. 2
( 10)



The creation of an archetype, i.e., an ideal authoritative model or
standard to which all other types must conform or emulate, is undeniably
a prime concern of juristic typologies. In the case of Islamic law, this
archetype is the absolute mujtahid whose legal knowledge, presumed
to be all-encompassing and wholly creative, is causally connected with
the founding of a school. The school is not only named after him, but
he is purported to have been its originator. The comprehensive and
wide-ranging knowledge attributed to the absolute mujtahid is matched
only by his assumed in-depth knowledge of, among other things, legal
methodology or uQEl al-¬qh (which is by necessity of his own creation),
Quranic exegesis, MadCth criticism, the theory of abrogation, legal lan-
guage, positive and substantive law, arithmetic, and the science of juristic
The salient feature of the founders™ ijtihAdic activity is no doubt
the direct confrontation with the revealed texts, for it is only this dei¬ed
involvement with the divine word that requires and presupposes thorough
familiarity with so many important ¬elds of knowledge. Even when
certain cases require reasoning on the basis of established legal rules
and derivative principles, the founding jurist™s hermeneutic is held to be,
in the ¬nal analysis, thoroughly grounded in the revealed texts. The
founder™s doctrine constitutes therefore the only purely juristic mani-
festation of the legal potentiality of revealed language. Without it, in other
words, revelation would remain just that, revelation, lacking any arti-
culation in it of the legal element. His doctrine lays claim to originality
not only because it derives directly from the texts, but also because it is
gleaned systematically, by means of clearly identi¬able principles, from
these sources. Its systematic character is seen as a product of a uni¬ed and
cohesive methodology which only the founder could have forged; but a

Early ijtihad and the later construction of authority 25
methodology, it must be asserted, that is itself inspired and dictated by
Now, what is striking about this typological conception of the founder
mujtahid is its absoluteness not only in terms of credentials or epistemic,
and indeed moral, authority,1 but also in terms of chronological rupture
with antecedents. At the juncture of this rupture, the precise point at
which the most accomplished type of mujtahid is formed, the typology
su¬ers from a memory loss, overlooking in the process the existence in
reality of the founder™s predecessors and his own immediate intellectual
history. For it was with the latter that the mujtahid“imams formed a
continuity, and of the former that they were necessarily a product. In
the constructed typology, as perceived by the later legal profession, the
founders became disconnected from previous generations of jurists as
well as from a variety of historical processes that indeed culminated in
the very achievements of the imams.2

The following pages argue that this rupture did in fact take place and
that it was certainly strategic and by no means fortuitous. As jurists, the
founding fathers were highly accomplished, but not as absolutely and
as categorically as they were made out to be. Dissociating them from
the achievements of their past was only one of many ways to increase
their prestige and augment the resum© of their accomplishments. But

That the founders™ authority also contained a strong moral element is abundantly
attested by the manAqib literature. See, for instance, Ammad b. nusayn Abe Bakr al-
Bayhaqc, ManAqib al-ShA¬ cC, ed. Ammad raqr, 2 vols. (Cairo: Maktabat Dar al-Turath,
1971), I, 260“385, 486“550, and passim; Shams al-Dcn Mumammad b. Mumammad
al-Racc, InstiQAr al-FaqCr al-SAlik li-TarjCM Madhhab al-ImAm MAlik, ed. Mumammad
Abe al-Ajfan (Beirut: Dar al-Gharb al-Islamc, 1981), 139 ¬., 167 ¬., 173 ¬.;
Mumammad b. Yesuf al-ralimc, cUqEd al-JummAn f C ManAqib al-ImAm al-A cUam AbC
NanCfa al-Nu cmAn (Hyderabad: Masbacat al-Macarif, 1394/1974), 211“31, 239“96. On
epistemic and moral authority, see sources cited in the preface, n. 1.
Shams al-Dcn b. Shihab al-Dcn al-Ramlc, NihAyat al-MuMtAj ilA SharM al-MinhAj, 8 vols.
(Cairo: Muqsafa Babc al-nalabc, 1357/1938; repr. Beirut: Dar Imya™ al-Turath al-cArabc,
1939), I, 41, reports, on the authority of Ibn al-ralam, that none other than the four
imams may be followed, either in the issuing of fatwAs or in courtroom litigation.
Representing the authority of school a¬liation, this opinion of Ibn al-ralam became
widely accepted by many later jurists of all four schools. nassab, MawAhib al-JalCl, I,
30, quotes Ibn al-ralam™s statement and enhances it with another by Ghazalc (p. 31) who
declares the founders™ and schools™ legal doctrines superior to those of earlier jurists.
See also cAbd al-Ramman b. Mumammad Bacalawc, Bughyat al-MustarshidCn f C TalkhCQ
FatAwA ba cK al-A”imma min al- cUlamA ” al-Muta” khkhirCn (Cairo: Muqsafa Babc al-
nalabc, 1952), 274.
26 Authority, continuity, and change in Islamic law
it was perhaps the only way to construct their supreme authority. True,
they were mujtahids “ or some of them were, at any rate “ but not with-
out quali¬cation and certainly not absolutely. We shall try to show that
none of them exercised ijtihAd across the board, in each and every case
they addressed or opinion they held. Indeed, we shall attempt to demon-
strate that many of the opinions they held were inherited from other
Let us begin with nana¬sm. In this school, and wholly in line with Ibn
Kamal™s typology as we earlier outlined it,3 the limits of hermeneutical
activity were set by the imposition of a hierarchical taxonomy of legal
authority,4 at the top of which stood the doctrines of Abe nancfa (d. 150/
767) and, immediately following, those of Abe Yesuf (d. 182/798) and
Shaybanc (d. 189/804).5 Embodied in written narratives, these doctrines,
known as UAhir al-riwAya, were transmitted through several channels by
trustworthy and highly quali¬ed jurists. A marginal number of cases
(masA”il ) belonging to the category of UAhir al-riwAya were also attributed
to Zufar and al-nasan b. Ziyad, two of Abe nancfa™s foremost students.6
Now, these doctrines were deemed binding, and no later mujtahid, how-
ever quali¬ed he may have been, was permitted to reinterpret or diverge
from them. For the nana¬tes, they represented not only the highest
authority in the school, but were chronologically the earliest. Some
doctrines belonging to the later mujtahids were also deemed author-
itative, but, in theory at least, they were second in prestige and were
interpreted in light of the principles that Abe nancfa and his two dis-
tinguished students elaborated.7
Despite the authority which Abe nancfa carried as the eponym and
ultimate founder of the school, its jurists could not wholly deny the
Chapter 1, section IV, above.
Fakhr al-Dcn nasan b. Manqer al-jzajandc Qakckhan, FatAwA QAKCkhAn, printed on

the margins of al-FatAwA al-Hindiyya, ed. and comp. al-Shaykh al-Niuam et al., 6 vols.,
as vols. I“III (repr.; Beirut: Dar Imya™ al-Turath al-cArabc, 1400/1980), I, 3; Wael B.
Hallaq, “From FatwAs to FurE c: Growth and Change in Islamic Substantive Law,”
Islamic Law and Society, 1 (February 1994): 39.
The fact that in terms of hierarchical authority Abe nancfa stood ¬rst did not mean that

his opinion had precedence in all cases. When, for example, the two disciples held the
same view, and the master held another, the jurist was allowed to adopt the opinion
of the disciples. See cUmar b. cAbd al-cAzcz al-nusam al-Shahcd Ibn Maza, SharM Adab
al-QAKC, ed. Abe al-Wafa al-Afghanc and Mumammad Hashimc (Beirut: Dar al-Kutub
al-cIlmiyya, 1414/1994), 20. For various nana¬te opinions on the matter, see Ibn
fbidcn, SharM al-ManUEma, 14 ¬.

On ranking the ¬ve nana¬te masters in terms of hierarchical doctrinal authority, see

Ala™ al-Dcn Mumammad cAlc al-naqkaf c (al-cAla™c), al-Durr al-MukhtAr, printed with

Ibn cfbidcn™s NAshiya, I, 70“71.
Ibn cfbidcn, NAshiya, I, 70 ¬.
Early ijtihad and the later construction of authority 27
obvious fact that nana¬te law, as it originated with Abe nancfa, owes
a certain debt to his predecessors.8 But this debt and the legal doctrine
that it represented carried no real authority. In fact, the authorities from
whom Abe nancfa appropriated his doctrine never formally entered into
the orbit of authoritative doctrine, as schematized in the hierarchy of
nana¬te law. As we have seen, the highest authoritative form of this
law begins with Abe nancfa, not with anyone earlier. Furthermore, it is to
be stressed that this recognition of indebtedness to the past was highly
nominal, originating as it did in the desire to increase the founder™s pres-
tige and authority by the construction and articulation of a pedigree
extending back, through the Followers and Companions, to the Prophet.
Nevertheless, there is much historical truth to this construction. The
nana¬te jurists articulated a genealogy, elegantly stated in both prose
and verse, indicating the extent of Abe nancfa™s debt: Fiqh, they said,
“was planted by cAbd Allah Ibn Masced, irrigated by cAlqama, harvested
by Ibrahcm al-Nakhacc, threshed by nammad, milled by Abe nancfa,
kneaded by Abe Yesuf, and baked by Shaybanc. The Muslims are
nourished by his bread.”9
The real debt owed to pre-nana¬te sources, on the one hand, and
the construction of Abe nancfa™s authority, on the other, created in
nana¬sm a serious doctrinal con¬‚ict. This con¬‚ict manifested itself in
the emergence of a duality of doctrinal orientation. In a report classi¬ed
as having the highest authority in the school, Abe nancfa is said to have
remarked: “I refuse to follow (uqallidu) the Followers because they were
men who practiced ijtihAd and I am a man who practices ijtihAd ” (the
Followers in this case being his immediate predecessors). Yet in another
report which was relegated, in terms of authority, to a secondary status,
Abe nancfa is said to have maintained the opposite view, accepting in
particular the doctrines of the senior authorities among the Followers.10
These two contradictory reports raise a couple of important issues.
The ¬rst is what their ranking was in terms of school authority. The
anti-taqlCd position of the Followers emerged as superior to the other, a
fact which attests to the dominance of the authority-construction process
See, for instance, Abe Mumammad Mammed b. Ammad al-cAync, al-BinAya fC SharM
al-HidAya, 12 vols. (Beirut: Dar al-Fikr, 1980), I, 52, who argues that the later com-
mentators understood Marghcnanc™s phrase “early reasoners” (awA”il al-mustanbiSCn) to
refer to Abe nancfa and his two students. He argues that the phrase was meant in a
general way so as to include jurists earlier than Abe nancfa.
Ibn cAbidcn, NAshiya, I, 49“50. The verse runs as follows: “al-¬qhu zar cu bni Mas cEdi

