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ference lies in the fact, which we have explicated, that pardoning overrides
punishment. The only valid view, therefore, is that the minor children
must be allowed to attain the age of majority.
Should someone argue that execution overrides pardoning, our response
to him would be to refer to the Quranic verses we have already cited. If he
argues that the import of these verses is applicable to non-penal cases, we
reply: Our evidence that they are applicable to both penal and non-penal
cases is the report narrated on the authority of Anas b. Malik who said:
“When a man brought the murderer of his kin to the Prophet, the latter
asked him to pardon him [the murderer]. When he refused, the Prophet
asked him to accept compensation. When he [again] refused, the Prophet
said: ˜Should we execute him? You will be like him if you have him killed,™
thereupon the man released him.” This is an unambiguous text pointing to
the superiority of pardoning to punishment. The Prophet, after all, does
not recommend161 something unless it is superior. He pointed to this by
saying “You will be like him if you have him killed.” The import of this
statement is that his heavenly reward will be waived if he in¬‚icts punish-
ment [on the murderer], instead of pardoning him. And the murderer,
once punished, will have paid for his deed, because punishment represents
an atonement for those who are punished, according to Quranic penal law
(MudEd ). Both men become equal in that the ¬rst will receive no reward
and the second will have atoned for his crime. This is my interpretation
of the Prophetic tradition. It is interpreted in other ways that are open to
objections.
Even if we submit that punishment supersedes pardoning and that
juristic preference is valid in that the minor children must not be awaited
till they attain the age of majority (according to one of the two doctrines
narrated on the authority of Malik, Ibn al-Qasim and those who followed
160
See next note.
161
“Recommendation” here is to be taken as referring to the category of “recommended,”
one of the ¬ve legal norms.
200 Authority, continuity, and change in Islamic law
them in this) juristic preference in the present case is invalid because, it
is reported, the murderer was intoxicated at the time he killed the victim.
There is neither doubt nor dispute that pardoning the intoxicated [mur-
derer] overrides punishing him, for it is held that he must not be punished
[by death]. Thus, if consensus dictates that pardoning the murderer over-
rides punishing him, then consensus is also concluded to the e¬ect that
the minor children must be allowed to attain the age of majority; any other
view is invalid.
I have demonstrated the validity of my opinion with regard to this
matter “ thanks be to God. A briefer explanation would have su¬ced, but,
as Malik remarked in his MuwaSSa”, people like to know the truth and
the arguments supporting it. God, who has no partner, is the bestower of
success.
We know that the case fell within Malikite jurisdiction, and that in
accordance with a fatwA issued by a number of Malikite jurisconsults,
including the illustrious Ibn al-najj (d. 529/1134), the murderer, having
admitted his guilt, was executed at the instigation of the victim™s brother
and his sons.162 Here, the jurisconsults were acting perfectly within the
authoritative legal doctrine (naQQ al-riwAya, al-ma”thEr) of the Malikite
school, according to which the agnates of the victim having the right
to demand the death penalty are not the children of the deceased “ since
they have not yet attained the age of majority “ but rather their paternal
uncle and his sons. This doctrine, thus far undisputed in the Malikite
madhhab, was supported by Malik himself and by a number of later in¬‚u-
ential jurists who ¬‚ourished before the beginning of the sixth/twelfth
century, when the actual incident took place.163
Ibn Rushd, however, categorically dismissed the established doctrine
and held the unprecedented opinion that only the children are entitled,
upon reaching the age of majority, either to demand the murderer™s
punishment or to opt for monetary compensation “ let alone pardoning
him altogether without receiving any compensation.164 In the Malikite
tradition, this constituted a novel position. Yet Ibn Rushd™s departure
was not meant to introduce an alternative ruling designed to coexist with
the authoritative ruling followed in the school. Rather, he goes as far as

162
Wansharcsc, al-Mi cyAr al-Mughrib, II, 320 (l. 2); Kinanc, al-cIqd al-MunaUUam, II, 256.
For a statement of the doctrine, see nassab, MawAhib al-JalCl, VI, 252. See also Ibn
163

Rushd, FatAwA, II, 1197; Abe cAbd Allah Mumammad al-Kharashc, SharM MukhtaQar
KhalCl, 5 vols. (Cairo: al-Masbaca al-cfmira al-Shara¬yya, 1899), V, 263“64;
Wansharcsc, al-Mi cyAr al-Mughrib, II, 320.
164
It is the standard legal doctrine that the agnates of the victim are entitled to punish the
murderer by death or pardon him with or without monetary compensation. For fur-
ther details, see Ibn al-Jallab, TafrC c, II, 207 ¬.
The jurisconsult, the author“jurist, and legal change 201
to argue that the commonly accepted ruling which he rejects is simply
inconsistent with the general legal and hermeneutical principles of the
Malikite school, for the ruling is derived by means of the controversial
method of juristic preference (istiMsAn), and not by the commonly
accepted juridical inference known as qiyAs.165 He simply points out that
if the jurist were to resort to the latter methodology of reasoning, as he
should, then he would be bound to reject the established doctrine.
At a later stage of the fatwA, Ibn Rushd introduces a new fact to the
case. Now we are told that the murderer was inebriated when he com-
mitted the crime. Resorting to qiyAs, Ibn Rushd seems to say, is the only
way to solve the case, whether this fact is taken into consideration or not.
Nonetheless, this added fact gives the jurisconsult an even better reason
to follow qiyAs and abandon istiMsAn. Some jurists held that a person who
kills another while in a state of intoxication is not punishable by death
due to the fact that he was not acting with full mental capacity.166 Ibn
Rushd maintains that although the Malikcs do not follow this doctrine,
the general principle behind it has always been taken into account in cases
where intoxication is involved. Thus, Ibn Rushd insists on qiyAs as the

