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knowledge in the methods of linguistic inference.99
“Having said this,” Ibn Abc al-Damm continues, “you must know that
these qualities are rarely found in any of the jurists of our time. Indeed,
no absolute mujtahid exists nowadays in the entire universe.” This is so
despite the fact that learned people have compiled books about all sorts of
disciplines, ranging from the science of traditions and their transmission
to exegesis, law, and legal theory.
The early scholars have ¬lled the land with treatises which they authored
and designed, [an accomplishment] which rendered these sciences much
more accessible, and made it easier for the later jurists to learn law . . . Yet,
in none of the Islamic regions is there to be found an absolute mujtahid.
Indeed, there is not even any a¬liated mujtahid whose opinions can be
considered the result of takhrCj according to the doctrine of the Imam.100
This deplorable state of a¬airs, Ibn Abc al-Damm thought, was symp-
tomatic of a general deterioration in the ability of people to attain soph-
isticated kinds of knowledge. What is interesting here is the fact that he
saw this deterioration as an intentional act of God.101 Elsewhere, we have
shown the connection that was made between the perceived absence of
ijtihAd and this sense of deterioration, a belief that was eschatologically
required for the approaching Day of Judgment.102
Ibn Abc al-Damm provides a list of mujtahids who made distinguished
contributions to the Sha¬cite school, but the last of these lived in the ¬fth/
99
Ibn Abc al-Damm, Adab al-QaKA”, 36 “37. 100 Ibid., 37. 101 Ibid., 38.
102
W. B. Hallaq, “On the Origins of the Controversy about the Existence of Mujtahids
and the Gate of Ijtihad,” Studia Islamica, 63 (1986): 129“ 41.
82 Authority, continuity, and change in Islamic law
eleventh century. The achievements of the past, though highly admired
and appreciated by Ibn Abc al-Damm, cannot be replicated. In summing
up the matter, our author maintains, absolute and limited ijtihAd were
two requirements expected of the qAKC in earlier epochs when each region
in the Islamic world could boast a group of mujtahids ¬t to serve for
judgeship and iftA”. Given that “in our own times the world is devoid
of mujtahids, it should be asserted in a conclusive manner” that it is per-
missible to appoint a person who is characterised by:
(1) Knowledge of one of the madhhabs of the imams. That is to say, he should
have knowledge of the dominant views in his school (ghAlib madhhabihi ), of
the imam™s doctrines, and of the opinions deduced by takhrCj and of those
of his followers. He should have a good mind, natural intelligence, sound
thinking, and should memorize the madhhab. His sound judgment should
outweigh his errors, and he should be able to readily retrieve the masters™
opinions (mustaMKiran li-mA qAlahu a”immatuhu).
(2) Ability to deduce the signi¬cations of words from transmitted texts; to know
the methods of reasoning which permit him to conduct qiyAs; ¬nally, he
should be equipped with the methods of weighing textual indicants and their
systematic ordering. “He who possesses these qualities, no less, is ¬t, in these
times of ours, to be appointed to judgeship. The judicial decisions and
fatwAs of anyone who possesses these qualities should be deemed valid, for
these qualities are rare nowadays.”103
Ibn Abc al-Damm™s discourse presents us with a number of important
issues. In the second passage quoted above, his understanding of what
ijtihAd meant has in it a certain measure of ampli¬cation, perhaps even a
mythical dimension. The dominance of the madhhab, though not readily
obvious in this particular discussion of his, precludes in his mind the
presence of total, absolute ijtihAd, a type of juristic activity that belonged
to the founders who are inimitable. Even limited ijtihAd belonged to the
generations of the past. His age and the juristic activities in which he and
his contemporaries engaged were no match, he realized, for their counter-
parts in the past. His age, in other words, su¬ered from a decline that
is associated with eschatological concerns. Yet he who must qualify for
judgeship should be skillful in the art of legal reasoning which entails,
among other things, a certain degree of textual knowledge that permits
competent hermeneutical engagement. Since this activity amounts in
e¬ect to nothing less than ijtihAd, one begins to wonder about the textual
strategy devised by Ibn Abc al-Damm. For he, on the one hand, patently
argues that ijtihAd ceased to be a quality required of qAKCs, while, on the

103
Ibn Abc al-Damm, Adab al-QaKA”, 41.
The rise and augmentation of school authority 83
other hand, he insists that the qAKCs, said to be in e¬ect muqallids, must
engage in a juristic activity of the type that ijtihAd requires.104
The solution to this seeming contradiction lies in the relationship
between passages 1 and 2 above. Ibn Abc al-Damm has in e¬ect said noth-
ing that his immediate predecessors and successors have not said: IjtihAd
is always welcome if it can be attained, but following the madhhab™s
doctrines comes ¬rst in order of importance. This is precisely why his
discussion in passage 1 wholly pertains to knowledge of the masters™
doctrines and the ability to retrieve it readily. And although the number-
ing of the passages is arti¬cial (being my own) the order and logical pro-
gression of the discussion remains entirely faithful to Ibn Abc al-Damm™s
mode of presentation. The madhhab and the doctrines of which it consists
is the immediate occupation of the qAKC; thereafter, and as a secondary
stage, comes direct hermeneutical engagement with the law. Ibn Abc
al-Damm™s discourse is therefore an assertion of the authority of the
established madhhab, with all that this meant and consequently entailed
in terms of an intellectual manipulation of the law and legal reasoning.
The second and ¬nal step in the transition to taqlCd was largely a matter
of articulating, in more conscious terms, the relationship of the pre-
requisites of ijtihAd and taqlCd. The Malikite Ibn Farmen (d. 799/1396)
opens his discussion of this topic by stating that the majority of jurists
held that if the qAKC attained the rank of ijtihAd, then he must follow
the authority of no one. Indeed, this had become a fundamental tenet,
shared by all jurists of the four schools and dictated by the permanence
of the notion that new problems and cases will continue to befall the
Muslim community and that as long as these problems remain unsolved,
the duty imposed upon the community of Muslims will not be con-
sidered disposed.105
Having made this brief statement concerning ijtihAd, Ibn Farmen
immediately moves on to a lengthy discussion of the “qAKC who does not
belong to the folk of ijtihAd.” Here, he quotes Mazarc (d. 536/1141):
The question [that a qAKC should be a mujtahid ] has been discussed by the
scholars of the past, when knowledge during their era was abundant and
widespread, and when many of them were preoccupied with deducing legal
norms and with disputation according to the [principles of the] schools.
But in our own age, in the entire expanse of the [Islamic] domains, there is
no jurist who has reached a level of intellectual re¬‚ection enabling him to

104
It will be noted that on the interpretation of this passage, I disagree with Sherman
Jackson, Islamic Law and the State, 157“59.
105
Ibn al-ralam, Adab al-MuftC, 95“96.
84 Authority, continuity, and change in Islamic law
attain the rank of ijtihAd, a jurist who has expert knowledge of legal theory,
of language, traditions [etc.] . . . The Maghreb in this age of ours is entirely
devoid of such quali¬cations . . . Therefore, forbidding in these times the
appointment of a muqallid“judge would lead to the paralysis of the law
and would cause chaos, sedition, and strife. And there is no place for these
[things] in the law.106
The qAKC“muqallid, Ibn Farmen maintains, is then obliged to seek
counsel and to follow the school™s masters through taqlCd. As a muqallid,
he should adopt those opinions that seem to him, after investigation, the
most sound. On the authority of Mazarc, Ibn Farmen advances the view
that it is the mashhEr (widespread) opinion that the qAKC“muqallid should
follow.107 If he seeks counsel, he should, again after search and enquiry,
ask the most learned. It is signi¬cant that “the most learned” no longer
meant a jurist capable of ijtihAd, for in keeping with the development
that culminated in the concession to allow a muqallid to function as a
jurisconsult, the most learned could now be a muqallid, a view which
Ibn Farmen adopts from Mazarc.108 This secondary development stands in
sharp contrast to the earlier requirement that a muftC must be a mujtahid.
Thus, when a di¬cult case presented itself to the qaKC“muqallid, he had
now to seek the counsel of a muftC“muqallid who was obliged in turn to
render an opinion deemed, by the judgment of the school, authoritative;
and this was the mashhEr opinion.109
The functions of qaKA” and iftA” thus underwent a well-nigh identical
process of transformation from ijtihAd to taqlCd. The culmination of this
process is best summarized by Bacalawc (¬‚. around 1245/1830) who, with
full approval, quotes one of Bafaqch™s fatwAs:
Neither the judge nor the jurisconsult should swerve from the imam™s
doctrine, for [if a judge rules] according to any other doctrine, his deci-
sion will be revoked (yunqaK ). Ibn al-ralam reported that a consensus
has been reached to the e¬ect that no judgment should diverge from the
madhhab. And this view was adopted by the later jurists (wa-i ctamadahu
al-muta”akhkhirEn) . . . It is well known that the madhhab is a trans-
mitted doctrine by which the muqallids are bound and outside of which
they cannot traverse. It is for this reason that no qAKC or muftC can forgo
the doctrines preponderated (murajjaM) by the two Shaykhs, Nawawc
and Ra¬cc.110

106
Ibn Farmen, TabQirat al-NukkAm, I, 18“19.
107
Ibid., I, 45, 51. On the mashhEr, see chapter 5, section V, below.
108
Ibn Farmen, TabQirat al-NukkAm, I, 29.
Ibid., I, 18, 53 (on the authority of Shihab al-Dcn al-Qaraf c).
109
110
Bacalawc, Bughyat al-MustarshidCn, 274.
The rise and augmentation of school authority 85
Considered to have pinned down the authoritative doctrine of the
Sha¬cite school, Nawawc and Ra¬cc™s magisterial compilations become
now the ¬nal frame of reference for both the qAKC and the muftC.
Similarly, each of the other three schools came to adopt certain works as
embodying their authoritative doctrine, considered equally binding upon
both the muftC and the qAKC.