wa- cAlqamatu / MaQQAduhu thumma IbrAhCmu dawwAsu; Nu cmAnu SAMinuhu Ya cqEbu
Ajinuhu / MuMammadun khAbizu wal-Akilu al-nAsu.”
Ibn Maza, SharM Adab al-QAKC, 19.
28 Authority, continuity, and change in Islamic law
over acknowledgment of the debt to predecessors. The second is the rela-
tionship between these positions, on the one hand, and Abe nancfa™s
substantive law, on the other. The later nana¬tes argued that the second
position justi¬ed Abe nancfa™s debt to the generation that immediately
preceded him; whereas the ¬rst showed that when his opinions were
identical to those held by the predecessors, it was because his otherwise
independent ijtihAd corresponded with theirs. It was further argued
that this correspondence enhanced Abe nancfa™s opinions and lent them
added support and authority.11 The focus, therefore, is Abe nancfa:
authority resided in him however things might turn out, and whether
or not he owed his predecessors any debt. If he adopted none of their
opinions, then his authority as an independent mujtahid and a founder
was categorically con¬rmed, and if he did in fact adopt them, then due
to the authority bestowed upon him by Followers such as Nakhacc (d. 96/
714) and nammad (d. 120/737), his authority as a mujtahid who reached
conclusions identical to his predecessors was also con¬rmed.
As Abe nancfa™s teacher, nammad ¬gures prominently in the former™s
doctrine. He, and to a lesser extent several others, appear either as links
to earlier authorities, or as the ultimate reference. In a certain case per-
taining to prayer, for instance, Abe nancfa explicitly adopts nammad™s
opinion as his own.12 The list of his indebtedness to nammad can run
long.13 In another case involving prayer under threat (QalAt al-khawf ), he
espouses Nakhacc™s opinion, which the latter seems to have inherited in
his turn from cAbd Allah Ibn cAbbas (d. 68/687).14 As a matter of interest,
we should also note that Ibn Abc Layla (d. 148/765), another presumably
absolute mujtahid and an Iraqian authority, disagrees with Abe nancfa
and upholds cAsa™ b. Rabam™s opinion.15 Here, both mujtahids defer
to earlier authorities. In addition to nammad and Ibrahcm al-Nakhacc,
Abd Allah b. Jacfar appears, to a lesser extent, as one of Abe nancfa™s

authorities.16 Likewise, Ibn Abc Layla™s ijtihAdic authorities include
al-nakam, the Medinese jurists, and even Abe nancfa himself.17 In a
case involving preemption, for instance, he ¬rst adopted Abe nancfa™s
view then renounced it in favor of another opinion held by the Hijazi

Mumammad b. Idrcs al-Sha¬c c, KitAb IkhtilAf al- cIrAqiyyCn, in his al-Umm, ed. Mammed

Masarjc, 9 vols. (Beirut: Dar al-Kutub al-cIlmiyya, 1413/1993), VII, 211.
See, for instance, ibid., VII, 184“85 (a case of wadC ca), 218, 219 (cases of prayer), 223
(ritual purity), 230 (blood-money), and passim.
Ibid., VII, 214.
Ibid. cAsa™ b. Rabam (d. 114 or 115/732 or 733) was a Meccan jurist.
See, e.g., ibid., VII, 237. 17 Ibid., VII, 176, 218, 227, 233.
Early ijtihad and the later construction of authority 29
jurists.18 Abe Yesuf, a companion of Abe nancfa and a student of his,
also espoused certain of Ibn Abc Layla™s opinions.19 In two penal cases,
Shaybanc espouses opinions originally held by Nakhacc and nammad, but
apparently passed on to him by Abe nancfa.20
Abe Yesuf™s and Shaybanc™s doctrines can thus be attributed to three
distinctly di¬erent sources: Abe nancfa™s ijtihAd ic teachings, the inherited
tradition of other, mainly earlier, jurists, and their own ijtihAd. Since both
authorities were considered by the nana¬te school as carrying nearly
equal weight to that of Abe nancfa himself, it becomes obvious that
the latter cannot, in reality, be considered the school™s actual founder.
He owed as much, or nearly as much, to his predecessors as his two dis-
tinguished students owed to him. He was no more a founder or even an
absolute mujtahid than were his immediate predecessors and younger
contemporaries, such as Abe Yesuf, Shaybanc, and al-nasan b. Ziyad.
The evolution of Abe nancfa™s authority as the most important ¬gure
in the school is best exempli¬ed in the transformation that took place
in the case of the tithe levied on cultivated land. Abe Yesuf reports on
the authority of Ibrahcm al-Nakhacc, through nammad, that whatever
grows on land, however small or large, is subject to a tithe. Abe Yesuf
then adds that Abe nancfa adopted this opinion (kAna AbE NanCfa
ya”khudh bi-hAdhA al-qawl ).21 The later jurist Sarakhsc presents the matter
as follows:
The basis of the duty to pay tithe is God™s statement [2:267]: “Spend of the
good things which ye have earned, and of that which we bring forth from
the earth for you.” The meaning of “earned” is material wealth on which
the alms-tax is paid. The meaning of the statement “that which we bring
forth from the earth for you” is tithe. God also said [6:142]: “And pay the
due thereof upon the harvest day.” Likewise, the Prophet said: “Whatever
land produces is subject to tithe.”

Ibid., VII, 176.
Ibid., VII, 230. Abe Yesuf ™s authority was likewise constructed by means of making
him the only teacher of al-nusayn b. nafq who is reported to have introduced nana¬sm
to Iqfahan, when in fact the latter studied under twenty-three scholars. Abe Yesuf thus
becomes the sole authority from which Iqfahanc nana¬sm was derived. Moreover,
al-nusayn studied only MadCth with Abe Yesuf, but later sources claim the latter to have
been his teacher of law. See N. Tsafrir, “The Beginnings of the nanaf c School in
Iqfahan,” Islamic Law and Society, 5, 1 (1998): 2“3.
Mumammad b. al-nasan al-Shaybanc, KitAb al-AQl al-Ma crEf bil-MabsES, ed. Abe al-
Wafa al-Afghanc, 5 vols. (Beirut: cflam al-Kutub, 1990), IV, 439, 477. For other cases
where Abe Yesuf and Shaybanc followed the opinions of the Medinese and other
jurists, see Ibn cfbidcn, SharM al-ManUEma, 1“53, at 31; Ibn cfbidcn, NAshiya, I, 75.
Yacqeb b. Ibrahcm Abe Yesuf, KitAb al-KharAj (Beirut and Cairo: Dar al-Sharq, 1405/
1985), 158.
30 Authority, continuity, and change in Islamic law
Abe nancfa™s principle is that whatever grows in gardens and is meant to
be cultivated of the land is subject to tithe, be it cereals, legumes, dates,
herbs, chlorophyta (wasma), sa¬ron, roses or dyeing plants (wars).22 This
is also the opinion of Ibn cAbbas. It is reported that when he was governor
of Baqra, he imposed the tithe on legumes, levying one measuring unit
out of ten. Abe nancfa rationalized this opinion by the general Prophetic
tradition “Whatever the heavens water and whatever the land produces
is subject to tithe.” He held the opinion that tithe, like kharAj, is an
encumbrance on cultivable land. Just as the development of the land gives
rise to the levy of kharAj, so does it give rise to tithe.23
Note here that Nakhacc, who appears in Abe Yesuf as the original, author-
itative source of the doctrine, has been entirely removed from Sarakhsc™s
reconstruction, and instead replaced by a cluster of revealed statements
supplemented by the authority of Ibn cAbbas, a Companion. The func-
tion of inserting this authority subsequent to the Quranic and Apostolic
citations is to give the otherwise unspeci¬c and highly general stipulations
of the Quran a clearly de¬ned and precise meaning, a meaning that is
determined by Ibn cAbbas™s concrete practice. Thus, the latter™s supple-
mentary report is an exegetical exercise which permits the clari¬cation
and delimitation of the legal signi¬cance of the two Quranic verses.
In this passage, two more points are to be noted: on the one hand,
there is a presentation of the revealed subject matter together with
Sarakhsc™s annotation; on the other, there is Abe nancfa and his opinion.
The logical sequence of how authority proceeds directly from revela-
tion to Abe nancfa™s reasoning (partly manifested in the analogy with
kharAj ) becomes crystal clear. In this exercise of authority reconstruction,
Sarakhsc erases the debt to Nakhacc, thereby dissipating the latter™s author-
ity altogether. Abe nancfa, on the other hand, emerges as the ¬rst and
direct interpreter of revelation par excellence, a necessary condition of an
absolute mujtahid and founder of a school.
At this juncture, a natural question poses itself perforce: Why did
Abe nancfa “ not Nakhacc, nammad, or, for that matter, Abe Yesuf
or Shaybanc “ become credited with founding the school, and hence-
forth achieve the status of an absolute mujtahid ? A comprehensive answer
cannot be o¬ered at this point in time, especially as to the choice of Abe
nancfa as putative founder of his school (or the choice of any of the other

The wasma and wars are south Arabian plants whose leaves are used as dyes, the former
imparting a green pigment and the latter a yellow one. See Jamal al-Dcn Ibn Manuer,
LisAn al- cArab, 15 vols. (repr.; Beirut: Dar radir, 1972), VI, 254, XII, 637.
Mumammad b. Ammad Abe Sahl al-Sarakhsc, al-MabsES, 30 vols. (Cairo: Masbacat
al-Sacada, 1324“31/1906“12), III, 2.
Early ijtihad and the later construction of authority 31
presumed founders), given the state of our present knowledge. But it is
fairly clear that Abe nancfa™s rise to a status of founder had to do with the
emergence of the concept of authority in law. In view of the near total
aloofness of the state and of any of its organs from the domain of law,
legal authority had to be anchored in a source, and this source was the
arch-jurist as an individual legal personality. In other words, we cannot at
this juncture explain why Abe nancfa speci¬cally and the other eponyms
were chosen to play the role of founder, but we do know that they ful-
¬lled the requirements that were imposed by the idea of legal authority.
In the case of Abe nancfa, he certainly emerged as an authority ex post
facto; this is attested in a revealing remark made by Jamiu to the e¬ect that
Abe nancfa rose to importance after having virtually been a persona non
grata (caUuma sha”nuhu ba cda khumElihi ).24 It is signi¬cant that Jamiu,
who died in 255/868, was, in terms of chronology, su¬ciently close to
the realities of Abe nancfa™s immediate successors to be considered by
us a reliable observer, and too early to have succumbed to the ideological
biases of authority construction that developed in the period after him.
Jamiu™s evidence is bolstered by the credible testimony of cAbd al-Ramman
b. Mahdc who, around the very end of the second century A.H. (800“820
A.D.), observed that the most distinguished jurists of his time were Sufyan
al-Thawrc, Malik, nammad b. Zayd, and cAbd Allah Ibn al-Mubarak.25
Abe nancfa is conspicuously absent from this list.
The lack of any work by Abe nancfa himself, and the improvements
and virtually indistinguishable contributions made by his two students
on his behalf, makes Abe nancfa a di¬cult case study. In this respect,
Malik b. Anas (d. 179/795), the eponym of the Malikite school, provides
a better illustration of the process by which an early jurist was sub-
sequently made an absolute mujtahid and a founder.
In the MuwaSSa”, Malik himself is primarily a transmitter of earlier
or contemporary doctrine, particularly the consensus of the Medinese
jurists.26 In certain instances though he maintains his own opinion,
especially, one gathers, when the Quran or Prophetic Sunna elaborates

