. 6
( 10)


account of the other opinions.70
Social need and necessity also appear as grounds for taQMCM. In fact, they
are cited as grounds for abandoning an otherwise QaMCM opinion in favor
of another which would become on these very grounds the QaMCM. The
nana¬te jurist Ibn cfbidcn argues this much:
Not every QaMCM [opinion] may be used as a basis for issuing fatwAs because
another opinion may be adopted out of necessity (KarEra) or due to its
being more agreeable to changing times and similar considerations. This
latter opinion, which is designated as ¬t for iftA” ( f Chi lafU al-fatwA),
includes two things, one of which is its suitability for issuing fatwAs, the
other is its correctness (QiMMatihi ), because using it as the basis of iftA” is in
itself [an act] by which it is corrected (taQMCM la-hu).71
These notions of taQMCM did not remain a matter of theory or an
unaccomplished ideal. In his al-FatAwA al-Khayriyya, Khayr al-Dcn al-
Ramlc o¬ers a substantial collection of questions which were addressed
to him and which he answered with opinions that had been corrected
(QaMMaMahu) by the leading nana¬te scholars on the basis of considera-
tions having to do with changing requirements of the age and of society.72
Needless to say, the basis of taQMCM may also be any of the considera-
tions we have enumerated in the theory of preponderance. Illustrations of
such considerations, especially those related to Sunnaic textual evidence,
abound, and it su¬ces for our purposes here to refer the reader to those
cases we cited in the preceding chapter as examples of defending the
madhhab. Obviously, the purposes of taQMCM fundamentally di¬er from
those of defending the madhhab, but the processes involved in both
activities are very much the same: they are o¬shoots of tarjCM or adapta-
tions thereof.
Preponderance, as we have seen, depends in part on corroboration by
other members of a class, which is to say that it is subject to inductive
corroboration by an aggregate body of the same type of evidence. Thus,
a tradition transmitted by a certain number of channels and transmitters

Although Ra¬cc lived mostly in Qazwcn and Nawawc in faraway Syria.

Subkc, TabaqAt, VI, 188. 71 Ibn cfbidcn, SharM al-ManUEma, 38“39.

Khayr al-Dcn al-Ramlc, al-FatAwA al-Khayriyya, printed on the margins of Ibn cfbidcn™s

al- cUqEd al-Durriyya f C TanqCM al-FatAwA al-NAmidiyya, 2 vols. (Cairo: al-Masbaca al-
Maymeniyya, 1893), I, 3.
Operative terminology and the dynamics of legal doctrine 143
was considered to be superior to another transmitted by fewer channels
and transmitters. Similarly, a ratio legis attested by more than one text was
deemed to outweigh another supported by a single text. Consensus itself,
epistemologically the most powerful sanctioning authority, depended on
universal corroboration. Thus, what we have called inductive corrobora-
tion no doubt constituted a fundamental feature of legal thinking, both in
the theory of preponderance and elsewhere in the law.73
It is perhaps with this all-important notion in mind that we might
appreciate the controversy that found its way into the discourse on
the QaMCM. Taj al-Dcn al-Subkc reports that in his magisterial work al-
MuMarrar, Ra¬cc was rumoured to have determined opinions to be QaMCM
on the basis of what the majority of leading Sha¬cites considered to
fall into this category,74 this majority being determined by an inductive
survey of the opinions of individual jurists. Ramlc reiterated this percep-
tion of Ra¬cc™s endeavor and added that he did so because maintaining the
authority of school doctrine is tantamount to transmitting it, which is to
say that authority is a devolving tradition that is continually generated by
a collectivity of individual transmissions. He immediately adds, however,
that preponderance by number is particularly useful when two (or more)
opinions are of the same weight.75
Be that as it may, taQMCM on the basis of number or majority appears
to have become a standard, especially, if not exclusively, when all other
considerations seemed equal. Ibn al-ralam maintained that if the jurist
cannot determine which opinion is the QaMCM because the evidence and
reasoning in all competing opinions under investigation appear to him
to be of equal strength, he must nonetheless decide which is the QaMCM
and preponderant opinion according to three considerations in descend-
ing order of importance: superior number or majority, knowledge, and
piety.76 Thus, an opinion would be considered QaMCM if more jurists con-
sidered it to be such than they did another. The taQMCM of a highly learned
jurist outweighs that of a less knowledgeable one, and that of a pious
jurist is superior to another of a less pious one. In the same vein, an
opinion held to be QaMCM by a number of jurists would be considered
superior to another held as such by a single jurist, however learned he may
be. The same preference is given to a learned jurist over a pious one.
Thus, taQMCM operates both within and between these categories.
That number is important should in no way be surprising. The entire
enterprise and concept of the madhhab is based on group a¬liation to a set
On this theme, see Hallaq, “Inductive Corroboration,” 3“31.
Subkc, TabaqAt, V, 124. 75 Ramlc, NihAyat al-MuMtAj, I, 37.
Ibn al-ralam, Adab al-MuftC, 126.
144 Authority, continuity, and change in Islamic law
of doctrines, considered to have an authoritative core. Reducing plurality
through number or any other means was certainly a desideratum. It is
therefore perfectly reasonable to ¬nd the Malikite nassab declaring, like
many others, that the descending order of number, knowledge, and piety
is a denominator common to all four schools.77
But this order and the principles that governed it did not guarantee the
objective reality of the QaMCM. Nor could the theory of preponderance
ensure that a QaMCM opinion would be accepted as such by either the con-
temporaries or successors of the jurist who undertook its taQMCM. The fact
of the matter is that the QaMCM and the entire activity of taQMCM were highly
subjective. In the example concerning the extent to which a person is
permitted to eat if he ¬nds himself denied lawful food, we have seen that
two groups of jurists di¬ered as to which opinion outweighed the other,
each group supporting a diametrically opposite position. In the other
example of drinking wine as medicine or for the purpose of quenching
thirst in circumstances of KarEra, the QaMCM opinion was determined over
and against three other widespread opinions. This is particularly signi¬c-
ant for us, because “widespread” means an opinion held by a good, if not
great, number of jurists. Even Ra¬cc, Nawawc, and Taqc al-Dcn al-Subkc
at times abandon certain widespread opinions in favor of less popular
ones.78 In a number of cases, Nawawc himself declares as QaMCM opinions
those that Ra¬cc does not deem as such.79 Similarly, in addressing the very
same cases, he and Ibn cAqren (d. 585/1189) often consider the two con-
¬‚icting opinions to be QaMCM.80 Ibn Qakc Shuhba remarks that Nawawc™s
taQMCM in his early works, especially in those cases where he goes against
the mashhEr, are not to be considered reliable.81
The following case, about the lawfulness of eating game that was
brought down out of the hunter™s sight, whether by one of his arrows or
by his hunting dog, nicely illustrates the relativity of the QaMCM:
Of the [existing] opinions, there are two that are more widespread (ashhar).
The aQaMM of the two opinions according to the majority of the Iraqians
and others is that [eating] the game is prohibited. According to Baghawc
and Ghazalc, however, the aQaMM opinion is that it is permitted. This [latter]
is the QaMCM or the right opinion (QawAb).82

nassab, MawAhib al-JalCl, VI, 91. See also Mirdawc, TaQMCM al-FurE c, I, 51; Nawawc,

al-MajmE c, I, 68.
Subkc, TabaqAt, III, 151. 79 Ramlc, NihAyat al-MuMtAj, I, 45.

Subkc, TabaqAt, VI, 192.

Ibn Qakc Shuhba, TabaqAt, II, 199. The reference is particularly to his Nukat

al-TanbCh and al- cUmda f C TaQMCM al-TanbCh.
Nawawc, al-MajmE c, IX, 117.
Operative terminology and the dynamics of legal doctrine 145
Although we do not know the identity of the Iraqians or their num-
ber, it seems safe to assume that they were many more than two, and
especially that certain “others” are said to have adopted this opinion
as well. Nawawc, the author of this passage, sides with Baghawc and
Ghazalc, a comparative minority. What is important here is that the
subjectivity of taQMCM appears on two levels. Each side considered the
opinion it adopted as the “more correct” of the opposing choices, while
Nawawc engages in a further taQMCM, siding in this case with the minority
opinion. His hermeneutic, the details of which he chooses not to reveal
in this case, amounts in e¬ect to an ordinary taQMCM for it involves the
examination of evidence adduced by the two sides. But for these sides
to claim to support the aQaMM, they had to conduct the same examina-
tion with regard to the evidence of the preexisting, hitherto uncorrected
The roots of this subjectivity are to be found in the very hermeneutic
embodied in the theory of preponderance. The preceding example of
hunting is a case in point. The taQMCM itself becomes, on the basis of the
same theory, the object of yet another taQMCM. But the question that poses
itself at this juncture is: What is the underlying cause of such hermeneut-
ical variations and di¬erence? Why would one jurist consider an aQaMM or
a QaMCM opinion to be less than what had been claimed for it by a another
jurist? The answer, of course, is not easy to provide, for much more needs
to be known about the socio-legal background of the jurist in question,
and how this background relates to each of the cases he subjects to his
interpretive methodology. The task is formidable. But that this back-
ground is of primary relevance is beyond a shadow of doubt. Ibn cfbidcn™s
testimony in this regard is valuable. He explicitly argues that the jurists
disagree with regard to taQMCM because of a variety of factors, among them
the ever-changing social customs (cAdAt) and conditions of people (aMwAl
al-nAs). He was acutely aware of the law™s responsiveness to social reality,
a subject to which he dedicated a short treatise vindicating legal change as
a response to corresponding social change.83 TaQMCM, he also argues, di¬ers
(presumably between one jurist and another) due to the fact that what is
considered suitable and agreeable to society changes according to the
transformations that this society undergoes. Furthermore, economic and
other transactions (ta cAmul ) undergo change that needs to be accounted
for in the law. Finally, Ibn cfbidcn introduces a juristic category, namely,
that taQMCM di¬ers from one jurist to another because the evidence in
favor of one opinion appears to be stronger than that which supports its

See his Nashr al- cUrf, 114“ 47. See also chapter 6, section VIII, below.
146 Authority, continuity, and change in Islamic law
counterpart (mA qawiya wajhuhu).84 Whereas in all previous categories
Ibn cfbidcn provides a perspicacious explanation of causality, he fails “
or chooses not “ to do so in the last instance, perhaps assuming the
impossibility of an intellectual activity that is entirely independent of the
social and other contexts in which it took place.