V
In conclusion, it cannot be overemphasized that the transition from
ijtihAd to taqlCd that we have surveyed here had little to do with the actual
credentials and achievements of the jurists, and still less with the percep-
tion of the declining glory of Islam, properly so-called fasAd al-zamAn.111
It is quite instructive (though in no way ironic) that Mazarc, who un-
equivocally argued that no jurist of his time could attain the rank of
ijtihAd, was himself considered a mujtahid. And it is even more instructive
for our purposes that he was at the same time considered exemplary in
having never issued a fatwA that departed from the mashhEr doctrine
of his school.112 The transition, therefore, represented a development
in the growth of legal authority, a development, I wish to claim, that was
ineluctable. The process through which taqlCd came to dominate was not
a causal phenomenon, but rather symptomatic of a more fundamental
and monumental event, namely, the rise and ¬nal coming to maturity of
the madhhab. TaqlCd, therefore, was an external expression of the internal
dynamics that came to dominate and characterize the madhhab as both a
doctrinal entity and a hermeneutical engagement “ dynamics that will be
taken up in detail in the next chapter. The construction of what came to
be the imam™s authority, the dramatic reduction and narrowing down
of the independent ijtihAdic possibilities of the third/ninth and fourth/
tenth centuries, and the ¬nal rise of taqlCd as an expression of loyalty to
the schools are phenomena that share one common denominator: the
centrifugal polarization of authority without which no law can exist. The
madhhab was the very embodiment of this authority.

111
An issue raised by Ibn Abc al-Damm, as we have seen above. See also Hallaq, “The
Origins of the Controversy,” 136 ¬. In this context, it should be mentioned that our
¬ndings here constitute in part a revision of the ¬ndings in this article.
112
Ibn Farmen, TabQirat al-NukkAm, I, 51.
86 Authority, continuity, and change in Islamic law

4

TAQLHD: AUTHORITY, HERMENEUTICS,
AND FUNCTION




I
As a term denoting the acceptance of legal authority, taqlCd has had a
complex history. During the second/eighth century, it generally meant
the acceptance of the Companions™ legal teachings as well as those of
the Followers (tAbi cEn) who had attained a ripe age during the time of the
Companions.1 Later on, the term™s connotation underwent change, and
acquired the meaning of following the authority of a mujtahid, whether
or not he was the founder of a school. However, this general sense of
the term, which was to remain fairly constant throughout the centuries,
carried with it at least one major ambiguity. On the one hand, it was used
in the sense of following the mujtahid ™s authority without questioning
either his textual evidence or the line of reasoning he adopted in a particu-
lar case. In this sense, the term was also applicable to the act of following
the totality of the founder™s legal doctrines as a methodologically system-
atic structure, without the muqallid being bound by all the individual
opinions within the corpus of those doctrines. nana¬te muqallids, for
example, were never bound by all of Abe nancfa™s opinions, whether
or not they were genuinely his, and regularly drew on the doctrines of
several authorities a¬liated with the school. On the other hand, the
term was also employed to indicate loyalty to a legal doctrine but with
full knowledge, on the part of the muqallid, of the means by which this
doctrine was derived. Generally speaking, uQEl al-¬qh works employed the
term in the ¬rst sense, and regarded taqlCd as almost exclusively the pro-
vince of the layman.2 This phenomenon may be explained by the fact
1
See Abe Bakr Ammad b. cUmar al-Khaqqaf ™s KitAb Adab al-QAKC in Ibn Maza, SharM
Adab al-QAKC, 18; Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford:
Clarendon Press, 1950), 18, 32.
2
Ibn al-najib, MukhtaQar, 140“41; Ibn Qudama, RawKat al-NAUir, 343“ 45; Fakhr
al-Dcn al-Razc, al-MaMQEl f C cIlm al-UQEl, 2 vols. (Beirut: Dar al-Kutub al-cIlmiyya,
1408/1988), II, 527 ¬. See also nassab, MawAhib al-JalCl, I, 30.

86
Taqlcd: authority, hermeneutics, and function 87
that the discourse of uQEl was in part preoccupied with laying down an
ijtihAd ic methodology in which there is no room for taqlCd among the
jurists targeted by this discourse.3 When this type of taqlCd is predicated
of a professional jurist, it carries a sense of scorn and condemnation.
The many treatises, tracts, and chapters entitled f C dhamm al-taqlCd (in
condemnation of taqlCd ) were directed at such jurist“muqallids and were
common to all times and all legal schools.4
The second type of taqlCd is seen to operate more in connection with
loyalty to the school and within the context of the bindingness of author-
itative legal doctrines.5 In Ibn Rushd™s and Ibn al-ralam™s typologies, this
taqlCd is associated with all but the lowest levels, i.e. groups 2 and 3 in
the former™s classi¬cation, and types 1“4 (of category 2) in the latter™s.6
In Ibn Kamal™s scheme, it is explicitly associated with ranks 4“6.7 Only
Ibn Rushd™s ¬rst group, Ibn al-ralam™s ¬fth type, and Ibn Kamal™s seventh
rank are associated with the ¬rst sort of taqlCd, i.e., the one that came to
be condemned in certain quarters.
Synchronically and diachronically, taqlCd was regularly practiced in both
senses of the term. Which of the two senses was intended when the term
was used depended on the context and frame of reference. Ambiguities no

3
This also explains why the jurist“muqallid is not discussed in uQEl al-¬qh works. See the
sources cited in previous note.
Especially the Malikites, nanbalites, and Sha¬cites, and to a lesser degree the nana¬tes.
4

See cAbd al-Wahhab b. cAlc Ibn Naqr al-Malikc, al-Muqaddima f C al-UQEl, printed with
Alc b. cUmar Ibn al-Qaqqar, al-Muqaddima f C al-UQEl, ed. Mumammad al-Sulaymanc
c

(Beirut: Dar al-Gharb al-Islamc, 1996), 300 ¬.; Abe al-Wafa™ Mumammad Ibn
c
Aqcl, KitAb al-FunEn, ed. George Makdisi, 2 vols. (Beirut: Dar al-Mashriq, 1970“71),
II, 602“10; Ibn Qayyim al-Jawziyya, I clAm al-Muwaqqi cCn, II, 168“260; Muzanc,
MukhtaQar, IX, 3; Suyesc, al-Radd, 196, 117, 120, where he mentions a number of
prominent jurists who wrote in condemnation of taqlCd, including Muzanc, Zarkashc,
Ibn nazm, Ibn cAbd al-Barr, Ibn Abc Shama, Ibn Qayyim al-Jawziyya, al-Majd al-
Shcrazc, and the Sha¬cite jurist Ibn Daqcq al-chd, who wrote a treatise titled al-TasdCd f C
Dhamm al-TaqlCd.
In his JAmi c BayAn al- cIlm wa-FaKlihi wa-mA YanbaghC f C RiwAyatihi wa-Namlihi,
2 vols. (Cairo: Idarat al-tibaca al-Muncriyya, n.d.), II, 109“19, Ibn cAbd al-Barr
(d. 463/1070) adduces in condemnation of taqlCd a number of Quranic verses and
Prophetic traditions, and claims the existence of a consensus among all jurists as to its
invalidity. He seems to draw a distinction between taqlCd and ittibA c. For the jurist, the
former is forbidden, whereas the latter is permitted. “If evidence obliges you to follow
someone™s opinion, then you are a follower of his (muttabi cEhu), for [this kind of ]
following (ittibA c ) is permitted in religious matters, but taqlCd is forbidden” (p. 117).
TaqlCd, he continues, is adopting an opinion without knowledge, which is the opposite
of ittibA c. See also Suyesc, al-Radd, 120“22.
See nassab, MawAhib al-JalCl, I, 30“31, 37, on the authority of Malikite and Sha¬cite
5

jurists, including Ghazalc and Ibn al-ralam.
6
See our discussion in chapter 1, sections II“III, above.
7
See chapter 1, section IV, above.
88 Authority, continuity, and change in Islamic law
doubt persisted, which explains why some later jurists attempted to dis-
ambiguate the usage by resorting to the term ittibA c (lit. following) to
denote the second sense of the term, where the muqallid accepts the
authority of the mujtahid, not blindly, but with adequate “ if not full “
understanding of the latter™s evidence and reasoning, and out of juristic
loyalty to him.8

II
If the spectrum of taqlCd encompassed these two extremes of juristic
competence in the school™s doctrines, then muqallids as well as mujtahids
(even of Malik™s and Sha¬cc™s caliber) partook in it. This chapter seeks to
demonstrate the dynamics of taqlCd, which, as we shall see, may at times
border on the juristic activity associated with ijtihAd, and yet at others
constitutes nothing more than the mere reproduction of the predecessors™
doctrine. But in the majority of cases, the activity of taqlCd may be located
between these two extremes. At both ends of the spectrum, and at each
point in between, taqlCd represented a juristic function and was dictated
by a purpose. In the context of a single case or legal doctrine, it could
function at one or more levels of meaning, thus bestowing on the case
or doctrine a texture that was horizontally multi-layered and vertically
composite. In the pages of the average juristic text or law manual, the
author“jurist inevitably indulges in every variety of taqlCd, ranging from
simple restatement of authority to quasi-ijtihAd of a sort.
Let us illustrate. In the chapter dealing with damages in the contrac-
tual obligations of hire, the Malikite jurist nassab records the following
opinion:
In his Turar, he [Ibn cft]9 said that in Ibn Lubaba™s Mu” llafa10 [it is stated
a
that] if the [hired] shepherd wounds the goats once, twice and thrice, and
the owner does not hold him responsible for damages, [showing this] by
remaining silent and by being content with him, he [the owner] has no
right to hold him liable to damages should he wound a goat thereafter.11
This statement consists of straightforward reproduction of a doctrine re-
ported by a jurist on the authority of yet another jurist. nassab records it
in the context of a discussion about a variety of types of hire contract

Ibn Qayyim al-Jawziyya, I clAm al-Muwaqqi cCn, II, 171, 178 ¬.; Suyesc, al-Radd, 120“
8