Abe cUthman cAmr b. Bamr al-Jamiu, RasA ”il, ed. cAbd al-Salam Haren, 2 vols. (Cairo:

Maktabat al-Khanjc, 1964), II, 272.
Abe Ismaq Ibrahcm b. cAlc al-Shcrazc, TabaqAt al-FuqahA ”, ed. Imsan cAbbas (Beirut: Dar

al-Ra™id al-cArabc, 1970), 94.
Malik was under the in¬‚uence of several leading jurists, including Ibn Shihab al-Zuhrc,
Ibn Hurmuz, Zayd b. Aslam, Abe al-Zinad, Abe al-Aswad Yatcm cUrwa, Ayyeb al-
Sikhtyanc, Rabcca b. Abc cAbd al-Ramman, Yamya b. Saccd al-Anqarc, Mesa b. cUqba, and
Mumammad b. cAjlan. Shams al-Dcn Mumammad Ibn Farmen, al-DCbAj al-Mudhahhab
fC Macrifat A cyAn cUlamA” al-Madhhab (Beirut: Dar al-Kutub al-cIlmiyya, 1417/1996),
32 Authority, continuity, and change in Islamic law
certain legal themes. An example in point is the issue of a woman™s right
to inheritance within the family. Here Malik renders his own opinion
while relying on the Quran and Prophetic Sunna.27 Less frequently do
we ¬nd him formulating legal norms on the basis of Prophetic Sunna
alone.28 In still other instances, Malik can be found to espouse an opinion
with neither the textual evidence nor legal reasoning in justi¬cation of the
opinion.29 Even if we assume that such opinions were his own, that is,
that they were reached by him through ijtihAd “ an assumption, we shall
see, that is largely unwarranted “ it remains the case that the totality of
these opinions is comparatively marginal in the MuwaSSa”.
It is often clear that not all opinions stated by Malik in the MuwaSSa”
are his own,30 although it is also often the case that the picture is not very
clear. In certain instances, Malik is made to state opinions that initially
seem to be his, when it later transpires that they are not. In a case per-
taining to alms-tax, for instance, Malik states an opinion which he later
quali¬es with the formula “This is the best I have heard.”31 Were it not
the best he had heard, it is highly probable that he would have avoided
making any remark. Similarly, in a case involving preemption, an opinion
is introduced by the oft-used formula “Malik said” (qAla MAlik). Having
stated the opinion, Malik falls silent, and Yamya, the most renowned trans-
mitter and narrator of the MuwaSSa”,32 interjects himself with another
qAla MAlik formula that is followed by yet another of Malik™s common
formulas, namely, “This is the opinion which we hold” (wa-hAdhA al-amr
indanA).33 Of special importance in this phrase is the last word, cindanA,
which is in the plural and which refers to the Hijazi jurists in general
and the Medinese in particular. It turns out here too that the opinion is
not Malik™s. The expression of a collective opinion varies in detail and
Malik b. Anas, al-MuwaSSa” (Beirut: Dar al-Jcl, 1414/1993), 462.
Ibid., 467. For a detailed study of the MuwaSSa”™s hierarchy of doctrine, see Yasin
Dutton, The Origins of Islamic Law: The Qur”an, the MuwaSSa” and Medinan cAmal
(Richmond: Curzon, 1999).
E.g. ibid., 452, 461, 464, 756, and passim.
This is consistent with the well-known and oft-quoted report that Malik refrained from
giving, or at least was reluctant to o¬er, his own opinions on all questions addressed
to him: Ibn Farmen, DCbAj, 69“70. This reluctance is said to have been motivated by
piety, but it is just as likely that it was due to the fact that Malik did not always have an
answer to give, much less his own answer. In this context, it is perhaps fruitful to com-
pare this account with Malik™s own student, narith b. Asad, who did not issue fatwAs
because he, by his own admission, often did not know the answers: ibid., 176. What
could be acknowledged in the case of narith, however, would have been unthinkable in
that of Malik, since an admission of ignorance would have ¬‚agrantly contradicted the
epistemic authority so carefully built around him by his school.
Malik, MuwaSSa”, 251, 267, 282, 771, and passim.
nassab, MawAhib al-JalCl, I, 6 (l. 14). 33 Malik, MuwaSSa”, 624, also at 584.
Early ijtihad and the later construction of authority 33
emphasis, and the signi¬cance of these variations is not always clear.34
The following statements illustrate its various uses:
1. “I have long observed jurists in our region follow this opinion.”35
2. “This is what I heard from the jurists, and have long observed Muslims prac-
tice the matter in this manner in our midst.”36
3. “This is the opinion which the jurists have been adopting in our midst.”37
4. “The opinion on which we reached consensus, and which is not subject to
disagreement, and which I have long observed the jurists follow in our region
is . . .”38
5. “The opinion on which we have reached a consensus, and the sunna on which
there is no disagreement, and what I have long observed the jurists follow in
our region is . . .”39
Such statements refer to anonymous practice and agreement, without
attaching to them the name of any particular jurist. They accompany no
less than one-eighth (13 percent) of the opinions in al-MuwaSSa”, judging
by an inventory of the chapter on sales, a rather important part of the
work.40 Our count furthermore shows that 27 percent of the opinions are
attributed to earlier jurists, notably Saccd Ibn al-Musayyib, Yamya b. Saccd,
Ibn Shihab, and Salman b. Yasar.41 Some 21 percent of the opinions
are based on revealed texts, mostly Prophetic Sunna. The remainder,
39 percent, are opinions voiced by Malik without authority, be it textual
or personal. As we have seen earlier, we can in no way be sure that the
source of such opinions is Malik himself. This means that the corpus of
Malik™s own opinions must be much smaller than 39 percent, and that
both the MadCth and juristic material which he transmitted constitute far
more than 61 percent of the MuwaSSa”™s contents “ that is, if we go by our
statistical count in the chapter on sales. A random investigation of the rest
of the MuwaSSa”, though admittedly impressionistic, tends to con¬rm this
Ibid., 245, 452, 453, 454, 455, 456, 458, 459, 460, 461, 463, 755, 756, 757, 759,
761, 763, 768, 769, and passim.
Ibid., 464: “wa- calA dhAlika adraktu ahl al- cilm bi-baladinA.”
Ibid., 688: “fa-hAdhA al-ladhC sami ctu min ahl al- cilm wa-adraktu camal al-nAs calA
dhAlika cindanA.”
Ibid., 583: “wa-hAdhA al-amr al-ladhC lam yazal calayhi al-nAs cindanA.”
Ibid., 459: “al-amr al-mujtama c calayh cindanA al-ladhC lA ikhtilAfa f C-hi wal-ladhC

adraktu calayhi ahl al- cilm bi-baladinA . . .”
Ibid., 463: “al-amr al-mujtama c calayh cindanA wal-sunna al-latC lA ikhtilAfa f C-hA

wal-ladhC adraktu calayhi ahl al-cilm bi-baladinA . . .”
Ibid., 539“93.
Ibid., 682, 684, 745, 747, 748, 750, 751, 752, 753, 758 (and passim, for Ibn
al-Musayyib); 456, 676, 669, 680, 681, 743, 775 (and passim, for Ibn Saccd); 676, 743,
744, 746, 755 (and passim, for Ibn Shihab); 456, 687, 744, 749, 753 (and passim, for
Salman b. Yasar).
34 Authority, continuity, and change in Islamic law
estimate, which may in fact be overgenerous in its appraisal of Malik™s
own contributions.
These results are substantially corroborated by Ibn Uways™s report of
Malik™s own, revealing explanation of what he attempted to do in the
MuwaSSa”, a report that is in all likelihood authentic though seldom
encountered in Malikite works:
Indeed, most of the contents of the book are not my opinions but
rather those which I heard (samA cC ) from many leading scholars. Their
opinions were so many that they overcame me (ghalabE calayya). But their
opinions are the ones which they took from the Companions, and I in turn
took these opinions from these leading scholars. They are a legacy which
devolved from one age to another till these times of ours. When I say
“My opinion,” so it is. [When I say] “The matter subject to agreement,” it
means that matter on which they [the scholars] reached a consensus. When
I say “The matter as we have it,” (al-amr cindanA) it means the matter
which constitutes the practice in our midst and region, which jurists apply,
and with which both laymen and scholars are familiar. When I say “Some
scholars [held],” then it is an opinion that some scholars espoused and
to which I am inclined. If I have not heard (lam asma c ) an opinion [on a
matter] from them, then I exercise my ijtihAd according to the doctrine of
someone I have met, so that [my ijtihAd ] does not swerve from the ways
(madhhab) of the Medinese. If [on a given matter] there is no opinion to be
heard [at all], then I will formulate an opinion by conducting ijtihAd on
the basis of the Sunna and in accordance with the jurists™ doctrines, as well
as with the practices of our region since the time of the Prophet.42
These pronouncements cannot be unauthentic, not only because of the
unlikely possibility that they would have been put with ¬‚agrant impunity
in the mouth of Malik by later jurists of the school, but also because they
quite simply undermine the very authority giving structure to the school
itself, which furthermore explains why these declarations did not gain
much notoriety in Malikite literature. Malik himself admits his vast debt
to the authority and legacy of the Medinese and his own predecessors, and
this he does readily. It was his followers, especially during the period
of the school™s formation, who sought, consciously or not, to minimize
this debt.
Now, in the space of slightly over half a century after Malik™s death,
the Malikite jurists succeeded in promoting Malik to a status of a chief
authority, a status that put him well on his way to being made the
founder of the school. This process of what we term authority construc-
Ammad Baba al-Tinbaktc, Nayl al-IbtihAj bi-TaSrCz al-DCbAj, ed. cAbd al-namcd
al-Harama (tarablus, Libya: Kulliyyat al-Dacwa al-Islamiyya, 1989), 295“96; Ibn
Farmen, DCbAj, 72“73.
Early ijtihad and the later construction of authority 35
tion manifests itself in the Mudawwana, a work associated with the name
of cAbd al-Salam b. Saccd al-Tanekhc, known as Samnen (d. 240/854).
In this work, Malik appears as one of the foremost authorities on law.
He is held up as the author of juristic doctrines and opinions, whether or
not he truly formulated them himself. Surprisingly, many of the opinions
in the MuwaSSa” which Malik merely transmitted on the authority of his
predecessors or anonymous contemporaries appear in the Mudawwana as
his own. Consider the following examples:
1. “Yamya told me that Malik heard (sami ca) that blood-money should be paid
within the span of three or four years. Malik said: Three years is the best I
have heard concerning this matter.”43 It is obvious here that this is not Malik™s
own opinion, though he quotes it quite approvingly. In the Mudawwana,
the opinion becomes Malik™s: “Samnen was asked: ˜Over how many years
should the blood-money be paid according to Malik™s opinion?™ Samnen said:
˜In three years.™ ”44
2. “Yamya told me that Malik heard (balaghahu) that if the faculty of hearing in
both ears is completely lost [due to injury], then the full blood-money is due.”
This opinion from the MuwaSSa” 45 is, again, clearly not formulated by Malik
himself. But in the Mudawwana it is transformed into Malik™s own opinion.
Interestingly, it is introduced thus: “Malik said: If hearing in both ears is
completely lost [due to injury], then the full blood-money is due.”46
3. “Yamya told me that Malik said: The opinion on which we have reached a
consensus (al-amr al-mujtama c calayhi cindanA) is that if a man buys linen
in one town, then carries it into another and sells it for a pro¬t, the price
of the linen should not include the costs of commissions, or of packaging,
loading, or storage. The transportation fees, however, should be considered
an integral part of the linen™s price ( yuMsab f C aQl al-thaman) and do not
constitute a pro¬t. If the seller informs the buyer of these [additional] costs,
and he bargains with him as to obtain compensation, and if the buyer accepts
[to make payment], then all is well ( fa-lA ba”sa bi-hi ).”47 This, obviously, is
not Malik™s own opinion but one which emerged out of a consensus reached
by the Medinese jurists. Again, in the Mudawwana, the opinion is attributed
to Malik himself. It is restated in a nearly identical form, but the opening
line is di¬erent and, for that matter, revealing: “Malik said concerning linen
bought in one town and transported into another: I opine (arA ) that . . .”48
The exclusive attribution to Malik is emphatically manifest.