In the course of the preceding discussion, we saw how QaMCM and aQaMM
opinions fared in connection with what we have termed widespread
opinion, properly called the mashhEr. The most salient feature of the
examples we have thus far presented is that the mashhEr was subjected to
taQMCM, which means that the ultimate authority of doctrine did not derive
from the procedure of tashhCr (declaring an opinion to be mashhEr) but
rather from taQMCM.
This mode of authorization, however, was not a practice common to
all four schools. It will be noticed that the examples we have adduced in
this connection, and the jurists we have named, disclose an essentially
nana¬te85 and Sha¬cite approach to authorization through taQMCM, an
approach which is, to some extent, di¬erent from that adopted by
the Malikites. The nanbalites for their part seem to have adopted the
nana¬te and Sha¬cite attitude toward this issue. Mirdawc™s work TaQMCM
al-FurE c, for instance, is a commentary on KitAb al-FurE c of Ibn Mu¬‚im
(d. 763/1361). A late author, Mirdawc (d. 885/1480) had the bene¬t of
hindsight, and was thus able to gauge the operative terminology prevalent
in his school. It turns out that the highest form of authorization was the
taQMCM which, he maintains, was known through having recourse to the
doctrines of the leading jurists of the school, jurists whose task it was to
establish which opinion was preponderant and QaMCM and which not (note
the interchangeability of the two terms). The raison d™être of Mirdawc™s
own work, as the title indicates, is precisely the determination of the QaMCM
opinions which Ibn Mu¬‚im did not, or could not, undertake. The aim
of the book, therefore, and its central concern, was to accomplish the
taQMCM of the corpus juris of the nanbalite madhhab (taMrCr al-madhhab
wa-taQMCMihi ),86 an achievement that would become the product of a

Ibn cfbidcn, Nashr al- cUrf, 130; Ibn cfbidcn, SharM al-ManUEma, 40.

For further evidence of nana¬te taQMCM, see n. 101, below. See also the following:

Ramlc, al-FatAwA al-Khayriyya, I, 2“3; Samarqandc, TuMfat al-FuqahA”, I, 29, 35, 67,
76, 90, 101, 102, 104, and passim; Kasanc, BadA”i c al-RanA”i c, I, 27, 31, 151, 151, 159;
Baghdadc, Majma c al-LamAnAt, 3; Ibn cfbidcn, NAshiya, I, 3“ 4; Ibn cfbidcn, SharM al-
ManUEma, 38“ 40; Ibn cfbidcn, Nashr al- cUrf, 130 and passim.
Mirdawc, TaQMCM al-FurE c, I, 25, 50.
Operative terminology and the dynamics of legal doctrine 147
joint e¬ort on the part of Ibn Mu¬‚im and Mirdawc. It is worth noting at
this point that taQMCM was a desideratum of several later works emerging
from the four schools, so Mirdawc™s work is in no way an exception to
the rule.87 We have already mentioned that the prestige and authority
of Ra¬cc and Nawawc in the Sha¬cite school, of Ibn Qudama in the
nanbalite school, and of Marghcnanc in the nana¬te school rest in good
measure upon this achievement.
We have said that the highest form of authorization for the Malikites
was the mashhEr, although they resorted to taQMCM rather frequently.
Indeed, one might say that the procedure, in comparison with the other
three schools, was exactly reversed: the Sha¬cite, nana¬te, and nanbalite
taQMCM of the mashhEr was matched by the Malikite tashhCr of the QaMCM
or aQaMM. This explains a highly recurrent and authoritative statement
made by many authors in the four schools, but which in Malikism re-
ceived a slightly di¬erent stress. The nana¬tes, nanbalites, and Sha¬cites
demanded that the jurisconsult and qAKC not diverge from the QaMCM
opinions of the school, or as they might say, al-qawl al-muQaMMaM (the
corrected opinion). It is in this spirit that the nana¬te naqkaf c was
commended for his ingenuity, despite the fact that he had never in his
entire career issued a fatwA or passed a verdict that was not based on a
muQaMMaM opinion.88 Compare this requirement with its Malikite coun-
terpart. Instead of prescribing knowledge of the muQaMMaM opinion, they
embraced the mashhEr which was to constitute the basis of fatwA and
court decisions.89 It was in this spirit too that Mazarc, a distinguished
Malikite mujtahid, was extolled for never having abandoned the mashhEr
in his fatwAs despite attaining such epistemic preeminence.90
So what exactly is the mashhEr ? Before addressing this question, it is
important to point out that, in spite of its fundamental importance, the
operative terminology of substantive law, strictly speaking, never found its
way into the technical dictionaries which claimed to be able to furnish
de¬nitions for the entire range of the Muslim sciences, religious as well
as rational.91 We know that thousands of technical words were a¬orded
de¬nitions, explications, and clari¬cations, but neither the mashhEr nor
the QaMCM, nor for that matter any of the other operative terms we shall

See, for instance, the nanbalite Taqc al-Dcn Mumammad al-Futemc Ibn al-Najjar,

MuntahA al-IrAdAt, 2 vols. (Cairo: Maktabat Dar al-cUreba, 1961“62), I, 6.
Ibn cfbidcn, NAshiya, I, 16.

Ibn Farmen, TabQirat al-NukkAm, I, 46, 51; nassab, MawAhib al-JalCl, I, 32; VI, 91;
Alamc, NawAzil, III, 6.
Ibn Farmen, TabQirat al-NukkAm, I, 51; nassab, MawAhib al-JalCl, I, 32.
Such as Tahanawc™s KashshAf, Ammadnagarc™s JAmi c al- cUlEm, and Jurjanc™s Ta crCfAt.
148 Authority, continuity, and change in Islamic law
discuss, made an appearance there. This leaves us with a body of legal
literature which, in employing this terminology, simply assumes that
readers partake of, and fully understand, the inner layers of the tradition
within which they were written. Our challenge then is to extract from
various sources, and from scattered statements and legal cases, what each
term meant and how it was variably used.
In the case of the Sha¬cites and nanbalites,92 the term mashhEr
generally stood for an opinion that had gained wide circulation among
the jurists. Its legitimacy, then, stemmed from the fact that many jurists
deemed it correct, this being the epistemic foundation of historical nar-
rative, including the transmission of MadCth. Yet, its wide acceptance did
not guarantee its superiority or even its validity. Once subjected to taQMCM,
a mashhEr could turn out to be a weak opinion, to be excluded, as we have
seen in Nawawc, from the corpus of authoritative doctrine. But which
corpus? There is no doubt that the mashhEr was characterized by the
same uncertainty and subjectivity as that from which taQMCM su¬ered. One
instance of this subjectivity can be seen in the fact that if the mashhEr™s
taQMCM were rejected, then its authoritative status would remain intact.
Ibn Qakc Shuhba in fact rejected Nawawc™s taQMCM of the mashhEr which
the latter had conducted in his early works.93 But even if the taQMCM in
a particular case or cases was accepted, it did not automatically mean
that the mashhEr would be abandoned. According to the royal decrees
of judicial appointment preserved in Qalqashandc, the Sha¬cite qAKC was
to adjudicate according to the preponderant opinion (rAjiM), leaving
aside that which was non-preponderant (marjEM). Qalqashandc however
admits that in practice the marjEM remained valid and authoritative if
it stemmed from the founding imam™s doctrine or if it had been adopted
by the majority of Sha¬cite jurists.94 Later on, Nawawc was to reserve
the term mashhEr for those of Sha¬cc™s opinions that were considered
stronger than certain others that he was said to have held.95 Similarly, the
nanbalite Zarkashc seems to have attempted to reserve the term for Ibn
nanbal™s opinions, but he was not entirely successful.96 But the weight
of the traditional meaning of mashhEr as simply a widespread opinion “
without it necessarily belonging to Sha¬cc “ did not make for greater
For the nanbalite use of the mashhEr and tashhCr, see Ibn al-Najjar, MuntahA al-IrAdAt,

I, 6; Mirdawc, TaQMCM al-FurE c, I, 23.
Ibn Qakc Shuhba, TabaqAt, II, 199.

Ammad b. cAlc al-Qalqashandc, RubM al-A cshA f C RinA cat al-InshA, 14 vols. (Beirut: Dar

al-Kutub al-cIlmiyya, 1987), XI, 196.
Ramlc, NihAyat al-MuMtAj, I, 42.
Zarkashc, SharM, I, 274, 326, 318, 612, 614, 618, and passim. However, in vol. I, 299,
317, 327, and passim, he used so to designate other jurists™ opinions.
Operative terminology and the dynamics of legal doctrine 149
consistency in Nawawc™s discourse. In the example cited above in which
Nawawc pronounced on the legality of drinking wine as medicine or for
the purpose of quenching thirst, we saw that he introduced four wajh
opinions, none of which, by de¬nition, were held by Sha¬cc, although all
were said to have been of the mashhEr type.97 In fact, even in the intro-
duction to his work, he makes the remark that he will not expound the
evidence or lines of legal reasoning of weak opinions, even though they
may be of the mashhEr type.98 Here, the reference is clearly to the general
body of opinion, not to that of Sha¬cc™s alone. To say that Nawawc
contradicted himself on what precisely constitutes the mashhEr is to state
the obvious. Nevertheless, the de¬nition of the mashhEr as an opinion
which acquired authority due to having gained wide circulation among
the jurists remained the dominant conception among the Sha¬cites and
The nana¬tes, on the other hand, do not seem to have used the term
with any frequency, at least not in the technical sense of referring to a
particular type of authoritative opinion. In naqkafc™s list of operative
terms conventionally used by the nana¬tes, the term makes no appear-
ance.100 A survey of some of the most important nana¬te works con¬rms
this absence, both from the lists of operative terms presented by the
authors (when they do so) in the opening pages of their works as well as
from their overall contents.101
In the case of the Malikite mashhEr, we are fortunate to have Ibn
Farmen™s revealing discussion. In his TabQira, he maintains that ultim-
ate authority is embodied in Malik™s doctrine from which neither the
jurisconsult nor the qAKC may swerve. Some jurists, he remarks, argued
that the ¬nal authority of Malikite doctrine resides in Ibn al-Qasim™s
work, especially if Malik™s authoritative doctrine cannot be determined.
This hierarchy of doctrine, it is claimed, constituted the foundations of