22; Ibn Naqr, Muqaddima, 302.
Ammad b. Haren b. Ammad b. Jacfar Ibn cft al-Shasibc (d. 609/1212).
9
10
Mumammad Abe cAbd Allah b. cUmar Ibn Lubaba al-Qursubc (d. 314/926).
nassab, MawAhib al-JalCl, V, 430.
11
Taqlcd: authority, hermeneutics, and function 89
which may result in damage claims. He o¬ers neither commentary on,
nor direct explanation of, the rationale behind it. However, there is little
reason to doubt nassab™s understanding of both the relevance and nature
of Ibn Lubaba™s opinion, for he quotes it, along with dozens of other
opinions, to elaborate the principles involved in damages pertaining to
such contracts.
The very fact that an opinion is introduced in a highly speci¬c context
indicates the reason for which it was introduced in that particular context.
In other words, one can safely assume that whenever an opinion is cited,
the rationale behind it would have been known, and thus it constitutes
either an illustration or an application of a principle. However, principles
are rarely, if ever, articulated. They appear for the most part to have been
taken for granted, thereby rendering their explication unnecessary.12 This
absence constitutes a salient feature of Islamic legal discourse, especially
in treatises written prior to the ¬fth/eleventh century. As an example,
consider the following question addressed to Ibn Rushd:
A judge borrowed from the revenues of mosque endowments (aMbAs) in
order to build platforms (maQASib) around the grand mosque, although
he had knowledge that the revenues of the grand mosque would not have
the surplus [needed] to pay back the debt. Should he be held liable for
damages or not?
Answer: He is not to be held liable for damages.13
Although Ibn Rushd™s answer does not explicitly cite another™s opinion,
he is implicitly basing himself on an authoritative Andalusian“Malikite
principle to the e¬ect that the surplus of endowments may be spent on
other endowments when the latter are in the red. Ibn Rushd functions
here as a muqallid, but not without understanding the signi¬cance of the
case in question and its relation to the principle of which the case is only
an instance of its application.
nassab™s and Ibn Rushd™s examples provide two illustrations only of a
large body of cases and opinions which are cited as instances of applica-
tions of certain principles without articulation of these latter. It is di¬cult
to explain why this is so,14 but it seems that shorter works tend to avoid
any explication of the cases or opinions, just as they are silent on the
principles from which they were derived or of which they are instances
12
Later on in this chapter, we shall qualify this generalization with regard to later works
which exhibited a certain tendency to articulate principles. See section IV, below.
13
Ibn Rushd, FatAwA, III, 1268.
14
See section IV, below, where a partial explanation is attempted. See also Baber
Johansen, “Casuistry: Between Legal Concept and Social Praxis,” Islamic Law and Soci-
ety, 2, 2 (1995), 154“56.
90 Authority, continuity, and change in Islamic law
of application.15 At times, we ¬nd this to be the case even in longer
works, which suggests to us that certain of these principles were deemed
so obvious and so little in need of explanation that they were taken for
granted. The majority of principles, however, were not explicitly stated
because they apparently could not be captured in an adequately concise
manner. Instead, in order to convey the full implications of these prin-
ciples, the range of, and exceptions to, their application, they were com-
monly illustrated through cases, or types of cases.
Be that as it may, principles which do not admit of exceptions underlie
the cases and opinions, whether they are explicitly articulated or assumed.
In fact, the cases and opinions are most often cited, not for their own
sake, but rather as illustrations of the principle and/or of its application.
True, they are intended to provide examples for solving future problems,
but this remains secondary to their function as practical examples of a
principle™s application. This striving to elucidate the principles often
appears to be the desideratum of juristic discourse in works of positive
law. Even in such a condensed work as the MukhtaQar of the nana¬te
tamawc, this is clearly the case. Consider the following example:
Concerning a rented house whose owner has sold it [to other than the
tenant] before the end of the lease, Abe nancfa and Mumammad [b. nasan
al-Shaybanc] said: the tenant has the right to bar the buyer from purchasing
it and to nullify the sale. If the tenant does nullify the sale [before the end
of the lease], then the sale becomes irrevocably void. However, if he does
not do so and the lease period expires, then the sale remains in e¬ect. This
is the old opinion of Abe Yesuf.
Those who wrote down Abe Yesuf ™s views (aQMAb al-imlA”)16 related that
[later] he held the opinion that the tenant has no right to nullify the sale,
and that renting the house is tantamount to its having a defect (cayb) in it.
If the buyer is aware of the defect [i.e., the lease], then the owner will not
be liable, and the former has the right to possess the property after the lease
period has expired. If he was not aware of the defect, he has the option
(khiyAr) either to cancel the sale due to the defect which he later found, or
to accept it.
Mumammad reported that Abe nancfa held the view that the tenant
has no right to void the sale of the house, but if he allows the sale to go into
e¬ect, then the remaining period of his lease would be canceled.

15
Some authors explicitly admit that their works do not permit the exploration of
principles, lines of reasoning, etc. See, e.g. Ibn Ghanim b. Mumammad al-Baghdadc,
Majma c al-LamAnAt (Cairo: al-Masbaca al-Khayriyya, 1308/1890), 3.
That is, students who copied down Abe Yesuf ™s lectures. See Ibn cfbidcn, SharM
16

al-ManUEma, 17, where he remarks that the Sha¬cites call this type of imlA ” a ta clCqa.
On the ta clCqa, see Makdisi, Rise, 114“21, 126“27.
Taqlcd: authority, hermeneutics, and function 91
Abe nancfa™s ¬rst opinion was reported by persons other than
Mumammad. Those who recorded the views of Abe Yesuf reported this
opinion from him on the authority of Abe nancfa. Among them is Kaysanc
who reported it to us from his father, from Abe Yesuf, from Abe nancfa
himself. It is more in line with Abe nancfa™s doctrines and principles
(uQEl ) which he [Abe Yesuf ] did not dispute.17
In dealing with the sale of a rented residential property, tamawc ¬nds him-
self here compelled to discuss three di¬erent opinions within the school,
each of them enjoying varying weight since they were held or reported
by the three early masters, Abe nancfa, Abe Yesuf, and Shaybanc. The
¬rst paragraph above states what tamawc seems to have considered the
main tradition in the school “ at least the one behind which he intends
to throw his full support. In the second, tamawc introduces a competing
opinion, held by Abe Yesuf. In the third, a contradictory opinion is
attributed by Shaybanc to Abe nancfa, but an opinion that contradicts
the latter™s position cited in the ¬rst paragraph. In the fourth paragraph,
tamawc neutralizes Shaybanc as a transmitter of Abe nancfa™s opinion
and establishes in favor of the ¬rst opinion (stated in the ¬rst paragraph)
an alternative and superior chain of transmission on the authority of
Kaysanc, Kaysanc™s father, and Abe Yesuf. tamawc also declares Abe
nancfa™s ¬rst opinion superior to both Abe nancfa™s other opinion and to
Abe Yesuf™s competing view by virtue of the fact that the ¬rst opinion is
in line with the general principles laid down by Abe nancfa himself and
presumably accepted by his two so-called disciples. The principle under-
lying this opinion, however, is only alluded to, not articulated. One can
infer that Abe nancfa held it as a principle, and not merely as an opinion,
that the tenant must be protected and must thus be given precedence
over a potential or prospective buyer during the period of his tenancy.
tamawc™s claim that Abe nancfa™s opinion stands in line with his own
principle, which Abe Yesuf did not dispute, further weakens the latter™s
opinion by implying that it is not in line with the authoritative nana¬te
tradition which he himself accepted.
In this case it is clear that tamawc™s approach to deciding in favor of a
certain opinion is one of comparing and contrasting. The comparison is
taken still further to show the relative weakness of all opinions except
one, namely, that which was being advocated. Among all of the opinions
which no doubt have some merit, this particular opinion emerges as dis-
tinctly superior, not because it was held by any given jurist but rather

17
Abe Jacfar Ammad b. Mumammad al-tamawc, MukhtaQar, ed. Abe al-Wafa al-Afghanc
(Cairo: Masbacat Dar al-Kitab al-cArabc, 1370/1950), 130“31.
92 Authority, continuity, and change in Islamic law
because it conforms, more than any other, to the authoritative principles
of the school.
Comparing and contrasting opinions in an e¬ort to reduce them,
through elimination, to a single opinion based on one principle was not
necessarily typical, nor was it done in such obvious ways as tamawc
adopted in this case. Sarakhsc, for instance, writes:
The qAKC who receives a written instrument from another qAKC must ask
the bearer [i.e. witnesses] to testify that the instrument is truly that of
the sending qAKC [named] and that the seal is his. This is so because the
[receiving] qAKC has no knowledge [of the case] and thus two witnesses
are needed as proof. He should have the instrument read before them and
should testify to its contents. It is the principle of Abe nancfa “ may God
bestow mercy upon him “ that in order for the instrument to be legally
valid as a basis of judicial decisions, it is a condition that the witnesses know
its contents. This was the old opinion of Abe Yesuf, but he rescinded
it and held that if the witnesses testify that the instrument truly belongs
to the sending qAKC and that the seal set on it is his, the [receiving] qAKC
should accept it, even though they may not know its contents. This is the
opinion of Ibn Abc Layla “ may God have mercy on him “ the reason
for it being that the instrument may deal with matters that the two judges
[the sending and the receiving] do not wish any one else to know; and
this is why the instrument is sealed.18
Here, two opinions are set apart by two di¬erent rationales. Abe Yesuf ™s
change of mind seems enhanced by the fact that Ibn Abc Layla had held
the same opinion. But naming Ibn Abc Layla, a non-nana¬te, as a sup-
porting authority may not have been to Abe Yesuf™s advantage, after all.
On the other hand, by employment of a stylistic device, Abe nancfa™s
opinion is made to dominate, ¬rst by referring to it approvingly as the
standard doctrine of the school, and second by mentioning it at the out-
set, as though it were the default opinion. Once this is done, the authority
holding the opinion is named and other competing opinions are then
introduced.
However, it is not always the case that one opinion or principle must
be made the preponderant one. At times, two or more opinions or prin-
ciples are stated as equally valid. Quderc writes that “according to Abe
nancfa, common property (mushA c ) is not rentable, but both of them
[Abe Yesuf and Shaybanc] held that it is.”19 These two general rules

