<<

. 5
( 10)



>>

63
See, for example, Wael B. Hallaq, “Model ShurES Works and the Dialectic of Doctrine
and Practice,” Islamic Law and Society, 2, 2 (1995): 109“34; Wael B. Hallaq, “QAKCs
Communicating: Legal Change and the Law of Documentary Evidence,” al-QanSara,
20 (1999).
112 Authority, continuity, and change in Islamic law
the Sha¬cites as well.64 He quotes the Sha¬cite Ibn al-ralam has having
argued that if practice happened to be in agreement with one of Sha¬cc™s
old doctrines, which are otherwise considered obsolete, then that opinion
would become authoritative. He also speaks of the prominent eastern
Malikite jurist Ibn cAbd al-Salam who held an opinion concerning the
law of interdiction (Majr) which was apparently considered less than
authoritative but became so because it re¬‚ected the practice of a region,
presumably his.65
In the nana¬te school, the link between doctrines adopted and the
exigencies of practice is also made consciously and clearly. It is a tenet of
nana¬sm that whenever Abe nancfa has on his side one of his two dis-
ciples, the opinion he holds is considered authoritative and as such it must
be applied.66 This tenet, however, is subject to important exceptions. For
instance, the later nana¬tes are recognized as having been empowered to
diverge from both Abe nancfa™s opinion and that of one of his disciples
in favor of the minority opinion of the other disciple. The justi¬cation
for this divergence is usually attributed to the requirements of practice.67
Even the relatively marginal authority of Zufar is at times chosen over and
against the three founding authorities, as we saw in tamawc™s last example.
tamawc did not care to explain the reasons why Zufar™s opinion is made
preponderant in certain cases. But Shah Walc Allah did. The opinions
of Zufar that were favored in the school over those of Abe nancfa, Abe
Yesuf, and Shaybanc were simply more realistic and practicable.68 Zufar™s
pronouncement that the sick can pray while sitting was favored over
all other opinions in the school precisely on such grounds. Reporting
what seems to have been an average nana¬te doctrine, Walc Allah argues
that any opinion in the school which takes note of human welfare and
public interest in any particular era may be applied, the implication being
that it may be applied despite the existence of competing authoritative
doctrines.69
nassab a¬ords us another detailed example from the Malikite school,
an example which assigns to the events of everyday life further legal
signi¬cance:
In the chapter on hire, Burzulc stated that “Ibn Abc Zayd [al-Qayrawanc]
was asked about a hired builder whose work on a [given] day is interrupted
64
Ibn Farmen, TabQirat al-NukkAm, I, 49. See also chapter 5, section VI, below.
65
Ibn Farmen, TabQirat al-NukkAm, I, 49.
Ibn Maza, SharM Adab al-QAKC, 19; Ibn cfbidcn, NAshiya, I, 71.
66
67
Shah Walc Allah, cIqd al-JCd, 28. 68 Ibid.
69
Ibid., 29: “wa-yajEz lil-mashAyikh an ya”khudhE bi-qawli wAMidin min aQMAbinA camalan
li-maQlaMat al-zamAn.”
Taqlcd: authority, hermeneutics, and function 113
due to the falling of rain. He held the view that the builder is entitled to
a portion of the payment equal to the time he worked. He does not
receive payment for the remainder of the day [during which he did not
work]. Samnen held the same opinion. But others opined that the builder
is entitled to all of the fee because he is not responsible for the stoppage of
the work.” Ibn cArafa said that in his WathA”iq, Samnen held the opinion
that if the falling of rain causes the work of a hired builder, a hired
harvester, or other laborers to cease, then he is entitled to all the fee, not
only that portion for which he actually worked, because he is not respons-
ible for the stoppage of the work. These disagreements, Ibn cArafa said,
have no bearing upon the cases that we have encountered in our city of
Tunis, because the custom there has decreed that contracts of hire become
null and void upon the fall of heavy rain.70
The implication of the last few words in this passage is that in the event
of rainfall a hired person would cease to be entitled to any fee because
the contract was rendered void by, and upon, the occurrence of such an
event. What is remarkable here is that not only are none of the Malikite
authorities in this passage reported to have held an opinion corresponding
with the Tunisian practice, but Ibn cArafa, himself a major Malikite jurist,
declares the aforementioned doctrines of the school to have nothing to do
with that locale™s practice.
In chapters 5 and 6, we shall have more than one occasion to explain
the relationship between authoritative doctrines and legal practice in
more detail. It will become obvious that the relevance of this practice to
legal doctrine was taken for granted by all the schools. True, the relation-
ship may appear to us more pronounced in the Malikite school of the
west, but the other schools, especially the nana¬te and the Sha¬cite, no
doubt recognized it just as readily.

IV
Before concluding this chapter, one important matter remains to be dis-
cussed. We have observed how taqlCd operated on a variety of levels. The
spectrum in which it functioned ranged from a simple reproduction
of doctrine to a full reenactment of legal reasoning and textual evidence
which one or another of the early masters adopted. Preoccupation with
principles and defense of the school™s doctrine also turned out to be the
heart and soul of taqlCd. But this is not all. An integral part of the activity
of taqlCd manifested itself in a less conscious manner, which perhaps

nassab, MawAhib al-JalCl, V, 432“33.
70
114 Authority, continuity, and change in Islamic law
explains the silence over it in the juristic typologies we discussed in the
¬rst chapter. This is the evolution, during the so-called era of taqlCd, of a
new type of discourse which di¬ered from its predecessor in both kind
and quality. Just as taqlCd ™s major occupation was with the articulation of
applied principles, it was necessary to raise the early casuistic method of
exposition to a higher plane by formulating discourse of a more general
applicability. In other words, the straightforward listing of cases proved
insu¬cient as the exclusive method of exposition. Inductive generaliza-
tion was introduced as a supplement, but not necessarily as a substitute,
to casuistry. Whereas the founders™ work was characterized by a strong,
indeed exclusive, tendency toward casuistry, the muqallids systematized
the endless instances of casuistry into a set or sets of general principles that
governed the major issues involved in each area of the law.
There is no doubt that the evolution from a case-by-case style of
exposition to a principle-based method of generalization indicates a
higher degree of development within a system. The founding masters
were occupied with solutions to individual questions, mostly coming to
them through the medium of istiftA”, i.e., the soliciting of a fatwA. This
explains why the early authors of legal treatises, whether of the abridged
or comprehensive type, presented their subject matter on a case-by-case
basis, without the noticeable presence of generalizations. Cases were lined
up one after the other, from the beginning of the section or chapter down
to its end. Such a style of exposition lacked a cogent structure, except for
the evenness of the casuistic coverage.
Later works, however, almost universally exhibit a hierarchical struc-
ture, wherein general de¬nitions and at times principles are stated at the
outset, plus individual cases that both aid in the articulation of principles
and teach the techniques of applying the principles to these cases.71 While
the logical connection between individual cases is not obvious in earlier
works, the connection between the generalizations and individual cases
is readily clear in later expositions. These cases, having inductively given
rise to generalizations, came in their turn to be subsumed under these
same principles.
To illustrate this tendency toward generalization, we shall compare
two nana¬te texts, one from the end of the third/ninth century and the
very beginning of the fourth/tenth, and the other from the middle of
the seventh/thirteenth century. This choice does in no way suggest that
by the beginning of the fourth/tenth century no advance whatsoever had
been made toward generalization, nor should it be understood to mean