For other examples, see Nawawc, al-MajmE c, IX, 45, 192, 199, and passim; Subkc,
TabaqAt, III, 151.
Nawawc, al-MajmE c, I, 5.
It is interesting that Zarkashc, for instance, often couples the term mashhEr with
ma crEf, well known (e.g. al-ma crEf al-mashhEr, or the reverse order). See his SharM, II,
534, 547, 589; VII, 398.
naqkaf c, al-Durr al-MukhtAr, I, 72“75.
See Marghcnanc, HidAya; Qakckhan, FatAwA; al-FatAwA al-Hindiyya; Mumammad b.
Shihab Ibn Bazzaz al-Kurdarc, al-FatAwA al-BazzAziyya al-MusammAtu bil-JAmi c al-
WajCz, printed on the margins of al-FatAwA al-Hindiyya, vols. IV“VI (repr.; Beirut:
Dar Imya™ al-Turath al-cArabc, 1980); nalabc, MultaqA al-AbMur; Ibn cfbidcn, NAshiya;
Kamal al-Dcn Ibn al-Humam, SharM FatM al-QadCr, 10 vols. (repr.; Beirut: Dar al-Fikr,
1990). It is to be noted that the principal terms used in these works for the authoriza-
tion of legal opinions are the QaMCM and aQaMM.
150 Authority, continuity, and change in Islamic law
juridical practice among Andalusian and Moroccan jurists.102 With this
background in mind, Ibn Farmen continues his discussion:
Our foregoing discussion leads us to the conclusion that if Ibn al-Qasim™s
opinions are to be found in the Mudawwana, then they are the mashhEr
opinions of the school. In the technical usage of Moroccan jurists (al-
MaghAriba), the mashhEr are the opinions found in the Mudawwana. But
the Iraqians [of the Malikite school] often disagree with the Moroccans as
to which opinions are mashhEr, for they declare certain opinions mashhEr
[when the Moroccans do not]. The practice of the more recent jurists
(muta”akhkhirEn) is to consider mashhEr that which is deemed thus by
the Egyptian and Moroccan jurists. Ibn Rashid reported that he had heard
that some scholars spurned the term mashhEr because the jurists may con-
sider certain opinions as mashhEr though they have weak foundations
(laysa la-hu aQl ). The fact is that reliable opinions are only those which
are supported by [strong] evidence. Ibn Bashcr maintained that “there is
disagreement about the mashhEr, consisting of two positions. The ¬rst is
that the mashhEr is the opinion which is supported by strong evidence; the
second is that it is the opinion held by many jurists. The correct position
(al-QaMCM) is the ¬rst. But this position is marred by the fact that the jurists
at times declare one opinion to be mashhEr and the [competing] opinion
QaMCM.” But nothing should mar this position because the mashhEr is the
doctrine of the Mudawwana. There may be a sound tradition supporting
the other opinion, and probably transmitted by Malik, but which he
did not use in support of that opinion due to a reason which prevented
him from doing so, a reason not obvious to the [later] jurist. When this
jurist ¬nds a sound tradition to support the said opinion, he declares the
opinion QaMCM, a practice of frequent occurrence in the commentaries of
Ibn al-cArabc and Ibn cAbd al-Salam on Ibn al-najib . . . Ibn Rashid said
that “the second position “ that the mashhEr is that which is held by many
“ is also marred by the fact that in certain legal cases, we ¬nd the mashhEr
to be those opinions which carry the legal norm of prohibition, whereas
the majority [of jurists] hold those opinions which carry the legal norm of
permissibility.” [Here, Ibn Rashid cites a custody case to prove his point.]
However, Ibn Khuwayz Mindad maintained that the legal doctrines of the
school show that the mashhEr is that which is supported by strong evid-
ence and that Malik, in questions subject to disagreement, sided with the
opinions supported by strong evidence, not those held by many jurists.103
This passage contains both doctrinal and historical information. First,
it speaks of fundamental uncertainty in the Malikite school as to what

Ibn Farmen, TabQirat al-NukkAm, I, 49.
Ibid., I, 50. Ibn Khuwayz Mindad™s assertion is not borne out by Malik™s MuwaSSa”, as
we have seen in chapter 2, section II, above.
Operative terminology and the dynamics of legal doctrine 151
exactly the mashhEr was. Is its preponderance based on strength of evid-
ence or on sheer weight of numbers? Ibn Farmen defended the former
meaning of the mashhEr, but he in no way resolved the dispute. In fact,
as far as I know, there was never to be a ¬nal resolution of this disagree-
ment. Second, even if we disregard the issue of the mashhEr™s evidential
and epistemic foundations, there was another major disagreement as
to which opinion is mashhEr and which not. Ibn Farmen speaks of a
Malikite split on the matter, with the Iraqians standing on one side and
the Moroccans on the other. Furthermore, this split may have widened
in later centuries to include the Egyptians who joined the fray on the side
of the Moroccans.
If taQMCM, whose foundations were relatively well de¬ned and gener-
ally agreed upon, was nonetheless dealt with in a subjective fashion, then
small wonder that the mashhEr was chronically prone to such treatment.
Ibn Farmen himself admits this much, not only in the passage we have
translated above, but also in his description of his colleagues™ practices.
He also quotes Ibn Rashid who speaks of Ibn al-najib™s confused use
of the mashhEr and the ashhar (more widespread). At times, Ibn al-najib
considered ashhar what others deemed mashhEr, a practice that was
also associated with the Egyptian and Moroccan jurists, including Ibn
al-cArabc. In a rather clumsy justi¬cation of this practice, Ibn Rashid
maintained that Ibn al-najib did so “perhaps because the word ashhar is
more elegant and shorter”!104 The fact that Ibn Rashid had to resort to
such an unconvincing explanation speaks of the uncertainty that engulfed
the technical connotation of the mashhEr.
The severity of the problem led to attempts at ¬nding a remedy, al-
though these were largely unsuccessful. This is evidenced in the Malikite
creation of a hierarchy of the mashhEr doctrine based on juristic authority
within the school. In this respect, nassab re¬‚ected the standard doctrine
of the Malikite school when he stated that, in those cases on which the
mashhEr opinion cannot be determined through an examination of tex-
tual evidence and legal reasoning, recourse should be had to the later
masters of the school. Thus, the tashhCrAt of Ibn Rushd take precedence
over those of Ibn Buzayza, while the tashhCrAt of Ibn Rushd, Mazarc, and
Abd al-Wahhab are of equal weight.105
But how were these mujtahids to determine which opinion was
mashhEr and which not? Again, Malik™s doctrine emerges as the ultimate

Ibn Farmen, TabQirat al-NukkAm, I, 51: “fa-yuMtamal an yakEn qaQada hAdhihi al- cibAra
li-rashAqatihA wa-qillati MurE¬hA.”
nassab, MawAhib al-JalCl, I, 36.
152 Authority, continuity, and change in Islamic law
frame of reference. Given that Malik was known to have often held more
than one opinion on a single case, the question becomes: Which opinion
should be considered the mashhEr? The answer is fairly simple: it is the
opinion that he held last, because those opinions that he held earlier in
his life were deemed abrogated by later ones.106 But what if the chrono-
logy of opinions cannot be established, which is frequently the case?
In such cases, the mujtahid, and only the mujtahid, should determine
which opinion is supported by the best evidence and most persuasive legal
reasoning, and this he must do in light of his intimate knowledge of
Malik™s methodology and principles. Whatever emerges as the best of all
opinions must then be presumed to have been Malik™s last opinion, the
mashhEr.107 More often than not, however, it is the muqallid who needs to
determine the status of the opinions. But since he lacks knowledge of the
founder™s methodology and principles, he must rely on Ibn al-Qasim™s
recension of Malik™s doctrine, and this he does to the best of his know-
ledge of what Malik™s last doctrine is.108

But this is not all. Leaving the determination of the mashhEr to the
muqallid increases subjectivity and creates further multiplicity of pre-
sumed authoritative opinions. Thus, in order to reduce plurality and in-
crease the chances of determining authoritative opinions, the four schools
resorted to other means, each of which was labeled with what we have
called an operative term. Leaving aside any consideration of their order
of importance, these terms were as follows: rAjiM, UAhir, awjah, ashbah,
QawAb, madhhab, maftC bi-hi, ma cmEl bi-hi, mukhtAr. It is with these con-
cepts “ which together with the QaMCM, the mashhEr, and their derivatives

That the last opinion of the imam abrogates an earlier one is a doctrine held by all the
schools, although it ¬gured more prominently in the Sha¬cite and Malikite schools.
But it too had its opponents, especially among the Malikites. Abe cAbd Allah al-
Tilimsanc argued that if a mujtahid arrives at two opinions for the same case, then they
must be based on probability, and if so, they are equally subject to falsi¬cation. There-
fore, the second opinion may turn out to be mistaken, just as the ¬rst opinion was
determined to be so earlier. Tilimsanc reports that Ibn Abc Jamra also argued that the
earlier opinion should not be considered invalid without it being subjected to the
mujtahid ™s scrutiny. See Tinbaktc, Nayl al-IbtihAj, 441“43.
Wansharcsc, al-Mi cyAr al-Mughrib, X, 44, on the authority of Abe Mumammad cAbd
Allah Ibn Satarc. See also the fatwA of Abe cAbd Allah al-Tilimsanc in Tinbaktc, Nayl
al-IbtihAj, 443.
Wansharcsc, al-Mi cyAr al-Mughrib, X, 45“46, on the authority of Ibn Satarc and his
teacher Abe al-nasan al-Abyarc. See also Tilimsanc™s fatwA in Tinbaktc, Nayl al-IbtihAj,
Operative terminology and the dynamics of legal doctrine 153
constituted the backbone of the operative discourse of substantive law “
that we shall concern ourselves in the remainder of this chapter.