165
On the method of qiyAs, see chapter 5, section III, above, and Hallaq, History, 83“104.
It is to be noted that istiMsAn was not accepted by all jurists and remained a controver-
sial method of reasoning. A number of nana¬te, nanbalite, and Malikite legists held
that istiMsAn emanates from a special group of cilal (pl. of cilla) which require particu-
larization (takhQCQ). Particularization takes place when a relevant legal fact (otherwise
considered irrelevant in qiyAs) is deemed to in¬‚uence the relationship between the cilla
and the ruling of the case, thus compelling the jurist to take it into consideration in his
inference. A case in point is the consumption of the meat of an unlawfully slaughtered
animal (mayta) which is prohibited in qiyAs. According to istiMsAn, however, this pro-
hibition is removed under circumstances of hardship or starvation, e.g. starving in the
desert. The proponents of istiMsAn argue that the added legal fact which dictates the use
of istiMsAn must ultimately be based on the revealed texts. Thus, according to these
jurists, the dividing line between the two methods is that qiyAs does not require the
particularization of its cilla whereas istiMsAn does. Other jurists, however, insist that
since the additional facts are based on textual evidence, the reasoning in istiMsAn does
not involve any particularization of the ratio legis; for them istiMsAn represents nothing
more than a legal inference that is preferred, on the strength of textual evidence, to
another, i.e. qiyAs. On qiyAs and istiMsAn, see Bajc, IMkAm al-FuQEl, 528 ¬., 687 ¬.; Ibn
Qudama, RawKat al-NAUir, 247 ¬.; Mumammad b. Ammad Abe Sahl al-Sarakhsc,
al-UQEl, ed. Abe al-Wafa al-Afghanc, 2 vols. (Cairo: Dar al-Macrifa, 1393/1973), II,
199 ¬., 208 ¬.; Hallaq, History, 107“11; Hallaq, “Function and Character of Sunnc
Legal Theory,” 683“84; John Makdisi, “Legal Logic and Equity in Islamic Law,”
American Journal of Comparative Law, 33 (1985), 73“85; John Makdisi, “Hard Cases
and Human Judgment in Islamic and Common Law,” Indiana International and Com-
parative Review, 2 (1991), 197“202.
166
See Taqc al-Dcn Ibn Taymiyya, MukhtaQar al-FatAwA al-MiQriyya, ed. cAbd al-Majcd
Salcm (Cairo: Masbacat al-Sunna al-Mumammadiyya, 1949), 463; Ibn Rushd, FatAwA,
II, 1198.
202 Authority, continuity, and change in Islamic law
proper method of legal reasoning in this case, especially in light of the
fact of intoxication which encourages, though it does not strictly dictate,
its use.
We have already noted that fatwAs which contained new legal opinions
(ijtihAd ) were, as a rule, incorporated in manuals on positive law ( furE c )
as well as in commentaries and super-commentaries on such manuals.
Ibn Rushd™s fatwA on homicide was no exception. In his MukhtaQar,167
Khalcl b. Ismaq (d. 767/1365), with typical succinctness, repeats the
standard Malikite doctrine that minors™ rights in the law of homicide
are transferred to their agnates. Two commentators on the MukhtaQar,
Mawwaq (d. 897/1491) and Kharashc (d. 1101/1689), passed over Ibn
Rushd™s opinion in silence, both being satis¬ed with making a brief state-
ment of the authoritative doctrine in the school.168 A third commentator,
however, does take it into consideration. In his commentary on Khalcl™s
statement, nassab begins by discussing Ibn Rushd™s divergent opinion.
According to qiyAs, he states, Ibn Rushd argues that the minor children
must be allowed to attain the age of majority before punishment can be
decided. “When he was asked about his fatwA, which takes exception
to the authoritative doctrine, Ibn Rushd maintained that the questioner
(al-sA”il ) did not understand the import of the [ fatwA], thinking that the
jurisconsult must not diverge from the authoritative doctrine. But this is
not so; the jurisconsult must not follow a legal doctrine unless he knows
that it is sound. No learned person disagrees with this [principle].”169
nassab emphasizes that Ibn Rushd™s opinion stands at variance with the
accepted principles of the Malikite school.
Against these principles, Ibn Rushd reasoned what amounts to the follow-
ing: The minor™s right must be protected, and his entitlement to it must be
postponed until he becomes of age, just as he is entitled to a right [in cases]
attested to by a single witness. He also held that the minor has the right
to force the murderer to pay blood-money, according to the doctrines of
Ashhab and the Two Brothers,170 and in conformity with one of the two
views held by Ibn al-Qasim.171

167
Khalcl b. Ismaq, MukhtaQar ( Jaza™ir: Dar Shihab, 1988), 278.
168
Kharashc, SharM MukhtaQar, V, 263“64; Mumammad b. Yesuf al-Mawaq, al-TAj wal-
IklCl f C SharM MukhtaQar KhalCl, printed on the margins of nassab, MawAhib al-JalCl,
VI, 251.
nassab, MawAhib al-JalCl, VI, 251“52.
169
170
The Two Brothers are Musarrif and Ibn al-Majishen. Ziriklc reports on the authority
of a certain Marghcthc that it was Ibn cArafa who originally referred to the two Malikite
authorities as “the Two Brothers” because their doctrines substantially agreed with one
another. See A clAm, VII, 43 (col. 3).
nassab, MawAhib al-JalCl, VI, 252.
171
The jurisconsult, the author“jurist, and legal change 203
Ibn cArafa (d. 803/1400), nassab reports, considered this opinion to be
weak (Ka cCf ) and stated that the jurists “do not take it into consideration
in these times of ours. Ibn Rushd is entitled to hold such an opinion only
because he is a leading authority (li- culuwwi Sabaqatihi ).”172 One of Ibn
Rushd™s contemporaries, nassab further remarks, declared that his was
not the doctrine practiced (laysa al- camal calA hAdhA),173 for it ran counter
to Ibn al-Qasim™s doctrine. At this point, nassab makes the enigmatic
statement that in a copy of Ibn Rushd™s fatwA collection, it was written
on the margin of the fatwA dealing with the present case of homicide:
“This is not the doctrine practiced since it is at variance with that held
by Ibn al-Qasim.” Who it was that wrote this statement we are not told.
In order to further weaken the validity of Ibn Rushd™s opinion, nassab
enlists the critical comment of Ibn al-najib (d. 646/1248), who is
reported to have said that on this question Ibn Rushd neither followed
the established doctrine of his school nor justi¬ed, by way of reasoned
arguments (Mujja), his new opinion. Then, after allocating a few lines
to a discussion of Ibn Rushd™s fatwA and to the reactions it provoked
from Malikite jurists, nassab goes on to give a detailed account of the
conventional doctrine that had dominated the Malikite school since the
second/eighth century.174
As reported by nassab, Ibn al-najib™s comment concerning the
absence of reasoned arguments in Ibn Rushd™s fatwA seems curious, to say
the least; for the fatwA is indeed thoroughly reasoned. The only plausible
explanation for this seeming contradiction is that Ibn al-najib was speak-
ing of an earlier fatwA in which Ibn Rushd had apparently stated his
opinion so elliptically, and without setting forth his reasoning, that a
second one proved necessary to vindicate the ¬rst. The plausibility of this
explanation is strengthened by the fact that Wansharcsc, whose work is
one of the most comprehensive fatwA collections we know, does not seem
to be aware of the existence of the second, much longer, fatwA. Ibn
al-najib too may have been unaware of this fatwA, and if this was the case,
then we can understand why he should have made such a statement. But
why does nassab quote Ibn al-najib™s unfavorable statement approvingly
when it is evident that he himself was familiar with the second, more
closely reasoned, fatwA ? The explanation may lie in nassab™s attitude
toward Ibn Rushd™s opinion, which was thoroughly negative. He not only