Cf. Johansen, “Casuistry,” 137 ¬.
71
Taqlcd: authority, hermeneutics, and function 115
that the trend of generalization reached maturity by the middle of the
seventh/thirteenth. Perhaps some rudimentary beginnings were made
by the beginning of the fourth/tenth century, and it is highly likely that
the trend continued unabated after the seventh/thirteenth. The two texts
selected merely represent the transition from strict casuistry to a gener-
alizing style of exposition, a transition, we must stress, that occurred
entirely within the boundaries of taqlCd.
In our ¬rst text by tamawc, the chapter on hire and rent begins with the
following:
If a man rents from another man a house or [hires] a slave or any other
thing, and it is delivered to him without the lessor stipulating that the price
[or fee] must be paid immediately [upon delivery], then the lessor has no
right to demand of the lessee immediate payment of the rent price. Instead,
the lessee must pay the rent for each phase that has lapsed during the
period of the rent. This is Abe nancfa™s, Abe Yesuf ™s, and Mumammad™s
opinion, which we adopt.72
Note that despite the rudimentary nature of this opinion, an attempt
is made to lump together all instances in which ijAra (rent and hire) is
involved, be the object hired a house, a slave, or otherwise. The choice of
a house in illustration of this principle was no doubt intended to cover the
rent of immovable property where the lessee bene¬ts from residing in the
property itself. The example of a slave, however, covers those instances in
which hire, not rent, is involved, with the understanding that the hirer
bene¬ts from the services which the slave o¬ers. This lumping together of
objects represents an advance over a more casuistic classi¬cation of cases in
which houses, slaves, and other objects appear individually as the exclus-
ive locus of the opinion. Yet, notwithstanding this attempt at grouping
similar cases, the opinion still lacks the basic features of generalization.
tamawc continues his exposition by introducing ¬ve more opinions
which are related to the same theme of rent payment. Immediately
following these we ¬nd an opinion pertaining to damages to rented
property: “If someone hires a beast in order to take it to a stipulated place,
but he takes it to a point beyond that place, he would be liable to damages
[equal to its value] as of the time he went beyond the stipulated place.
He must also pay the hire fee.”73 tamawc then returns to his discussion
of payment of rent, only to reintroduce opinions pertaining to damage
liability. The logical connection between the opinions when presented
in the order that tamawc imposes is at times convincing, but at many
others it seems tenuous. Thus, in addition to eschewing for the most part
tamawc, MukhtaQar, 128.
72 73
Ibid., 128.
116 Authority, continuity, and change in Islamic law
generalizations, tamawc™s discussion lacks rigor in its organization of the
subject matter.
The style of exposition is characteristically that of “He who does X, Y,
and Z, is entitled to (or owes) P, Q, and R.” But the terms in which the
whole discourse is presented are very concrete and of a limited scope,
typi¬ed by such statements as “He who rents a house for the duration of
a year to begin in the future, [his] rent contract is valid.”74 Although the
house is used to represent immovable property, and the speci¬cation of
one year to represent any agreed-upon time-frame, the examples are none-
theless caught in a con¬ned conception of legal applicability. Logically,
they are more suitable for subsumption under general propositions than
they are capable of functioning as major premises in syllogistic inferences.
tamawc™s exposition stands in sharp contrast to our second text, that
of the nana¬te jurist cAbd Allah b. Mawded al-Meqilc. In the chapter
on hire and rent, Meqilc opens with a de¬nition of the term ijAra. (In
sharp contrast, tamawc o¬ers no such de¬nition.) IjAra, Meqilc states,
“is the sale of manA¬ c,” i.e. the enjoyment of services and usufruct.
This type of sale, he continues, is permitted “ despite the imperatives of
qiyAs “ because society needs it (li-MAjat al-nAs).75 For, by de¬nition, since
usufruct and services do not exist the moment a contract is concluded,
there can be no sale, for the law requires that the object being sold be in
existence on completion of the transaction.
Having de¬ned ijAra, and having established its juristic status as a
consensual entity76 (in contradistinction to one arrived at through legal
reasoning), Meqilc begins to state certain general principles:
Usufruct and objects of hire [and rent: ujra] must be known (ma clEma).77
Things permitted to have a price are permitted to be objects of lease, and
their lease may be invalidated by violating the prerequisites (shurES).78
The right to cancelation,79 to inspection,80 and to rescission due to
74
Ibid., 131. 75 Meqilc, al-MukhtAr lil-FatwA, printed with his IkhtiyAr, II, 50.
76
On society™s needs as a consensual entity, see Hallaq, “QAKCs Communicating,” sections
I and VI.
77
That is, they must be known to have a potential existence.
78
In this sense, shurES are the general prerequisites for the validity of a legal act. See
Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 118.
On the prerequisites of ijAra, see Marghcnanc, HidAya, III, 231 ¬.
79
The Arabic terminology is khiyAr al-sharS which is a stipulated contractual right of the
buyer or lessee to the cancelation of the contract within a certain period of time, usually
no more than three days. See Marghcnanc, HidAya, III, 27 ¬.
80
The Arabic terminology is khiyAr al-ru”yA which is the buyer™s or lessee™s right to cancel
the contract upon seeing the object he bought, rented, or hired, the assumption here
being that he had not seen the object at the time of concluding the contract. See
Marghcnanc, HidAya, III, 32 ¬.
Taqlcd: authority, hermeneutics, and function 117
defect81 are all a¬rmed in the [law of ] ijAra. It is also voidable and rescind-
able. Usufruct is de¬ned by stipulating the period, as in [renting a] resid-
ential house or a cultivable land for a stated period; or by speci¬cation, as
in dyeing or tailoring a dress, or as in hiring a beast for the transportation
of a speci¬c thing, or for riding it to a particular destination; or by gesture
(ishAra), as in [hiring someone] to carry this food [to which one points].82
Note that this passage is free of casuistry and contains instead general-
ized statements that are applicable to the whole range of ijAra. Instead
of introducing particular examples from which generalizations may be
inductively inferred, the discourse here has almost universal applicability,
and forms the basis of an entire range of deductive possibilities. And
instead of identifying anew the conditions and prerequisites for the valid-
ity of an ijAra contract through the elaboration of individual cases which
embody such conditions (a feature of tamawc™s work), Meqilc simply
creates a link to the well-known chapter on sales (buyE c ) by making the
latter applicable to the former. Furthermore, he de¬nes the means by
which the usufruct may be known through a universal language (e.g.,
stipulation of time and speci¬cation of service), although he introduces
particular examples in order to illustrate them. Logically, this discourse
represents a reversal of that adopted by tamawc and the early masters, a
reversal in the sense that tamawc moved from particulars to universals
(which he and his contemporaries were unable to articulate), whereas
Meqilc, more than three centuries later “ and having articulated such
universals “ moved from these universals to particulars representing mere
instances of the universals.
However, immediately thereafter, Meqilc reverts to a discussion of indi-
vidual cases. At ¬rst glance, the uniqueness of each of these cases makes
any abstraction on their basis impossible. But in the second section,
he attempts once more to establish generalizations. Here he distinguishes
two types of hired persons, the common (mushtarak) and the private
(khAQQ).83 The mushtarak, he states, is not entitled to a fee until he per-
forms the task for which he was hired, e.g. a tanner or a builder who is
hired to do a particular job. The property upon which he is hired to work
is held by him as if in trust (amAna), the implication here being that if the
property is destroyed, he is not liable to damages unless he himself caused
its destruction. The khAQQ, on the other hand, is someone who is hired for
a particular duration to perform a service. He is entitled to a fee upon
81
KhiyAr al- cayb is the buyer™s or lessee™s right to return the object he bought, hired, or
rented due to a defect in it, thereby e¬ecting the cancelation of the contract. See
Marghcnanc, HidAya, III, 35 ¬.
82
Meqilc, IkhtiyAr, II, 51. 83 Ibid., II, 53.
118 Authority, continuity, and change in Islamic law
concluding the contract, even though he may not have started his work
yet. Now, articulating a distinction between these two types as central
entities was important, for such a distinction in turn determined the types
of damage liability in the law of hire and rent. In Meqilc, the distinction is
pronounced and occupies a central place in his doctrine on the subject.
In tamawc, on the other hand, it is virtually absent,84 although tamawc,
like his predecessors, knew of it.85
These distinctions are followed by other general principles pertaining,
inter alia, to the payment of rental and hiring fees. What is characteristic
of Meqilc™s discourse here and elsewhere is the close logical relationship
between the generalizing statements and casuistry. As soon as a generaliz-
ing proposition is made it is followed either by supporting or excepting
particulars. The former are apparently intended to illustrate the generaliza-
tion as well as to provide concrete instances of its applicability. The latter,
on the other hand, are introduced in order to exclude certain rules or cases
from a general principle. There are, of course, other individual cases and
opinions whose logical connection to the generalizations is at best tenuous.
But these had been passed down through generations of juristic exposi-
tion as a group of cases which did not lend themselves to abstraction.
The available literature does not permit us to determine with any
measure of accuracy the period in which the transition from pure casuistic
exposition to generalization took place. But it seems safe to assume that
once the schools had taken form by the middle of the fourth/tenth cen-
tury, generalization as a hermeneutical activity became a viable pursuit.
This assumption is warranted by the fact that an essential element in the
evolution of the schools was the articulation of a set of positive doctrines
recognized by the members of each school as authoritative. This is pre-
cisely what the term madhhab signi¬ed “ a body of positive legal cases
that were acknowledged as authoritative and as making up the doctrinal,
though not necessarily personal, constitution of the school.86 And once
these doctrines were deemed authoritative, they were elaborated and
studied as applications of predetermined principles, principles from
which they had issued but which had not yet been explicitly articulated.
We have seen that one of taqlCd ™s major preoccupations was precisely
In the middle of a discussion, tamawc de¬nes in a cursory manner only the khAQQ type,
84

saying that it is “he who is hired for a known period” (huwa al-musta”jar calA mudda
ma clEma): MukhtaQar, 130.
85
Ibid., 129 (l. 12), 130 (l. 1). See also Mawardc, al-NAwC al-KabCr, IX, 254.
86
The other principal meaning of the term madhhab was the personal constitution of the
school, namely, a body of individual jurists who declared their loyalty to an eponym,
although they were not obliged to follow his doctrines in every case. In this sense, then,
a¬liation with an eponym was in part, if not largely, a nominal, not a substantive, one.
Taqlcd: authority, hermeneutics, and function 119
the articulation of these principles. It should come as no surprise then that
this evolution toward generalization was intimately connected with the
muqallids™ constant preoccupation with principles which we have demon-
strated in the case studies presented earlier in this chapter.
Nor does the achievement of taqlCd stop here. The very centrality of
the principles that permitted generalization in juristic discourse also gave
rise to another signi¬cant development subsequent to the appearance
and entrenchment of the generalizing mode of exposition. This develop-
ment, which began after the ¬fth/eleventh century, is represented by
the emergence of new types of legal discourse, such as qawA cid 87 and
al-ashbAh wal-naUA”ir.88 These types embody a systematic construction of
higher general principles that derived from a variety of sources, includ-
ing individual cases and lower general principles of the kind we have
encountered in this chapter.89

V
All in all, we have demonstrated that taqlCd is far from the blind following
of an authority, as a number of major Islamicists have claimed. True,
there were always jurists at the lowest rung of the profession who did
mechanically and perhaps obtusely follow legal authority.90 But their
juristic performance represents no more than one form or one level of
taqlCd, an activity that stretched over a wide spectrum. The search for the
school™s authoritative principles and the attempt to apply them to indi-
vidual cases emerged as one of the mainstays of taqlCd.91 The characteristic

See, e.g., cAlc b. cAbbas al-Baclc Ibn al-Lammam al-nanbalc, al-QawA cid wal-FawA ”id
87

al-UQEliyya, ed. Mumammad al-Fiqc (Beirut: Dar al-Kutub al-cIlmiyya, 1403/1983);
Izz al-Dcn Ibn cAbd al-Salam, QawA cid al-AMkAm f C MaQAliM al-AnAm, 2 vols. (Cairo:
c

