsdn, which is a typical HanafT

62 -Cassfrmfl29'i technique, is examined by al-(iassas from fol. 293r in fine to 299r, 9. The author distinguishes different methods of isihsan. A specific one consists in dis- carding qiuots to adopt a decision which is judged worthier (tark al-qivds ilh nmd huwa awld minh) (fol. 294V, 14). Istihsdn then is regarded as "particulari- zation" of a hukm with the presence of an Cilia (tahsis al-hukm maCa wugiud al-cilla) (fol. 297r in fine). Consequently, it is considered by HanafT uslipi tun as a qiyds h[afT implying a hukm which is a specification of the qiyds asiT, as al-Ciassas calls it (fol. 2971, 18 1). In contrast to al-saficT, al-6assas and his masters think that istihsin is connected with a proof (hugga) and sustained by argumentation. It is not a false judgement based on inadvertence (sahel) and caprice (hawma) (fol. 293v, 9). The Qur'an is invoked as a scriptural specification (XXXIX,18): "Who listen to the word, then follow the best of it" (ahsanah).

A first examination of such a huge manuscript has to be considered under beneficium inventorii. Neverthe- less, one fact is obvious; Al-Oassas's Usil al-fiqh is the first example-for the moment-of a systematic work in this realm and can be regarded as a model of original

56 Sarahsi, Ul I, 301, 302, 4-5; SaymarT mas&dil al-hildf (fol. 61); Principles of Muslim Jurisprudence, p. 133, II. 8-12.

" See La thlorie du qiyas juridique, p. 153. DabUsI's opinion was adopted before him by al-Ciassas, p. 58, 3: id kdnat hddihi-l cilal hiya bac'd awsdf al-asl al-mucallil.

5 See supra p. 625.

59 Principles of Muslim Jurisprudence, p. 168. 11-14. Dabijsi had the same opinion, ThAorie du qi ys juridique, p. 153; MugnT X VII, 351, I sq.

60 Kfia, 14, 41. Supra p. 632.

61 See ES2, IV, 267, by R. Paret.

634 Journal of the A merican Oriental Societ, 105.4 (1985)

and perfect conceptualization of the foundations of the .sarlca. Going beyond al-Safi'i's process, which may be considered as a method of "archaic concretization," al-Oassas succeeds in making a methodological break- through. He makes use of his vast knowledge as a faqTh and muhaddit for the inventive elaboration of a new conception of usul. His book is original in combining the kal/m perspective and the fundamentalist outlook.

Two kinds of indices may be given as relevant in this respect: I) The first one may be called a linguistic index. Words such as ittifdq, asi, ma'nd and cilla are frequently used in reference to different levels of their notional register. We have already noticed this specific process in 'Abd al-Oabbar's MuknT.3 One can see in their similarity the mark of a Mu'tazill outlook, and Mu'tazilism in this period may be regarded as the dominant method of kalam. 2) Another index of the interpenetration of kalam and fundamentalism may be called a methodological one. It is striking to notice in al-Oassas's treatise a constant concern for conceptuali- zation: as nash, for instance, which is placed in the

category of tahuss, which is itself a kind of baian. This notion, as it is understood by al-6assas, provides the basic distinction between al-9afi'T's Risala and al- Gassas's treatise. Bayan "presupposes that a text may communicate a clear and obvious meaning entirely through the medium of language," so that when the literal meaning is not clear, haYan has recourse to metaphorical meaning (magiz). We have seen that al- Gassas frequently makes use of it. Such a process indicates that if nass is a fundamental datum, 'aql as a source of knowledge is an indispensable implement for the development of usal al-fiqh. The Mu'tazilT principle al-caql qabl al-samc,4 although never formulated in the treatise, is implied by the method adopted.

To conclude, we can say that al-Oassas's treatise can be considered as a turning point in uys/ al-fiqh literature, introducing to this discipline the cultural values and methodological processes of the Iraqian milieu. Compared to al-Saficl's Rivsala, which is a most interesting Socratic composition, al-Oassas's Usu-l al- fiqh represents a new stage in rationalistic systemati- zation.

63 Le prohieme de la raison, p. 87, 106-108. 64 Lef proh/eme de la raison, p. 209, passim.

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