172
Ibid., VI, 252“53.
173
On the importance of such statements in determining the standard doctrine of the
school, see chapter 5, above.
nassab, MawAhib al-JalCl, VI, 252“53.
174
204 Authority, continuity, and change in Islamic law
allocated disproportionately little space for recording the contents of the
fatwA, but also managed to suppress the crucial passages containing Ibn
Rushd™s reasoning. The arguments based on the Quran, the Sunna, and
consensus are passed over in silence. More importantly, nassab hardly
mentions Ibn Rushd™s recommendation of the highly regarded method of
qiyAs or his objections to the controversial method of istiMsAn, by means of
which the authoritative doctrine of the school was justi¬ed.
Furthermore, no reference whatsoever is made to the signi¬cant fact
that the murderer was inebriated at the time he committed the crime.
All this e¬ort to weaken Ibn Rushd™s opinion perhaps re¬‚ects the great
reluctance of nassab to abandon the widely accepted and long-held
doctrine in his school. Like many jurists, nassab was disinclined to adopt
a doctrine which he did not deem to be widespread (mashhEr) and
which did not form the basis of general practice (camal ) in the Malikite
school.175 By declaring Ibn Rushd™s fatwA weak, he, like Ibn cArafa, was in
e¬ect practicing tarjCM, whereby one opinion (in this case the traditional
doctrine prevailing in the school) is chosen as superior to another. At the
same time, he was also practicing taQMCM which amounts to declaring an
opinion “more sound” than another.176
While nassab plainly rejects Ibn Rushd™s opinion as weak, Ibn Salmen
al-Kinanc (d. 767/1365) presents it as being of equal validity to the opin-
ion expressed by Ibn al-najj, which represented the standard doctrine
of Malikism. The manner in which Kinanc arranges his material as well as
the fuller and more accurate account he gives of Ibn Rushd™s fatwA reveal
a favorable attitude towards a dissenting voice. Whereas nassab begins
by a relatively brief, and de¬nitely unrepresentative, discussion of Ibn
Rushd™s fatwA, and ends with a substantial body of arguments in favor of
the conventional doctrine (and, one suspects, in refutation of Ibn Rushd™s
opinion), Kinanc follows the opposite procedure: He ¬rst brie¬‚y presents
the traditional opinion advocated by Ibn al-najj and then goes on to give
a fairly detailed account of Ibn Rushd™s fatwA. In Kinanc, Ibn Rushd
appears to have the last word on the matter.
Having stated Ibn al-najj™s fatwA in favor of assigning to the agnates
the right to have the murderer punished, Kinanc remarks that Ibn Rushd
disagreed with this opinion, arguing that the right belongs to the minor
children. “In his masA ”il,”177 Kinanc continues,