We have seen that tarjCM is the most general of all concepts, representing
as it does the e¬ort through which one of two or more opinions is made
preponderant (rAjiM). As such, tarjCM was equated with taQMCM and tashhCr,
and was used for that matter in connection with all other categories of
operative terminology. This explains therefore nassab™s remark that tarjCM
is determined by the term (lafU) of tashhCr, madhhab, UAhir, maftC bi-hi, or
ma cmEl bi-hi.109

In technical legal usage, the term indicates the meaning that is com-
prehended by the mind immediately upon hearing a particular term or
expression that potentially has two or more meanings. Derived from a
root suggesting the notion of strength, UAhir is applied to that meaning
which is the predominant one among the many connotations of a word,
i.e., the meaning that leaps out ahead of the rest. This term was usually
cast in opposition to naQQ, which refers to the univocal language of the
Quran and the Sunna.110
Insofar as legal preponderance was concerned, UAhir also meant the
stronger or more prominent of the two (or more) opinions, or simply the
strong opinion in contradistinction to a weak one. Nawawc and Ramlc
reserved this term for weighing Sha¬cc™s opinions. When faced with two
con¬‚icting opinions attributed to the latter “ whether they were both the
product of his New doctrine or one Old and the other New “ they used
the term to designate the preponderant opinion.111 This of course was
by no means always the case in the Sha¬cite school prior to Nawawc,
although it is possible that some consistency in the use of the term was

nassab, MawAhib al-JalCl, I, 36.

Abe al-Walcd b. Khalaf al-Bajc, KitAb al-NudEd f C al-UQEl, ed. Nazch nammad (Bei-

rut: Mu™assasat al-Zucbc lil-tibaca wal-Nashr, 1973), 43, 48; cAbd al-Nabc b. cAbd al-
Rasel al-Ammadnagarc, JAmi c al- cUlEm f C IQSilAMAt al-FunEn al-Mulaqqab bi-DustEr
al- cUlamA”, 4 vols. (repr.; Beirut: Mu™assasat al-Aclamc lil-Masbecat, 1975), II, 286;
Ibn cfbidcn, Nashr al- cUrf, 128; Imam al-naramayn Pseudo-Juwaync, al-KA¬ya f C
al-Jadal, ed. Fawqiyya Mammed (Cairo: Masbacat chsa Babc al-nalabc, 1979), 49; al-
Sayyid Sharcf cAlc b. Mumammad al-Jurjanc, al-Ta crCfAt (Cairo: Masbacat Muqsafa Babc
al-nalabc, 1938), 124.
Ramlc, NihAyat al-MuMtAj, I, 42.
154 Authority, continuity, and change in Islamic law
encouraged due to Nawawc™s tremendous in¬‚uence. An earlier Sha¬cite,
Shashc (d. 508/1114), used the term for both Sha¬cc™s opinions and those
of the aQMAb al-wujEh, foremost of whom was Ibn Surayj.112 Regarding
one case especially, he reports the existence of two wajh opinions, one
by Ibn Surayj and the other anonymous. He leans toward the latter in this
instance, declaring it the UAhir of the Sha¬cite madhhab, namely, the
strongest, soundest, or most authoritative doctrine of the school.113 In
another case, he also reports two wajh opinions, one UAhir al-naQQ and
the other aUhar.114 Although it is possible that Shashc is using the term
in its usual sense, namely, that the opinion is based on clear Sunnaic
or Quranic language, it is more likely that he is referring to Sha¬cc™s naQQ
which is the latter™s authoritative opinion on a certain matter. Despite this
fact, he still ¬nds the second opinion the weightier.
The Malikites and nanbalites do not seem to have used this term as
frequently as the Sha¬cites and nana¬tes. The nanbalite Mirdawc, for
instance, does not enumerate it among the tarjCM terms of his school,
although he and other nanbalite jurists did occasionally use it.115 The
same appears to have been the situation in the Malikite school.116 The
lesser importance of this term in these two schools may be attributed to
the fact that it was not linked to the teachings of any of the founding
masters, as was the case with the Sha¬cites and the nana¬tes. The latter
two schools by contrast made frequent use of the term, linking it, as
we have seen, to the most authoritative category of nana¬te doctrine,
the UAhir al-riwAya.117 However, the use of this term was not con¬ned to
this category of doctrine, especially when used in the elative. When an
opinion was established as preponderant, it was described as being the
aUhar (stronger) of the two.118

Awjah, ashbah, AND qawab
These terms were used only on occasion, and at great intervals. They
lacked the relative technical rigor of the terms QaMCM and mashhEr, and
even that of UAhir and aUhar. They were the later equivalent of the early

Shashc, Nulyat al- cUlamA”, I, 75, 89, 97“98, 99, 168, 181, 187, 190, 191; VIII, 282.

Ibid., VIII, 282: “wa-hwa al-UAhir min madhhab al-ShA¬ cC.” For other cases declared as

UAhir al-madhhab, see ibid., I, 63, 140, 168, 206, 255.
Ibid., VIII, 127. 115 Mirdawc, TaQMCM al-FurE c, I, 23, 27, and passim.
nassab, MawAhib al-JalCl, I, 36.
See chapter 2, section II, above. For its uses in positive law, see, e.g., Abe al-Layth
al-Samarqandc, FatAwA al-NawAzil (Hyderabad: Masbacat Shams al-Islam, 1355/1936),
3, 11, 63, 84, and passim.
Samarqandc, FatAwA, 78.
Operative terminology and the dynamics of legal doctrine 155
non-technical terminology, such as ajwad (better), used at times by the
nana¬te tamawc.119 As a fairly non-technical term, awjah simply meant
the stronger of two (or more) opinions, precisely as one might refer to
such an opinion as the aQaMM, the ashhar, or the aUhar. But there was
a di¬erence. While the ashhar was likely to be distinguished, within
the same school, from the aQaMM, the use of awjah was in this respect
ambiguous, for it does not seem to have implied, as did the others, a
certain pedigree of opinion. The same might be said of the ashbah, a fairly
non-technical term indicating something like “more or most likely,” as
in the pronouncement that such and such is the more likely of the two
opinions. Of this trilogy, the more technical term is QawAb, along with
its elative form aqrab ilA al-QawAb.120 Though more technical, it pales into
insigni¬cance when compared with its counterparts, QaMCM, mashhEr, etc.
Ibn Taymiyya uses it in the sense of soundest or most correct, as when
he says that the soundest qiyAs in the school is such and such.121 The
nana¬te Kasanc uses it in a more relative sense, as in his assessment of
an opinion being “more likely to be sound.”122

On a number of occasions in this study, we have noted that the term
madhhab acquired di¬erent meanings throughout Islamic history. Its
earliest use was merely to signify the opinion or opinions of a jurist, such
as in the pronouncement that the madhhab of so-and-so in a particular
case is such-and-such.123 Later on, the term acquired a more technical
sense. During and after the formation of the schools, it was used to refer
to the totality of the corpus juris belonging to a leading mujtahid, whether
or not he was the founder of a school. In this formative period, the
term also meant the doctrine adopted by a founder and by those of
his followers, this doctrine being considered cumulative and accretive.
Concomitant with this, if not somewhat earlier, appeared the notion of
madhhab as a corporate entity in the sense of an integral school to which
individual jurists considered themselves to belong. This was the personal
meaning of the madhhab, in contrast to its purely doctrinal meaning
which was expressed as loyalty to a general body of doctrine.
There was at least one other important sense of the term which deserves
our attention here, namely, the individual opinion, accepted as the most

tamawc, MukhtaQar, 394, 440, and passim. 120 Kasanc, BadA”i c al-RanA”i c, I, 31.
Baclc, al-IkhtiyArAt al-Fiqhiyya, 150.
Kasanc, BadA”i c al-RanA”i c, I, 31: “wa-hAdhA aqrab ilA al-QawAb.”
For example, see Sha¬cc, Umm, II, 102, 113, 136, 163, and passim.
156 Authority, continuity, and change in Islamic law
authoritative in the collective doctrinal corpus of the school. In order
to distinguish it from the other meanings of the word madhhab, we shall
assign to it the compound expression madhhab-opinion.
Given the paucity of sources from the early period, it is di¬cult to
establish the origins of this latter usage. It is certain, however, that it had
become well established by the middle of the ¬fth/eleventh century. The
period of its evolution must therefore be located some time during the
preceding century or so, for evidently it could not have emerged prior to
the middle of the fourth/tenth century, before the schools as doctrinal
entities reached maturity.
In this doctrinal sense, the term madhhab meant the opinion adopted
as the most authoritative in the school. Unlike the QaMCM and the mashhEr,
there were no particular or ¬xed criteria for determining what the
madhhab-opinion was, since it might be based on general acceptance on
the grounds of taQMCM, tashhCr, or some other basis. Yet, it was possible that
the madhhab-opinion could be di¬erent, say, from a QaMCM opinion.124
However, the most fundamental feature of the madhhab-opinion re-
mained its general acceptance as the most authoritative in the school,
including its widespread practice and application in courts and fatwAs.
This type of opinion is to be distinguished from the mashhEr, in that the
latter is deemed widespread among a majority, but not the totality, of
jurists belonging to a school. This explains why the madhhab-opinion
could not be, as a rule, outweighed by another competing opinion.
A distinctive feature of the madhhab-opinion was its status as the
normative opinion in legal application and practice. It is precisely here
that an organic connection between fatwA and madhhab-opinion was
forged “ the fatwA being a re¬‚ection of litigation and the legal concerns
of mundane social life.125 nassab™s commentary on the matter eloquently
speaks of this connection: the term “al-madhhab,” he remarked, was used
by the more recent jurists (muta”akhkhirEn) of all the schools to refer
to the opinion issued in fatwAs. He also remarked, conversely, that any
fatwA issued on the basis of something other than the madhhab-opinion
ought not to be taken into account (lA yakEn la-hA i ctibAr).126 In these
pronouncements by nassab, two important matters must be noted:
First, that the connection between fatwA practice and the term madhhab
(-opinion) is one that appeared among the muta”akhkhirEn, not among
the mutaqaddimEn, i.e. the early jurists who ¬‚ourished between the