18
Sarakhsc, MabsES, XV, 95.
19
Ammad b. Mumammad b. Jacfar al-Quderc, MukhtaQar, ed. Kamil cUwayda (Beirut:
Dar al-Kutub al-cIlmiyya, 1418/1997), 104.
Taqlcd: authority, hermeneutics, and function 93
or principles are simply stated by Quderc without further comment,
as if to permit the jurist or judge to pick either of the two as the basis
for deducing a rule or a decision. The equal validity of both positions
seems to have persisted in the nana¬te school. The later Ottoman
jurist Ibrahcm al-nalabc states these two opinions in the same distanced
fashion, giving no one opinion precedence over the other.20
Similarly, cAla™ al-Dcn al-Samarqandc reports a disagreement among
the nana¬tes as to the time when zakAt is to be paid. Thaljc and Abe Bakr
al-Jaqqaq appear to have maintained that it is payable at any time within
the period for which it is due. But Shaybanc and Karkhc opined that it is
payable at the very beginning of the period. Having stated these two
positions, Samarqandc concludes by saying that “ultimately, the matter is
subject to disagreement as to whether it is payable immediately or at a
later time.”21 Now, as was the case in the rentability of common property,
the issue is disagreement over principles which are the product of varying
interpretations of the revealed texts. Individual cases are decided one way
or another depending on which principle is applied. The apparently equal
status of the two competing principles permits the jurist or judge a liberal
choice. Any attempt to tip the scale in favor of one as opposed to the
other, however, entails an examination of the textual and other evidence
by which each was derived. But this, technically speaking, no longer lies
within the province of taqlCd, and a discussion of it must therefore be
postponed until chapter 5.
To stipulate principles as the foundation of deduction is equivalent
to stipulating axiomatic postulates that underlie a class of cases. These
postulates are not principles in the sense that they do not constitute
general propositions from which rules are inferred deductively. Rather,
they represent only one, albeit important, element among the totality of
premises from which the rule is inferred. Just as the choice of one prin-
ciple over another determines a di¬erent rule for the same case, so does
the acceptance of one axiomatic position a¬ect the manner in which a
case is solved. And just as in the case where principles may be stipulated
without making an attempt to render one of them preponderant over the
other, axiomatic positions are normally stated without any clear e¬ort to
argue in favor of one position over another. The Sha¬cites, for instance,
disagree on the fee which the bathhouse keeper charges. Shashc puts the
crux of the matter thus:
20
Ibrahcm b. Mumammad al-nalabc, MultaqA al-AbMur, ed. Wahbc al-Albanc, 2 vols.
(Beirut: Mu™assasat al-Risala, 1409/1989), II, 162.
21 c
Ala™ al-Dcn al-Samarqandc, TuMfat al-FuqahA”, 3 vols. (Damascus: Dar al-Fikr, 1384/
1964), I, 558“59.
94 Authority, continuity, and change in Islamic law
Our associates have disagreed concerning the amount charged by the bath
keeper. Is it the price of water, an entrance fee, a rental fee for the bucket
[used for washing], or a fee for valetry? Some of them opined that it is the
price of water, that the bath keeper valets as a volunteer, and that he only
lends the bucket. Others maintained that the amount represents a [cover]
fee for entrance, rental of the bucket, and valetry. Therefore, the customer
is not liable to damages pertaining to the bucket [if it is destroyed]. But
if the clothes [of the customer] are destroyed [while in the custody of the
bath keeper], is the bath keeper liable to damages? On this, there are two
opinions.22
The point of this passage, which is part of a larger discussion on the
liability for damage to rented property, is not to formulate any casuistic
rule but rather to state the entire range of opinions which are themselves
de¬nitions of what the bathhouse keeper™s fee is. Each opinion, which
allocates the fee in a particular manner, entails a conclusion about liability
for damaged property that is di¬erent from other conclusions because
the latter are based on di¬erent allocations of the fee. If one accepts that
the fee represents the price of the water, then the customer is responsible
for damages if the bucket is destroyed, because he borrowed it but did
not rent it. If it is borrowed, then the bene¬t accrues to the borrower,
not the bucket owner. Accordingly, the bucket owner is not held liable
to damages, because “ to put it tautologically “ he derived no bene¬t
by lending it. But if one accepts that the amount represents a rental fee
for the bucket, then the user is not liable because the bathhouse keeper
bene¬ts from the rental fee.23
Now, the same questions and opinions are also introduced toward
the very end of the passage concerning the bathhouse keeper™s liability if
the customer™s clothes are ruined. Again, as in the case of the bucket,
two opinions are stated, or rather intimated, in this regard. The brevity of
Shashc™s discussion, and the cursory manner in which he glosses over the
last opinions about clothing, are, together with other stylistic elements,
all indicative of a profound familiarity with an age-old issue that hardly
merits discussion beyond a synopsis. Shashc™s passage, therefore, is no
more than a summary of the axiomatic postulates that are distinctly
known to lead to a variety of solutions in the law of damages.
In the majority of the cases and opinions thus far discussed, there may
be detected a penchant for comparing and contrasting, with a marked
e¬ort to isolate a particular opinion by identifying it with an accepted
or authoritative principle. Normally, the principles that dominate in a

Shashc, Nulyat al- cUlamA”, V, 448.
22 23
See Mawardc, al-NAwC al-KabCr, IX, 256.
Taqlcd: authority, hermeneutics, and function 95
school tend to support opinions that have themselves become author-
itative, though a number of major jurists may hold di¬erent opinions.
Consider the following example, also from Shashc™s work:
[The case of a person who] hands (yadfa c ) a piece of cloth to someone else,
and the latter sews it [into a dress] without mentioning his fee, has four
opinions: The ¬rst is that he [the owner of the cloth] is obliged to pay the
fee. This is Muzanc™s opinion. The second opinion is that if he told him
[the tailor] “sew the garment,” then he is obliged to pay; but if he [the
tailor] began his work and later said “pay me so that I will sew it,” then
he is not obliged [to pay him]. This is Abe Ismaq™s opinion.24 The third
opinion is that if the craftsman [=tailor] has been known to charge a fee for
sewing, then he should be paid. If he has not been known to do so, then
payment is not necessary. This is Abe al-cAbbas [Ibn Surayj]™s opinion.
The fourth, which is the authoritative opinion in the school (madhhab), is
that in none of these cases is he entitled to a fee.25
In his opening statement, Shashc makes it clear that the act of handing
over the garment was not accompanied by any formal exchange of words,
such as, for instance, o¬er and acceptance. It is precisely the absence of
such a formality that gives rise to a problematic that constitutes the nexus
of the entire juristic disagreement. Each of the four opinions expressed
is based on a previous assumption or a principle. Muzanc appears to con-
sider the transaction, if it can be regarded as such, as an implied o¬er and
acceptance, a consideration which justi¬es the opinion that the owner
of the garment stands obligated to pay the tailor a fee. Abe Ismaq, on the
other hand, requires that the o¬er be explicitly stated, whereas acceptance
comes into e¬ect by the implied fact that the tailor has begun his work
on the dress. Ibn Surayj deals with the matter in di¬erent terms. He
accepts the transaction as an implied contract if it is customarily known
that the man is a professional tailor who charges fees for his labor. The
authoritative doctrine of the school, however, is that a contract in matters
of rent and hire is not deemed to be in e¬ect if o¬er and acceptance
were not explicitly stated at the outset. This explains why Shashc, when
citing the fourth opinion of the madhhab, is careful to add the clause
“in all cases.”
What Shashc has done here, as is often the case, is to cite all relevant
opinions which represent the application of di¬erent principles. By so
doing, he shows, without much elaboration, how each of the di¬erent

24
Presumably Abe Ismaq Ibrahcm al-Shcrazc (d. 476/1083).
Shashc, Nulyat al- cUlamA”, V, 455. See also Zayn al-Dcn Ibn Nujaym, al-AshbAh wal-
25

NaUA”ir (Calcutta: al-Masbaca al-Taclcmiyya, 1260/1844), 134.
96 Authority, continuity, and change in Islamic law
opinions is undergirded by a di¬erent presupposition. But in this case he
also accomplishes another task, namely, to assert that the fourth opinion
di¬ers from the rest due to the fact that it is based on a principle which
has become authoritative in the school. He does not state the principle,
and certainly does not openly assert its authoritative nature. Instead, he
implies, without allowing for ambiguity, that because the fourth opinion
is the madhhab “ i.e., the authoritative doctrine “ then the principle on
which it is based is, a fortiori, the authoritative principle of the school.
(Incidentally, note that two of Shashc™s authorities are jurists who lived
a century or more after Sha¬cc, while those responsible for determining
the authoritativeness of the fourth opinion belong to an even later period,
from the middle of the fourth/tenth century and thereafter, when the
Sha¬cite school had already reached its ¬nal formation.)
In both examples, of the bathhouse keeper and of the tailor, Shashc can
be characterized as having been highly elliptic, leaving much to the realm
of the implied. He states opinions, here and elsewhere, without their
respective principles, and principles without their various applications
or interpretations. Such is the case with many other jurists. It is worth
remarking in passing that this phenomenon is more a mark of avoiding
having to state the obvious than being a simple restatement of doctrines
whose rationalization and justi¬cation are not within reach. In longer
works, authors tend to expand on such matters, as does, for instance,
Nawawc in his expansive RawKa,26 where he deals with most of the
matters addressed by Shashc.
It is often the case that opinions are very carefully articulated, which
is also true of the reasoning that underlies them. The nana¬te work
al-FatAwA al-Hindiyya o¬ers illustrative examples, one of which is the
following:27
If a man hires a beast in order to use it for the transportation of a stipulated
quantity of barley, but uses it instead to transport the same quantity of
wheat, then he is liable to pay the beast™s value in damages if it perishes,
and is not bound to pay the hiring fee [to its owner]. This is the opinion of
all [nana¬te jurists], because wheat is heavier, more solid and denser than
barley. His doing so is tantamount to having used it to transport stones
or iron.
The situation would be di¬erent if he were to hire it for the trans-
portation of ten dry measures of barley and instead uses it to transport
eleven such measures [of the same commodity]. If he does so, he would