175
For mashhEr and camal, and their importance in determining the authoritative doc-
trines of the schools, see chapter 5, above.
176
On tarjCM and taQMCM, see chapter 5, above.
177
MasA”il and nawAzil are generally synonymous with fatwAs.
The jurisconsult, the author“jurist, and legal change 205
Ibn Rushd said: In this case I held that the minor children must be allowed
to attain the age of majority and that the agnates are not entitled to take
the qasAma oath or have him executed, although this is contrary to the
authoritative doctrine governing this matter, a doctrine held by Malik and
his followers. [I held this] on the following grounds: The jurists disagreed
as to whether or not the heir has the right to forgo the execution of the
murderer and instead opt for blood-money, with or without the consent
of the murderer. Those jurists who espouse the view that it is the agnate
who has the right to pardon the murderer and instead receive blood-
money, whether the latter agrees or not, unquali¬edly require that the
minor children of the person killed be allowed to attain the age of majority.
According to these jurists, it is not lawful to allow the agnates to seek
the punishment [of the murderer] since this will abrogate the right of the
minors insofar as their entitlement to receive blood-money. This is ana-
logous to those legal rights subject to consensus, such as preemption, etc.
There are those who espouse the view that the heir can obtain blood-
money from the murderer only after the latter™s consent “ a view held by
Malik, according to Ibn al-Qasim™s recension, and by a group of his fol-
lowers, and it is one of the two opinions held by Ibn al-Qasim himself.
Analogy (qiyAs), according to this view, also dictates that the children must
be allowed to attain the age of majority, because their right to punish or
to pardon [the murderer], and to be reconciled with him, overrides the
right of their agnates. This is also analogous to cases subject to consensus.
But we gather from what has been related to us on their authority that
their recourse to juristic preference (istiMsAn) led them to the view that the
minors must not be awaited [until they attain majority] unless they are
close to reaching that age. Underlying [their] juristic preference is giving
punishment precedence over pardoning. But pardoning overrides punish-
ment. Indeed, learned people hold the view that the imam must encourage
the victim™s relatives to pardon [the murderer] before they take the oath.
Therefore, since pardoning is recommended (mustaMabb) “ and pardoning
is a right that belongs to the minor children “ the children must be allowed
to attain the age of majority. Their right, acquired by the [heavenly] reward
to which they are entitled, must not be abrogated by allowing the agnates to
have the murderer punished.
We conclude that there are two, and only two, opinions which are
relevant to this case. First, according to strict legal reasoning, and without
resort to juristic preference, the minors must be allowed to attain the age
of majority, and the agnates must not share with them the right to have the
murderer punished. Second, according to juristic preference, and without
resort to strict legal reasoning, [the agnates] have such a right. However, the
weakness of juristic preference lies in the fact, which we have explicated,
that pardoning overrides punishment. The only valid view, therefore, is
that the minor children must be allowed to attain the age of majority.
206 Authority, continuity, and change in Islamic law
Even if we submit that punishment supersedes pardoning, in the
present case this is inapplicable because, it is reported, the murderer was
intoxicated. There is no doubt that pardoning the intoxicated [murderer]
has precedence [over executing him], for it is held that he must not be
punished. Thus, if pardoning the murderer overrides punishing him, then
scholarly agreement (ittifAq) is also attained to the e¬ect that the minor
children must be allowed to reach majority; any other view is invalid.
It is to be noted that Kinanc™s abridgment in the original Arabic
text consists of 320 words, whereas the original text of the fatwA com-
prises 1,218 (this is to be contrasted with nassab™s abridgment of a mere
90 words). We have mentioned earlier that authors of law manuals
and commentators, when drawing on the literature of iftA”, followed the
practices of talkhCQ (abridging) and tajrCd (abstracting), whereby facts and
arguments in the primary fatwA are reduced to a minimum, and details
irrelevant to the law in the case are omitted. In the case under considera-
tion, there are at least ¬ve types of material which are subject to talkhCQ
and tajrCd.
First, details concerning the locale and time in which the case occurred
(Cordoba in the year 516/1122), as well as the fact that the victim was
the father of three children, are omitted, for such details have no bearing
whatsoever upon the law of the case. Second, Kinanc omits all Quranic
verses and Prophetic traditions cited by Ibn Rushd, as well as his inter-
pretation of this evidence. However, all the central arguments drawing
on this body of textual material are retained. Third, stylistically, a number
of phrases and clauses are deleted, for Kinanc seems to assume that they
are obvious to his readers. For example, the adjective “minor” is almost
always dropped before the word “children.” Similarly, the phrase “from
the murderer, whether he consents or not” is suppressed after the words
“taking blood-money.” Fourth, details of the positive law ( furE c ) cases
which Ibn Rushd employed in his analogy with the case under discussion
(notably preemption) are taken as obvious and are thus omitted. Fifth,
Ibn Rushd™s somewhat polemical introduction relating to the duty of the
jurisconsult to follow what he deems to be the sound opinion, and not
necessarily the prevalent opinion in the school, is left out. But although
this introduction does not advance any point of law relevant to the case
being considered, and its omission is therefore justi¬able, there remains
the question of why nassab retains it and gives it such prominence in his
discussion. We suggest that nassab™s inclusion of this part was quite
deliberate and had a purely “ideological” function; namely, to underscore
the fact that Ibn Rushd deviated from the established doctrine of the
school. Reproducing this introduction reinforces his charge that Ibn
The jurisconsult, the author“jurist, and legal change 207
Rushd was quite prepared to abandon the madhhab, and furthermore
demonstrates that his disagreement (khilAf ) was not su¬ciently wide-
spread (mashhEr) to make his opinion one with which the jurists had
to contend.
Now, in line with this analysis, it may be argued that Kinanc™s omission
of this introduction was, on the other hand, motivated by two considera-
tions, the ¬rst being, obviously, its irrelevance to the law in the case in
question, and the second Kinanc™s wish to play down, if not suppress, the
fact that Ibn Rushd deviated from the school™s doctrine.
But what Kinanc retains in his account of Ibn Rushd™s fatwA is, unlike
nassab™s truncated summary, more crucial than what he has omitted. The
two central arguments in the fatwA, suppressed by nassab, are e¬ectively
reproduced; namely, the insistence on qiyAs (and not istiMsAn) as the sole
method of reasoning applicable to the case under consideration, and the
fact that the murderer was intoxicated at the time he committed the
crime. That nassab did not care to mention the matter of intoxication
may be explained by the fact that, like Ibn al-najj and the majority of
jurists, he did not deem inebriation a mitigating circumstance in cases
of homicide. Kinanc, on the other hand, seems to have ranged himself
with Ibn Rushd in taking intoxication to be a factor that relaxes the
death penalty, which explains why he upheld Ibn Rushd™s qiyAs and, in an
indirect way, gave it preference over the traditional doctrine.
nassab and Kinanc, irrespective of their particular approaches to Ibn
Rushd™s fatwA, functioned here as author“jurists who transposed the fatwA
from the discursive ¬eld of the jurisconsult to that of positive law works,
the ¬eld of the author“jurist. The end result of this process of incorpora-
tion signaled the formal entrance of the opinion embedded in the fatwA
into the school™s corpus of legal doctrine. The fatwA may, of course, have
been authoritative for future cases without having been subjected to this
process, but it would not have gained a formal place in the school™s
doctrine. For without undergoing this process, it would continue to stand
on the periphery of the school. That it, like many other fatwAs, became
part of the commentary on an authoritative work (in this case Khalcl™s
MukhtaQar) sketching the outline of the school™s authoritative doctrine
meant that the opinion expressed in it had attained a de¬nite place in
the school™s doctrine, and therefore in khilAf. And once an opinion was
admitted as part of the discursive ¬eld of khilAf, its legitimacy as a valid
opinion (though not necessarily as QaMCM or mashhEr) was guaranteed.178

Among others, for instance, vahirite opinions were, generally speaking, not counted in
178

the discourse of khilA¬yyAt. See Ibn al-ralam, FatAwA, I, 32“33.
208 Authority, continuity, and change in Islamic law
But the most important fact about Ibn Rushd™s fatwA, as we have
seen, is that it introduced a new option in Malikite criminal law. It
certainly did not replace the traditional doctrine, but it did provide an
alternative which could be adopted by muftCs and qAKCs in their daily
administration of justice. In accepting Ibn Rushd™s opinion in preference
to the traditional school doctrine, Kinanc, as an author“jurist, in e¬ect
sanctioned legal change in this sphere of criminal law.