Mirdawc, TaQMCM al-FurE c, I, 50“51.
This has been demonstrated in Hallaq, “From FatwAs to FurE c,” 31“38.
nassab, MawAhib al-JalCl, I, 24; VI, 91.
Operative terminology and the dynamics of legal doctrine 157
second/eighth and fourth/tenth centuries, a period in which the schools
were formed;127 second, that the fatwA practice de¬nes the general body
of madhhab-opinion in any given school.
But how did the jurist know which opinion constituted the standard
basis of fatwAs or the madhhab-opinion? This became one of the most
urgent questions, constituting a serious challenge to later jurists for whom
the determination of the most authoritative school doctrine was essential.
Nawawc provides an answer:
You ought to know that law books of the school contain signi¬cant dis-
agreements among the associates, so much so that the reader cannot be
con¬dent that a certain author™s opinion expresses the madhhab-opinion
until he, the reader, deciphers the majority of the school™s well-known
lawbooks . . . This is why [in my book] I do not exclude the mention of
any of Sha¬cc™s opinions, of the wajh opinions, or other opinions even if
they happen to be weak or insigni¬cant . . . In addition, I also mention
that which is preponderant, and show the weakness of that which is weak
. . . and stress the error of him who held it, even though he may have been
a distinguished jurist (min al-akAbir) . . . I also take special care in perusing
the law books of the early and more recent associates down to my own
time, including the comprehensive works (mabsESAt), the abridgements
(mukhtaQarAt), and the recensions of the school founder™s doctrine, Sha¬cc
. . . I have also read the fatwAs of the associates and their various writings
on legal theory, biographies, MadCth annotation, as well as other works . . .
You should not be alarmed when at times I mention many jurists who
held an opinion di¬erent from that of the majority or from the mashhEr,
etc., for if I omit the names of those constituting the majority it is
because I do not wish to prolong my discussion since they are too many to
Nawawc did not live long enough to conclude his ambitious project, hav-
ing completed only about a third of it by the time of his death. Yet for
him to know what was the madhhab-opinion in each case, he felt com-
pelled to investigate the great majority of what he saw as the most import-
ant early and later works. Hidden between the lines of this passage is
the fundamental assumption that in order to identify the basis of fatwA
practice one must know what the generally accepted doctrine was. In the
¬nal chapter, we shall see that jurists, in writing their works, continuously

This periodization, which is determined by our independent investigation of the
madhhab evolution and the construction of authority, agrees with the traditional dis-
tinction between the “early” and “later” jurists. See najjc Khalcfa, Kashf al-VunEn, II,
Nawawc, al-MajmE c, I, 4“5.
158 Authority, continuity, and change in Islamic law
revised legal doctrine, weeding out opinions that had fallen out of circula-
tion, and including those newer ones that had become relevant to legal
practice. Only an intimate knowledge of the contents of the legal works
written throughout the centuries could have revealed which opinions
remained in circulation “ i.e., in practice “ and which had become
obsolete. It is precisely this knowledge that became a desideratum, and
this is why the subject of khilAf was so important. The study of khilAf was
the means by which the jurist came to know what the madhhab-opinions
were. Law students, for instance, are often reported to have studied law,
madhhaban wa-khilAfan, under a particular teacher. The Malikite Ibn
Abd al-Barr emphatically states that for one to be called a jurist ( faqCh),
he must be adept at the science of khilAf, for this was par excellence the
means by which the jurist could determine which opinions represented
the authoritative doctrines of the madhhab.129
Although the determination of the madhhab-opinion was more an
inductive survey than a hermeneutical“epistemological engagement, it
nonetheless entailed some di¬culties, not unlike those the jurists faced
in deciding what the QaMCM and the mashhEr opinions were. In his notable
e¬ort, Nawawc himself did rather well on this score, which explains his
prestige and authority in the Sha¬cite school. Nonetheless, he and Ra¬cc
are said to have erred in about ¬fty cases, claiming them to be madhhab-
opinions when they were thought by many not to be so.130 The follow-
ing case from the FatAwA of Taqc al-Dcn al-Subkc further illustrates the
uncertainty involved:
Two men die, one owing a debt to the other. Each leaves minor children
behind. The guardian of the minors whose father was the lender establishes
against the debtor™s children the outstanding debt in a court of law. Should
the execution of the judgment [in favor of the ¬rst party] be suspended
until the defendants [i.e., the debtor™s children] reach majority, or should
the guardian take the oath [and have the debt be paid back]? . . . The
madhhab-opinion is the latter. However, he who investigates the matter
might think that the madhhab-opinion is that the judgment should await
implementation [until the children reach majority], but this may lead to
the loss of their rights. By the time the lender™s children attain majority,
the money may well have vanished at the hands of the debtor™s heirs.131
Note here the ambiguity as to which of the two is the madhhab-opinion.
Subkc identi¬es immediate execution of the judgment as the madhhab-
opinion, while at the same time he also admits that anyone who investigates

Ibn cAbd al-Barr, JAmi c BayAn al- cIlm, II, 43 f.
Ramlc, NihAyat al-MuMtAj, I, 38. 131 Subkc, FatAwA, I, 324.
Operative terminology and the dynamics of legal doctrine 159
the matter will ¬nd that the opposing opinion has the same status. Subkc
does not even go so far as to claim that the one who espouses the latter is
Be that as it may, the term madhhab, when referring to an individual
opinion, was used to determine what the law on a particular case was.
And the criterion for acquiring this status was general acceptance and the
fact of its being standard practice in the school. But before proceeding
to discuss the three remaining terms, which are closely related to the
madhhab-opinion, we would do well to look at some of the contextual
uses of this term:
1. cAlA al-QaMCM min al-madhhab, that which is deemed QaMCM according to the
madhhab “ an expression that indicates what the school as a body of legal
doctrine and an aggregation of individual members generally accepts as the
QaMCM. Note here that the category of the QaMCM is legitimized in a double-
pronged manner: one is the hermeneutical preponderance of textual evidence
and of lines of reasoning, the other the overwhelming support of those be-
longing to the school, itself based on a juristic preponderance. The expression
may appear less frequently with the variation calA al-madhhab al-QaMCM.132
2. IqtiKA” al-madhhab, with the more frequent variant yaqtaKChi al-madhhab,
that which the madhhab dictates. The following example illustrates the use of
this expression: In a case pertaining to the observance of ritual purity, Ibn
al-rabbagh held that the madhhab dictates that this observance be considered
valid, but legal reasoning (ta clCl ) dictates that it be deemed invalid. Obviously,
madhhab-opinion here was not based on systematic qiyAs but rather on some
other consideration which may have been istiMsAn or istiQlAM.133
3. QiyAs al-madhhab, the authoritative, standard qiyAs with regard to a particu-
lar case.134 Consider the following example, from a nanbalite source: “Is the
minor™s bequest valid? There are two wajh opinions. Al-Qakc said that accord-
ing to qiyAs al-madhhab, it is valid because Ammad [Ibn nanbal] considered
the minor™s power of attorney (wakAla) and his sale transactions, if he has
permission from his guardian, valid.”135 Accepted as the authoritative basis
of the school, Ibn nanbal™s doctrine became the foundation of any case that
could be deemed to have attributes justifying extension by analogy. But the
authority of qiyAs al-madhhab was no more universal or binding than were the
QaMCM, mashhEr, or the madhhab-opinions themselves. In this very case, Ibn
Qudama, a leading nanbalite, rejected this qiyAs altogether and considered
the bequest of a minor invalid.136

See, for example, Shashc, Nulyat al- cUlamA”, IV, 113; VIII, 177, 265, and passim;

Baclc, al-IkhtiyArAt al-Fiqhiyya, 15, 21; Abe cAlc Ammad b. Mumammad al-Shashc, UQEl
al-ShAshC (Beirut: Dar al-Kitab al-cArabc, 1982), 120.
Shashc, Nulyat al- cUlamA”, I, 193. 134 Zarkashc, SharM, II, 544; VII, 412.

Ibn al-Lammam, QawA cid, 24. 136 Ibid. See also Shashc, Nulyat al- cUlamA”, I, 94.
160 Authority, continuity, and change in Islamic law
4. VAhir al-madhhab, the dominant opinion in the school.137
5. MashhEr al-madhhab, the opinion sanctioned as mashhEr by the collective
school body.138
6. Laysa bi-madhhab (lit. not a madhhab-opinion), an expression used to dismiss
an opinion as falling short of being the standard opinion of the school, even
though it might be QaMCM.139

MaftC bi-hi, ma cmEl bi-hi
We have seen that the madhhab-opinions gained authoritative status due
to the fact that they were predominantly used as the basis of issuing
fatwAs. The Sha¬cite Ramlc declares that the jurist™s most important task
is to determine which opinions in his school are regularly applied
(mutadAwala) in the practice of iftA” since this will determine the author-
itative madhhab-opinions.140 In his widely known work MultaqA al-AbMur,
the nana¬te nalabc also considered his chief task to be the determination
of which opinions were the most authoritative. It turns out that next to
the QaMCM and the aQaMM, the most weighty opinions were those “chosen for
fatwAs” (al-mukhtAr lil-fatwA).141 In the Malikite school, the authoritative
category of the mashhEr was in part determined by the common practice
of iftA”. nassab maintains that tashhCr is determined, among other things,
by the maftC bi-hi, the opinions predominantly adopted by the juris-
consults.142 At the risk of repetition, it is important at this point to recall
Ibn cfbidcn™s statement, which re¬‚ected the centuries-old practice of his
Not every QaMCM [opinion] may be used as a basis for issuing fatwAs because
another opinion may be adopted out of necessity (KarEra) or due to its
being more agreeable to changing times and the likes of such considera-
tions. This latter opinion, which is designated as ¬t for iftA” ( f C-hi lafU
al-fatwA), includes two things, one of which is its suitability for issuing
fatwAs, the other its correctness (QiMMatihi ), because using it as the basis of
iftA” is in itself [an act] by which it is corrected (taQMCM la-hu).143
Similarly, the rules that were applied, i.e. the ma cmEl bi-hi, acquired
paramount importance as the authoritative doctrine of the school. Like the
maftC bi-hi, the ma cmEl bi-hi formed the basis of tashhCr in the Malikite

Shashc, Nulyat al- cUlamA”, I, 63, 140, 168, 255, and passim.