Malik, MuwaSSa”, 743.
Malik b. Anas, al-Mudawwana al-KubrA, ed. Ammad cAbd al-Salam, 5 vols. (Beirut:
Dar al-Kutub al-cIlmiyya, 1415/1994), IV, 567.
Malik, MuwaSSa”, 748. 46 Malik, Mudawwana, IV, 563.
Malik, MuwaSSa”, 581.
Malik, Mudawwana, III, 238 (italics mine). The original phrasing is even more
revealing: “qAla MAlik f C al-bazz yushtarA f C balad fa-yuMmal ilA baladin Akhar, qAla arA
an lA . . .”
36 Authority, continuity, and change in Islamic law
It is obvious, beyond a shadow of doubt, that Malik, here and else-
where, is made responsible not only for unattributed opinions (which, as
we have seen, do not necessarily belong to him) but also for opinions that
clearly originate with other, identi¬able authorities, be they individual or
collective (i.e., Medinese consensus). Malik™s role is thus transformed by
the later Malikites from being a transmitter in the MuwaSSa” into that
of the foremost authority for what was then emerging as the Malikite
The change in Malik™s role and image is by no means identical to that
which occurred in the case of Abe nancfa, for the Malik of the MuwaSSa”
functioned also in the role of a traditionist, unlike Abe nancfa. But it is
well-nigh certain that great many of the opinions which the latter trans-
mitted from nammad, Nakhacc, and others were later attributed to him.
All the schools, not only the Malikites, contributed to this process of
authority construction. In the later sections of this chapter we shall see
that this process was further enhanced by attributions to the founder of
opinions garnered not only from their predecessors but also from their
successors. The construction of the founders™ authority qua founders and
imams drew on sources both prior and subsequent to them.
Like Abe nancfa and Malik, the ¬gure of Mumammad b. Idrcs al-
Sha¬cc (d. 204/820) was subjected to the same process. But unlike Malik,
Sha¬cc appears much less as a transmitter of MadCth and legal opinion and
more as a jurist holding opinions of his own. This is the impression left
upon a casual reader of his magnum opus, al-Umm, which consists sub-
stantially of unattributed opinions, statements of legal norms formulated
without textual support or legal reasoning. However, a careful study of
this work reveals that Sha¬cc was no less indebted to his predecessors than

It is quite signi¬cant that Mohammad Fadel, who has studied the Malikite school
closely but who has not addressed the issue of what I have called authority construc-
tion, makes the following remark with regard to Ibn al-Qasim (d. 191/866) who was
considered, together with Samnen, the most reliable transmitter of Malik™s doctrine:
It was impossible to rely solely on Ibn al-Qasim™s teachings, for there were many issues
of law for which Ibn al-Qasim could not attribute an opinion to Malik. This obliged
later jurists to use the opinions of Malik™s other disciples, who often attributed positions
to Malik on precisely those cases for which Ibn al-Qasim had not been able to pro-
vide a solution. More importantly, however, Ibn al-Qasim™s privileged position as the
authoritative transmitter of Malik™s doctrine seems to have been developed at a later date.
Presumably, for the ¬rst centuries of Malikite jurisprudence, opinions had been evaluated
on the basis of their individual worth and not on the authority of the transmitter of that
See his “The Social Logic of TaqlCd and the Rise of the MukhtaQar,” Islamic Law and
Society, 4 (1996), 218 (italics mine). Note here that Fadel senses, but does not arti-
culate, the process of authority construction in the Malikite school.
Early ijtihad and the later construction of authority 37
were Malik and Abe nancfa. It is often the case that when the doctrine
or opinion is standard and shared by the community of jurists, Sha¬cc
relates it without attributing it to any particular authority. A typical
example of this can be seen in the case of hiring beasts for the purpose of
transporting goods:
Sha¬cc said: If a man hires a beast [to use for transportation] from Mecca
to Marw,50 but he travels with it [only] to Medina, then he must pay the
hiring fees agreed upon for traveling to Marw . . . If the beast perishes, he
must pay the hiring fees to Marw plus the value of the beast. If it came to
su¬er from a defect while he is traveling with it “ such as a wound in the
rear, blindness, etc. “ and this defect has a¬ected its performance, he may
return it [to its owner from whom] he is entitled to receive the equivalent
value of the defective part.51
This opinion certainly circulated prior to Sha¬cc, as attested by the early
authorities cited in the Mudawwana.52 The same type of evidence may be
found in two opinions concerning collective homicide of the kind initially
caused by bodily injury, such as severing of a limb. Sha¬cc presents the
opinions without textual support or legal reasoning, and gives no juristic
authority for them. Yet the same opinions had already surfaced, with
some variation, in the MuwaSSa”.53 Similarly, Sha¬cc acknowledges no
authority or textual evidence in favor of the opinion that the full amount
of blood-money becomes due when the sense of hearing is completely
impaired as a result of bodily injury.54 Yet it turns out that this opinion
is stated in the MuwaSSa” as having been heard by Malik from another
Much of al-Umm is made up of such opinions.56 At times, however,
the opinions are clearly defended in terms of consensus or, alternatively,
in terms of the absence of disagreement. Concerning the law of rent
and hire, Sha¬cc, like most later muqallids, argues that it is justi¬ed by
the Sunna, the practice of a number of Companions, and the “absence,
as far as I know, of disagreement on it among the jurists of all regions

In the text the city is called Marr, a place name which I could not locate in the standard
geographical dictionaries. The context suggests that it is a distortion of Marw, a city in
Sha¬cc, Umm, IV, 29. 52 Malik, Mudawwana, III, 486“87.

Sha¬cc, Umm, VI, 42, 59; Malik, MuwaSSa”, 760, 762, 743, respectively.

Sha¬cc, Umm, VI, 89. 55 Malik, MuwaSSa”, 748.

This perhaps explains Sha¬cc™s requirement that for a jurist to qualify as a muftC,

he must master, among other things, the legal doctrines of his predecessors and con-
temporaries (aqAwCl ahl al- cilm qadCman wa-MadCthan). See his KitAb IbSAl al-IstiMsAn
in Umm, VII, 497.
38 Authority, continuity, and change in Islamic law
including ours.”57 In many instances, Sha¬cc™s sole defense or justi¬cation
is the absence of disagreement, which implies, or is made to imply, the
existence of consensus.58 Less often, he explicitly states that two or more
opinions exist concerning a particular case. In the matter of death result-
ing from bodily injury, Sha¬cc introduces two opinions after the formula
“qCla ” (it was held).59 It is clear that he had formulated neither of the two
opinions himself. Here Sha¬cc is practicing taqlCd, in precisely the same
manner as his followers have practiced it for centuries since his death.
Sha¬cc practiced another form of taqlCd frequently resorted to by later
jurists belonging to all the four schools, namely, the reenactment of ijtihAd
which later came to be known as ittibA c.60 By Sha¬cc ™s time, it had become
a ¬rmly established doctrine that if a man wished to marry a ¬fth wife, he
had to divorce one of the ¬rst four, in accordance with the Quranic verse
4:25. The interlocutor asks Sha¬cc if other jurists have held this opinion,
whereupon Sha¬cc replies that the Quranic evidence is su¬cient. But he
then admits that others did hold this opinion, and proceeds to give two
chains of authority, one consisting of cAbd al-Majcd ’ Ibn Jurayj ’ Abe
al-Zubayr ’ Jabir, and the other including the ¬rst two of these names
followed by tawes who transmitted it on the authority of his father.61
The reluctance of Sha¬cc to admit his propensity to taqlCd may be
observed sporadically throughout al-Umm. With regard to the question
of a gift made under coercion by a wife to her husband, he criticizes
Abe nancfa™s opinion and o¬ers instead that of Ibn Abc Layla. Having
done so, he states his own opinion, which is identical to that of the
latter.62 That he states his opinion without providing its textual basis, and
without explaining his own legal reasoning in justi¬cation of it, suggests
that Sha¬cc either adopted Ibn Abc Layla™s opinion as it is, or, what is
more likely, accepted it in the way of ittibA c. In either case, he is not the
originator of the opinion, even though he lets us assume that it is his own,
independent doctrine.
Nonetheless, Sha¬c c does at times acknowledge his debt to other
jurists. With regard to the question of dedicating alms-giving as a charit-
able trust, Sha¬cc again attacks Abe nancfa™s opinion, and introduces, this
time, the argument propounded by Abe Yesuf and Shaybanc who dis-
agreed with their mentor “ a phenomenon of frequent occurrence among
the three nana¬te authorities. Sha¬c c admits “ this time not so reluctantly
“ that Abe Yesuf ™s reasoning in favor of an alternative opinion is exquisite