VII

Thus far, we have been concerned with the process of legal change insofar
as the fatwA was appropriated by the author“jurist for that end. In the
remaining sections of this chapter we shall focus our attention exclusively
on the contribution of the author“jurist as an agent of legal change, with-
out particular regard to the muftC and his fatwA. Admittedly, legal change
was also implemented by another means, namely, the discourse of the
author“jurist on the basis of general legal practice which may have been
expressed in a number of ways, including the fatwA, judicial opinion, and
other types of juristic discourse. Here, the function of the author“jurist in
legal change is to legitimize tendencies in general legal practice, tendencies
that would otherwise remain lacking in formal recognition and therefore
in sanctioned legitimacy.
In illustration of this process of legal change, we shall discuss the
modalities of written communication prevalent among the qAKCs, a sub-
ject that occupies space in both adab al-qAKC works and shurES manuals.
The usual Arabic designation for this type of communication is kitAb
al-qAKC ilA al-qAKC 179 and it takes place when “a qAKC of a particular locale
writes to a qAKC of a di¬erent locale regarding a person™s right that he,
the ¬rst qAKC, was able to establish against another person, in order that
the receiving qAKC shall carry out the e¬ects of the communication in his
locale.”180 The practical signi¬cance of this mode of writing is all too
obvious, and the jurists never underestimated the fundamental need for


179
There are other designations such as al-kitAb al-MukmC, al-mukAtaba al-Mukmiyya, nuQEQ
al-takhASub bayna al-quKAt, and al-mukAtaba bayna al-quKAt. See nalabc, MultaqA
al-AbMur, II, 74; Ibn Abc al-Damm, Adab al-QaKA”, 343, 441, 447; Ibn al-Munaqif,
TanbCh al-NukkAm, 174. However, kitAb al-qAKC ilA al-qAKC is unquestionably the most
common of all. See Ibn Abc al-Damm, Adab al-QaKA”, 242.
180
See Abe al-Walcd Sulayman b. Khalaf al-Bajc, FuQEl al-AMkAm wa-BayAn mA MaKA
c
alayhi al- cAmal cinda al-FuqahA” wal-NukkAm, ed. al-Batel b. cAlc (Rabat: Wizarat al-
Awqaf wal-Shu™en al-Islamiyya, 1410/1990), 269.
The jurisconsult, the author“jurist, and legal change 209
such a practice.181 It was by means of such a written instrument that
justice could be done in a medieval society which was geographically
widespread and mobile. A debt owed to a person in a remote town or
village might not be paid by the debtor without the intervention of the
long arm of the court. Similarly, this instrument could mediate the return
to the master of a slave who had ¬‚ed to an outlying village. The use of
this instrument, in e¬ect, brought together otherwise dispersed and inde-
pendent jurisdictional units into a single, interconnected juridical system.
Without such a legal device, one jurist correctly observed, rights would be
lost and justice would remain suspended.182
Now, one of the central conditions for the validity of such written
instruments is the presence of two witnesses who will testify to the
documentary transfer from one qAKC to another. This condition was the
common doctrinal denominator among all four schools. All the so-called
founders, co-founders, and their immediate followers subscribed to, and
indeed insisted upon, this requirement. The early Malikites, such as Ibn
al-Qasim (d. 191/806), Ashhab (d. 204/819), Ibn al-Majishen (d. 212/
827), and Musarrif (d. 282/895), never compromised the requirement of
two witnesses.183 It is reported that Samnen used to know the handwriting
of some of his deputy judges, and yet still insisted upon the presence of
two witnesses before whom he broke the seal and unfolded the kitAb.184

181
Abe al-Qasim cAlc b. Mumammad al-Simnanc, RawKat al-QuKAt wa-TarCq al-NajAt,
ed. ralam al-Dcn al-Nahc, 4 vols. (Beirut and Amman: Mu™assasat al-Risala, 1404/
1984), I, 330; Ibn al-Humam, SharM FatM al-QadCr, VII, 285“86; Marghcnanc,
HidAya, III, 105; Wansharcsc, al-Mi cyAr al-Mughrib, X, 60 ¬.; Sarakhsc, MabsES, XV,
95; cAbd al-Wahhab al-Baghdadc, al-Ma cEna, ed. numaysh cAbd al-naqq, 3 vols.
(Riyadh: Maktabat Nizar al-Baz, 1415/1995), III, 1511; nalabc, MultaqA al-AbMur, II,
73, n. 1 (citing al-cAync). Ibn Qudama, MughnC, XI, 458; Ibn Qudama, al-KA f C, IV,
302; Shams al-Dcn Abe al-Faraj cAbd al-Ramman Ibn Qudama, al-SharM al-KabCr calA
Matn al-Muqni c, printed with Muwa¬aq al-Dcn Ibn Qudama, MughnC, XI, 467; Ibn
al-Munaqif, TanbCh al-NukkAm, 156; Mawardc, Adab al-QAKC, II, 89; cAla™ al-Dcn cAlc
b. Khalcl al-tarabulusc, Mu cCn al-NukkAm f C-mA Yataraddad bayna al-KhaQmayn min
al-AMkAm (Cairo: Muqsafa Babc al-nalabc, 1393/1973), 118.
Ibn al-Munaqif, TanbCh al-NukkAm, 152“53; Baghdadc, Ma cEna, III, 1511. See also
182

sources cited in the previous note.
183
Ibn Farmen, TabQirat al-NukkAm, II, 37; Kinanc, al- cIqd al-MunaUUam, II, 201“02;
Yacqeb b. Ibrahcm Abe Yesuf, IkhtilAf AbC NanCfa wa-Ibn AbC LaylA (Cairo: Masbacat
al-Wafa™, 1357/1938), 159. A few of the “legal specialists” who predated the schools of
law, such as nasan al-Baqrc and cUbayd Allah b. nasan al-cAnbarc, are said to have
admitted handwriting, without testimonial evidence, as valid proof. See Shashc, Nulyat
al- cUlamA”, VIII, 151. Of the later jurists, it is reported that Abe Saccd al-Iqsakhrc held
what seems to have been a unique view, that acquaintance with the qAKC ™s handwriting
and seal are su¬cient for the acceptance of the kitAb. Simnanc, RawKat al-QuKAt, I,
331.
184
Ibn al-Munaqif, TanbCh al-NukkAm, 155“56. Nonetheless, see n. 189, below.
210 Authority, continuity, and change in Islamic law
It appears that some time during the ¬fth/eleventh century185 the
Malikite school underwent a dramatic change in the practice of the qAKCs™
written communications, a change that had no parallel among the other
three schools. At around this time, the Andalusian and Maghrebi qAKCs
apparently began to admit the validity of such written instruments with-
out the testimony of witnesses.186 Authentication through the attesta-
tion of the qAKC ™s handwriting (al-shahAda calA al-khaSS) was su¬cient to
validate the document.187 In other words, if a qAKC felt reasonably certain
that the document before him was in the handwriting of another qAKC,
then that would constitute su¬cient proof of its authenticity.
It is highly probable that the practice initially started in eastern
Andalusia, and spread later to the west of the peninsula and the African
littoral.188 The earlier vahirite acceptance of this doctrine and practice
may represent the forerunner of this Malikite development. Ibn Sahl, who
died in 486/1093, reports that the eastern Andalusian qAKCs were not only
satis¬ed with handwriting and the seal, but accepted the kitAb as true and
authentic even if the qAKC wrote nothing in it but the cunwAn, a short
statement that includes the names of the sending and receiving qAKCs.189