Mumyc al-Dcn Sharaf al-Dcn al-Nawawc, RawKat al-TAlibCn, ed. cfdil cAbd al-Mawjed
26

and cAlc Mucawwak, 8 vols. (Beirut: Dar al-Kutub al-cIlmiyya, n.d.), IV, 306 ¬.
27
Al-FatAwA al-Hindiyya, IV, 490“91.
Taqlcd: authority, hermeneutics, and function 97
be liable [only] to a portion of the damages28 [if the beast perished and]
if it is [deemed] capable of carrying that [commodity], because what has
been transported is of the same species as that which has been stipulated
[in the contract of hire].
If it is stipulated that he will transport ten dry measures of wheat, but
he instead uses it to transport ten dry measures of barley, then, according
to istiMsAn, he is not liable to damages [if the beast perishes] . . . If, on
the other hand, he stipulates [the commodity] to be barley, but he instead
uses it for the transportation of the same quantity of wheat, then he is
liable to damages. The governing principle (aQl ) is that if the commodity
transported is other than that which was stipulated [in the contract],
and that if the two commodities are of the same weight, but the former
occupies a smaller space on the back of the beast than that which the
latter would have occupied, then he [who hires the beast] would be liable
to damages because the commodity actually transported would harm the
beast more than the commodity stipulated [in the contract]. This would
be tantamount to a situation in which wheat or barley is stipulated, but
then iron or stones of the same stipulated weight are transported instead.
If, on the other hand, the commodity actually transported occupies a larger
space on the back of the beast than that which was stipulated,29 then he is
not liable to damages because this [distribution of load] is easier for the
beast . . . Such is the opinion given in fatwAs (wa-bi-hAdhA yuftA). This is
from al-VahCriyya.30
If he hires a beast in order to use it for the transportation of barley,
but instead loads one saddlebag with wheat and the other with barley, and
the beast perishes, our associates held that he is liable to damages equal to
one half of [its] value and one half of the hiring fee. This is according to
al-YanAbC c.31 The governing principle [here] is that if the hirer violates the
stipulation [in the contract] by loading the beast with the same material
stipulated or something lighter in weight, then he is not liable to damages
because the [owner™s] acceptance of a certain [potential] harm means
acceptance of a lower degree of harm. But if he violates the stipulation by
raising the level of [potential] harm above that which was stipulated, and
if the beast perishes, then he would be liable to damages, but not to the
payment of the fee, if the materials he transports were of a kind di¬erent
from that which was stipulated. If it were of the same kind, then he would
be liable to an amount of damages proportionate to that part of the load in
excess of what was stipulated, as well as to the hiring fee. This is so because
the beast will have perished due to both an act for which he received

28
Equal to one-tenth of the beast™s actual value.
29
It being understood here that the two commodities are equal in weight.
By Mumammad vahcr al-Dcn b. Ammad al-nanaf c al-Walwalijc who died in 710/1310.
30

See najjc Khalcfa, Kashf al-VunEn, II, 1230.
31
Al-YanAbC c was written by Mumammad b. cAlc al-Shiblc (d. 769/1367).
98 Authority, continuity, and change in Islamic law
permission [from the owner] and an act for which he did not receive such
permission. Damages are thus distributed in relative proportion. However,
if he loads the beast beyond its capability, then he is liable because he was
not permitted to do so. Iron is more harmful than cotton because it gathers
in one spot on the back of the beast, whereas cotton spreads out. This is
cited in al-IkhtiyAr SharM al-MukhtAr.32
This is a fairly elaborate exposition which relates exclusively to damage
liability for hired beasts. As may be observed, the preoccupation of the
authors is not with textual attestations from the Quran or the Sunna,
but rather with authoritative principles that have dominated the school.
At least two such principles are explicitly cited, and they constitute the
major premises which prompt the lines of reasoning adopted in this case.
The essential point here is that both overloading the hired beast with a
commodity that has been stipulated in the contract and loading it with a
commodity of a denser quality but of the same weight stipulated will
render the hirer liable for damages.
Another salient feature in this passage is the authority through which
these principles and the law of which they form a part are mediated.
Four authorities are cited: The ¬rst, given at the outset, is e¬ectively
the totality of the major nana¬te scholars; the second is al-VahCriyya, by
Mumammad b. Ammad al-nanafc (d. 710/1310); the third is al-YanAbC c,
by Mumammad b. cAbd Allah al-Shiblc (d. 769/1367); and the fourth
is al-IkhtiyAr, by cAbd Allah b. Mawded al-Meqilc (d. 683/1284). It is
worth noting that the last three are relatively late, and are cited by title,
not by their respective authors. Of this phenomenon we shall say some-
thing later.33 For now it su¬ces to say that the activity of taqlCd involved
here is not con¬ned to the citation or repetition of what earlier authorities
held to be true. The authority that is being transmitted cannot be con-
¬ned to a casuistic repetition of cases. If casuistry is involved, it is to
illustrate principles around which the law revolves. The authority being
transmitted through taqlCd therefore is one that has at its center the
articulation of principles which constitute the foundation underlying a
changing array of cases to which these principles constitute applications.
It is the principles and certainly not the individual cases that constitute
the backbone of taqlCd. True, the majority of the jurists did not occupy
themselves with the manner in which these principles were derived,
32
Al-MukhtAr was written by cAbd Allah b. Mammed b. Mawded al-Meqilc (d. 683/
1284). He wrote a commentary on his own book which he titled al-IkhtiyAr li-Ta clCl
al-MukhtAr (5 vols. [Cairo: Muqsafa Babc al-nalabc, 1951]) and the reference here is
very probably to this commentary. See vol. II, 51 ¬.
33
See the next section of this chapter and chapter 6, section VIII, below.
Taqlcd: authority, hermeneutics, and function 99
although it remains true that many of those evolved with time and cannot
be traced to a direct source or a conscious act of ijtihAd. But the great
majority of them, as is attested in the pages of hundreds of treatises
written on the subject, understood the signi¬cance of the principles and
knew how to apply them. For they were muqallids, and this is precisely
what taqlCd meant. Furthermore, the object of loyalty here is not even
the earliest authorities of the school, a phenomenon we have already
observed in Shashc. One searches in vain for the names of Abe nancfa,
Abe Yesuf, Shaybanc, Zufar, and other early authorities. Instead, it is the
later jurists, and in particular the later treatises qua treatises, that occupy
center stage.
I have said that in this example the preoccupation of the authors is
not with the manner in which the principles and the rules were derived
from the revealed texts. This is because such principles were not extracted
directly from such sources; rather, they represent juristic elaborations
on the basis of earlier elaborations that were themselves probably derived
from these sources. This is precisely what Ibn Kamal meant when he
declared the chief credential of the middle ranks of jurists to be loyalty to
the founder™s uQEl.34 But when the principles were perceived as emanating
directly from the revealed sources, the muqallids were not shy to venture
upon examining such sources.
In his discussion of pilgrimage as a religious duty, Nawawc makes the
following argument:35
Pilgrimage is one of the pillars and duties of Islam, for it was related upon
the authority of Ibn cUmar “ may God be pleased with him and with his
father “ that he said: “I heard the Messenger of God “ may God bestow
peace upon him “ say: ˜Islam was founded upon ¬ve things; the shahAda
that there is no god but God, performance of prayer, payment of the zakAt,
pilgrimage to the House and the fasting of Ramadan.™ ” With regard to the
lesser pilgrimage (cumra), there are two opinions [by Sha¬cc]. In the new
opinion,36 he considered the lesser pilgrimage a duty on the basis of what
f™isha reported. She said: “I asked: ˜O messenger of God, should women
c

participate in jihAd ?™ The Prophet said: ˜Yes, a jihAd in which no killing
is involved “ pilgrimage and the lesser pilgrimage.™ ” In the old opinion,

Qurashc, al-JawAhir al-MuKC ”a, II, 558“59.
34
35
In his al-MajmE c, a commentary on Abe Ismaq al-Shcrazc™s Muhadhdhab, which was to
remain incomplete despite the later e¬orts of Taqc al-Dcn al-Subkc and others. See Jalal
al-Dcn cAbd al-Ramman al-Suyesc, al-MinhAj al-SawC f C Tarjamat al-ImAm al-NawawC,
printed with Nawawc, RawKat al-TAlibCn, I, 63“64.
As is well known, Sha¬cc often held two opinions on the same matter: the so-called
36

“Old” doctrine he reportedly espoused before his migration to Egypt, and the “New”
one that he formulated while in Egypt. On this, see Nawawc, al-MajmE c, I, 65 ¬.
100 Authority, continuity, and change in Islamic law
Sha¬cc did not consider it a duty on the grounds of Jabir™s tradition that
the Prophet, when asked if the lesser pilgrimage was a duty, replied: “No,
but if you perform it, it is better for you.” The correct opinion is the ¬rst
[i.e., the new one], because the latter tradition was not reported directly
from the Prophet (rafa ca)37 by Ibn Lahcca, and what he narrated exclusively
on his own authority is weak.
Commentary: Ibn cUmar™s tradition was narrated by Bukharc and Muslim.
In the two RaMCMs,38 the tradition was reported with the variants “pilgrim-
age and the fasting of Ramadan” as well as “the fasting of Ramadan and
pilgrimage.” Both are sound, for the conjunctive “and” does not necessitate
a particular order of things. Ibn cUmar heard it twice, and he reported it
with the two variants. If the author [i.e., Shcrazc] used this tradition as
evidence and did not use God™s words “People owe God the pilgrimage to
the House,”39 it is because he wanted to show that pilgrimage is a pillar,
and this meaning is found in the Prophetic tradition, not in the Quranic
verse.
f™isha™s tradition was related by Ibn Maja, Bayhaqc, and others through
c