Masbacat al-Istiqama, n.d.); Shihab al-Dcn al-Qaraf c, al-FurEq, 4 vols. (Cairo: Dar
Imya™ al-Kitab al-cArabc, 1925“27).
88
The most well-known works in this area are Jalal al-Dcn cAbd al-Ramman al-Suyesc™s
al-AshbAh wal-NaUA”ir (Beirut: Dar al-Kutub al-cIlmiyya, 1979), and Ibn Nujaym,
al-AshbAh wal-NaUA”ir.
The genres of qawA cid and al-ashbAh wal-naUA ”ir are yet to be investigated. However,
89

beyond the fact that their emergence illustrates the growing tendency towards general-
ization, a fuller analysis of their nature and function lies beyond the scope of the
present discussion.
90
The sources a¬ord abundant references to incompetent practices of taqlCd. See Ibn
fbidcn, SharM al-ManUEma, 13; nassab, MawAhib al-JalCl, VI, 60, 95, 96; Ibn Rushd,
c

FatAwA, III, 1274 ¬., and passim; al-FatAwA al-Hindiyya, III, 307.
91
This element of taqlCd has been shown to be evident in Ibn Rushd™s typology of jurists.
The ability to distinguish between those views that accord with the school™s principles
and those that do not turns out to be characteristic of both the second and, expectedly,
the third groups. See chapter 1, section II, above.
120 Authority, continuity, and change in Islamic law
listing of opinions pertaining to a single issue had a number of functions,
not the least of which was the illustration of how each opinion was the
result of the application of a di¬erent principle or of a di¬erent inter-
pretation of the same principle. Connected with this listing of opinions
was the defense of the authoritative doctrine of the school against
other schools or the defense of a single authority over and against other
authorities, from both within and without the school. And although the
traditionally recognized authorities were, as a rule, followed, there were
nonetheless exceptions to this rule, even though they remained, it must
be stressed, within the purview of taqlCd. In fact, it is a salient feature of
Islamic legal doctrine that the juristic authority embedded in the works
of the immediate or near-immediate precursors was to come to constitute
the chief source from which the jurists expounded their own doctrines,
or at least on par with the teachings of the founders. TaqlCd, therefore,
was not bound by any particular authority just because this authority was
equated with an eponym or an early master. TaqlCd of the “moderns”
(muta”akhkhirEn) was therefore as legitimate as “ and in fact more fre-
quently practiced than “ that of the “ancients” (mutaqaddimEn).
Finally, we must not overlook an important aspect of taqlCd that
epitomized its dynamic and vibrant nature, namely, its reenactment of the
textual evidence and legal reasoning adopted by a master. As in the case
of the search for principles, this reenactment of what was in e¬ect an
ijtihAdic activity had more than one function, including instruction in the
principles, evidence, and reasoning behind legal cases, as well as defense
of the great mujtahids by vindicating the methods and outcome of their
ijtihAd.
Operative terminology and the dynamics of legal doctrine 121

5

OPERATIVE TERMINOLOGY AND THE
DYNAMICS OF LEGAL DOCTRINE




I
We earlier concluded that the rise of taqlCd as a modus operandi was symp-
tomatic of the madhhab™s ¬nal coming to maturity as an authoritative
entity. It was the external expression of the internal juridical dynamics
that came to dominate and characterize the madhhab both as an estab-
lished and authorized body of doctrine and as a delimited hermeneut-
ical enterprise. One of the functions of taqlCd, we have also seen, was
the defense of the school as a methodological and interpretive entity, an
entity that was constituted of identi¬able theoretical and substantive prin-
ciples.1 But the school was also de¬ned by its substantive boundaries,
namely, by a certain body of positive doctrine that clearly identi¬ed the
outer limits of the school, limits beyond which the jurist ventured only
at the risk of being considered to have abandoned his madhhab.2 An
essential part of the school™s authority, therefore, was its consistency in
identifying such a body of doctrine. On the macro-level, this doctrine was
formed of the totality of the founder™s opinions, substantive principles,
and legal methodology, whether they were genuinely his or merely attrib-
uted to him.3 Added to this were the doctrines of jurists deemed to have
formulated legal norms in accordance with the founder™s substantive
and theoretical principles. We have seen that the opinions of those jurists
who departed from a school™s principles, such as Muzanc and the Four
Mumammads, were excluded from the body of authoritative doctrine,
even though this exclusion was by no means ¬nal and in fact remained the
object of some controversy. Finally, and with the same intention of fol-
lowing a well-trodden methodological path, all later opinions, expressed

1
Namely, those principles that were elaborated in legal theory (uQEl al-¬qh) and those that
governed the hermeneutical activity of taqlCd in substantive law (which we discussed in
the previous chapter).
2
See n. 5, below. 3 See chapter 2, above.

121
122 Authority, continuity, and change in Islamic law
mostly as fatwAs,4 belonged to the inner limits of the school™s doctrinal
boundaries. At this macro-level, there appears to have been no question
whatsoever as to what was the doctrinal constitution and substantive
make-up of Malikism, nana¬sm, or any other school for that matter.
This writer, for one, has never encountered an opinion whose school
a¬liation was contested.5 The imposing authority of the founder, con-
structed and genuine, ensured that the school named after him was a
highly consolidated and integral entity.
On the micro-level, however, plurality of opinion within a given school
was literally the name of the game. Each school possessed a vast corpus
of opinions attributed to the founder, his immediate followers, and later
authorities. In other words, they represented the total sum of doctrinal
accretions beginning with the founder down to any point of time in
the history of the school. In the Malikite school, it was determined that
Ibn al-Qasim and Samnen were the most reliable transmitters of Malik™s
doctrine, and so their riwAyas became the most authoritative source
for Malik™s opinions.6 As Ibn al-Qasim never set his riwAya in writing, the
doctrine he taught on behalf of Malik was in turn transmitted by Asad
Ibn al-Furat (d. 213/828), Samnen, Ibn nabcb (d. 238/852), and cUtbc
(d. 255/868). These jurists did record their transmissions in written
form; as a result, their works later came to be known as the “Mothers”
(ummahAt) of Malikite legal literature.7 The varieties that emerged in
these recensions, the disciples™ attributions to Malik of various opinions,
often contradictory, plus the opinions that were formulated by jurists
in response to the exigencies of the geographical locales in which they
¬‚ourished “ from Baghdad to Andalusia “ all led to a multiplicity of
opinion that strongly colored the discourse of all later Malikite works.
The plurality of opinion in the nana¬te school was equally abundant.
In addition to the problem that later nana¬tes faced in dealing with the
con¬‚icting opinions attributed to Abe nancfa, the three ¬gureheads of
the school also frequently disagreed with each other. For the students in
the nana¬te tradition this was a subject of careful study and research.8 To
add to the challenge, nana¬te scholars had to learn about and deal with

Hallaq, “From FatwAs to FurE c,” 39 ¬.
4
5
This is applicable even in the case of the so-called irregular opinions (gharCb, shAdhdh)
which were not accepted as part of authoritative doctrine, but remained, though inoper-
ative, within the boundaries of the school. That they were irregular in one school did
not make them the property of another, however.
nassab, MawAhib al-JalCl, I, 33“34; Ibn Farmen, DCbAj, 239“ 41, 263“68.
6

See nassab™s introduction to his MawAhib al-JalCl, I, 6“ 42, especially at 33“35.
7
8
As attested in Abe Zayd cUbayd Allah b. cUmar al-Dabbesc™s KitAb Ta”sCs al-NaUar
(Cairo: al-Masbaca al-Adabiyya, n.d.).
Operative terminology and the dynamics of legal doctrine 123
the three levels of doctrine, the UAhir al-riwAya, nawAdir, and nawAzil,9
which represented a massive array of doctrine. The last of this trilogy
included a body of opinion culled from juristic writings extending across
several centuries and emanating from a number of disparate and far-¬‚ung
regions, from Transoxania to Egypt.
Geographically speaking, and with the exception of the more recently
Islamicized lands of South-East Asia which produced no truly authoritat-
ive doctrine, Sha¬cism was more limited than its counterparts. But the
plurality and diversity of opinion in it was no less staggering. Sha¬cc
himself was well known for having elaborated two sets of doctrine, one
during his earlier life, known as the “Old” doctrine (al-qawl al-qadCm),
and the other later on in his career, known as the “New” doctrine (al-qawl
al-jadCd ). And like the three nana¬te masters, he too was notorious for
holding at times more than one opinion even within the “New” doctrine.
In addition, the Sha¬cites had to deal with a vast array of doctrine
formulated by the aQMAb al-wujEh, those jurists who, as we have seen,10
formulated opinions by way of takhrCj. As in the Malikite school, the
Sha¬cites had more than one venue for transmitting the doctrines of
both Sha¬c c and the aQMAb al-wujEh. In this case, there were two which
came to be known as SarCqas (lit., ways).11 One of these, identi¬ed with
the Iraqians, was headed by the distinguished Abe namid al-Isfara™cnc
(d. 406/1015), who gained renown as Shaykh al-TarCqa al-cIrAqiyya.
The other, associated with the Khurasanians, was headed by Abe Bakr
al-Qa¬al al-Marwazc (d. 417/1026), who was also nicknamed Shaykh
al-TarCqa al-KhurasAniyya.12 Di¬erences between the two SarCqas were
serious and often highly contentious. Shihab al-Dcn Ibn Abc Shama
(d. 665/1266), a Sha¬cite himself, severely criticized his school for the
major de¬ciency (khalal ) represented by the doctrinal discrepancies and
contradictory transmissions of the two SarCqas.13 Nor was this all that the
Sha¬cite legists had to cope with. As in all other schools, they had to take
9
For a discussion of these, see chapter 2, section III, above.
10
See chapter 2, section III, above.
11
No modern scholar, as far as I know, has thus far attended to this development in
Sha¬cism, a development that promises to reveal valuable information about the history
of this school.
Subkc, TabaqAt, III, 24, 150, 198“99; Ibn Qakc Shuhba, TabaqAt, I, 175“76; Shashc,
12