A somewhat earlier date still is not to be excluded, especially if vahirite doctrine and
185

practice may be accepted as a forerunner. The vahirites did admit the kitAb on the
basis of the attestation of handwriting.
186
The change appears with all likelihood to have taken place both in the eastern and
western parts of the Muslim world. For the east, see the royal decrees of judicial
appointment in Qalqashandc, RubM al-A cshA, XI, 192, 201, and n. 190, below. But
Qalqashandc™s evidence belongs to a period after the 660s/1260s, when under the
Mamleks a chief justice was appointed to each of the four schools.
187
For a detailed account of the law pertaining to al-shahAda calA al-khaSS, see Ibn Farmen,
TabQirat al-NukkAm, I, 284“93.
188
For North Africa, particularly Tunis, see Ibn cAbd al-Salam and Ibn Rashid™s weighty
statements in Wansharcsc, al-Mi cyAr wal-Mughrib, X, 61“62. This Ibn cAbd al-Salam,
who was a Malikite, is not to be confused with his Sha¬cite namesake, a highly distin-
guished jurist who ¬‚ourished in the east.
189
Ibn Sahl™s comment on the evidence of handwriting is cited in Wansharcsc, al-Mi cyAr
al-Mughrib, X, 61. The Malikite Ibn cAbd al-Salam, as quoted by Wansharcsc (ibid., X,
62), reveals something about the origins of the doctrine which admits the practice
of authenticating the kitAb through handwriting. He argues that this later doctrine
and practice utterly deviate from the authoritative doctrines of the school™s founding
fathers, and was originally based on a faulty interpretation of the practice of Samnen
and Ibn Kinana, who used, on some occasions, to accept the written instruments of
persons whom they knew intimately, and in whom they placed their personal trust and
con¬dence. This exceptional and provisional practice, Ibn cAbd al-Salam says, was
taken by later generations of judges and jurists to constitute a general principle (aQl ),
on the basis of which an entire doctrine had come to be constructed. It is in this sense
that we should understand the statement of Ibn Hisham al-Qursubc (d. 606/1209),
who attributed a similar doctrine to Ibn al-Majishen and Musarrif. In his Muf Cd
al-NukkAm, he argued that in certain (but by no means all) cases a qAKC should admit
The jurisconsult, the author“jurist, and legal change 211
Although this had never been the case before, it was to become the stand-
ard doctrine, acknowledged to be a distinctly Malikite entity by the other
schools as well as by the political authorities of the day.190 The early
Malikite scholars considered a qAKC ™s kitAb invalid if its authentication
depended solely on identi¬cation of the handwriting.191 Musarrif and Ibn
al-Majishen rejected the authenticity of a kitAb even though two witnesses
might testify that they had seen the issuing qAKC write it with his own
hand.192 They insisted, as did all the other jurists, that the witnesses attest
to the fact by declaring that the issuing qAKC, whom they knew, had made
them testify on a certain day in his courtroom (majlis) in a particular city
or village; that the instrument (the witnesses would at this time point to
the document) was his kitAb; and that it bore his seal. At this point, the
witnesses would be required to reiterate the contents of the document.
Nothing short of this testimony would su¬ce.
Writing in around 600 .. (ca. 1200 .¤.), Ibn al-Munaqif portrays
a vivid picture of the onset of procedural change in the Maghreb and
Andalusia:
In the regions with which we are in contact, the people [i.e., jurists] of
our age have nowadays agreed to permit the kitAbs of qAKCs in matters of
judgments and rights on the basis of sheer knowledge of the qAKC ™s hand-
writing without his attestation to it, and without a recognized seal. They
have demonstrably acquiesced in permitting and practicing this [matter].
I do not think there is anyone who can turn them away from it, because it



the validity of another qAKC™s kitAb if he, the former, was certain (lam yashikk) that
the written communication was undoubtedly that of the latter. See Alfonso Carmona
González, “La Correspondencia O¬cial entre Jueces en el Muf Cd de Ibn Hisham
de Córdoba,” in Homenaje al Prof. Jacinto Bosch Vilá, I (Granada: Universidad de
Granada, 1991), 505“06. Similarly, see María Arcas Campoy, “La Correspondencia
de los Cadies en el Muntajab al-AMkAm de Ibn Abc Zamancn,” Actas del XII Congreso de
la UEAI (Malaga, 1984) (Madrid: Union Europ©enne d™Arabisants et d™Islamisants,
1986), 62. I am grateful to Maribel Fierro for drawing my attention to these two
articles.
See Qalqashandc, RubM al-A cshA, XI, 192, 201, where one royal decree of judicial
190

appointment, probably issued some time after the middle of the seventh/thirteenth
century, acknowledges al-shahAda calA al-khaSS as being a distinctly Malikite institution
that is bene¬cial and conducive to the welfare of society (qubElu al-shahAdati calA
al-khaSSi . . . fa-hAdhA mimmA f C-hi fusMatun lil-nAsi wa-rAMatun mA f C-hA ba”sun . . .
wa-hwa mimmA tafarrada bi-hi huwa [i.e., the Malikite madhhab] dEna al-baqiyya wa-
f Chi maQlaMa). See Bacalawc, Bughyat al-MustarshidCn, 266. The Sha¬cite and nana¬te
schools stand in diametrical opposition to the Malikites on this issue. See Ibn Abc
al-Damm, Adab al-QaKA”, 76.
191
Ibn Farmen, TabQirat al-NukkAm, I, 287.
192
Ibn al-Munaqif, TanbCh al-NukkAm, 155.
212 Authority, continuity, and change in Islamic law
[the practice] has become widespread in all the regions, and because they
have colluded to accept and assert it.193
That the change took place during the decades preceding Ibn al-
Munaqif ™s time may be inferred not only from his reaction to it as a
novelty but also from the urgency with which he felt the need to justify
the new practice. “We have established that Malik™s school, like other
schools, deems the qAKCs™ kitAbs which have been attested by witnesses
lawful, and that these [instruments] could not be considered admissible
merely on the evidence of handwriting.” Yet, Ibn al-Munaqif continues,
“people and all judges [of our times and regions] are in full agreement
as to their permissibility, bindingness, and putative authority; therefore
we need to investigate the matter” by means of “¬nding out a good way
to make this [issue] rest on a sound method and clear foundations to
which one can refer and on the basis of which the rules of Sharcca may be
derived.”194 It is precisely here that the contribution of Ibn al-Munaqif
as an author“jurist lies.
Our author argues that the new practice is justi¬ed on the basis of
KarEra (necessity), a principle much invoked to explain and rationalize
otherwise inadmissible but necessary legal practices and concepts, includ-
ing, interestingly enough, the very concept and practice of kitAb al-qAKC
ilA al-qAKC. The principle of KarEra ¬nds justi¬cation in Quran 2:185:
“God wants things to be easy for you and does not want any hardship
for you.”195 Ibn al-Munaqif argues that it is often di¬cult to ¬nd two