sound chains of transmission. Ibn Maja related the tradition according to
the conditions set by Bukharc and Muslim.40 In favor of the lesser pilgrim-
age being a duty, Bayhaqc reported, on his own authority, on the authority
of Abe Razcn al-cAqclc, the Companion “ may God be pleased with him
“ that he [Abe Razcn] said to the Prophet: “O messenger of God, my
father can perform neither pilgrimage nor the lesser one, nor can he ride a
caravan.” The Prophet said: “Then perform pilgrimage and lesser pilgrim-
age on his behalf.” Bayhaqc said: “Muslim b. al-najjaj said: ˜I heard Ammad
Ibn nanbal say: “Concerning the duty to perform the lesser pilgrimage,
I do not know a better and more sound tradition than this report of
Abe Razcn.” ™ ” These are Bayhaqc™s words. This tradition of Abe Razcn is
sound, and was narrated by Abe Dawed, Tirmidhc, Nasa™c, Ibn Maja,
and others through sound chains of transmission. Tirmidhc said: It is a
tradition of the Masan“QaMCM type.41
37
MarfE c is a tradition on the authority of one of the Companions to the e¬ect that the
Prophet said or did something. The fact that a Companion attested to the words or
deeds of the Prophet makes the tradition “lifted” to the level of the Prophet, in contra-
distinction with a transmission from a Successor who could not have possibly met the
Prophet. See Abe cAmr cUthman b. cAbd al-Ramman Ibn al-ralam, Muqaddimat Ibn al-
RalAM wa-MaMAsin al-IQSilAM, ed. cf™isha cAbd al-Ramman (Cairo: Dar al-Macarif, 1989),
193; G. H. A. Juynboll, “Raf c,” Encyclopaedia of Islam, new (2nd) edition (Leiden:
E. J. Brill, 1960“ ), VIII, 384“85.
38
By Bukharc and Muslim. 39 Quran 3:97.
40
For these conditions, see Ibn al-ralam, Muqaddima, 170.
41
This combination of terms is unique to Tirmidhc. It refers to the isnAd of a tradition, so
that if a tradition is reported through two chains of transmission, one being QaMCM
(sound) and the other Masan (good), it was termed a Masan“QaMCM tradition. See James
Robson, “Varieties of the Nasan Tradition,” Journal of Semitic studies, 6 (1961), 49 ¬.;
Ibn al-ralam, Muqaddima, 185.
Taqlcd: authority, hermeneutics, and function 101
As for Jabir™s tradition, it was narrated by Tirmidhc as one of a group of
traditions on the authority of najjaj who is Ibn Arsa™a, on the authority of
Mumammad Ibn al-Munkadir, on the authority of Jabir that the Prophet
was asked about whether or not the lesser pilgrimage is a duty. He said:
“It is not, but if you perform it, it is better for you.” Tirmidhc said: “This
tradition is of the Masan“QaMCM type.” Tirmidhc reported that Sha¬cc said:
“The lesser pilgrimage is a duty, and I know of no one who permitted it to
be otherwise. There is nothing in it which proves it to be a voluntary
act.” He also said: “Jabir™s tradition was reported on the authority of the
Prophet, but it is weak and cannot sustain an argument. Moreover, we
have been told that Ibn cAbbas deemed the lesser pilgrimage a duty.” This
is the end of Tirmidhc™s statement.
Tirmidhc™s claim that this tradition is of the Masan“QaMCM type cannot be
accepted. One should not be misled by Tirmidhc™s statement concerning
this tradition because the traditionists agree that it is weak. Its weakness
is due to the fact that it turns on al-najjaj Ibn Arsa™a, for he is its sole
transmitter. Tirmidhc reported it on his authority, although najjaj, by
the agreement of the traditionists, is a weak transmitter and a forger. In his
tradition, he said “from (can) Mumammad Ibn al-Munkadir.” There is no
disagreement [among the traditionists] that if a [person known to be a]
forger uses the word can, then his transmission should not be considered
credible.42
Now, the author™s [i.e., Shcrazc™s] statement “because the latter tradition
[of Jabir] was reported directly from the Prophet by Ibn Lahcca, and what
he narrated exclusively on his own authority is weak” has been criticized on
account of the fact that he had erred with regard to it. This is so, because
the one who reported it from the Prophet was not Ibn Lahcca but al-najjaj
Ibn Arsa™a, as we have already mentioned. The author was also criticized
for his statement that “what Ibn Lahcca narrated exclusively on his own
authority is weak,” because Ibn Lahcca is weak whether he narrates a tradi-
tion alone or together with others.43
The crux of this long discussion is simply whether the performance of
pilgrimage and the lesser pilgrimage are mandatory acts or not. Here,
three juristic voices can be identi¬ed: Sha¬cc, Shcrazc, and Nawawc himself.
42
A tradition that was transmitted, at any link, through the use of “can” was considered by
a number of MadCth scholars to be “interrupted” (munqaSi c ), unless it can be established
that the two scholars creating that link are both trustworthy (in this case de¬ned as
having never been involved in MadCth forgery, tadlCs) and that they had been in the
QuMba of each other for a reasonably long period of time. Al-najjaj b. Arsa™a failed
to meet the ¬rst condition, to say the least. See Ibrahcm b. cAbd Allah al-Qasimc,
TaqrCb IQSilAM al-MuMaddithCn min AfhAm al-TAlibCn (Kerala: Dar al-Hilal lil-Kutub
al-Islamiyya, 1985), 48. On QuMba, see chapter 1, n. 4, above.
Salim cAbd al-Ghanc al-Ra¬cc, MukhtaQar al-MajmE c: SharM al-Muhadhdhab, 8 vols.
43

(Jedda: Maktabat al-Sawadc, 1995), VII, 6“9.
102 Authority, continuity, and change in Islamic law
A rudimentary form of taqlCd would have been satisfactorily accomplished
had Nawawc merely stated the accepted opinions of Sha¬cc, namely, that
both pilgrimage and the lesser pilgrimage are obligatory. These opinions
could have been stated in a straightforward manner; e.g., “According
to Sha¬cc, pilgrimage and the lesser pilgrimage are obligatory duties.”
Instead, the discussion is opened by the introduction of competing
opinions, expressed in contradictory traditions, and, to complicate the
matter further, Sha¬cc™s old opinions are also cited.
Now, the point of advancing all these divergent opinions is to show
that out of all the conceivable solutions to the problem, Sha¬cc™s (new)
solutions are the most convincing.44 This was the intent of Shcrazc when
he dealt with the issue, and it was likewise the intent of Nawawc who
found Shcrazc™s reasoning to be wanting in certain respects. Nawawc
reconstructs the authority supporting Ibn cUmar™s tradition by anchor-
ing it in the two RaMCMs of Muslim and Bukharc. cf™isha™s tradition is
supported by the authority of the collections made by Ibn Maja and
others, but ultimately this authority derives from the fact that Ibn Maja
sorted out this tradition according to Muslim™s and Bukharc™s condi-
tions.45 In favor of the obligatory nature of the lesser pilgrimage, Nawawc
introduces an impressive array of traditionist authorities, including Ibn
nanbal, Bayhaqc, Abe Dawed, Nasa™c, Ibn Maja, and Tirmidhc. But
the latter™s authority is disputed when it comes to Jabir™s tradition,
which he considers sound. Sha¬cc, on the one hand, and the anonymous
collectivity of the traditionists, on the other, are cited in refutation of
Tirmidhc™s position. Furthermore, Nawawc subjects Shcrazc himself to
criticism, charging him with having erred in his evaluation of Ibn Lahc ca
as a traditionist.

44
Rehearsing a range of opinions was widely recognized as having the bene¬t of showing
that, of all conceivable opinions, the one being defended is the most convincing or
sound. In a revealing passage, tef c explains why old and obsolete opinions of the
masters are listed in law books alongside recognized and authoritative opinions. Logic,
he says, requires that obsolete opinions which are by de¬nition not part of practice (mA
lA camala calayh lA MAjata la-hu) should not be rehearsed in these books, for that would
in e¬ect be a waste of time. However, such opinions are included for another reason,
namely, to demonstrate the methods by which a variety of opinions pertaining to a
single case are derived. Such a demonstration allows the reasoner to compare and
contrast the relevant and obsolete opinions as well as the interpretive methods that
lie behind them. This comparative analysis will in turn permit him to choose the most
convincing of the opinions, an analytical process known as tarjCM. Although tefc
happened to be speaking of old vis-à-vis new opinions, the principle of rehearsing a
variety of opinions, old and new, from within and without the school, had the same
function. See his SharM MukhtaQar al-RawKa, III, 626.
45
See n. 40, above.
Taqlcd: authority, hermeneutics, and function 103
Nawawc™s taqlCd in this case is of the best kind. He is loyal to both
Sha¬cc and the mediating authority, Shcrazc. Examining the tradition
closely, he insists on the obligatory nature of pilgrimage and the lesser
pilgrimage. But in a¬rmation of this loyalty, he goes beyond it to re-
examine the textual evidence sustaining the tradition, with the result that
it is given an extra weight. TaqlCd here is not only an intelligent applica-
tion of principles, as we have seen earlier, but a reenactment of ijtihAd.
Nawawc, like Shcrazc before him, traced the evidence and hermeneutics
used by Sha¬cc. Both of them reproduced it, and both improved on it.
This undeniably creative activity cannot, nonetheless, be characterized
as ijtihAd, but rather as the highest manifestation of taqlCd, calculated,
pondered, analyzed, and ¬nally rati¬ed. It is not ijtihAd par excellence
because it is not an independent act of reasoning and interpretation.
But it is an eloquent expression of what has been termed ittibAc, an intel-
ligent and creative type of taqlCd by which an earlier ijtihAd is reenacted,
defended, and, in most cases, improved.