Sha¬cc, Umm, IV, 30.
Ibid., IV, 30, 33, 109, 143; V, 6, 10“11, 16, 313, and passim. 59 Ibid., VI, 43.
See chapter 4, section I, below. 61 Sha¬cc, Umm, V, 15. 62 Ibid., IV, 73.
Early ijtihad and the later construction of authority 39
and that it proved superior to his own. At the end of the statement, Sha¬cc
intimates that he sides with, or adopts, Abe Yesuf ™s opinion.63 This
example can be found repeated on a number of occasions,64 but the fol-
lowing is representative:
Sha¬c c said: Some jurists maintained that if a man left [an inheritance of ]
300 dinars, then his two sons would divide it between themselves, each
receiving 150 dinars. One of the two then acknowledges that a [third] man
is his brother, but the other denies this claim. What I recall of the early
Medinese opinion (qawl al-MadaniyyCn al-mutaqaddim) is that the [third]
man™s ¬liation is not acknowledged and that he receives no amount what-
soever [of the inheritance]. This is so because the brother [who made the
claim] did not acknowledge a debt to him, nor did he leave him a bequest.
Rather, he merely claimed that he is entitled to inherit. If he could prove
that he has a right to the inheritance, then he should inherit and he will
also be liable to the payment of blood-money.65 But since this relationship
cannot be established, he cannot inherit. This, in my view, is the soundest
In order to become the ¬nal authority in his school, Sha¬cc was
required to shed the image of a muqallid,67 a process of authority con-
struction to which both Abe nancfa and Malik were subjected. One
example should su¬ce to make our point. With regard to land rent,
Sha¬cc holds an opinion that he explicitly attributes to the chain of
authority: Malik ’ Ibn Shihab ’ Saccd Ibn al-Musayyib. It was not long
after Sha¬cc™s death that he was made responsible for this opinion.68 In
his MukhtaQar, Ibrahcm al-Muzanc (d. 264/877) states the same opinion,
but there attributes it, without the slightest ambiguity, to Sha¬cc.69
As obvious as is the ex post eventum construction of the authority of
these three imams, it appears to have been even more ¬‚agrant in the
case of Ammad Ibn nanbal (d. 241/855). Abe nancfa and Sha¬cc were
admittedly jurists of the ¬rst caliber (although one might incidentally

Ibid., IV, 69“70.
Ibid., V, 3; VI, 45 (a verbatim restatement of MuwaSSa”, 645“46); VII, 7, and passim.
Being the closest agnate, he is liable to the payment of blood-money should one of
his brothers commit murder. The right to inheritance and the obligation to pay
blood-money are de¬ned, by the operation of the law, as the functions of agnatic
Sha¬cc, Umm, VI, 276“77.

This image is borne out by the manAqib literature which assigned to Sha¬cc, in a gradual

fashion, the role of the master architect of legal theory. On these developments in the
manAqib genre, see Hallaq, “Was al-Sha¬ci the Master Architect?” 599“600.
Sha¬cc, Umm, IV, 30.

Ibrahcm al-Muzanc, MukhtaQar, published as vol. IX of Sha¬cc™s Umm, IX, 139.
40 Authority, continuity, and change in Islamic law
remark that the eighth-century Taqc al-Dcn al-Subkc, among others, pos-
sessed a far more acute legal mind). Malik does not appear to have stood
on par with them as a legal reasoner or as a seasoned jurist. But he was
jurist of a sort, nonetheless. Ibn nanbal was none of these things. He was
in the ¬rst place a traditionist and theologian, and his involvement with
law as a technical discipline was rather minimal. This much of his back-
ground is acknowledged by followers and foes alike. Among the latter, the
well-known tabarc refused to acknowledge him as a jurist apparently
because “he never taught law, and never had law students.”70 Even as late
as the ¬fth/eleventh century, this perception persisted in some circles, prob-
ably among certain of the nanbalites themselves.71 In their various works
on the legal and learned professions, Ibn Qutayba, Maqdisc, tamawc,
al-Qakc al-Nucman, Dabbesc, and al-cAla™ al-Samarqandc neglected even
to include him, although Maqdisc listed him among the traditionists.72
Ibn cAbd al-Barr wrote a whole treatise on the virtues of the schools™
founders “ at least those schools that had survived by his time “ but Ibn
nanbal was not one of them.73 Abe Bakr Ibn al-Athram, a nanbalite, is
reported to have said that he used to study law and the science of legal
disagreement (khilAf ) until he came to sit in the circle of Ibn nanbal, at
which time he categorically abandoned this course of learning in favor of
MadCth.74 The later nanbalite jurist tefc openly acknowledged that Ibn
nanbal “did not transmit legal doctrine, for his entire concern was with
MadCth and its collection.”75 This image of Ibn nanbal was so pervasive
that it never faded away for many centuries to come.76

See the introduction to Abe Jarcr Jacfar al-tabarc™s IkhtilAf al-FuqahA” (Beirut: Dar
al-Kutub al-cIlmiyya, 1980), 10.
Abd al-Ramman Shihab al-Dcn Ibn Rajab, KitAb al-Dhayl calA TabaqAt al-NanAbila,
71 c

2 vols. (Cairo: Masbacat al-Sunna al-Mumammadiyya, 1952“53), I, 156“57, quoting
Ibn cAqcl™s observation that some of the younger legal scholars, most probably law
students, thought Ibn nanbal lacking in juristic skills. He argues to the contrary, how-
ever, which is to be expected from a later nanbalite who is, by de¬nition, a loyalist.
tabarc, IkhtilAf, 15“16. For al-Qakc al-Nucman b. Mumammad (d. 351/962), see his

KitAb IkhtilAf UQEl al-MadhAhib, ed. Muqsafa Ghalib (Beirut: Dar al-Andalus, 1973),
66. Speaking of the Sunnc community of jurists, Nucman (ibid., 127) reports that they
claimed consensus to be limited to Malik, Abe nancfa, Sha¬c c, Awzac c, and their fellow
Ibid., 16.
Mumammad b. Abc Yacla al-Baghdadc Ibn al-Farra™, TabaqAt al-NanAbila, ed. M. H. al-

Fiqc, 2 vols. (Cairo: Masbacat al-Sunna al-Mumammadiyya, 1952), I, 72, 296.
Najm al-Dcn al-tef c, SharM MukhtaQar al-RawKa, ed. cAbd Allah al-Turkc, 3 vols.

(Beirut: Mu™assasat al-Risala, 1407/1987), III, 626“27: “fa-innahu kAna lA yarwC
tadwCn al-ra”y bal hammuhu al-MadCth wa-jam cuhu.”
Manqer b. Yenus Ibn Idrcs al-Bahetc (d. after 1046/1636), KashshAf al-QinA c can Matn
al-IqnA c, 6 vols. (Beirut: cflam al-Kutub, 1983), VI, 21.
Early ijtihad and the later construction of authority 41
Ibn nanbal thus emerges as less of a founder than any of the other
three eponyms. A traditionist par excellence, he was by de¬nition pre-
occupied with MadCth, not law. We may suppose, only because of the later
developments which made of nanbalism a legal school, that he did
address some legal problems and that he rendered legal opinions mostly in
terms of MadCth. This is probably the nucleus with which his followers
worked, and which they later elaborated and expanded.77 It is therefore
not an exaggeration to assert that the bare beginnings of legal nanbalism
are to be located in the juristic activities of the generation that followed
Ibn nanbal, associated as it is with the names of Abe Bakr al-Athram
(d. 261/874), cAbd Allah al-Maymenc (d. 274/887), Abe Bakr al-
Marredhc (d. 275/888), narb al-Kirmanc (d. 280/893), Ibrahcm b. Ismaq
al-narbc (d. 285/898), and Ibn nanbal™s two sons ralim (d. 266/880 ?)
and cAbd Allah (d. 290/903).78 (It is curious that Ibn al-Athram is said to
have been a central ¬gure in the early development of legal nanbalism
when his study of law came to a halt once he entered Ibn nanbal™s circle.)
But these scholars, among other less major ¬gures, are said to have been
no more than bearers of Ibn nanbal™s opinions and doctrines. None of
them, for instance, constructed a complete, or even near complete, system
of the eponym™s legal subject matter. It was left to Ammad b. Mumammad
Abe Bakr al-Khallal (d. 311/923) to bring what was seen as the master™s
dispersed doctrines together. Khallal was reported to have traveled widely
in search of Ibn nanbal™s students who heard him speak of matters legal,
and he was in touch with a great number of them, including Ibn nanbal™s
two sons and Ibrahcm al-narbc.79 Ibn al-Farra™, a major biographer and
a jurist of the nanbalite school, remarks that Khallal™s collection of the
eponym™s opinions was never matched, either before or after.80
It would not be then an exaggeration to argue that, had it not been
for Khallal™s enterprise and ambition, the nanbalite school would never
have emerged as a legal entity. For to do so, Ibn nanbal would have

Ibn nanbal™s marked lack of interest in law and legal questions does not tally with the

fact that later nanbalite works routinely report two or three opinions (usually known as
riwAyAt) which Ibn nanbal is said to have held with regard to a single case. The only
conceivable explanation, as far as I can see, is that these riwAyAt were later attributions
by his followers, but attributions made by means other than takhrCj (which we shall
discuss shortly in this chapter).
Muwa¬aq al-Dcn Ibn Qudama, al-KAf C f C Fiqh al-ImAm AMmad b. Nanbal, ed. ridqc

Jamcl and Yesuf Salcm, 4 vols. (Beirut: Dar al-Fikr, 1992“94), I, 10; Ibn al-Farra™,
TabaqAt, II, 12. The fact that Subkc (TabaqAt, II, 26) gives al-narbc a biographical
notice suggests that Ibn nanbal™s students were not trained exclusively “ nor even
principally “ under him, as is also evidenced in the case of Ibn al-Athram.
Ibn al-Farra™, TabaqAt, II, 12“13. 80 Ibid., II, 113.
42 Authority, continuity, and change in Islamic law
had to furnish a wide range of legal doctrine and opinion, and in this
task he certainly needed help. This help came from his followers and par-
ticularly the generation that succeeded them. They, like the nana¬tes,
Malikites, and Sha¬cites before them, attributed to their eponym opinions
that he held or was thought to have held, whether or not these opinions
originated with him as a mujtahid. In the case of Ibn nanbal, a charis-
matic theologian and traditionist and the hero of the MiMna, the clothing
of his personality with legal authority was a much less di¬cult task both
to undertake and accomplish, and this despite his notoriously imperfect
record as a jurist.
The construction of authority around the ¬gures of the presumed
founders must also be viewed in the larger context of the development
of Islamic law. Multifarious in nature and evolving from the outset as
a jurists™ law, legal authority during the ¬rst two centuries of Islam was
dispersed and diluted. There were many jurists who advocated doctrines
that were made up of various elements, some belonging to their pre-
decessors and older contemporaries, and some of their own making. It is
important to realize, as we have shown in some detail above, that none
of these jurist-founders constructed his own doctrine singlehandedly, as
the later typologies “ and tradition at large “ would have us believe. In
fact, Ibn nanbal™s case is in itself an argument precisely to the contrary.
But the argument can be taken still further: If Ibn nanbal was trans-
formed, despite all the odds, into a school founder, then it is no surprise
that any one of the major mujtahids during this early period could have
become a founder too.
Throughout the second/eighth and third/ninth centuries, juristic
authority was so widely dispersed that it was unable to ful¬ll the require-
ments and demands of legal evolution. Authority, by de¬nition, must
have a clearly de¬ned locus, and to be e¬ective, it must be perceived to
be such. Both these conditions were ful¬lled in the person of the jurist“
scholar who was made, through a process of authority attributions, the
founder of a school. Even in later centuries, with the stupendous doctrinal
accretions of later followers, the founder™s authority remained the most
signi¬cant, although the entirety of his doctrine, both attributed and
original, was insu¬cient to meet the exigencies of later judicial applica-
tion and unable to sustain singlehandedly the entire school. Although in
later centuries the founder remained the most sancti¬ed legal ¬gure in the
school, he remained little more than primus inter pares. The authoritative
school doctrine, the madhhab, consisted of opinions originating with vari-
ous jurists. But all these jurists and the opinions they held were enlisted
under the nominal tutelage of the founder. The creation of authority in
Early ijtihad and the later construction of authority 43
the ¬gure of the founder was part of the wider e¬ort to construct the
school™s authority, one of the greatest achievements of Islamic law.