Ibid., 156: “wa-qad aQfaqa al-yawma ahlu caQrinA f C al-bilAd al-latC yantahC ilayhA amrunA
193

fC dhAlika ijAzata kutubi al-quKAti f C al-aMkAmi wal-MuqEqi bi-mujarradi ma crifati khaSSi
al-qAKC, dEna ishhAdihi calA dhAlika wa-lA khAtamin ma crE¬n, wa-taUAharE calA jawAzi
dhAlika wal- camali bi-hi, fa-lA yastaSC cu aMadun f C-mA aUunnu Qarfahum can dhAlika li-
intishArihi f C kulli al-jihAt wa-tawASChim calayhi bil-qabEli wal-ithbAt.” With a minor
variation in the opening line, this revealing statement was cited as an authoritative
attestation to the practice by Wansharcsc, al-Mi cyAr al-Mughrib, X, 62.
194
Ibn al-Munaqif, TanbCh al-NukkAm, 164“65 in conjunction with p. 156, both pas-
sages having the same theme: “wa-idhA qarrarnA min madhhabi MAlikin wa-ghayrihi
jawAza kutubi al-quKAti bil-ishhAdi calayhA wa-man ca al-qabEli bi-mujarradi ma crifati
al-khaSSi, wa-anna al-nAsa al-yawma wa-kA¬ata al-MukkAmi mutamAlEna calA ijAzati
dhAlika wa-iltizAmihi wal- camali bi-hi fa-lA budda an nuMaqqiqa fC dhAlika” (164“65);
“wa-lA budda . . . min al-tanqCbi wal-talaSSu¬ f C isnAdi dhAlika ilA wajhin QaMCMin wa-
aQlin wAKiMin yaQluMu al-maQCru ilayhi wa-binA”u aMkAmi al-sharC cati calayh” (156). The
¬rst part of this statement was cited, with minor variations, by Wansharcsc, al-Mi cyAr
al-Mughrib, X, 64.
195
The textual justi¬cation of attesting handwriting operates on two levels: one direct, the
other oblique. The Quranic verse (2:185) is indirect in the sense that it occasions a
principle, KarEra, by which the practice is in turn justi¬ed. But Ibn al-Munaqif
(TanbCh al-NukkAm, 165) also resorts to Prophetic sCra to validate the practice directly
on textual basis, citing the Prophet™s letters to the Byzantine emperor Hiraql
The jurisconsult, the author“jurist, and legal change 213
witnesses who can travel from one town to another, probably quite
remote, in order to attest the authenticity of the conveyed document.
Attesting handwriting thus became the solution to this problem. For
without this solution, Ibn al-Munaqif averred, either justice would be
thwarted or the witnesses would have to endure the hardship of travel;
and both results would be objectionable. Furthermore, since the ultimate
goal is to prove the authenticity of the qAKC ™s kitAb against forgery and
distortion, any means that achieves this end must be considered legitim-
ate. If, therefore, the receiving qAKC can establish beyond a shadow of
doubt that the document in question “ written by the hand of the sending
qAKC and set by his seal “ truly belongs to the qAKC who claims to have sent
it to him, then the document possesses an authenticating power equal to,
if not better than (KAhA), another document that has been attested and
conveyed by two just witnesses.196
From all this two distinct features emerge in the context of the attesta-
tion to handwriting. First, the pervasive practice on the popular and pro-
fessional legal levels “ as vividly described by Ibn al-Munaqif “ appears to
amount to a socio-legal consensus. The practice was so entrenched that
any notion of reversing it would seem utterly unfeasible. True, this sort of
consensus does not possess the backing of the traditional mechanisms of
law, but its putative force “ in its own locale and context “ is nonetheless
equal to that of traditional ijmA c. Second, the justi¬cation of the practice
squarely rests on the principle of necessity, sanctioned as a means by which
undue hardship and harm are to be averted. Now, what is most interest-
ing about these two features is that they both also played a most central
role in introducing the kitAb al-qAKC ilA al-qAKC into the realm of formal
legal discourse. Consensus was emblematic of its extensive existence in
the world of practice, and the principle of necessity was instrumental in
bringing it into the realm of formal legitimacy. Ibn al-Munaqif, as an
author“jurist, thus both articulates and formally sanctions legal change.