Nulyat al- cUlamA”, I, 54“55. Subkc reports (TabaqAt, II, 116) that al-Mucafa Abe
Mumammad al-Meqilc wrote a treatise in which he brought the two SarCqas together.
For more on the nature of these SarCqas, see Nawawc, al-MajmE c, I, 69; Nawawc,
TahdhCb, I, 18“19.
Shihab al-Dcn b. Ismac cl Ibn Abc Shama, MukhtaQar KitAb al-Mu”ammal lil-Radd ilA
13

al-Amr al-Awwal in MajmE cat al-RasA”il al-MunCriyya, vol. III (Cairo: Idarat al-tibaca
al-Muncriyya, 1346/1927), 20.
124 Authority, continuity, and change in Islamic law
into account the vast body of cumulative doctrine produced by those
authorities who lived after the aQMAb al-wujEh.
The nanbalites were also faced with a fairly wide spectrum of doctrine,
similar in some respects to the doctrinal diversity of the Sha¬cite school.
Perhaps due to the fact that Ibn nanbal did not leave a legal corpus
that could be regarded with any certainty as having been ¬xed by him,
he was often associated with two, three, and at times even more opinions
on the same case.14 In terms of multiplicity of opinion, he is said to
outdo even Sha¬cc.15 Furthermore, nanbalite doctrine underwent the
same process of elaboration through takhrCj as did that of the Sha¬cites.
Abe Yacla Ibn al-Farra™, for instance, is said to have written a large work
exclusively dedicated to the riwAyAt and wujEh in nanbalite doctrine,
the former being Ibn nanbal™s opinions and the latter those of the aQMAb
al-takhrCj.16
The multiplicity of doctrinal narrative resulted in the development of
a technical vocabulary whose purpose was to distinguish between types
of legal opinion. We have already seen that those opinions formulated
by means of takhrCj were called wujEh, primarily in the Sha¬cite and
nanbalite schools. The opinions of the founders were also given special
terms that designated them as such. Thus, in the Malikite school,
they were called riwAyAt, whereas aqwAl were assigned to those opinions
formulated by Malik™s followers, including such late ¬gures as Ibn Rushd
and Mazarc. But the Malikites admit that these terminological distinc-
tions were not always observed and thus were not consistent.17 In the
Sha¬cite school, the designation aqwAl was reserved for Sha¬cc™s opinions
alone, whereas the Suruq (pl. of SarCqa) represented “ways of transmitting
school doctrine.” Thus, a jurist might claim that there exist two wajh
or qawl opinions with regard to a certain question, while another might
reject this claim and insist that there is only one. Such a disagreement
would represent the variations involved in identifying or transmitting the
SarCqa.18 But di¬erences among the Sha¬cite jurists could at times also
be found with regard to the distinctions between qawl and wajh. In a
particular case pertaining to dietary law, for instance, Nawawc was not
certain whether it had three wujEh or three aqwAl, the di¬erence here
14
See, for example, Zarkashc, SharM, II, 560.
15
See the editor™s introduction to ibid., I, 20“21.
Ibid. 17 nassab, MawAhib al-JalCl, I, 40.
16

Nawawc, al-MajmE c, I, 65“66; Shashc, Nulyat al- cUlamA”, VIII, 59. The SarCqa could,
18

moreover, be made up of a number of elements. Thus, a madhhab case may consist
of, say, three Suruq, each in turn consisting of one, two, or even three qawl or wajh
opinions. For examples, see Shashc, Nulyat al- cUlamA”, I, 85“86 (for a case having six
Suruq), 86, 257; VIII, 59, 142“ 43, 181, 237“38; Nawawc, al-MajmE c, IV, 44.
Operative terminology and the dynamics of legal doctrine 125
being a matter of attribution either to Sha¬cc or to those who practiced
takhrCj. Generally, however, the Sha¬cite notion of SarCqa was shared
by the Malikites as well,19 but not by the nana¬tes who, as we have
already seen, developed the tripartite distinction between UAhir al-riwAya,
nawAdir, and nawAzil.20

II
This technical terminology of narrative was symptomatic of the stagger-
ing variety of opinion which resulted from a fundamental structural and
epistemological feature in Islamic law, a feature that emerged early on and
was to determine the later course of legal development. Its root cause was
perhaps the absence of a central legislative agency “ a role which could
have been served by the state or the o¬ce of the caliphate, but was not.
The power to determine what the law was had lain instead, from the very
beginning, in the hands of the legal specialists, the proto-fuqahA”, and
later the fuqahA” themselves. It was these men who undertook the task of
elaborating on the legal signi¬cance of the revealed texts, and it was they
who ¬nally established a legal epistemology that depended in its entirety
upon the premise of an individualistic interpretation of the law. This
feature was to win for Islamic law, in modern scholarship, the epithet
“jurists™ law.” The ultimate manifestation of this individual hermeneutical
activity was the doctrine of kull mujtahid muQCb, i.e. that every mujtahid
is correct.21 The legitimization of this activity, and the plurality that it
produced, had already been articulated as a matter of theory by as early a
¬gure as Sha¬cc.22 It was also as a result of this salient feature that juristic
disagreement, properly known as khilAf or ikhtilAf, came to be regarded
as one of the most important ¬elds of learning and enquiry, a ¬eld in
which the opinions of a veritable who™s who of jurists were studied and
discussed.23
This feature of what we might term ijtihAd ic pluralism had already
become an epistemological element that was integral to the overall struc-
ture of the law. Its permanency is evidenced by the fact that, even after

nassab, MawAhib al-JalCl, I, 38“39.
19
20
See chapter 2, section III, above.
21
Shcrazc, SharM al-Luma c, II, 1043“45; Ammad b. cAlc Ibn Barhan, al-WuQEl ilA al-UQEl,
ed. cAbd al-namcd Abe Zunayd, 2 vols. (Riyadh: Maktabat al-Macarif, 1404/1984), II,
341“51.
Mumammad b. Idrcs al-Sha¬cc, al-RisAla, ed. Ammad Mumammad Shakir (Cairo:
22

Muqsafa Babc al-nalabc, 1969), 560“600; Norman Calder, “IkhtilAf and IjmA c in
Sha¬cc™s RisAla,” Studia Islamica, 58 (1984): 55“81.
Ibn cAbd al-Barr, JAmi c BayAn al- cIlm, II, 45 ¬.; Makdisi, Rise, 107“11.
23
126 Authority, continuity, and change in Islamic law
the ¬nal evolution of the madhhab, plurality could not be curbed: not
only the old multiplicity of opinion that had emerged before the rise
of the madhhabs, but also the plurality which surfaced later on, at every
juncture of Islamic history. In other words, plurality remained a feature
that proved utterly intractable. Its eradication, which did occur during the
nineteenth century, would have meant the destruction of the distinctive
structural and epistemological features of Islamic law.24
If legal pluralism was there to stay “ a fact which the jurists never
questioned “ then it had to be somehow curbed or at least controlled, for,
as a matter of consistency and judicial process, doctrinal uncertainty was
detrimental. Which of the two, three, or four opinions available should
the judge adopt in deciding cases or the jurisconsult opt for in issuing
fatwAs? The discourse of the jurists, in the hundreds of major works that
we have at our disposal, is overwhelmingly preoccupied by this problem:
Which is the most authoritative opinion? No reader, even a casual one,
can miss either the direct or oblique references to this di¬cult question.
Of course, the problem was not couched in terms of plurality and plural-
ism, for that would have amounted to stating the obvious. Rather, the
problem was expressed as one of trying to determine the soundest or most
authoritative opinion, although without entirely excluding the possibility
that subjectivity might in¬‚uence the decision. It is no exaggeration to
maintain therefore that one of the central aims of all legal works, large
or small, was precisely to determine which opinion was sound and which
less so, if at all. As in all legal systems, consistency and certainty are not
only a desideratum, but indispensable. In short, it cannot be overstated
that reducing the multiplicity to a single, authoritative opinion was seen
as absolutely essential for achieving the highest possible degree of both
consistency and predictability.

III
The same system that produced and maintained legal pluralism also
produced the means to deal with the di¬culties that this pluralism pre-
sented. To draw a more complete picture of the mechanisms that were
developed to increase legal determinacy, we must look at two distinct
levels of discourse, one emanating from a theoretical elaboration of this
24
A number of traditional substantive laws continue to occupy a place in the codes of
modern Muslim states, but structurally, epistemologically, and hermeneutically, tradi-
tional Islamic law has largely been demolished. State codi¬cation, the abolishing of
waqfs, and the introduction of modern law schools and western courts were some of
the factors that ¬nally led to the structural collapse of the traditional legal system.
Operative terminology and the dynamics of legal doctrine 127
issue, the other deriving from positive legal formulations. The two levels
were conceptually interconnected, and formed a virtual symbiosis. Theory
acknowledged the reality of ijtihAdic pluralism, while practice “ partly
in the form of a discursive construction of substantive law “ provided
material for theoretical formulations.
Legal theory was based on the premise that the activity of discovering
the law was both purely hermeneutical and totally individualistic. The
allowances that were given to personal ijtihAd created, within the theory
itself, the realization that, epistemologically and judicially, pluralism had
to be subjected to a further hermeneutical process by which plurality
was reduced to a minimum. Di¬erent opinions on a single matter had
to be pitted against each other in a bid to ¬nd out which of them was
epistemologically the soundest or the weightiest. This elimination by
comparison was in theoretical discourse termed tarjCM, namely, weighing
con¬‚icting or incongruent evidence. Here, evidence should be under-
stood as the components making up the opinion itself: the revealed text
from which the legal norm was derived; its modes of transmission; the
quali¬cations and integrity of the transmitters; and ¬nally the quality of
linguistic and inferential reasoning employed in formulating the opinion.
We shall now o¬er a brief discussion of preponderance in light of the
problems that these components present.
Before we proceed, a preliminary, general remark is in order. It is
a cardinal tenet in Islamic legal theory that tarjCM is permitted only in
dealing with probable cases, that is, cases that do not depend on textual
evidence whose linguistic signi¬cance and modes of transmission are
deemed to be certain. The Quranic verse that allots the female half
the male™s share of inheritance is not open to tarjCM since, by de¬nition, it
is conclusive and not subject to interpretation or the formulation of other
opinions. Furthermore, the epistemic hierarchy of the legal sources settles
a priori any dispute as to which opinion must be deemed preponder-
ant. Thus, an opinion on which consensus was reached is superior since
consensus enjoys the highest epistemic value, even if the other opinions
are derived from ambiguous Quranic verses. This superiority is in e¬ect
guaranteed by two attributes which consensus enjoys and which other
sources do not. First, it is safeguarded against abrogation, and second, it
is not subject to varying interpretations, for the interpretation agreed on
by consensus acquires certainty and, consequently, bars alternative inter-
pretations.25 The hierarchy then is as follows: consensus, Quran, multiply