We have already intimated that the process of authority construction
did not only involve the dissociation of the eponyms from the contribu-
tions of their predecessors, to whom they were indebted. The process also
entailed augmenting the authority of the supposed founders by attribut-
ing doctrines to them which they may never have held. It is the juristic
constitution of these doctrinal contributions and the manner in which
they underwent the process of attribution that will occupy us in the
following pages.
It may at ¬rst glance seem a contradiction to speak of ijtihAd as part of
the muqallid ™s activity, but this is by no means the case. We have seen in
chapter 1 that the typologies acknowledge a group of jurists who stood
below the rank of the absolute mujtahids, a group that was distinguished
by the dual attribute of being muqallids to the founding imam and, sim-
ultaneously, mujtahids able to derive legal norms through the process of
takhrCj.81 Virtually overlooked by modern scholarship,82 this important
activity was largely responsible for the early doctrinal development of the
personal schools, its zenith being located between the very beginning of
the fourth/tenth century and the end of the ¬fth/eleventh, although strong
traces of it could still be observed throughout the following centuries.83

The origins of this term™s technical meaning are by no means easy to reconstruct. None
of the second/eighth-century jurists, including Sha¬cc, uses the term in any obvious
technical sense. To the best of my knowledge, the ¬rst semi-technical occurrence of it
is found in Muzanc™s KitAb al-Amr wal-Nahy, where the author uses the term makhraj
(lit. an outlet) to mean something like a solution to a problem, a way, that is, to get out
of a problem through legal reasoning. It is quite noticeable, however, that Muzanc
employs the term while taking Sha¬cc™s doctrine into account, which in this treatise is
nearly always the case. See his KitAb al-Amr wal-Nahy, in Robert Brunschvig, “Le livre
de l™ordre et de la d©fense d™al-Muzani,” Bulletin d™©tudes orientales, 11 (1945“46):
145“94, at 153, 156, 158, 161, 162, and passim. Incidentally, it is noteworthy that
takhrCj as a way of reasoning is not expounded, as a rule, in works of legal theory. As a
technical term, it appears in none of the major technical dictionaries, e.g. Tahanawc™s
KashshAf IQSilAMAt al-FunEn and Jurjanc™s Ta crCfAt.
The only work that allocates some discussion to the later, not early, activity of takhrCj is,
to the best of my knowledge, Sherman Jackson, Islamic Law and the State: The Con-
stitutional Jurisprudence of ShihAb al-DCn al-QarAf C (Leiden: E. J. Brill, 1996), 91“96.
Jackson deals with this issue from the limited perspective of Qaraf c and, at any rate,
addresses neither the structure of reasoning involved in this activity nor its role in early
legal evolution.
See nn. 130“32, below.
44 Authority, continuity, and change in Islamic law
According to Ibn al-ralam, the limited mujtahid exercises takhrCj on
either of two bases: a particular text of his imam where a speci¬c opinion
is stated or, in the absence of such a text, he confronts revelation and
derives from it a legal norm according to the principles and methodo-
logy established by his imam. This he does while heeding the type and
quality of reasoning that is habitually employed by the imam,84 and in
this sense takhrCj exhibits the same features as the reasoning which con-
stitutes the conventional, full-¬‚edged ijtihAd of the arch-jurist. In both
types of takhrCj, however, conformity with the imam™s legal theory and
the general and particular principles of the law is said to be the prime
The ¬rst type became known as al-takhrCj wal-naql, while the second,
being a relatively more independent activity, was given the unquali¬ed
designation takhrCj. This latter involves reasoning, among many things,
on the basis of general principles, such as the principle that necessity
renders lawful what is otherwise illicit, or that no legal obligation shall be
imposed beyond the limit of endurance or optimal capability. In this type
of activity, the limited mujtahid takes these principles as his rule of thumb
and solves problems accordingly.
The following example, from nanbalite law, illustrates the activity of
al-takhrCj wal-naql: If someone intends to perform prayer while wearing
ritually impure clothes “ the assumption being that ritually pure clothes
are not available at the time “ he or she must still pray but must also
repeat the prayer when the proper apparel can be had. This is said to have
been Ibn nanbal™s opinion. Another reported opinion of his concerns
prayer in a ritually impure place. He held, contrary to the ¬rst case, that
if someone prays in such a place, he need not pray again in compensation.
In the later nanbalite school, the principle emerged that both the ritual
purity of the location of the prayer and the clothes worn while performing
this duty constitute a condition for the validity of prayer. This being
so, the two issues become cognate and, therefore, subject to mutual con-
sideration. In other words, the legal norms attached to the two cases
become interchangeable, thus creating two contradictory legal norms for
each. Najm al-Dcn al-tefc explains how this comes about:
The stipulation that wearing ritually impure clothes requires repetition
of the prayer is a legal norm that is transferred (yunqal ) to the [issue of]
place. So a new legal norm emerges in the case of place ( yatakharraj f C-hi ).
The stipulation that praying in a ritually impure place does not require
repetition of the prayer is a legal norm that is transferred to [the issue of]

Ibn al-ralam, Adab al-MuftC, 97.
Early ijtihad and the later construction of authority 45
clothes. Accordingly, a new legal norm emerges in the case of clothes. This
is why each of the two cases will have two legal opinions, one held by the
founder, the other reached by al-naql (wal-takhrCj ).85
On the authority of Majd al-Dcn Ibn Taymiyya (d. 652/1254), the
grandfather of Taqc al-Dcn, tef c reports another case of takhrCj wal-naql:
A bequest given in handwriting is considered valid in the opinion of the
imam. But the attestation of a bequest in handwriting is considered null
and void if the witnesses are left ignorant of its particulars. The invalidity
of the testimony thus renders the bequest itself void. The reasoning we
have observed in the case of prayer prevails here too, since the common
denominator is the handwritten bequest. The outcome of this reasoning
is that each case will acquire two contradictory legal norms, one of valid-
ity, the other of nullity.86
During the post-formative period of the schools, when the authority
of the founder imam was at last considered undisputed, the activity of
al-takhrCj wal-naql came to be restricted, in terms of source material, to
the imam™s or his followers™ opinions. In actual fact, however, and before
the formation of the schools as guilds, this was by no means the case. The
early Sha¬cite jurist Ibn al-Qaqq (d. 335/946) reports dozens, perhaps
hundreds, of cases in which takhrCj was practiced both within and with-
out the boundaries of the imam™s legal principles and corpus juris. (In
fact he acknowledges, despite his Sha¬cite a¬liation, that his work Adab
al-QAKC is based on both Sha¬cc™s and Abe nancfa™s doctrines.)87 In
the case of a person whose speaking faculty is impaired (akhras), Sha¬cc
and Abe nancfa apparently disagreed over whether or not his testimony

tef c, SharM MukhtaQar al-RawKa, III, 641: “wa-man lam yajid illA thawban najisan QallA

f C-hi wa-a cAda, naQQa calayhi. Wa-naQQa f C-man Mubisa f C mawKi c najis fa-QallA, annahu lA
yu cCd. Fa-yatakharraj f C-himA riwAyatAn wa-dhAlika li ” nna SahArat al-thawb wal-makAn
kilAhumA sharS f C al-QalAt. Wa-hAdhA wajh al-shabah bayna al-mas”alatayn. Wa-qad naQQa
f C al-thawb al-najis annahu yu cCd, fa-yanqul Mukmahu ilA al-makAn, wa-yatakharraj f C-hi
mithluhu, wa-naQQa f C al-mawKi c al-najis calA annahu lA yu cCd, fa-yanqul Mukmahu ilA
al-thawb al-najis, fa-yatakharraj f C-hi mithluhu, fa-lA jarama QAra f C kulli wAMidatin min
al-mas”alatayn riwAyatAn, iMdAhumA bil-naQQ wal-ukhrA bil-naql.”
Ibid., III, 642.
Abe al-cAbbas Ammad b. Abc Ammad al-tabarc Ibn al-Qaqq, Adab al-QAKC, ed. nusayn