III
To describe this type of taqlCd as intelligent and creative by no means
implies that other types are, in these respects, inferior. The hermeneutical
activity that engaged Nawawc was in e¬ect a confrontation with the
revealed texts through the mediating authority of Sha¬cc and Shcrazc. No
principles of the type we encountered in earlier cases were involved. The
case of pilgrimage, whether greater or lesser, did not lend itself to such
levels of abstraction. Pilgrimage is either an obligatory duty or it is not.
In the other examples we encountered earlier, on the other hand, prin-
ciples constituted the backbone of taqlCd. The jurists of the post-formative
period, namely, the successors of the imam in Ibn al-ralam™s and Ibn
Kamal™s typologies, were not interested in vindicating principles as they
would be seen to derive from the revealed texts. As a rule, they were
taken for granted. Part of the reason why this was the case is that some of
these principles were derived from earlier principles or assumptions which
were the product of juristic thought that found no more than a tenuous
connection with the revealed texts. The case of overloading hired beasts
exempli¬es principles of this sort.
But an explanation for the lack of interest shown by jurists in the
connection between principles and textual support must be sought in
the notion of loyalty to one™s school. This loyalty would not have been
the same had the jurists found it necessary to vindicate the school™s prin-
ciples at every stage of reproducing doctrine. Loyalty meant precisely the
104 Authority, continuity, and change in Islamic law
acceptance of these principles “ though not necessarily unquestioningly
“ and more importantly, it meant applying them to individual cases.
Whatever the legal question or case might have been, it was nothing more
than an instance to which a principle was applied.
Nonetheless, loyalty also meant a defense of the principles as well as of
the hermeneutics of the school.46 And here lies another important feature
of taqlCd. Generally speaking, taqlCd of the defensive type operated on two
levels: the defense of one authority within the school over and against
another, and the defense of the school as a whole or an individual author-
ity in it against (an)other school(s) as a collective entity, or against an
individual authority or authorities belonging to another school or schools.
Three examples should su¬ce to illustrate our point, the ¬rst of which is
taken from the nana¬te Sarakhsc:47
According to us [the nana¬tes], the qAKC should not in¬‚ict a corporal
punishment, be it Quranic (Madd ) or discretionary (ta czCr), nor should
he physically punish a person on behalf of another, in the precinct of the
mosque. Sha¬cc, may God bestow mercy upon him, held the opinion that
the qAKC may do so if he does not [thereby] sully the mosque because the
act of being in the mosque represents nearness to God and obedience to
Him. Since these are the intended purposes of the mosque, then punish-
ment is merely the tail end of his duties as a judge. And since he is per-
mitted to sit in judgment in the [yard of the] mosque, he is therefore
permitted to complete the adjudication of his cases including the meting
out of punishments there.
The argument in support of our [nana¬te] position is the tradition
from the Prophet who said: “No Quranic punishments are to be meted out
in the mosques.” In Makmel™s tradition, the prophet said: “From your
mosques, keep away your boys, your madmen, your shouts, your disputes,
your meting out of Quranic punishments, your sword drawing and your
trading . . . .” It was reported that cUmar “ may God be pleased with him
“ ordered that a man be physically punished, and told the person to
whom he gave this order: “Take him out of the mosque, then strike him.”
Furthermore, the Prophet was not reported to have himself ordered the
in¬‚iction [in the mosque] of a Quranic punishment upon anyone, because
he abhorred sullying the mosque and the shouting of the person being
punished once he is stricken.
46
In fact, treatises “ wholly or in part “ were written explicitly for the purpose of defend-
ing a particular school and of showing its superiority to the others. See, for example,
Racc, IntiQAr al-FaqCr, especially at 199 ¬.; Ibn Farmen, DCbAj, 11“16; Abe al-Mu™ayyad
Muwa¬aq al-Dcn b. Ammad al-Makkc, ManAqib al-ImAm al-A cUam AbC NanCfa, 2 vols.
(Hyderabad: Masbacat Majlis Da™irat al-Macarif al-Niuamiyya, 1321/1903), I, 38 and
passim.
47
Sarakhsc, MabsES, XV, 107.
Taqlcd: authority, hermeneutics, and function 105
This passage represents a vindication of the nana¬te position vis-à-vis
that of Sha¬cc in particular and, through him, that of the Sha¬cite school
in general. Sarakhsc presents Sha¬cc™s stance as one based on a general line
of reasoning, deriving from the basic assumption that the mosque™s func-
tion is to bring Muslims closer to God as well as to show obedience to
Him. Since the qAKC seeks to achieve these ends, then bringing his work
to completion by in¬‚icting punishment on convicted criminals becomes
permissible. It is irrelevant to our purposes here whether this is the full
extent of Sha¬cc™s position or reasoning on the matter. The point is that
Sarakhsc sets up Sha¬cc™s position only to knock it down with what is in
e¬ect impressive textual evidence.
The second example, from a Sha¬cite source, provides a somewhat
more complicated picture. The issue at stake is whether pilgrimage should
be performed instantaneously (calA al-fawr) or whether it can be deferred
to a later time (calA al-tarAkhC ). On the authority of Shcrazc, Nawawc
states:
We have already mentioned that our school™s doctrine (madhhabunA) is
that it can be deferred to a later time. This opinion was held by Awzacc,
Thawrc, and Mumammad b. al-nasan [al-Shaybanc]. Mawardc reported it
on the authority of Ibn cAbbas, Anas, Jabir, cAsa™, and tawes, may God be
pleased with them all. Malik and Abe Yesuf opined that it is to be per-
formed instantaneously. It is also the opinion of Muzanc and the majority
of Abe nancfa™s followers. Abe nancfa himself did not hold a view with
regard to this question.
In favor of their opinion, the latter argued by citing God: “Perform
pilgrimage and the lesser pilgrimage for the sake of God.”48 This is a com-
mand (amr) and commands make instantaneous performance [of the thing
commanded] necessary.49 They also adduced the tradition reported by
Mihran b. rafwan on the authority of Ibn cAbbas “ may God be pleased
with both “ that the Prophet said: “He who wants to perform pilgrimage
must hurry.” This tradition was narrated by Abe Dawed on his own
authority, on Mihran™s authority, but this Mihran is unknown (majhEl ).
Ibn Abc natim said: “Abe Zurca was asked about him [Mihran], and he
replied: ˜I do not know him except through this tradition.™ ” They also
adduced the aforementioned tradition:50 “He who is not prevented from
pilgrimage due to poverty, incurable illness, or a tyrant, will die either as a
Jew or as a Christian, whichever he chooses.”
Sha¬cc and our associates, [on the other hand], argued that the com-
mand to perform pilgrimage was revealed after the migration [to Medina],
48
Quran 2:196.
49
On commands and the imperative form, see Hallaq, History, 47“56.
Introduced earlier in the chapter on pilgrimage. Ra¬cc, MukhtaQar al-MajmE c, VII, 22.
50
106 Authority, continuity, and change in Islamic law
as well as after the Prophet conquered Mecca in Ramadan, 8 .. He left
Mecca in Shawwal the same year, and left behind as a governor cAttab b.
Ascd. Muslims began to perform pilgrimage in the year 8 .. upon the
Prophet™s command. Meanwhile, the Prophet, together with his wives and
most of his Companions, were all living in Medina. He conducted the raid
on Tabek in the year 9 .., and left Tabek before making the pilgrimage.
He sent Abe Bakr “ may God be pleased with him “ to perform pilgrimage
on his behalf in the same year, despite the fact that he, his wives, and the
majority of his Companions were able to go on pilgrimage and were pre-
occupied with neither war nor any thing else. Later on, in the year 10 ..,
he, his wives, and Companions all went on pilgrimage, which shows that
it may be deferred.51
In the ¬rst paragraph, Nawawc opens his discussion with a statement
of the school™s doctrine and immediately marshals a prestigious list of
jurists who held that doctrine. Even a leading nana¬te, Shaybanc, makes
an appearance here. To give this position added support, a number of
Companions are cited as having held the same doctrine. On the other
hand, the Malikites and the nana¬tes, against whose position Nawawc
is arguing here, are made to appear as holding the minority opinion
by adopting the opposite doctrine. Malik and Abe Yesuf, together with
Muzanc, are made to appear isolated when compared with the extensive
list of names already set forth. Even Abe nancfa cannot come to their
aid since he himself is said never to have formulated an opinion on the
matter. The sheer number and weight of voices in favor of, or against,
a position are seen here as constituting in themselves an argument.52
Although Nawawc™s discourse in the ¬rst paragraph has the appearance of
an objective accounting of those who stood for and against the allowabil-
ity of deferring pilgrimage, it is nothing less than an attempt to score a
point by showing that his camp enjoyed the weighty support of the most
illustrious Companions and jurists, including, of course, Sha¬cc himself.
In the second paragraph, a Quranic verse and two traditions are cited
in favor of the Malikite and nana¬te positions. Nawawc, apparently
drawing upon the authority of Shcrazc, undermines Abe Dawed™s tradi-
tion by invoking Abe Zurca™s testimony against it. The other tradition,
related on the authority of Abe Umama, has also been shown “ in a
previous discussion of pilgrimage “ to have a weak chain of transmis-
sion.53 In favor of the Sha¬cite position, Nawawc gives a relatively detailed