Shcrazc, SharM al-Luma c, II, 665“66, 682, 726“37; tef c, SharM MukhtaQar al-RawKa,
25

III, 675.
128 Authority, continuity, and change in Islamic law
transmitted traditions (mutawAtir), solitary traditions (AMAd ), and qiyAs,
the inferential methods used in legal reasoning. In this hierarchy, the
Quran and the mutawAtir are on a par in terms of epistemic value.26
We now turn to preponderance as it relates to the categories we out-
lined above, the ¬rst of which is the transmission of the traditions. We
have said that the most reliable form of transmission is the tawAtur which
alone, by the admission of most theoreticians and jurists, engenders cer-
tainty. Other forms, however, do not. The solitary tradition, and all other
types of traditions standing between it and the mutawAtir,27 were deemed,
according to the majority, to engender probable knowledge. Any tradition
that does not meet the conditions of the solitary should not, theoretically
at least, be utilized in matters legal. The general principle that governs
transmission is that the more numerous the persons involved in the trans-
mission of a report, the more reliable the report will be.28
Another aspect of transmission relates to the quality of the tiers of
transmission. Thus, a tradition whose transmission can be traced all the
way back to a Companion who was a direct witness of what the Prophet
said or did is deemed superior to a tradition whose transmission begins
with a Follower.29 Similarly, a tradition that lacks the name of a trans-
mitter at any tier of its transmission would be outweighed by another
whose transmission is uninterrupted.
The rectitude of the transmitters themselves was also of crucial import-
ance. Thus, a tradition that was transmitted by persons known for their
reliability, precision, and trustworthiness outweighed another that was
transmitted by persons who enjoyed only some or none of these qualities.
Degrees of reliability, precision, and trustworthiness were distinguished.
The more perfect the qualities possessed by the transmitter, the more
superior he was adjudged. Accordingly, a more precise transmitter

tef c, SharM MukhtaQar al-RawKa, III, 674“75. On the epistemology of the mutawAtir,
26

see Bernard Weiss, “Knowledge of the Past: The Theory of TawAtur According to
Ghazalc,” Studia Islamica, 61 (1985): 81“105; Wael B. Hallaq, “On Inductive Cor-
roboration, Probability and Certainty in Sunnc Legal Thought,” in Nicholas L. Heer,
ed., Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh (Seattle: Uni-
versity of Washington Press, 1990), 9“24.
Such as the mashhEr and mustaf CK, which are epistemologically superior to the solitary
27

traditions but said by the majority to yield only a high degree of probability. See
Hallaq, “Inductive Corroboration,” 21 f.
fmidc, IMkAm, I, 229 f.; Abe Yacla Ibn al-Farra™, al- cUdda f C UQEl al-Fiqh, ed.
28

Mumammad Mubarakc, 3 vols. (Beirut: Mu™assasat al-Risala, 1980), III, 856“57; tef c,
SharM MukhtaQar al-RawKa, III, 690“91; Hallaq, “Inductive Corroboration,” 9 ¬.
tef c, SharM MukhtaQar al-RawKa, III, 692; Bernard Weiss, The Search for God™s Law:
29

Islamic Jurisprudence in the Writings of Sayf al-DCn al-FmidC (Salt Lake City: University
of Utah Press, 1992), 735.
Operative terminology and the dynamics of legal doctrine 129
bestows greater strength on a tradition than another whose transmitter is
less precise.30
There were numerous other factors which entered into considera-
tions of tarjCM relative to transmitters. Oral learning and memorizing of a
tradition renders it superior to another whose transmission was based on
a written record. This preference for human memory makes any tradition
which is dependent on writing less desirable. If at any stage of its trans-
mission the tradition were committed to writing, and then once again
transmitted orally from that point onward, then that tradition would be
outweighed by another which had been continually transmitted by oral
means and was hence devoid of such weakness. Similar to this is the
preference given to a tradition purporting to contain a verbatim report of
the Prophet™s words. Such a tradition is considered far superior to another
which conveys only the meaning or theme of what the Prophetic words
said.31 In the same vein, a tradition whose ¬rst transmitter reports that he
heard the Prophet say something outweighs another based on a report in
which the transmitter tells of what the Prophet wrote to someone on a
certain matter.32
Chains of transmission that include legists are deemed superior to any
that do not contain transmitters with such quali¬cations. Similarly, a
transmitter of prestigious ancestry or one whose family converted to Islam
at an early point in time is considered superior to another who is or
happens to be the descendant of a more recent convert or whose family is
not well known. The degree of closeness to the Prophet was also a con-
sideration. Thus, as a transmitter, a close friend of the Prophet is deemed
far superior to another who was not so close to him. It is perhaps the same
logic which dictates that a Medinese transmitter is superior to another
transmitter who hailed from or lived in another locale.33 The last, but not
the least, of these factors is the transmitter™s conformity to the dictates of
the tradition he narrates. If one or more of the transmitters of a tradition
were known to have acted in accordance with its message, their transmis-
sion would be considered to outweigh another where the transmitters did
not act pursuantly to what they have narrated.34
The circumstances which gave rise to a tradition also determined its
strength. Thus, if a tradition was transmitted within the context of an
event which is considered widely known, then it would outweigh another
lacking such a context. Similarly, if the ¬rst transmitter was somehow
implicated or involved in the event that gave rise to a tradition, then the
tef c, SharM MukhtaQar al-RawKa, III, 693; Shawkanc, IrshAd al-FuMEl, 54“55.
30
31
Shawkanc, IrshAd al-FuMEl, 57; Weiss, Search, 736. 32 Bajc, IMkAm al-FuQEl, 739.
33
Shcrazc, SharM al-Luma c, II, 657“60; Hallaq, History, 67“68. 34 Weiss, Search, 735.
130 Authority, continuity, and change in Islamic law
tradition would be regarded as superior to another where the transmitter
was merely an observer. This involvement may be one of two types. The
¬rst is a tradition in which the ¬rst transmitter reports that the Prophet
said or did something that concerned the reporter personally, such as
Maymena™s report that the “Prophet married me in Sarif 35 while he was in
the state of MalAl.” This tradition was considered superior to Ibn cAbbas™s
report of the same marriage with the di¬erence that in this latter transmis-
sion the Prophet was said to be in a state of iMrAm.36 The second type is a
tradition whose object speci¬cally pertains to the ¬rst transmitter, such as
the tradition concerning menstruation. Some jurists considered the tradi-
tion whose ¬rst transmitter was a woman more reliable than one ¬rst trans-
mitted by a man. Other jurists, however, begged to di¬er, arguing that if
the man was a reliable, trustworthy, and precise transmitter, his report
should outweigh a woman™s transmission, even if he was not personally
involved in the matter that gave rise to the tradition in the ¬rst place.37
Also subject to preponderance were the texts themselves (matn; pl.
mutEn), irrespective of the mode of their transmission. The following are
some types of tarjCM that apply in such cases:38
1. A tradition whose text consists of ¬xed and steadily reported language out-
weighs another whose language is inconsistent and confused. A text whose
language is not ¬xed leads to varying interpretations and reveals the impreci-
sion of its transmitter(s).
2. A text in which the legal norm is explicitly and completely expressed is super-
ior to another in which the norm is elliptically stated or merely suggested.
3. Related to the previous category, a tradition or text whose raison d™être is the
stipulation of a legal norm is considered better than another in which the legal
norm is incidentally stated.
4. A text whose general language (cAmm)39 has been particularized in a manner
which the jurists have approved is superior to another in which particulariza-
tion has proven to be controversial.