Subkc, TabaqAt, VI, 193.

Shashc, Nulyat al- cUlamA”, I, 140, 187, 188, 192; IV, 67“68 and passim.
Ramlc, NihAyat al-MuMtAj, I, 36“37.
nalabc, MulatqA al-AbMur, I, 10; II, 194, 202, 207, 210, 211, and passim.

nassab, MawAhib al-JalCl, I, 36. 143 Ibn cfbidcn, SharM al-ManUEma, 38“39.
Operative terminology and the dynamics of legal doctrine 161
school,144 the assumption being that the authoritative opinions of Malik,
Ibn al-Qasim, and those of the later mujtahids make up the foundations
of dominant judicial practice. In his commentary on Nawawc™s MinhAj,
the Sha¬cite Ramlc purportedly included in his work only those opinions
that were in predominant use, and whenever citing weaker opinions, he
alerted the reader to this fact by distinguishing between the two types.145
In the nana¬te school, the madhhab-opinion was organically linked both
to fatwA and camal (practice). No fatwA was to be considered valid or
at least authoritative unless it was backed by the judicial practice of the
community (calayhi camal al-umma).146 Ibn najar al-Haytamc summed up
the entire issue when he said that “calayhi al- camal ” was a tarjCM formula
used to determine which opinions are correct and authoritative.147 Con-
versely, an opinion that is not resorted to in judicial practice will become
obsolete, and therefore negligible, if not altogether needless. Speaking
of authorial practices, tef c argues that the author“jurist must not, as
a rule, record those opinions that are not relevant to practice, for “they are
Since practice varied from one region to another, an opinion thought to
have gained wide circulation in one region might not have been regarded
as such in another, an added factor in the disagreement over which opinion
was deemed authoritative in the school and which not. The Malikite dis-
course on this matter perhaps best illustrates the di¬culties involved. Ibn
Farmen states that the commonly used formula “This is the prevailing
practice in this matter” (al-ladhC jarA al- camal bi-hi f C hAdhihi al-mas”ala)
cannot be generalized to include all domains in which a particular school
prevailed. Rather, such a formula would have been applicable only to that
region or locale in which the practice had prevailed. This explains, he
maintains, why the jurists attempted to restrict the applicability of the
formula by adding to it expressions like “in such-and-such region” ( f C
balad kadhA). Otherwise, if they did not qualify the formula, then the
opinion would be said to be universally applicable. The opinion™s pur-
ported universality was in itself an argument in favor of its preponderance
as the authoritative opinion of the school no matter where the opinion
might be appealed to. Ibn Farmen also asserts that the principle of author-
ization by dominant practice is accepted by the Sha¬cites as well.149 To

nassab, MawAhib al-JalCl, I, 36. 145 Ramlc, NihAyat al-MuMtAj, I, 9.

naqkaf c, al-Durr al-MukhtAr, I, 72“73. See also Ibn cfbidcn, SharM al-ManUEma, 38.

Ibn najar al-Haytamc, al-FatAwA al-KubrA al-Fiqhiyya, 4 vols. (Cairo: cAbd al-namcd

Ammad al-nanaf c, 1938), IV, 293.
tef c, SharM MukhtaQar al-RawKa, III, 626: “idh mA lA camala calayh lA MAjata ilayh.”
Ibn Farmen, TabQirat al-NukkAm, I, 49.
162 Authority, continuity, and change in Islamic law
the Sha¬cites he might as well have added the nana¬tes who, as we
have seen and as we shall further see in the next chapter, placed great
stress upon dominant practice as a legitimizing factor. The nanbalites,
on the other hand, appear to have laid slightly less stress on it than any
of the other schools, if we are to judge by what seems to have been
a lower statistical frequency of explicit reference to practice in their
works. But this is by no means correct in all cases. In his MuntahA
al-IrAdAt, for instance, Ibn al-Najjar considers practice (calayhi al- camal )
to be a preponderating factor, standing on a par with taQMCM and tashhCr.150

MukhtAr, ikhtiyAr
Of relatively less frequent occurrence are the terms mukhtAr, ikhtiyAr, and
the verb form ikhtAra,151 indicating, respectively, the notions of chosen,
choice, and to choose.152 The most obvious implications of these terms
are two, the ¬rst of which is that the jurist who is said to have chosen
or made the choice is one who did not originally formulate the opinion
but rather adopted it, directly or indirectly, from another jurist who
did. This is the underlying signi¬cance of such statements as “Abe
nancfa held such-and-such opinion, and this is the choice of Muzanc,”153
statements which abound in the legal literature. Second, “choice,” or
any of its variants, suggests an act by which one opinion is deemed
preponderant over the other(s). Thus, in substantive legal works it is
reported that a wajh opinion formulated by Ibn Surayj constituted the
choice (ikhtiyAr) of al-Qakc Abe al-tayyib al-tabarc, just as one of Abe
nancfa™s opinions was chosen by Muzanc.154 At times, the pedigree of
the opinion is not mentioned, and the author con¬nes himself to stating
that it has been chosen, or for that matter adopted, by a certain dis-
tinguished jurist.155

Ibn al-Najjar, MuntahA al-IrAdAt, I, 6.
In the majority of works, these terms do appear with less frequency than other operat-
ive terms. However, in a relatively very few works, they are used repeatedly, even
surpassing the frequency with which terms such as QaMCM and aQaMM are employed. See,
for instance, the nanbalite Zarkashc, SharM, I, 290, 299, 300, 301, 304, and passim.
This is to be distinguished sharply from the very similar term takhayyur which in the
pre-modern period meant the selective amalgamation of legal doctrines and opinions
held by a number of jurists, not necessarily belonging to the same school. See Wael B.
Hallaq, “Talf co,” Encyclopaedia of Islam, X, 161.
See next note, below.
Shashc, Nulyat al- cUlamA”, VIII, 266, 273. See also ibid., IV, 278, 377, 424, 467.
Ibid., I, 105, 155, 156, and passim; Qakckhan, FatAwA, I, 178, 204, and passim; Ibn
Quslebugha, TAj al-TarAjim, 16“17.
Operative terminology and the dynamics of legal doctrine 163
That ikhtiyAr and its varieties amount to formulas of tarjCM is quite
obvious. Using any of them in conjunction with an opinion simply meant
that the jurist who made the ikhtiyAr found the opinion to be the prepon-
derant one.156 In his MukhtaQar, Khalcl used these variations as devices
for the purpose of showing which opinions were considered to outweigh
others. They stood in his discourse equal to such other terms as tarjCM,
arjaM, aUhar, QaMCM, and mashhEr.157 Given the subjectivity that engulfed
operative terminology, ikhtiyAr and mukhtAr were relative. Thus, Khalcl
often indicated that the opinion which a previous jurist had chosen was
outweighed (rujjiMa) by another opinion which he deemed preponder-
ant.158 In the same vein, and as with the other activities of takhrCj, tarjCM,
taQMCM, and tashhCr, some jurists were more likely to engage in ikhtiyAr
than others. The Malikites Mazarc, Ibn Rushd, and particularly Abe
al-nasan al-Lakhmc (d. 478/1085) are said to have been heavily involved
in this activity, for all of them are also said to have been mujtahids capable
of tarjCM.159
The ability to engage in preponderance, which requires a considerable
measure of ijtihAd, was often connected with ikhtiyAr. In this context, Ibn
Abc Shama™s remark speaks for itself: “He who contemplates Nawawc™s
performance in his SharM al-Muhadhdhab160 realizes that the man no
doubt reached the rank of ijtihAd, especially in view of the fact that his
ikhtiyArAt departed from the madhhab. This sort of thing can be done
only by a mujtahid.”161 The same is reported of the Malikite jurist Ibn
Khuwayz Mindad and the Sha¬cites Mumammad b. Naqr and Siraj al-Dcn
al-Bulqcnc who had in their own ikhtiyArAt deviated from the authoritat-
ive doctrine of their schools.162 Departure from school doctrine was not
always a matter of incidental disagreement on certain legal cases. When
Mumammad al-Juwaync, the father of Imam al-naramayn, deliberately
aimed at distancing himself from the doctrines of the schools,163 he was

As we shall see, preponderance was an essential part of ikhtiyAr. However, in rare
instances, the term was used to mean a choice between two opinions of the same
strength. For instance, if the jurist could not determine which of Sha¬cc™s two opinions
was preponderant, it was said that he should adopt one of the two at any rate, this act
being characterized as takhyCr. See Baqrc, Mu ctamad, II, 861. See also how Ibn Farmen,
DCbAj, 87, uses the terms interchangeably.
nassab, MawAhib al-JalCl, I, 34“35. 158 Ibid.
Ibid., I, 35, 40“41. See also Ibn Farmen, DCbAj, 87, in connection with Ibrahcm b.
Abd al-ramad al-Tanekhc (d. after 526/1131) who was also said to have engaged in
ikhtiyAr and tarjCM because he “had risen above the rank of taqlCd.”
Namely, al-MajmE c whose subtitle is SharM al-Muhadhdhab.
Cited by Suyesc, al-Radd, 193.
Ibid., 192“93; Nawawc, TahdhCb, I, 94; Ibn Qakc Shuhba, TabaqAt, IV, 50.
See chapter 3, section II, above.
164 Authority, continuity, and change in Islamic law
said to have made ikhtiyArAt in opposition to their authoritative doctrines
and was accordingly described as a mujtahid mutakhayyir.164