Jabberc, 2 vols. (ta™if: Maktabat al-riddcq, 1409/1989), I, 68. The absence of schools,
and therefore of school loyalty, during the second/eighth and third/ninth centuries
also explains the cross-in¬‚uences between and among the schools™ founders. Thus we
should not consider unlikely the report that when Abe Yesuf and Shaybanc met Malik,
they abandoned nearly one-third of the doctrine which they had elaborated in Kefa in
favor of Malik™s doctrine: Racc, IntiQAr al-FaqCr, 204. Despite the propagandist uses that
were made of this report, it can still be considered authentic in light of what we know
about interdoctrinal in¬‚uences.
46 Authority, continuity, and change in Islamic law
might be accepted if he knows sign language ( ya cqil al-ishAra). Ibn Surayj
(d. 306/918), a distinguished Sha¬cite and Ibn al-Qaqq™s professor, con-
ducted takhrCj on the basis of these two doctrines, with the result that
two contradictory opinions were accepted for this case: one that the
testimony is valid, the other that it is void.88 What is most interesting
about Ibn al-Qaqq™s report is that Ibn Surayj™s activity was deemed to
fall within the hermeneutical contours of the Sha¬cite school. He reports
Ibn Surayj to have reached these two solutions “according to Sha¬cc™s
way” ( fa-kharrajahA AbE al- cAbbAs Ibn Surayj calA madhhab al-ShA¬ cC calA
qawlayn).89 A similar attribution may be found in the case of the qAKC ™s
(un)equal treatment of the plainti¬ and defendant in his courtroom. Ibn
al-Qaqq reports that “the opinion of Sha¬cc is that the qAKC should not
allow one of the two parties to state his arguments before the court with-
out the other being present. Ibn Surayj produced this opinion by way
of takhrCj ” (qAlahu Ibn Surayj takhrCjan).90 Ibn Surayj™s takhrCj becomes
Sha¬cc™s authoritative opinion.
Drawing on Abe nancfa™s doctrine appears to have been a frequent
practice of Ibn Surayj.91 The former held, for instance, that if four wit-
nesses testify that an act of adultery took place, but all disagree as to the
precise location in the house in which the act took place, then the Madd
punishment should be in¬‚icted nonetheless. Admittedly, Abe nancfa™s
reasoning is dictated by istiMsAn,92 since qiyAs does not allow for the pen-
alty of Madd when doubt exists; rather it demands that the penalty only be
meted out when all witnesses agree on the speci¬c location in which the
act was said to have taken place. Now, in another case of adultery, the
authoritative doctrine of the Sha¬cite school held that if two witnesses
testify that a man had sexual intercourse with a consenting woman, and

Ibn al-Qaqq, Adab al-QAKC, I, 306. 89 Ibid.
Ibid., I, 214. See also Subkc, TabaqAt, II, 94“95.
And on Shaybanc™s doctrine as well. It should not come as a surprise then that Ibn
Surayj, the most illustrious ¬gure of the Sha¬cite school after Sha¬ci himself, and the
one held responsible for the phenomenal success of Sha¬cism, should be remembered
in Sha¬c ite biographical literature as having elaborated his legal doctrine on the basis
of Shaybanc™s law and legal principles. In the very words of Shcrazc, Ibn Surayj “farra ca
ala kutub MuMammad ibn al-Nasan,” i.e., he derived positive legal rulings on the basis
of Shaybanc™s doctrine. It is perhaps because of this that the later Sha¬cites expressed
some reservations about the nature of Ibn Surayj™s doctrines. One of the oft-quoted
utterances is that made by Abe namid al-Isfara™cnc who said that “we go along with
Abe al-cAbbas [Ibn Surayj] on doctrine generally, but not on matters of speci¬cs”
(naMnu najrC ma c AbC al- cAbbAs f C UawAhir al-¬qh dEna al-daqA”iq). See Shcrazc, TabaqAt,
109; Ibn Qakc Shuhba, TabaqAt, I, 49.
On istiMsAn, see Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge:
Cambridge University Press, 1997), 107“11, and passim.
Early ijtihad and the later construction of authority 47
two other witnesses attest that he raped her, then he would not be deemed
liable to the death penalty dictated by MudEd. Following the principles
of takhrCj as outlined above, Ibn Surayj transferred the legal norm in the
nana¬te case to the Sha¬cite one, the result being that if doubt exists as
to whether sexual intercourse occurred as rape or by mutual consent, the
man should su¬er capital punishment regardless.93
Ibn al-Qaqq too exercised takhrCj, harvesting for his school the fruits
cultivated by the nana¬tes and other jurists, including Shaybanc and
Malik.94 His takhrCj is more often than not based on Sha¬cc™s doctrine
along with nana¬te opinion, but he frequently relies on Abe nancfa™s
opinions exclusively95 and comes up with derivative opinions that he
and his successors considered to be of Sha¬cite pedigree. This practice of
borrowing from the doctrinal tradition of another school and attributing
the con¬scated opinion to one™s own school and its founder was by no
means limited to the Sha¬cites. It is not uncommon, for instance, to
¬nd nanbalite opinions that have been derived through takhrCj from
exclusively nana¬te, Malikite, and/or other sources.96 But if the activity
of takhrCj routinely involved dipping into the doctrinal reservoir of other
schools, the Sha¬cites could be considered the prime innovators, for, as
tef c testi¬es, they were particularly given to this activity.97
But the nana¬tes were not far behind. Earlier in this chapter, we dis-
cussed in passing the ¬rst level of the hierarchical taxonomy of nana¬te
legal doctrine. In this taxonomy, there exist three levels of doctrine,
each level consisting of one or more categories. The highest level of
authoritative doctrine, known as UAhir al-riwAya or masA ”il al-uQEl, is
found in the works of the three early masters, Abe nancfa, Abe Yesuf,

Sayf al-Dcn Abe Bakr Mumammad al-Qa¬al al-Shashc, Nulyat al- cUlamA ” f C Ma crifat

MadhAhib al-FuqahA ”, ed. Yascn Dararka, 8 vols. (Amman: Dar al-Bazz, 1988), VIII,
Ibn al-Qaqq, Adab al-QAKC, I, 105, 106, 109“10, 112, 114, 136, 146, 195, 198, 213,
251, 253“54, 255; II, 359, 423, and passim. See also nn. 84“87, above.
Ibid., I, 112, 213; II, 359, 420, 447, and passim. See, for instance, ibid., I, 251; II, 417,
for exclusive reliance on Abe nancfa and his two students.
96 c
Ala™ al-Dcn cAlc b. Mumammad b. cAbbas al-Baclc, al-IkhtiyArAt al-Fiqhiyya min FatAwA
Shaykh al-IslAm Ibn Taymiyya (Beirut: Dar al-Fikr, 1369/1949), 15. Ibn al-Mundhir
(d. 318/930) is frequently cited in nanbalite works as an authority, although he
was not a nanbalite. In fact, he was said by biographers to have been an independent
mujtahid, although he is also said to have been a distinguished member of the Sha¬cite
school and heavily involved in takhrCj according to Sha¬cism. On Ibn al-Mundhir,
see Nawawc, al-MajmE c, I, 72; Subkc, TabaqAt, II, 126“29.
tef c, SharM MukhtaQar al-RawKa, III, 642. tef c ™s explanation is that Sha¬cc™s doctrine,

having often included more than one opinion for each case, gave rise to a rich activity
of takhrCj.
48 Authority, continuity, and change in Islamic law
and Shaybanc.98 What gives these works the authority they enjoy is the
perception that they were transmitted through a large number of channels
by trustworthy and highly quali¬ed jurists. A marginal number of cases
belonging to this category of doctrine are attributed to Zufar and
al-nasan b. Ziyad. The second level is termed masA”il al-nawAdir, a body
of doctrine also attributed to the three masters but without the sanction-
ing authority either of highly quali¬ed transmitters or a large number
of channels of transmission.99 The third level consists of what is termed
wAqi cAt or nawAzil, cases that were not addressed by the early masters
and that were solved by later jurists. These cases were new and the
jurists who were “asked about them” and who provided solutions for
them “were many.”100 Of particular signi¬cance here is the fact that the
great majority of these cases were solved by means of takhrCj.101 Among
the names associated with this category of nana¬te doctrine are cIqam
b. Yesuf (d. 210/825), Ibrahcm Ibn Rustam (d. 211/826), Mumammad
b. Samaca (d. 233/848), Abe Sulayman al-Jezajanc (d. after 200/815),
Ammad Abe nafq al-Bukharc (d. 217/832), Mumammad b. Salama
(d. 278/891), Mumammad b. Muqatil (d. 248/862 ?), Naqcr b. Yamya
(d. 268/881), and al-Qasim b. Sallam (d. 223/837).102
That takhrCj was extensively practiced over the course of several
centuries is a fact con¬rmed by the activities and writings of jurists
who ¬‚ourished as late as the seventh/thirteenth century.103 Although the

The works embodying the doctrines of the three masters are six, all compiled by
Shaybanc. They are al-MabsES, al-ZiyAdAt, al-JAmi c al-KabCr, al-JAmi c al-RaghCr, al-Siyar
al-KabCr, and al-Siyar al-RaghCr. See Ibn cfbidcn, NAshiya, I, 69. However, in his SharM
al-ManUEma, 17“18, Ibn cfbidcn introduces Ibn Kamal™s distinction between UAhir
al-riwAya and masA ”il al-uQEl, a distinction which he draws in turn on Sarakhsc™s di¬er-
entiation. The former, according to Ibn Kamal, is limited to the six works enumerated.
The latter, on the other hand, may include cases belonging to nawAdir, which con-
stitutes the second category of doctrine.
These works include Shaybanc™s KCsAniyyAt, HArEniyyAt, and JurjAniyyAt; Ibn Ziyad™s
MuMarrar; and Abe Yesuf ™s KitAb al-AmAlC.
Ibn cfbidcn, NAshiya, I, 69. See also najjc Khalcfa, Kashf al-VunEn can AsAmC al-Kutub

wal-FunEn, 2 vols. (Istanbul: Masbacat Wakalat al-Macarif al-Jalcla, 1941“ 43), II, 1281.
Ibn cfbidcn, NAshiya, I, 50; Ibn cfbidcn, SharM al-ManUEma, 25; Shah Walc Allah, cIqd

al-JCd, 19.
Ibn cfbidcn, NAshiya, I, 69.

Ibn Abc al-cIzz al-nanaf c, al-IttibA c, ed. Mumammad cAsa™ Allah nancf and cfqim

al-Qaryesc (Amman: n.p., 1405/1984), 62. For a general history of takhrCj “ to be used
with caution “ see Yacqeb b. cAbd al-Wahhab Bamusayn, al-TakhrCj cInda al-FuqahA ”
wal-UQEliyyCn (Riyadh: Maktabat al-Rushd, 1414/1993). Ibn al-ralam, who died in
643/1245, asserts that the practice of takhrCj, when an already established opinion is
nowhere to be found, “has been prevalent for ages” ( yajEzu lil-muftC al-muntasib an
yuftC f C-mA lA yajiduhu min aMkAmC al-waqA ”i ci manQEQan calayhi li-ImAmihi bi-mA
yukharrijuhu calA madhhabihi, wa-hAdhA huwa al-QaMCM al-ladhC calayhi al- camal wa-
ilayhi mafza c al-muftCn min mudadin madCda.” See his Adab al-MuftC, 96.
Early ijtihad and the later construction of authority 49
activity itself was known as takhrCj, its practitioners in the Sha¬cite
school became known as aQMAb al-wujEh.104 In the nana¬te, Malikite, and
nanbalite schools, however, the designation aQMAb al-takhrCj persisted,
as attested in the terminological usages of biographical dictionaries and
law manuals. In addition to the names we have already discussed, the
following is a list of jurists who are described in these dictionaries as
having seriously engaged in takhrCj:
1. The Sha¬cite Ibrahcm al-Muzanc, whose takhrCj was so extensive that the
later Sha¬cite jurists distinguished between those of his opinions that con-
formed to the school™s hermeneutic (and were thus accepted as an important
part of the school™s doctrine), and those that did not.105 These latter, how-
ever, were still signi¬cant enough to be considered by some jurists su¬cient,
on their own, to form the basis of an independent madhhab.106
2. cAlc Ibn al-nusayn Ibn narbawayh (d. 319/931), claimed by the Sha¬cites,
but a student of Abe Thawr and Dawed Ibn Khalaf al-vahirc.107
3. Mumammad b. al-Mufakkal Abe al-tayyib al-labbc (d. 308/920), a student
of Ibn Surayj and a distinguished Sha¬cite.108
4. Abe Saccd al-Iqsakhrc (d. 328/939), a major jurist of aQMAb al-wujEh.109
5. Zakariyya b. Ammad Abe Yamya al-Balkhc (d. 330/941), “one of the distin-
guished Sha¬cites and of the aQMAb al-wujEh.”110
6. The nanbalite cUmar b. al-nusayn al-Khiraqc (d. 334/945), who engaged
extensively in takhrCj but whose writings containing his most creative reason-
ing were destroyed when his house was reportedly consumed by ¬re.111 His
MukhtaQar, however, which survived him long enough to have an in¬‚uence,
contained many cases of his takhrCj which he nonetheless attributed to Ibn
7. The Sha¬cite cAlc b. nusayn Abe al-nasan al-Jerc (d. ca. 330/941), con-
sidered one of the aQMAb al-wujEh.113
8. vahir al-Sarakhsc (d. 389/998), a major Sha¬cite jurist. Yet, despite being
one of the aQMAb wujEh, little of his doctrine, according to Nawawc, was