35
A watering place located six miles away from Mecca.
36
IMrAm is a state into which the Muslim enters physically, spiritually, and temporally
during the greater or lesser pilgrimage, i.e. Majj and cumra. During iMrAm, the pilgrim
should not engage in sexual intercourse, lie, argue, hunt wild game, kill any creatures
(even ¬‚ies), use perfume, clip ¬ngernails, or trim or shave hair. See Wael B. Hallaq,
“Forbidden,” Encyclopaedia of the Qur” n (Leiden: E. J. Brill, forthcoming).
a
37
Bajc, IMkAm al-FuQEl, 735, 742, 744“ 45.
For these types, see ibid., 745 ¬.; Shcrazc, SharM al-Luma c, II, 660“62; Weiss, Search,
38

736.
39
Words that equally designate two or more individuals of the genus to which they refer
are deemed general. Particularization (takhQCQ) means the exclusion from the general of
a part that was subsumed under that general. For more on the general and the particu-
lar, see Hallaq, History, 45“ 47.
Operative terminology and the dynamics of legal doctrine 131
5. A text containing a real usage (MaqCqa) outweighs another containing a meta-
phor (majAz).40
6. A text that is expressed in emphatic language outweighs another that is not.
7. A text that re¬‚ects the consensus of the entire community is superior to
another which re¬‚ects the consensus of the scholars. The same logic also
dictates that the consensus of the Companions be deemed superior to that
of the Followers, which also means that the consensus of dead mujtahids
outweighs that of living mujtahids.
8. A text that includes additional information outweighs another that omits this
information.
It should be noted that the types of tarjCM involved in numbers 2, 3, 4,
5, and 6 “ as well as all other types that relate to the linguistic structure
of MadCth texts “ are also applicable to the Quranic language. It is only in
the area of the transmission of the Quranic text that questions of tarjCM
are precluded, since this transmission was the surest form of mutawAtir,
thereby engendering certainty.
What we have surveyed in the foregoing paragraphs is, relatively speak-
ing, no more than a few rules of tarjCM. The legal literature in general, and
works of legal theory in particular, elaborated on this theme extensively,
producing dozens of distinctions and types. fmidc, for instance, lists a
total of 173 forms.41 What we have discussed here are some of the more
important and representative ones. Using the same criteria, let us go on to
discuss how tarjCM applies in qiyAs, perhaps the most di¬cult and complex
form of preponderance.
Preponderance relating to qiyAs addresses the four categories of which
qiyAs, as an archetype, consists: (1) the new case ( far c ) that requires a legal
solution; (2) the original rule or case embedded in the primary sources,
the Quran and the sunna; (3) the ratio legis, or the attribute common to
both the new case and the original case; and (4) the legal norm, or the rule
(Mukm) attached to the original case, which, due to the similarity between
the two cases, is transferred from that case to the new one.42 Of these, the
two most important categories are the original rule and the ratio legis, the
latter in particular having been at the center of much debate. As these
two categories are closely related, we shall deal with them as a unit.43 The
principal forms of tarjCM in qiyAs are as follows:

40
Further on tropology, see ibid., 42“ 43. 41 See Weiss, Search, 734.
42
Hallaq, History, 83.
43
Shcrazc, SharM al-Luma c, II, 950“65; Bajc, IMkAm al-FuQEl, 757“66; Imam al-
naramayn al-Juwaync, al-TalkhCQ f C UQEl al-Fiqh, ed. cAbd Allah al-Ncbalc and Shabbcr
al-cUmarc, 3 vols. (Beirut: Dar al-Basha™ir al-Islamiyya, 1417/1996), III, 322“30; Razc,
MaMQEl, II, 470“88; Weiss, Search, 737“38.
132 Authority, continuity, and change in Islamic law
1. An original rule that is certain outweighs another that is probable.
2. An original rule based on a ratio legis subject to consensus is superior to
another based on a ratio that is subject to disagreement.
3. An original rule on which the jurists had agreed that it is not subject to
abrogation (naskh) is superior to another whose abrogation is debatable.
4. A qiyAs that was based on a probable original rule but was conducted
according to the systematic rules of legal reasoning outweighs another
whose original rule is certain but which did not conform to such systematic
rules.
5. An original rule whose ratio was extracted from the revealed texts outweighs
another that was inferred on the basis of a former qiyAs. Epistemologically,
the latter was considered a derivative of the former.44
6. A ratio that was clearly articulated in the texts as the cause or rationale of the
rule outweighs another that was not articulated as such.
7. A certain ratio obviously outweighs a probable one, just as a highly probable
ratio outweighs a merely probable one.
8. A ratio ascertained through a superior method of analysis outweighs
another ascertained by a less convincing method, or by a method that is
controversial.45
9. A ratio that includes a single determinate attribute outweighs another involv-
ing a complex ratio, namely, one which gives rise to a legal norm due to a
number of aggregate attributes.
10. A ratio arising from considerations of public welfare outweighs another that
was ascertained by other considerations.46
11. A ratio supported by a number of textual citations is superior to another that
is supported by a single citation.
12. A ratio in the original text that is found to be identical to that found in the
new case is considered superior to another which does not have this quality,
such as when the genus of the ratio in the new case does not exactly cor-
respond to that found in the original text.
13. A ratio having a number of applications to new cases outweighs another that
may be extended to merely a few cases or only one.
14. A ratio that leads to a rule based on reasonable doubt outweighs another
that does not lead to such a rule. Accordingly, a ratio that results in waiving
capital punishment on the basis of reasonable doubt is superior to another
that makes no allowance for such doubt.



44
Razc, MaMQEl, II, 483.
On the methods of ascertaining the ratio, see Weiss, Search, 594 ¬.; Hallaq, History,
45

86 ¬.
46
On considerations of public welfare in ascertaining the ratio legis, see Hallaq, History,
88 ¬.
Operative terminology and the dynamics of legal doctrine 133

IV
Now, this theoretical account of preponderance represents, in general
terms, the methodological terrain in which the jurists were trained to deal
with all conceivable possibilities of con¬‚ict in textual evidence and in
the methods of legal reasoning. Their knowledge of all the issues involved
in preponderance equipped them for the world of positive law where
theory met with legal practice. It is with this arsenal of legal knowledge
of the theoretical principles of preponderance that the jurists tackled the
problem of legal pluralism and plurality of opinion. These principles pro-
vided the epistemic and methodological starting point for the operative
terminology of substantive law, to which the remainder of this chapter
will be dedicated.
Yet, it is curious that in works of substantive law, the concept of tarjCM
appears less frequently than do a number of other, epistemologically
related, terms. Conversely, these terms, which we shall discuss in detail
here, make no appearance in works of legal theory. This phenomenon
is neither singular nor surprising, however, for it is common to nearly
all branches of Islamic religious learning. The same methods of inference
expounded and analyzed in works of Arabic logic are labeled by entirely
di¬erent terminology than that in treatises on legal theory. This much
is well known. But the terminology involved in the study and exposition
of the science of MadCth di¬ers from one group of specialists to another,
notably, the traditionists and the jurists. Even when one and the same
scholar “ such as Ibn al-ralam or Nawawc “ deals with MadCth for legal
purposes, he employs a set of terms di¬erent from those he applies to the
same traditions when approaching them as a muMaddith.47
Some of the terms that have appropriated the function of tarjCM in
works of substantive law are derivatives of the root Q.M.M., a root which
carries the notion of correcting, rectifying, or making something sound or
straight. The term QaMCM (sound or correct), one of the most frequently
used derivatives of this root, largely took the burden of what was other-
wise known in works of legal theory as rAjiM, namely, the preponderant
opinion. The linguistic and conceptual links between QaMCM, or the verbal
noun taQMCM (the act of making something QaMCM), and tarjCM were not lost
on those who wielded them, however. Even in works of substantive law,
the jurists did at times, albeit inadvertently, make a connection between

See Wael B. Hallaq, “The Authenticity of Prophetic nadcth: A Pseudo-Problem,”
47

Studia Islamica, 89 (1999), 81 ¬.
134 Authority, continuity, and change in Islamic law
the two concepts. Pointing out the need to investigate the strength of the
wujEh opinions in the Sha¬cite school, Ibn al-ralam argues that it is neces-
sary to conduct tarjCM among these wujEh in order to know which of them
is the QaMCM.48 Hence, in Ibn al-ralam™s discourse, tarjCM is the means by
which the QaMCM or correct opinion becomes known. The organic connec-
tion between taQMCM and tarjCM is also obvious in TaQMCM al-FurE c, by the
nanbalite Mirdawc.49 TaQMCM, the reasoning that leads to the QaMCM, there-
fore presupposes the same epistemological criteria employed in tarjCM.
Opinions are assessed on the strength of the textual evidence upon which
they are constructed, as well as upon the extent of persuasiveness of the
lines of legal reasoning and causation upon which they rest.
Perhaps the most obvious link made between taQMCM and tarjCM is to
be found in Taj al-Dcn al-Subkc™s bio-bibliographical dictionary TabaqAt
al-ShA¬ ciyya al-KubrA. In the long biographical notice which he allots
to his father, Taqc al-Dcn, Taj al-Dcn devotes a section to those school
opinions that his father had “corrected” (mA saMMaMahu). It immediately
becomes clear that QaMCM and taQMCM are used synonymously with tarjCM.
The section, we are told, includes only those cases that Subkc the father
“rendered preponderant” (rajjaMa) over and against the choices of Ra¬cc
(d. 623/1226) and Nawawc, the two most authoritative jurists of later
Sha¬cism. A reading of the cases listed (over two hundred in all) leaves no
doubt that tarjCM and taQMCM were used interchangeably. It is furthermore
revealing that these cases, which were formally listed as taQMCMAt (pl. of
taQMCM), are referred to in the biographical notice itself as tarjCMAt (pl. of
tarjCM). Upon reading what were described as taQMCMAt, for instance, Ibn
nabcb is reported to have found “these tarjCMAt” impressive.50 TaQMCM and
tarjCM appear here as entirely synonymous.
The conceptual link between QaMCM and tarjCM is further illustrated in
the following example from Nawawc, where he deals with the (im)per-
missibility of eating carrion when no other food is to be found:
If a person ¬nds himself far from an urban setting, then it is permissible for
him to eat [carrion] until he is satiated. If he is not that far, then it is not
permissible [for him to eat until satiation], but only enough to get him
to his destination. This is the broad distinction made by our associates.
Imam al-naramayn al-Juwaync reported this distinction and rejected it. He
argued that there surely must be further di¬erentiation (tafQCl ). Thus, he
and Ghazalc were reported to have made the [following] di¬erentiation:

48
Ibn al-ralam, Adab al-MuftC, 124. 49 Mirdawc, TaQMCM al-FurE c, I, 50.
Subkc, TabaqAt, VI, 186“96. The cases that Taqc al-Dcn subjected to taQMCM (=tarjCM)
50

have been compiled in verse (see ibid., VI, 196“99).
Operative terminology and the dynamics of legal doctrine 135
If a person ¬nds himself in a desert and he fears that if he does not eat
to the full he may starve to death, then we a¬rm that it is permissible for
him to eat until he is satiated. But if he thinks that he can get to a town
[where lawful food is to be had] before hunger strikes again, then we a¬rm
that he should eat only enough to keep alive . . . Ghazalc™s and Imam
al-naramayn™s di¬erentiation is good, and it is the preponderant opinion
(rAjiM). Our associates have disagreed about the various possibilities of this
case. Abe cAlc al-tabarc in his IfQAM, Reyanc [d. 307/919], and others found
preponderant [the opinion] that it is permissible for him to eat until he
is satiated. On the other hand, al-Qa¬al [al-Shashc] and many others have
found preponderant the opinion that it is permissible for him to eat only
enough to keep alive and that it is forbidden for him to eat until sated.
This [latter] is the correct (QaMCM) opinion, but God knows best.51
Apart from the subjectivity that lies at the heart of taQMCM “ a matter
we shall take up later “ this passage illustrates the juxtaposition of the
two concepts of “preponderant” and “correct.” Ghazalc™s and Juwaync™s
di¬erentiation was found to be rAjiM (preponderant), in comparison
with the broad distinction that Nawawc observes in the works of their
predecessors. At the same time, these latter were split into two allegedly
preponderant opinions, the second of which is found by the author to be
the QaMCM. It is obvious that, for tabarc and Reyanc, the rAjiM is nothing
other than the QaMCM. But in order to reserve for himself the decision on
what is, in the ¬nal analysis, the correct of the two competing opinions,
Nawawc asserts that the QaMCM of the two rAjiM opinions is the one that was
adopted by Qa¬al.
Treatises on substantive law are replete with statements declaring cer-
tain opinions to be QaMCM, more QaMCM, or not at all.52 The idea behind
this juristic activity derives from the fundamentals of preponderance as
expounded in works of legal theory and as outlined earlier in this chapter.
But as an organic part of the environment of substantive law which
includes as one of its essential components the school™s authoritative and
long-established positive doctrine, taQMCM was bound to take into account
both the methodological and the substantive principles of the school.
Thus, in realistic terms it acquires a complexity which exceeds that
observed in the discourse of legal theory.
Despite (or perhaps because of ) the fact that a staggering number of
opinions are determined in terms of QaMCM or non-QaMCM, the authors of
law books seldom bother to demonstrate for the reader the process by
which an opinion was subjected to taQMCM. This phenomenon, I think, is

51
Nawawc, al-MajmE c, IX, 43. 52
On the non-QaMCM opinions, see n. 61, below.
136 Authority, continuity, and change in Islamic law
not di¬cult to explain. TaQMCM usually involved a protracted discussion
of textual evidence and lines of legal reasoning, such as those we saw
in the previous chapter concerning the defense of the madhhab. Most
works, or at least those available to us, do shy away from providing
such self-indulgent detail. The nana¬te Ibn Ghanim al-Baghdadc, for
instance, explains the problem in his introduction to Majma c al-LamAnAt,
where he states: “Except for a few cases, I have not included the lines of
reasoning employed in the justi¬cation of the rules, because this book
is not concerned with veri¬cation (taMqCq).53 Our duty is rather limited
to showing which [opinion] is QaMCM and which is aQaMM.”54 The task of
“verifying” the opinions was not only too protracted, but also intellectu-
ally demanding. It is precisely this achievement of “verifying” all available
opinions pertaining to one case and declaring one of them to be the
strongest that gave Nawawc and Ra¬cc such a glorious reputation in the
Sha¬cite school, and Ibn Qudama the same reputation in the nanbalite
school.55 This was an achievement of a few during the entire history of
the four schools.
In his magisterial MajmE c, Nawawc sometimes, but by no means fre-
quently, explains the reasoning involved in taQMCM. Consider the following
examples, the ¬rst of which pertains to the types of otherwise impermiss-
ible food which a Muslim can eat should he ¬nd himself, say, in a desert
where lawful food is not to be had:
Our associates held that the impermissible foods which a person ¬nds him-
self compelled to eat are of two types: intoxicating and non-intoxicating
. . . As for the non-intoxicant type, all foods are permitted for consump-
tion as long as these do not involve the destruction of things protected
under the law (itlAf ma cQEm). He who ¬nds himself compelled to eat is
permitted to consume carrion, blood, swine meat, urine, and other impure
substances. There is no juristic disagreement (khilAf ) as to whether he is
permitted to kill ¬ghters against Islam and apostates and to eat them.
There are two wajh opinions56 [though] concerning the married fornicator

53
Veri¬cation is the activity of the “veri¬ers” (muMaqqiqEn), scholars who establish the
solution to problems by means of original proof and reasoning. See Mumammad b. cAlc
al-Tahanawc, KashshAf IQSilAMAt al-FunEn, 2 vols. (Calcutta: W. N. Leeds™ Press, 1862),
I, 336 (s.v. taMqCq); W. B. Hallaq, Ibn Taymiyya against the Greek Logicians (Oxford:
Clarendon Press, 1993), 12 (n. 2).
54
Baghdadc, Majma c al-LamAnAt, 3.
In the nana¬te school, Marghcnanc, among others, acquired a similar status. In
55

Malikism, it was Ibn Rushd, Mazarc, and Ibn Buzayza, although in his MukhtaQar
Khalcl was to bring together the fruits of these and other jurists™ e¬orts.
56
Opinions formulated by aQMAb al-wujEh or aQMAb al-takhrCj. See chapter 2, section III,
above.
Operative terminology and the dynamics of legal doctrine 137
(zAnC muMQan),57 rebels, and those who refuse to pray (tArik al-QalAt). The
more correct of the two opinions (aQaMM) is that he is permitted [to kill and
eat them]. Imam al-naramayn, the author [Shcrazc],58 and the majority of
jurists ( jumhEr) conclusively a¬rm the rule of permissibility. [In justi¬ca-
tion of permissibility] Imam al-naramayn maintained that this is because
the prohibition [imposed upon individual Muslims] to kill these is due
to the power delegated to governing authority (tafwCKan ilA al-sulSAn), so
that the exercise of this power is not preempted. When a dire need to eat
arises, then this prohibition ceases to hold.59
Juwaync™s reasoning here was used by Nawawc to achieve two purposes:
the ¬rst to present Juwaync™s own reason for adopting this wajh opinion,
and the second to use the same reasoning to show why Nawawc himself
thought this opinion to be the more correct of the two. Thus, the absolute
legal power of the sulSAn to execute married fornicators, rebels, and
prayer-deserters is preempted by the private individual™s need to eat,
should he or she face starvation.
Note here that Nawawc gives only the line of reasoning underlying
the opinion that he considers to be more correct of the two, despite the
fact that the other wajh opinion is admitted as QaMCM. This was the general
practice of authors, a practice which has an important implication: If
another author thought the second, QaMCM, opinion to be in e¬ect superior
to the one identi¬ed by Nawawc as the aQaMM, then it was the responsibil-
ity of that author to retrieve from the authoritative sources the line of
reasoning sustaining that opinion and to show how it outweighed the
arguments of Juwaync and of others. In fact, this was the invariable prac-
tice since nowhere does one encounter a reprimand or a complaint that
the author failed to present the lines of reasoning in justi¬cation of what
he thought to be the less authoritative or correct opinion(s).
There was no need to present the evidence of non-QaMCM opinions
because they were by de¬nition negligible “ not worth, as it were, the
e¬ort.60 These opinions became known as fAsid (void), Ka cCf (weak),
shAdhdh (irregular), or gharCb (unknown), terms that never acquired


57
Since, unlike the unmarried fornicator whose punishment falls short of the death
penalty, the married fornicator receives the full extent of this punishment. See Nawawc,
RawKat al-TAlibCn, VII, 305“06.
58
Since Nawawc™s work is a commentary on Shcrazc™s Muhadhdhab, he refers to him as
“the author” (al-muQannif ), a common practice among commentators.
59
Nawawc, al-MajmE c, IX, 43“44.
60
For example, in his al-MajmE c, I, 5, Nawawc states that he will overlook the lines of
reasoning in justi¬cation of weak opinions even when these opinions are of the wide-
spread (mashhEr) category.
138 Authority, continuity, and change in Islamic law
any ¬xed meaning and remained largely interchangeable.61 No particular
value was attached to any of them, for just as in the study of MadCth, a Ka cCf
report was dismissed out of hand. A premium, on the other hand, was
placed upon the category of the QaMCM and its cognate, the aQaMM. At
¬rst, it might seem self-evident that the aQaMM is by de¬nition superior to
the QaMCM. But this is not the case. Claiming QaMCM status for an opinion
necessarily implies that the competing opinion or opinions are not QaMCM,
but rather Ka cCf, fAsid, shAdhdh, or gharCb.62 But declaring an opinion aQaMM
means that the competing opinions are QaMCM, no less. Thus, in two cases,
one having a QaMCM opinion and the other an aQaMM opinion, the former
would be considered, in terms of authoritative status, superior to the latter
since the QaMCM had been taken a step further in declaring the competing
opinion(s) weak or irregular, whereas the aQaMM had not been. In other
words, the QaMCM ipso facto marginalizes the competing opinions, whereas
the aQaMM does not, this having the e¬ect that the competing opinion(s)
in the case of the aQaMM continue(s) to retain the status of QaMCM. The
practical implications of this epistemic gradation are that it was possible
for the opinions that had competed with the aQaMM to be used as a basis for
Subkc, FatAwA, II, 10 ¬.; Suyesc, al-AshbAh wal-NaUA”ir, 104; Nawawc, TahdhCb, I, 94,
61