The foregoing discussion has shown that operative terminology evolved
as a response to the plurality and thus indeterminacy of legal rules. All
operative terms had in common a single purpose, namely, the determina-
tion of the authoritative opinion on any given case, a determination which
amounted in e¬ect to reducing plurality to a single opinion. Epistemo-
logically, this determination and the varied vocabulary that expressed
it stood as the binary opposite of ijtihAd. The latter created multiplicity,
the former attempted to suppress, or at least minimize, it. IjtihAd, then,
was causally connected with operative terminology, for it stood as its
progenitor, historically and epistemologically.
This terminology evolved also in conjunction with a monumental
development in Islamic legal history, that is, the rise of the madhhab as a
doctrinal entity. Before the rise of the madhhab, jurists, in their capacity
as qAKCs and jurisconsults, had recourse to virtually any set of doctrines
they liked, without being bound by any particular doctrine. This much
has been demonstrated in chapters 2 and 3. Later, however, when the
madhhab reached maturity, jurists had to con¬ne themselves to those
opinions accepted as the authoritative doctrine of the school. Only at that
stage of development, the need to rank competing opinions arose. This
ranking or, to put more precisely, authorization, required the develop-
ment of what we have called operative terminology. We have seen that
Feranc (d. 461/1068) was considered one of the ¬rst jurists to take it
upon himself to weigh wajh opinions in an e¬ort to conduct taQMCM.165 Of
course, we cannot take this narrative at its face value, for we know that
others were already engaged in this activity some time before Feranc was
even born. Mumammad b. Waraqa al-Bukharc (d. 385/995) is also said
to have been in the habit of adopting those wujEh opinions that he con-
sidered to be QaMCM.166 Even earlier, jurists of all shades and colors did
make distinctions between opinions, and did, albeit rarely, consider some
opinions preponderant.167 But it is no coincidence that Feranc, explicitly,

Suyesc, al-Radd, 190. For other jurists known to have had ikhtiyArAt, see Ibn al-Farra™,
TabaqAt, II, 163; Ibn Qakc Shuhba, TabaqAt, I, 57, 319; Ibn cfbidcn, SharM al-
ManUEma, 32.
Subkc, TabaqAt, III, 225; Ibn Qakc Shuhba, TabaqAt, I, 266. See chapter 3, section II,

Subkc, TabaqAt, II, 168. 167 See, e.g. tamawc, MukhtaQar, 394, 440, and passim.
Operative terminology and the dynamics of legal doctrine 165
and Bukharc, obliquely, have been associated with the earliest determina-
tion of the QaMCM. Nor is it a coincidence that jurists who lived prior to
Bukharc were never associated with this activity, for the latter, as a system-
atic hermeneutical engagement, was a post-madhhab development.
A salient feature of operative terminology, which evolved as a response
to the indeterminacy of legal rules, is its own indeterminacy. We have, I
believe, conclusively shown that this terminology was engulfed by multi-
layered uses that rendered both the process and product of authorization
subjective. It is no exaggeration to speculate that the jurists would have
liked to develop objective criteria by which the authoritative opinion on
any given case could be determined. In other words, what I wish to sug-
gest is that if the jurists failed to develop such criteria, it was not because
they did not want to. Yet their failure to develop this objective criteria,
which would have reduced juristic disagreement on any particular case
to one authoritative opinion, was a blessing, a raMma, as they might have
said. The very diversity of opinion that resulted from this failure allowed
Islamic law to keep up with change, a theme which we will address more
fully in our ¬nal chapter.
166 Authority, continuity, and change in Islamic law



It is not our primary concern here to show that Islamic law underwent
change at di¬erent points in its history or in particular regions under its
jurisdiction, although there is su¬cient justi¬cation to do so in light of the
fact that modern Islamicist scholarship has, until recently, categorically
denied that it experienced any noticeable, much less fundamental, develop-
ment after the formative period. Instead, and going beyond the narrow
con¬nes of this issue, we will focus on explaining how change took place
and who were the agents of this process. For in explaining the modalities
of legal change, one can at the same time demonstrate, a fortiori, that not
only did change take place but also that its means of accommodation were
a fundamental, and indeed a structural, feature of Islamic law.
Before we proceed any further, a preliminary but important remark is
in order; namely, that Muslim jurists and Islamic legal culture in general
not only, as we shall see, experienced legal change in very concrete terms
but were also aware of change as a distinct feature of the law. A society
(or an individual, for that matter) may experience a certain phenomenon
and even partake in it actively, yet may nevertheless fail to articulate
the experience consciously and may thus remain unaware of the processes
taking place and in which it is involved. This certainly was not the case
with legal change in Islam. Muslim jurists were acutely aware of both
the occurrence of, and the need for, change in the law, and they articulated
this awareness through such maxims as “the fatwA changes with changing
times” (taghayyur al-fatwA bi-taghayyur al-azmAn) or through the explicit
notion that the law is subject to modi¬cation according to “the changing
of the times or to the changing conditions of society.”1
For a momentous discussion of this theme, see Ibn Qayyim al-Jawziyya, I clAm al-
Muwaqqi cCn, III, 14“70, and I, 110 f. See also Qakckhan, FatAwA, I, 2“3; Ramlc, al-
FatAwA al-Khayriyya, I, 3; Ibn cfbidcn, Nashr al- cUrf, 114“ 46; Ibn cfbidcn, NAshiya, I,
69, and sources cited in nn. 104“11, below.

The jurisconsult, the author“jurist, and legal change 167

Now, in determining the modalities and agents of legal change, which is
the focus of the present enquiry, it is necessary to maintain a distinction
between the four most important juristic roles that dominated Islamic
legal culture, namely, the qAKC, the muftC, the author“jurist, and the
professor. These roles rarely stood independently of each other, for a
jurist may combine two, three, or the entire set of roles, let alone other
subsidiary ones.2 It is remarkable that after the second/eighth century,
the pillars of the legal profession usually excelled, or at least successfully
engaged, in all four roles. Generally speaking, a jurist™s career was not
considered complete without his having ful¬lled all these roles, although
the role of qaKA”, in the case of a number of distinguished legists, does
not seem to have been seen as a prerequisite for crowning success. A
typical example of an accomplished career is that of Kamal al-Dcn Ibn
al-Zamalikanc (d. 727/1326) who was considered, during the later part
of his life, the leader of Syrian Sha¬cism. He is reported to have excelled
as a muftC and professor, to have presided as a qAKC in Aleppo, and
to have authored several works of law.3 Other typically distinguished
careers are those of Ibn Surayj,4 Taqc al-Dcn al-Subkc,5 Sharaf al-Dcn
al-Manawc (d. 757/1356),6 and Siraj al-Dcn al-Bulqcnc (d. 805/1402),7
all of whom were qAKCs, distinguished muftCs, professors, and proli¬c
The current state of knowledge in Islamic legal studies renders unneces-
sary any general comment on the nature of the o¬ces of the jurisconsult,
the judge, or the professor at law.8 But a word on the author“jurist as a
In fact, a jurist may function in other subsidiary roles, such as that of notary. A
notable example is the nana¬te tamawc, who functioned in this capacity as well as that
of author“jurist and qAKC. See Tamcmc, al-TabaqAt al-Saniyya, II, 49“52.
Nucaymc, al-DAris, I, 31“32; Makdisi, Rise, 95, 159, 168.
Subkc, TabaqAt, II, 87“96. 5 Ibn Qakc Shuhba, TabaqAt, III, 47“53.
Ibid., III, 1. 7 Ibid., IV, 42“52.
On these o¬ces or roles, see E. Tyan, Histoire de l™organisation judiciaire en pays d™Islam,
2nd ed. (Leiden: E. J. Brill, 1960), 100 ¬., 219 ¬.; E. Tyan, “Judicial Organization,” in
Majid Khadduri and Herbert Liebesny, eds., Law in the Middle East (Washington:
D.C.: The Middle East Institute, 1955), 236“53, 259“71; Khalid Masud et al., eds.,
Islamic Legal Interpretation: Muftis and their Fatwas (Cambridge, Mass.: Harvard
University Press, 1996), 8“15, 20“26; Makdisi, Rise, 148“59, 197“201, and passim;
J. Nielsen, Secular Justice in an Islamic State: MaUAlim under the BaMrC MamlEks, 662/
1264“789/1387 (Istanbul: Nederlands Historisch“Archaeologisch Instituut, 1985),
3“6, 8“10, 19“27, 42“ 47, and passim; R. C. Repp, The Müfti of Istanbul: A Study
in the Development of the Ottoman Learned Hierarchy (Oxford: Ithaca Press, 1986);
J. H. Escovitz, The O¬ce of QAKC al-QuKAt in Cairo under the BaMrC MamlEks (Berlin:
Klaus Schwarz Verlag, 1984), 131“62.
168 Authority, continuity, and change in Islamic law
professional category seems required. As part of the veneration in Islam
for the written word, it was deemed meritorious for the learned to write,
since writing (taQnCf )9 was viewed as a religious act in the service of cilm.10
The writing of treatises, short and long, was an essential part of any dis-
tinguished legal career. There is no complete biographical notice in the
SabaqAt works of the jurists that does not include a list of the treatises
written by the jurist under discussion. The mere absence of such a list
from any biographical notice speaks volumes. A jurist who did not engage
in taQnCf was considered to be lacking in some way as a member of the
legal profession. Zayn al-Dcn al-Khazrajc (d. 833/1429), for instance, is
said to have failed to produce notable, successful students, a failure that
was matched only by his inability to write anything of signi¬cance.11
Others, however, are characterized by the sources as proli¬c authors, and
as having gained merit by their practice of devoting at least one-third of
night-time to taQnCf.12
TaQnCf as a legal activity was the exclusive domain of the author“jurist.
Conversely, as an act of writing, taQnCf was not a prerequisite either for
the qAKC, the muftC, or the professor. The qAKC, for one, was not himself
required, as part of his normal duties, to write down his decisions, much
less the minutes of the court proceedings, since this task devolved upon
the scribe (kAtib) who was a permanent functionary of the court.13 Even
the formulation of the language in which court decisions and minutes
were recorded was spared him, as this task was the province of the scribe
as well. Nor was it part of the professor™s function to write, although
he had his teaching notes and supervised the writing, by his graduate
students, of ta clCqas. That some jurists wrote treatises on law while being
engaged in teaching should in no way mean that taQnCf was part of their
professional role as professors. This remained true even when they wrote
mukhtaQars “ short treatises used, inter alia, for pedagogical purposes.
When they wrote such treatises, they were doing so as author“jurists, not
as professors, for after all, most professors did not write mukhtaQars and
yet many of them were highly successful teachers.14