Ibn al-ralam, Adab al-MuftC, 97.
Mumyc al-Dcn Sharaf al-Dcn b. Yamya al-Nawawc, TahdhCb al-AsmA ” wal-LughAt,

3 vols. (Cairo: Idarat al-Tibaca al-Muncriyya, 1927), I, 285; Ibn Qakc Shuhba,
TabaqAt, I, 8; Subkc, TabaqAt, I, 243“ 44.
Nawawc, TahdhCb, I, 285; Ibn Qakc Shuhba, TabaqAt, I, 8.

Subkc, TabaqAt, II, 301“02. 108 Ibn Qakc Shuhba, TabaqAt, I, 66.
Ibid., I, 75. 110 Ibid., I, 76.
Ismaccl b. cUmar Ibn Kathcr, al-BidAya wal-NihAya, 14 vols. (Beirut: Dar al-Kutub

al-cIlmiyya, 1985“88), XI, 228.
See the editor™s introduction to Shams al-Dcn Mumammad b. cAbd Allah al-Miqrc
al-Zarkashc, SharM al-ZarkashC calA MukhtaQar al-KhiraqC, ed. cAbd Allah b. cAbd
al-Ramman al-Jabrcn, 7 vols. (Riyadh: Maktabat al-cUbaykan, 1413/1993), I, 47“48.
Subkc, TabaqAt, II, 307. 114 Nawawc, TahdhCb, I, 192.
50 Authority, continuity, and change in Islamic law
9. The nana¬te Abe cAbd Allah Mumammad b. Yamya b. Mahdc al-Jurjanc
(d. 398/1007), the teacher of Quderc and Nasif c, who was deemed one of
the aQMAb al-takhrCj.115
10. cAbd Allah b. Mumammad al-Khawarizmc (d. 398/1007), one of the aQMAb
al-wujEh and considered a leading jurist of the Sha¬cite school.116
11. Yesuf b. Ammad Ibn Kajj (d. 405/1014), a prominent Sha¬cite jurist who
is considered one of the most exacting of the aQMAb al-wujEh (min aQMAb
al-wujEh al-mutqinCn).117
12. cAbd al-Ramman Mumammad al-Feranc Abe al-Qasim al-Marwazc (d. 461/
1068), who is described as having articulated “good wujEh” in the Sha¬cite
madhhab (wa-lahu wujEh jayyida f C al-madhhab).118
13. Al-Qakc nusayn b. Mumammad al-Marwazc (d. 462/1069), a major ¬gure in
the Sha¬cite school and one of the aQMAb al-wujEh.119
14. cAbd al-Ramman Ibn Bassa al-Fayrazan (d. 470/1077), a nanbalite jurist
who is described as having engaged in takhrCj in a variety of ways (kharraja
al-takhArCj ).120
15. Abe Naqr Mumammad Ibn al-rabbagh (d. 477/1084), considered by some as
an absolute mujtahid and a towering ¬gure of the aQMAb al-wujEh in the
Sha¬cite school.121
16. The Malikite Abe tahir b. Bashcr al-Tanekhc (d. after 526/1131), whose
takhrCj was said by Ibn Daqcq al-chd to be methodologically de¬cient.122
17. The famous nana¬te jurist and author Burhan al-Dcn al-Marghcnanc
(d. 593/1196), the author of the famous al-HidAya and one of the aQMAb
The biographical works took special notice not only of those who
engaged in takhrCj, but also of those who specialized in or made it their
concern to study and transmit the doctrines and legal opinions derived
through this particular juristic activity. We thus ¬nd that Ammad b. cAlc
al-Aranc (d. 643/1245), a distinguished Sha¬cite, excelled in the transmis-
sion of the wujEh that had been elaborated in his school.124 Similarly, the
biographers describe the Sha¬cite cUthman b. cAbd al-Ramman al-Naqrc
(d. 643/1245) as having had penetrating knowledge (baQCran) of the
doctrines elaborated through takhrCj.125
tefc™s remark that the Sha¬cites engaged in takhrCj more than did the
other schools is con¬rmed by our general survey of biographical works. In
Ibn Qakc Shuhba™s TabaqAt, for instance, there appear some two dozen
major jurists who engaged in this activity, only a few of whom we have
Laknawc, al-FawA”id al-Bahiyya, 202.
Ibn Qakc Shuhba, TabaqAt, I, 144. 117 Ibid., I, 197. 118 Ibid., I, 266“67.
Nawawc, TahdhCb, I, 164“65. 120 Ibn Rajab, Dhayl, I, 26“27.
Ibn Qakc Shuhba, TabaqAt, I, 269“70. 122 Ibn Farmen, DCbAj, 87.

Ibn cfbidcn, SharM al-ManUEma, 49; Qurashc, al-JawAhir al-MuKC ”a, II, 559.

Ibn Qakc Shuhba, TabaqAt, II, 125. 125 Ibid., II, 145.
Early ijtihad and the later construction of authority 51
listed above.126 Our survey of the biographical dictionaries of the four
schools also shows that the Sha¬cites and nanbalites could each boast a
larger number of jurists who engaged in this activity than the other two
schools combined.127 On the other hand, of all four schools, the Malikites
are said to have engaged in this activity the least.128
The Sha¬cite involvement in takhrCj seems to have reached its zenith
in the fourth/tenth and ¬fth/eleventh centuries, the last jurists associ-
ated with it, according to Ibn Abc al-Damm, having been Mamamilc
(d. 415/1024), Mawardc (d. 450/1058), and Abe al-tayyib al-tabarc
(d. 450/1058).129 But Ibn Abc al-Damm™s claim cannot be fully or even
substantially con¬rmed by data from either biographical dictionaries
or works of positive law. During the later centuries “ especially after
the fourth/tenth “ the activity in the Sha¬cite school continued, albeit
with somewhat diminished vigor.130 In the other schools, it also found
expression in later doctrines, as attested in the juristic production of two
towering nanbalite ¬gures, Ibn Qudama (d. 620/1223) and Taqc al-Dcn
Ibn Taymiyya (d. 728/1327),131 as well as in the writings of a number of
nana¬te and Malikite jurists.132

Ibid., I, 99“100 (Ibn Abc Hurayra), 149 (Mumammad b. al-nasan al-Astrabadhc),
152 (Mumammad Abe Bakr al-jdanc), 154 (Mumammad b. cAlc al-Masarujsc), 177
(Abe al-Qasim al-raymarc), 207 (al-nasan Abe cAlc al-Bandancjc), 221 (Mumammad
b. cAbd al-Malik al-Marwazc), 233 (al-nusayn b. Mumammad al-Qassan), 241 (Abe
al-nasan al-Mawardc), 262 (Abe al-Rabcc tahir b. cAbd Allah al-Turkc), 264“65 (Abe
Sacd al-Ncsaberc), 266“67 (cAbd al-Ramman al-Feranc al-Marwazc).
In addition to those listed by Ibn Qakc Shuhba (previous note), see Nawawc, TahdhCb,
I, 92“94, 113, 164, 238. For the nanbalites, see Zarkashc, SharM, I, 28 ¬.
This is the claim of Qaraf c. See Racc, IntiQAr al-FaqCr, 169. Qaraf c™s claim, it must be

noted, does ¬nd initial support in the sources, notably in Ibn Farmen™s DCbAj.
Ibrahcm b. cAbd Allah Ibn Abc al-Damm, Adab al-QaKA” aw al-Durar al-ManUEmAt fC
al-AqKiya wal-NukEmAt, ed. Mumammad cAsa™ (Beirut: Dar al-Kutub al-cIlmiyya,
1987), 40.
See, for example, Taqc al-Dcn cAlc al-Subkc, FatAwA al-SubkC, 2 vols. (Cairo: Maktabat
al-Qudsc, 1937), I, 324; II, 468, 525; Subkc, TabaqAt, VI, 186 ¬., 193. Sharaf al-Dcn
al-Nawawc, who died in 676/1277, is still speaking of takhrCj. See his al-MajmE c, I, 68.
See Nawawc, al-MajmE c, I, 68; Bamusayn, TakhrCj, 266 (quoted from Muwa¬aq al-Dcn
Ibn Qudama, al-MughnC, 12 vols. (Beirut: Dar al-Kitab al-cArabc, 1983), IX, 131);
tef c, SharM MukhtaQar al-RawKa, III, 628; Ibn al-ralam, Adab al-MuftC, 126, is still
speaking of takhrCj. So is cAlc b. Sulayman b. Mumammad al-Mirdawc, TaQMCM al-FurE c,
printed with Shams al-Dcn Mumammad Ibn Mu¬‚im, KitAb al-FurE c, ed. cAbd al-Sattar
Farraj, 6 vols. (Beirut: cflam al-Kutub, 1405/1985), I, 51.
Ala™ al-Dcn Abe Bakr Ibn Masced al-Kasanc, BadA”i c al-RanA”i c f C TartCb al-SharA”i c,
132 c

7 vols. (Beirut: Dar al-Kitab al-cArabc, 1982), I, 2, where he makes a preliminary
remark to the e¬ect that his book examines legal cases and the modes of their takhrCj
according to the principles and general precepts laid down presumably by the found-
ing fathers ( yataQa¬aM . . . aqsAm al-masA”il wa-fuQElahA wa-takhrCjahA calA qawA cidihA


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