113, 164; Ibn Qakc Shuhba, TabaqAt, I, 96; II, 93“94. Ibn cfbidcn, SharM al-
ManUEma, 38; Baclc, al-IkhtiyArAt al-Fiqhiyya, 24; Mirdawc, TaQMCM al-FurE c, I, 25, 31,
32; Ibn Rajab, Dhayl, I, 70, 157 ¬.; chsa b. cAlc al-cAlamc, KitAb al-NawAzil, 3 vols.
(Rabat: Wizarat al-Awqaf wal-Shu™en al-Islamiyya, 1983), III, 6. When Taqc al-Dcn
Subkc went against Ra¬cc and Nawawc concerning a case of pledging real property
and considered as QaMCM an opinion contrary to another which they had considered
as authoritative, it was possible for Taj al-Dcn al-Subkc to declare that his father had
rendered the opinions of the two masters weak (wa-Ka ccafa maqAlatahum). See his
TabaqAt, VI, 191.
In the nanbalite school, Abe al-Khassab al-Kilwadhanc (d. 510/1116) was said to
have held a number of opinions not shared by the members of his school, opinions
described as tafarrudAt. These opinions, also characterized as gharA”ib (pl. of gharCb),
were corrected (QaMMaMa) by later nanbalites. See Ibn Rajab, Dhayl, I, 116, 120, 126“
27.
It is to be noted that in some cases the opposite of the Ka cCf was the qawC (lit. strong)
or the aqwA (stronger), terms that were rarely used and whose technical meaning re-
mained un¬xed. See, for instance, the nanbalite Baclc, al-IkhtiyArAt al-Fiqhiyya, 11.
The same may be said of the term QawAb or its fuller expression wa-hAdhA aqrab ilA
al-QawAb (this is more likely to be true or correct), which was used infrequently to
designate the status of an opinion. See, e.g., Kasanc, BadA”i c al-RanA”i c, I, 31. A very rare
labeling of weak opinions is the term quwayl which is the diminutive of qawl (opinion).
See the nanbalite Zarkashc, SharM, I, 63, 290.
62
It is quite possible that the last two, and particularly the fourth, of this quartet
may have referred to opinions lacking in terms of su¬cient circulation, without any
consideration of correctness or soundness. However, the connection that was made
between authoritative status and level of acceptance meant that widely circulated
opinions were correct whereas those that failed to gain wide acceptance problematic.
See further on this issue below.
Operative terminology and the dynamics of legal doctrine 139
iftA” or court decisions, whereas those opinions that had competed with
the QaMCM could no longer serve any purpose once the QaMCM had been
identi¬ed (that is, unless a mujtahid or a capable jurist were to reassess one
of these weak opinions and vindicate it as being more sound than that
which had been declared earlier as QaMCM. This, in fact, was one means by
which legal change took place).63
This epistemic evaluation of taQMCM was usually helpful in assessing
opinions between and among a number of jurists belonging to one
school. At times, however, it is necessary to evaluate opinions within the
doctrinal corpus of a single jurist, in which case the QaMCM and the aQaMM
would acquire di¬erent values. If a case has only two opinions and the
jurist declares one to be QaMCM and the other aQaMM, then the latter is
obviously the more preponderant one. But if the case has three or more
opinions, then the principles of evaluation as applied to the larger school
doctrine would apply here too. It is to be noted, however, that these
principles of evaluation were generally, but by no means universally,
accepted. Disagreements about the comparative epistemic value of taQMCM
persisted and were never resolved, a fact abundantly attested by the
informative account penned by the last great nana¬te jurist Ibn cfbidcn
(d. 1252/1836).64
In due course we shall discuss further the relative uses of operative
terminology and the subjectivity that it involved. But before doing so, we
should turn to the types of reasoning that form the basis of taQMCM. In the
case of eating the ¬‚esh of apostates and married fornicators, the basis is
a legal category derived from textual evidence which was construed to
permit the killing of apostates and married fornicators. A further distinc-
tion between the two can still be made: The married fornicator becomes
deserving of capital punishment on a purely criminal basis, namely,
violating the sexual code of the Muslim community as enshrined in
the injunctions of the revealed texts. Apostasy, on the other hand, is not,
strictly speaking, a criminal act, but rather a matter of what we might
call international law which acknowledges a sharp distinction between
the territory of Islam and that of unbelievers who must be fought until
death, conversion, or subjugation as dhimmCs.65 That these apostates and
married fornicators should be killed is not subject to dispute. Rather, the
issue that becomes relevant in this case is the juristic basis upon which
63
See chapter 6, below.
See his splendid discussion in SharM al-ManUEma, 38 ¬. which marshals a myriad of
64

opinions from the early and late periods.
65
Ammad Ibn Naqcb al-Miqrc, cUmdat al-SAlik wa- cUddat al-NAsik, ed. and trans. N. H.
Keller, The Reliance of the Traveller (Evanston: Sunna Books, 1991), 602“03.
140 Authority, continuity, and change in Islamic law
a private Muslim individual is permitted to eat the ¬‚esh of these people.
Such considerations I call secondary, in the sense that they constitute not
a legal category directly derived from the textual sources, but one that is
based on an already formulated set of established rules. We should note in
passing that much of the legal reasoning involved in works of substantive
law and collections of fatwAs belong to this type of secondary juristic
considerations.
The second of the two cases presents a di¬erent sort of taQMCM:
Is it permissible to drink date-wine, grape-wine or any other inebriant
as medicine or for the purpose of quenching thirst [when water is nowhere
to be found]? With regard to this question, there are four wajh opinions
all of which are widespread (mashhEra). The correct one (QaMCM) accord-
ing to the majority of associates is that they are not permitted for either
purpose. The second opinion is that they are permissible. The third is
that they are permitted as a medicinal cure but not for quenching thirst.
The fourth is the converse of the third [namely, that they are permitted
for quenching thirst but not as a cure]. Ra¬cc said that the correct (QaMCM)
opinion according to the majority of jurists is that they are not permitted
for either of the two purposes, the evidence for this being the tradition
transmitted by Wa™il b. najar [who reported] that when tariq b. Suwayd
al-Jacf c asked the Prophet about wine, the latter prohibited him [from
drinking it] and expressed his dislike for making it. tariq said: “I only
make it as a medicinal cure,” whereupon the Prophet said: “It is not a
cure but a disease.” Muslim transmitted this tradition in his RaMCM. The
authoritative opinion of the school (al-madhhab)66 is the ¬rst one, namely,
that wines are not permitted for either of the two purposes. This opinion
was corrected (QaMMaMa) by Mamamilc and I shall present his argument
momentarily67 . . . Imam al-naramayn and Ghazalc opted (ikhtArA) for
the opinion that wines are permitted for the purpose of quenching thirst.
The former argued that “wine quenches thirst so that it is not of the same
category as curative medicine. He who claims that wine does not quench
thirst simply does not know, and his opinion is not to be considered
authoritative; indeed, it is erroneous and fanciful. [Drinking in] wine
taverns substitutes for drinking water.” But this is not correct, since the
widespread (mashhEr) opinion of Sha¬cc, of our associates and of physi-
cians is that wine does not quench thirst but in fact intensi¬es it. It is a
well-known habit of wine drinkers to consume large quantities of water.
Reyanc reported that Sha¬cc opined that it is prohibited if it is used for

66
On the madhhab-opinion as an operative usage, see our discussion later in this chapter.
67
Nawawc does not state Mamamilc™s argument for taQMCM as an integral opinion but
apparently chooses to reproduce it through Reyanc, Abe al-tayyib al-tabarc, and Qakc
nusayn whom he discusses later in the same passage.
Operative terminology and the dynamics of legal doctrine 141
the purpose of quenching thirst, his reasoning being that it makes one
both hungry and thirsty. Al-Qakc Abe al-tayyib [al-tabarc] said: “I asked
people knowledgeable in this matter and [concluded that] Sha¬cc was right:
It quenches the thirst for a while but thereafter it causes extreme thirst.”
In a lecture note, Qakc nusayn maintained that “the physicians say that
wine increases thirst and that wine-drinkers appreciate cold water.” The
conclusion of all that we have said is that wine is useless for the purpose of
quenching thirst. And the conclusion based on the aforementioned tradi-
tion [from Wa™il] is that it is not bene¬cial as curative medicine. Therefore,
its prohibition is established categorically.68
This passage presents us with two signi¬cant points: First, although
the four wajh opinions are recognized as widespread (mashhEra), three of
them are declared incorrect. Later, we shall discuss the mashhEr category
of opinion and its relationship to other categories, but for now it su¬ces
to say that despite the pedigree of these four opinions as both mashhEr
and wujEh, three of them are rejected as incorrect. Yet this declaration
was made e contrario: by declaring one to be a QaMCM opinion, it is con-
cluded that the others are not deemed to be QaMCM. This assessment is to
be contrasted with the preceding one with regard to consuming the ¬‚esh
of apostates and married fornicators, where the fact that one opinion was
declared “more correct” meant that the other was correct, nonetheless.
But a declaration of an opinion as QaMCM must be seen to be as much a
condemnation of the other alternatives as it is a vote in favor of that
opinion.
The other, more important, point to be made here is the basis of taQMCM.
In the case of eating the ¬‚esh of married fornicators and apostates, the
basis was purely hermeneutical in the sense that doctrinal considerations
of established principles dictated a certain extension of these principles.
Here, however, the basis of taQMCM is sensory perception and experience,
gained by the observations of physicians and experts. The underlying
question was one that required experiential knowledge of whether wine
was, physiologically speaking, a substance that quenched or induced
thirst. In this regard, it is interesting to note that the usual considerations
of inebriation “ which otherwise permeate all discussions of wine “ were
not here relevant.
TaQMCM may also be based on considerations of customary practices
( Ada). Ra¬cc and Nawawc held the opinion that wearing silk should
c

be limited to the extent that it should only form a piece of a garment,
speci¬cally used as a trimming that is no wider than “four ¬ngers,” that

68
Nawawc, al-MajmE c, IX, 51“52.
142 Authority, continuity, and change in Islamic law
is, the width of a palm without counting the thumb. The basis of this
opinion was said to be social custom, presumably that which prevailed
during the lifetimes of Ra¬cc and Nawawc.69 Taqc al-Dcn al-Subkc deemed
this opinion to be the correct one, although our source does not give any

<<

. 5
( 10)



>>