Although the verb Qannafa and the verbal noun taQnCf were most common, other terms

were used as well, e.g. allafa and ta”lCf. See Ibn Farmen, DCbAj, 254, 334, 335, 338, 340,
341, 348, and passim.
Makdisi, Rise, 206 ¬. On writing books in general, see J. Pedersen, The Arabic Book,

trans. G. French (Princeton: Princeton University Press, 1984), 20“36.
Ibn Qakc Shuhba, TabaqAt, IV, 96“97. 12 Ibid., I, 20, 108.
Wael B. Hallaq, “The Qakc™s DCwAn (Sijill ) before the Ottomans,” Bulletin of the
School of Oriental and African Studies, 61 (1998), 422 f., 426.
Makdisi, Rise, 208: “The working of students [ishtighAl ] was distinguished from the
function of the professor of law (tadrCs), and from the writing of books (taQnCf ).”
The jurisconsult, the author“jurist, and legal change 169
It may be argued that the muftC was an author“jurist because he wrote
or authored fatwAs. But this argument is at best incomplete and at worst
misleading since the muftC may have been an author only in a very limited
sense. The majority of fatwAs consisted of a succinct statement of the law
and rarely involved the elaboration of legal arguments, a practice highly
discouraged.15 Ibn al-ralam, himself the author of an in¬‚uential manual
on the art of iftA”, vehemently argues that fatwAs should be kept short, to
the point, and unreasoned, so that they would not fall into the category
of taQnCf.16 Indeed, even the more extensive fatwAs lacked the discursive
strategies and forms of argumentation usually found in the works of the
author“jurists. The fact that many fatwAs consisted of very short answers
“ as short as “Yes” or “No” “ is indicative of the very limited function
of the fatwA as authored discourse. It was the custom that only the most
distinguished muftCs, when faced with a problem of frequent occurrence
or of fundamental importance, would rise to the occasion by writing
a risAla in which lengthy and complex arguments were constructed. In
such cases, the jurist would be exchanging the muftC™s hat for that of the
author“jurist.17 The art of writing the risAla and other forms of taQnCf
distinctly di¬ered from that of fatwA.
It can safely be stated that, as a rule, accomplished jurists are portrayed
in the biographical dictionaries as having been seriously engaged in teach-
ing, writing, and issuing fatwAs. Engaging in qaKA”, however, was not
necessarily regarded as the culmination of a successful legal career, since a
number of ¬rst-rate jurists were never engaged in it, or at least are not
reported to have done so. Even if they played this role, it is signi¬cant in
itself that the biographers did not see it as worthwhile to record such an
activity. For had it been an essential requirement, the biographers would
surely have taken pains to stress this accomplishment, as they did in the
cases of taQnCf, iftA”, and tadrCs (teaching). One notable example of such
a career is that of Abe cAmr Ibn al-ralam who was renowned as a muftC,
a professor, and an in¬‚uential author of legal and other works.18 Ibn
See Nawawc, al-MajmE c, I, 52, 57; Ibn al-ralam, Adab al-MuftC, 141; al-FatAwA
al-Hindiyya, III, 309.
The argument was ¬rst articulated by Mawardc, but incorporated as part of Ibn
al-ralam™s discourse. Ibn al-ralam, Adab al-MuftC, 141: “al-muftC calayhi an yakhtaQir
jawAbahu fa-yaktaf C f C-hi bi-annahu yajEz aw lA yajEz, aw Maqq aw bASil, wa-lA ya cdul ilA
al-iSAla wal-iMtijAj li-yufarriqa bayna al-fatwA wal-taQnCf.”
Typical examples of such discourse may be found in Subkc, FatAwA, I, 453“61; II, 309,
333“37, 477“83, and passim. (Note that in this work these writings are characterised
as mu”allafAt [i.e. authored works], not fatwAs; see especially I, 519 and II, 650.).
See also Zayn al-Dcn Ibn Nujaym, RasA”il, ed. Khalcl al-Mays (Beirut: Dar al-Kutub
al-cIlmiyya, 1980); Ibn cfbidcn, MajmE c RasA”il.
Nucaymc, al-DAris, I, 20“21; Ibn Qakc Shuhba, TabaqAt, II, 144“ 46.
170 Authority, continuity, and change in Islamic law
al-ralam attained fame and distinction despite the fact that he never served
in the capacity of a qAKC.
In due course we shall see that the qAKC qua qAKC, by virtue of the
nature of, and limitations imposed upon, his function, was of little if any
consequence as an agent of legal change in the post-formative period.19
I say qAKC qua qAKC because the four roles, including that of qaKA”, were
not always clearly distinguished from each other when they were present
in the career of a single jurist “ and this frequently was the case. Here,
it is useful to recall sociology™s theory of roles which acknowledges the
participation of a role-set whenever any single role is engaged in.20 Just as
any social status involves an array of associated roles and does not stand,
to any signi¬cant extent, independently of these roles, any or all of the
juristic roles described above might come into play when a speci¬c role
is exercised. A modern-day professor of constitutional law, for example,
must teach students, interact with her colleagues and the university
administration, publish works of scholarship, and perform public duties
when constitutional issues are debated. While still a professor, she might
serve on a government sub-committee, preside as a judge, or work as an
attorney. None of these roles can be kept entirely separate from the other
ones, for as an author she might write a book on a fundamental issue
of constitutional law, while as a member of a sub-committee she might
prepare a report which heavily, if not totally, draws on her research for her
monograph. The question that arises here pertains to the nature of her
report: Is it a production of her work as a professor or as a member of
the government sub-committee?
A similar question arises in the case of the muftC who engages in dis-
course that transcends the limits of the fatwA strictly so de¬ned. A muftC,
such as Taqc al-Dcn al-Subkc or Ibn najar al-Haytamc, might elect to
address, in the form of a short treatise, a legal issue which had already
elicited many fatwAs and which continued to be problematic and of
general concern to the community or a segment thereof (mA ta cummu bi-
hi al-balwA). In this case, how should the treatise be classi¬ed? Is it merely
an extended fatwA, the work of the muftC ? Or is it a risAla, the product of
the author“jurist? Later on in this chapter we shall discuss the contribu-
tions of the muftC and the author“jurist at length. For now, we only need
to assert that such questions of role-sets bear equally upon the qAKC ™s role
See n. 117, below.
For a discussion of role-set theory, see Stephen Cole, The Sociological Orientation
(Chicago: Rand McNally College Publishing Co., 1979), 57“59; David Dressler,
Sociology: The Study of Human Interaction (New York: Alfred A. Knopf, 1969),
The jurisconsult, the author“jurist, and legal change 171
in legal change. According to the strict de¬nition of the qAKC ™s profession
(that is, the qAKC as entirely dissociated from other roles), the institu-
tion of qaKA”, after the formative period,21 was, by and large, of marginal
importance in legal change. The qAKC qua qAKC heard cases, determined
certain facts as relevant, and, in accordance with these facts, rendered
a judgment that was usually based upon an authoritative opinion in his
school. Once rendered, his judgment was normally recorded in the dCwAn,
the register of the court™s minutes.22 At times, a copy of the record of the
decision was given to one or both parties to a litigation, but such docu-
ments had no legal signi¬cance beyond the immediate and future interests
of these parties. The court cases, however, were viewed as constituting
a considerable part of practice, and the qAKC ™s dCwAn amounted to a dis-
cursive re¬‚ection of this practice. But it was not the qAKC ™s function to
assess or evaluate that corpus juris in which practice manifested itself. Such
assessment and evaluation was the province of the muftC and perhaps
more so that of the author“jurist. If a qAKC was to assess the signi¬cance
of court cases for legal practice, he would not be doing so as a qAKC, but
rather as a muftC, an author“jurist, or as both.
At any rate, such an assessment logically presupposed a repertoire
of court cases, and thus represented a juristic activity that, materially
speaking, came at the tail-end of the adjudication process. We know, for
instance, that Taqc al-Dcn al-Subkc drew heavily on his own experience
as judge when he issued fatwAs and wrote several rasA ”il on fundamental
and highly relevant legal issues in his day. But it is important to realize
that when he did so, it was by virtue of his role as a muftC and author“
jurist, respectively. For it was in no way the function of the qAKC, strictly
speaking, either to engage in issuing fatwAs or to discourse, beyond the
boundaries of his court, on legal issues.
If the determination of what constitutes predominant practice was not
the qAKCs™ responsibility, then these latter, despite their participation in
A self-evident phenomenon of the formative period, legal change during the ¬rst
three centuries in Islam does not constitute part of this enquiry (see preface). In this
context, I submit that during that period, or for most of it, the qAKCs contributed to
the evolution of religious law in Islam. However, my contention here is that after the
formative period (and probably before its end) it was the muftC and the author“jurist
who played the most central role in legal change. Be that as it may, it is noteworthy
that while legal change was integral to the formative period, the qAKC ™s role was one of
constructing religio-legal norms on the basis of earlier (non-Islamic) legal traditions,
not one whose sole focus was the hermeneutical manipulation of a mature and fairly
well-rooted legal system. It was precisely this hermeneutical manipulation that con-
stituted one of the main tasks of the muftC and author“jurist in their bid to e¬ect
legal change.


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