51
Ibid., VII, 37“38.
52
This form of argument had become accepted since the second/eighth century. See
Schacht, Origins, 14 and n. 2 therein.
Ra¬cc, MukhtaQar al-MajmE c, VII, 22“23.
53
Taqlcd: authority, hermeneutics, and function 107
historical account of how the Prophet, his wives, and Companions
deferred going on pilgrimage. What Nawawc manages to accomplish here
is not only to reproduce the authoritative doctrine of his school, but also
to put forth an eloquent defense of it vis-à-vis the nana¬tes ¬rst, and
the Malikites second. As with Sarakhsc™s taqlCd, Nawawc™s version here
amounts to nothing short of a defense of the madhhab.
Our third example, pertaining to the permissibility of eating the ¬‚esh
of horses, also comes from Nawawc:
We have already mentioned that our doctrine is that it is permissible and
that it is not reprehensible (lA karAhata f C-hi ). This opinion was held by
most scholars, including cAbd Allah b. al-Zubayr, Fakala b. cUbayd, Anas
b. Malik, Asma™ bint Abc Bakr, Suwayd b. Gha¬‚a, cAlqama, Aswad, cAsa™,
Shuraym, Saccd b. Jubayr, al-nasan al-Baqrc, Ibrahcm al-Nakhacc, nammad
b. Abc Sulayman, Ammad [Ibn nanbal], Ismaq [Ibn Rahawayh], Abe
Yesuf, Mumammad (al-Shaybanc), Dawed (b. Khalaf ), and others. Others
found it reprehensible, including Ibn cAbbas, al-nakam, Malik, and Abe
nancfa. The latter held that he who eats it is blameworthy, but it [the act]
cannot be called impermissible. In defense of this position, he adduced the
Quranic verse [16:8] “Horses, mules, and donkeys are intended for you to
ride, and for ornament.” [Abe nancfa argued that] God did not mention
eating them, whereas, in the preceding verse, He did mention the eating
of grazing livestock. Abe nancfa also adduced the tradition of ralim b.
Yamya b. al-Miqdam from his father from his grandfather from Khalid b.
al-Walcd who said: “The Messenger of God forbade [eating] the meat of
horses, mules, and donkeys and all predatory animals.” This tradition was
reported by Abe Dawed, Nasa™c, and Ibn Maja on the authority of Taqiyya
b. al-Walcd who transmitted it from ralim, from Yamya b. al-Miqdam
b. Macdyakrib from his father, from his grandfather from Khalid [b. al-
Walcd]. The leading MadCth scholars agree that this is a weak tradition, and
some held that it was abrogated. Daraqusnc and Bayhaqc have reported,
through a chain of transmission, on the authority of Mesa b. Haren al-
nammal, that he said that this tradition is weak. He also said that neither
ralim b. Yamya nor his father are known [to be reliable transmitters] except
through their transmission on the authority of ralim™s grandfather. Bukharc
said that this tradition is questionable ( f C-hi naUar). Bayhaqc said that
the tradition™s chain of transmission is confused; and as if this were not
enough, it is contradicted by [other] traditions transmitted by trustworthy
[authorities] concerning the horse™s ¬‚esh. Khassabc also said that the tradi-
tion™s chain of transmission is questionable, since the chain of ralim b.
Yamya b. Miqdam from his father from his grandfather is confused. Abe
Dawed said that this tradition was abrogated. Nasa™c maintained that the
tradition which permits [eating the ¬‚esh of horses] is more sound. Even
if we grant that it is a sound tradition, it is likely to have been abrogated
108 Authority, continuity, and change in Islamic law
because the permission expressed in the [other] sound tradition suggests
that abrogation took place.
In support of their position, our associates adduced the tradition of Jabir
who said: “During the battle of Khaybar, the Prophet forbade the con-
sumption of the ¬‚esh of domestic donkeys and permitted that of horses.”
Bukharc and Muslim reported this tradition in their SaMCMs . . . Jabir also
said: “We traveled with the Messenger of God and used to eat the ¬‚esh
of horses and drink their milk.” Daraqusnc and Bayhaqc reported this
tradition with a sound (QaMCM) chain of transmission. In [yet another]
report from Jabir, they are said to have eaten the ¬‚esh of horses during the
Prophet™s lifetime. Asma™ bint Abc Bakr reported that “we used to eat
the horse™s ¬‚esh during the lifetime of the Prophet.” Bukharc and Muslim
reported this tradition. She also said that “we slaughtered a horse during
the lifetime of the Prophet and ate it.”
As for our rebuttal of the others™ argument on the basis of the Quranic
verse, it is the same as Khassabc™s as well as our associates™ response: That
the mention of riding and ornament does not mean that their bene¬ts are
limited to just that. If he speci¬cally mentioned these two [bene¬ts], it is
because they are most important when it comes to the horses™ use. God, for
example, said [Q. 2:173]: “I forbade unto you carrion, blood, and swine
¬‚esh.” Only the ¬‚esh of the swine was mentioned because it is the more
important, but Muslims are in universal agreement (ajma ca) that the pig™s
lard, blood, and all other parts are forbidden. This is also why God did
not mention the horse as a means of transporting objects, although he did
mention it in the case of grazing beasts [16:7]: “And they bear your loads
for you.” This [omission] does not entail that horses should not be used for
transportation of objects. To our interpretation of this verse must be added
the evidence from the sound traditions we have adduced in favor of the
permissibility of consuming the horse™s ¬‚esh, in addition to [the fact] that
there is no sound evidence to the contrary (cadam al-mu cAriK al-QaMCM).54
This kind of strategy in defending the madhhab should by now be clear.
Nawawc™s main target is seemingly Abe nancfa, and subsidiary to him
stood Malik and other less major ¬gures of authority. Again, in an e¬ort
to promote the validity of his school™s doctrine regarding the permissibil-
ity of consuming horsemeat, he marshals a long list of authorities which
includes leading Companions and Followers, and, to score a point, none
other than Abe nancfa™s own disciples. The single tradition cited in sup-
port of the impermissibility of this act meets with Nawawc™s devastat-
ing critique, leaving it in veritable ruins. In the same vein, Nawawc
advances an evincive argument against Abe nancfa™s interpretation of the
Quranic verse 16:8. At the end of the day, the Sha¬cite position is not
54
Nawawc, al-MajmE c, IX, 4“5.
Taqlcd: authority, hermeneutics, and function 109
only vindicated but proven to be unquestionably superior to the only
other alternative that was held by Abe nancfa and Malik.
Needless to say, the defense of the madhhab as a dominant attitude in
the elaboration of positive law appeared as a feature of legal discourse only
subsequent to the formation of the legal schools. But this attitude should
not be expected to surface in every case the jurists discussed. Some cases
were unique to the schools, and did not therefore require either contesta-
tion or defense. A fertile ground for polemic was furnished by the older
cases and questions that the schools, or most of them at any rate, shared.
This common ground did not extend to the solutions they gave them.
Not only did the principles which they applied to the same cases vary, but
a single principle could receive diverging interpretations, thus leading to
further di¬erences in positive doctrine which in turn required defense.
Loyalty to the school with which one was a¬liated never waned and,
if anything, became all the more entrenched in both normative juristic
activity and in the jurists™ psyches. On the other hand, loyalty was not
limited to a particular ¬gure in one™s school. While jurists were constantly
and consistently loyal to their schools as collective entities, no jurist was
loyal constantly and consistently, in every respect and detail of doctrine,
to any single authority within his school. Loyalty of this sort never existed
in reality, which is a powerful testimony to the liberal nature of taqlCd.
A jurist did express nominal loyalty to the so-called founder of his
school, not because he adopted the latter™s doctrines exclusively, but
because he and his doctrines epitomized the unique nature of the school,
in its positive law, juristic character, theological stance, and, most import-
antly, methodological and hermeneutical approaches. But once loyalty to
the school was manifested, no jurist felt bound to accept the entirety of
the founder™s positive legal doctrines. The nana¬tes, for instance, gave
Abe Yesuf and Shaybanc priority over Abe nancfa when the two agreed
with each other and at the same time di¬ered from him. In fact, in those
cases where the interests of society were served better by the application
of a particular rule, that rule would have priority even though it might
not have been held by Abe nancfa.55 But whatever the theory behind
the distribution of authority may have been, jurists in reality never felt
irrevocably bound by the founder™s doctrines. And generally speaking,
the later the period, the more true this proposition is. Loyalty to several
authorities is exempli¬ed in the work of the nana¬te jurist al-Meqilc,

Qakckhan, FatAwA, I, 3; Ibn cfbidcn, NAshiya, I, 70 ¬.; Ibn cfbidcn, Nashr al- cUrf
55

f C BinA” Ba cK al-AMkAm calA al- cUrf, in Ibn cfbidcn, MajmE cat RasA”il, II, 114“ 47, at
130 ¬., and passim.
110 Authority, continuity, and change in Islamic law
who, like the majority of his fellows in that school, declares at the
outset that in his book he opted for “Abe nancfa™s doctrine” (qawl AbC
NanCfa).56 What the reader ¬nds instead is a rich blend of doctrines
emanating from many di¬erent authorities, including Abe Yesuf,
Shaybanc, Zufar, Karkhc, Abe al-Layth al-Samarqandc, Shams al-A™imma
al-Sarakhsc, and anonymous “later jurists” (muta” khkhirEn).57 Similarly,
a
tamawc opens his work with the following statement: “In this book of
mine, I have compiled legal issues which one can neither a¬ord to ignore
nor fall short of learning. The answers I have chosen for these issues derive
from the doctrines of Abe nancfa al-Nucman b. Thabit, Abe Yesuf
Yacqeb b. Ibrahcm al-Anqarc, and Mumammad b. al-nasan al-Shaybanc.”58
Nevertheless, tamawc does take into consideration the doctrines of other
authorities, as shown in the following example:
Concerning a husband and his wife who disagree over the matter of
[ownership of ] their household e¬ects given that they are free59 and still
living in matrimony. Abe nancfa “ may God be pleased with him “ held
the opinion that whatever possessions in the house normatively belong
to males shall be the husband™s. The husband shall take an oath acknow-
ledging his wife™s claim to them. Whatever possessions normatively belong
to females shall be the wife™s. The wife shall take an oath acknowledging
her husband™s claim to them. Whatever possessions in the house that
normatively belong to both males and females shall be the husband™s. The
husband shall take an oath acknowledging his wife™s claim to them. If one
of the spouses were to die, the solution would be the same as above, with
the exception that possessions [equally] belonging to males and females
shall revert to the surviving spouse.
Abe Yesuf “ may God be pleased with him “ held the same view as that
of Abe nancfa, whether the spouses are both alive or one of them dies.
But he opined that the husband should give his wife that portion of the
possessions which speci¬cally belongs to women in an amount equal to
that given to women as a marriage gift (mA yujahhaz bi-hi ). The remainder
goes to the husband.
Mumammad “ may God be pleased with him “ held the view that
whether they are both alive or one has died the [division of possessions]
should be as Abe nancfa stipulated for them if they were both alive.
It is reported that Zufar “ may God be pleased with him “ held the
view that the possessions should be divided equally between the two, each
taking an oath acknowledging the other™s claim. This is the opinion which
we adopt. It is also reported that Zufar held another opinion.60

56
Meqilc, IkhtiyAr, I, 6.
57
See, for instance, the chapter on hire and rent in ibid., II, 50“62.
tamawc, MukhtaQar, 15. 59 I.e. not slaves. 60 tamawc, MukhtaQar, 228“29.
58
Taqlcd: authority, hermeneutics, and function 111
Despite the fact that Abe nancfa, Abe Yesuf, and Shaybanc were held
up as the highest authorities in the nana¬te school, and despite the fact
that Zufar himself was known to have held yet another opinion, tamawc
chose to adopt Zufar™s position which required that household property
be divided into equal shares. Such an example can be multiplied at will,61
drawn from all the four schools. tamawc™s example su¬ces to make the
point, however.
In light of the terseness of tamawc™s MukhtaQar, and the notorious
di¬culties in reconstructing legal practice at any particular time or place,
it is di¬cult to explain why tamawc opted for Zufar over and against
the three major nana¬te authorities. It may have been strictly a matter
of legal reasoning, regarding whose logic and structure the text is
(unsurprisingly) silent. But it may well have been a matter of practical
necessity, rationalized, ex post eventum, by a particular line of reasoning.
Opinions dictated by a dominant practice are often referred to in
legal texts in a pronounced manner. Generally speaking, in abridgments
like that of tamawc, there is no room for detailed justi¬cation either of
the opinions adopted by the author or of other jurists™ opinions that he
rehearses. But in larger works, practice and its imperatives are often
explicitly acknowledged as determining the outcome of cases. This can
certainly be documented in the nana¬te, Sha¬cite, and Malikite schools,
and probably in certain nanbalite texts. As we shall see below in chapter 5,
practice often held a paramount position in determining the extent of
authority bestowed on a particular opinion or doctrine. A jurist™s choice
of an opinion as the most authoritative was frequently justi¬ed by the fact
that it was sanctioned by practice, was adopted by judges, or, as we have
seen earlier in al-FatAwA al-Hindiyya, used in the issuing of fatwAs.62
Since practice necessarily di¬ered in certain areas of the law from
one region to another,63 the authority that a particular practice bestowed
upon a certain case often di¬ered as well. The western Malikite jurist Ibn
Farmen articulates this phenomenon rather clearly. He argues that when a
jurist declares that a particular point of law has been dictated by a certain
practice, he should not be understood to have made a universal statement
but rather a statement applying to a particular region or place. Practice
and prevalent customs determine which doctrine is to be applied and
which not. This principle, Ibn Farmen maintains, has been adopted by
61
Ibid., 394, 405, 410, and passim. 62 See chapter 5, section VI, below.

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