VIII
Admittedly, however, Ibn al-Munaqif does not steer his discourse beyond
the dictates of the legal reality in which he lived. As we have said, he
articulates and gives a formal sanction for what he observed on the
ground. But the tools of the author“jurist did permit him to venture
(Heraclius) and the Sassanid Kisra (Khusru Parviz). See also Ammad b. cAlc Ibn najar
al-cAsqalanc, FatM al-BArC bi-SharM RaMCM al-BukhArC, ed. cAbd al-cAzcz Ibn Baz et al., 13
vols. (Beirut: Dar al-Macrifa, 1980), XIII, 140“45.
196
Ibn al-Munaqif, TanbCh al-NukkAm, 165.
214 Authority, continuity, and change in Islamic law
beyond these relatively narrow con¬nes. One such tool, and an important
one at that, is the appropriation and reworking of earlier discourse
through the utilization of operative terminology.
Consider, for instance, the change that took place between the ¬fth/
eleventh and seventh/thirteenth centuries with regard to claims of mov-
able property sought to be redressed by means of kitAb al-qAKC ilA al-qAKC.
In a section of his in¬‚uential work Adab al-QaKA ”, Ibn Abc al-Damm
discussed this and other issues on the basis of Mawardc™s treatise Adab
al-QAKC. At ¬rst glance, the former appears to reproduce the latter™s dis-
cussion not only verbatim but lock, stock, and barrel. However, a closer
examination shows that the former borrowed from the latter selectively
and only inasmuch as he needed to. If the movable property (e.g. a horse
or a slave) possessed particular qualities which distinguished it from other
similar properties, then the qAKC must hear the testimony of witnesses and
write what is in e¬ect an open letter addressed to the locale in which the
property was found.197
Mawardc, on the other hand, distinguished between two opinions
(qawlAn) with regard to a plainti¬ who, at a court of law, claims the right
to a movable property that was in the possession of an absente reo. In his
view, the less acceptable of the two opinions was the one already men-
tioned by Ibn Abc al-Damm. Mawardc maintained that the authoritative
doctrine of the Sha¬cites is that the qAKC shall not decide on the right of
ownership unless the property was physically present before the witnesses
when they render their testimony. For allowing a testimony with regard
to an absent property would raise the probability of error signi¬cantly
because the property might be confused with another, similar, one. This
opinion of the Sha¬cites, he asserted, has been put into normative practice
(ma cmEl calayh), which explains, in terms of authority, its superiority over
the other opinion.198
It seems safe to assume that what was normative practice in Mawardc™s
time and place (Iraq in the ¬fth/eleventh century) was no longer so in Ibn
Abc al-Damm™s seventh/thirteenth-century Syria. It is with this considera-
tion in mind that Ibn Abc al-Damm took exception to what Mawardc
thought authoritative. Needless to say, this selective appropriation is em-
blematic of the creative reenactment of legal doctrine within the author-
itative structure of the school. To say that Mawardc™s discourse is used
more as a mantle of authority than a real source of substantive legal doc-
trine is not only to state the obvious, but also to describe a common
practice.

197 198
Ibn Abc al-Damm, Adab al-QaKA”, 346. Mawardc, Adab al-QAKC, II, 107.
The jurisconsult, the author“jurist, and legal change 215
Selective appropriation and manipulation of earlier juristic discourse
is the hallmark of the author™s venture. To give adequate attention to this
tool of change, we shall now turn to the issue of custom in the (later)
nana¬te legal tradition. This issue illustrates a signi¬cant and funda-
mental transformation in the law, a transformation that was, no doubt,
initially precipitated by legal praxis. Custom presented a major problem
for later nana¬te jurists, since the school tradition of positive law and
legal theory left little latitude for customary practices to establish them-
selves readily as authoritative entities. The di¬culty is apparent in the
fact that legal doctrine never succeeded in recognizing custom as an inde-
pendent and formal legal source. Indeed, even when compared with the
so-called supplementary sources “ istiMsAn, istiQlAM, etc. “ custom never
managed to occupy a place equal to that which these latter had attained
in the hierarchy of legal sources. As a formal entity, it remained mar-
ginal to the legal arsenal of the four schools, although the nana¬tes and
Malikites seem to have given it, at least outwardly, more recognition than
did the other two schools, however informal this recognition might have
been.
The failure of custom to occupy a place among the formal sources
of the law becomes all the more striking since Abe Yesuf, a foremost
nana¬te authority and second only to Abe nancfa himself, seems to
have recognized it as a source.199 But for reasons that still await further
research,200 Abe Yesuf ™s position failed to gain majority support and was

Ibn cfbidcn, Nashr al- cUrf, 118.
199
200
Reasons that may well be related to legal developments during the second/eighth and
third/ninth centuries when traditionalist groups were battling rationalist jurispru-
dence. The abandonment of certain rationalist theses seems to have become necessary
in order to gain membership in mainstream Sunnism, just as traditionalism, especially
its extreme anti-rationalist varieties, had to relinquish some of its fundamental
doctrines to avoid being entirely marginalized, and perhaps even ousted altogether
from within the pale of Sunnism. nana¬te jurisprudence was forced to substitute
MadCth for ra”y during the third/ninth century, an accomplishment to be attributed to
Mumammad b. Shujac al-Thaljc (d. 266/879). Another concession that the nana¬te
jurists had to make was to reduce their reliance on rationalistic reasoning, a feature of
Abe nancfa™s in¬‚uential legal doctrines. Abe Yesuf ™s recognition of custom as a source
of law must have stood as a ¬‚agrant violation of the traditionalist“rationalist synthesis
which Sunnc Islam had reached by the end of the third/ninth century and beginning
of the fourth/tenth. Indeed, it was this synthesis and the historical processes that lay
behind them which led to what later became known as uQEl al-¬qh and, perforce, to the
exclusion therefrom of custom as a formal entity. On the traditionalist“rationalist
con¬‚ict, see Melchert, Formation of the Sunni Schools, 1 ¬. On the synthesis between
the two camps, see Hallaq, “Was al-Sha¬ci the Master Architect?”; Hallaq, “Was the
Gate of Ijtihad Closed?” 7“10. On Thaljc™s contribution to the transformation of
nana¬te jurisprudence, see the revealing biographical notice in Ibn al-Nadcm, Fihrist,
291; Qurashc, al-JawAhir al-MuKC”a, II, 221; Ibn Quslebugha, TAj al-TarAjim, 55“56.
216 Authority, continuity, and change in Islamic law
in e¬ect abandoned.201 Instead, throughout the ¬ve or six centuries sub-
sequent to Abe Yesuf, the nana¬te school upheld the fundamental
proposition that the textual sources unquestionably overrode custom.
The discourse of nana¬te texts during this period re¬‚ects their strong
commitment to this proposition, since its vindication on the grounds
that the textual sources are superior to custom was universally accepted.202
While occasional references to custom remained part of the same dis-
course, it is nonetheless signi¬cant that such references appear ¬‚eetingly,
as contingent entities intermittently relevant to the law. In Sarakhsc™s
highly acclaimed MabsES, for instance, both explicit reference and allusion
to custom appear a number of times and in connection with a variety
of topics.203 In the context of rent, for instance, he states the maxim
“What is known through custom is equivalent to that which is stipulated
by the clear texts of revelation.”204 It is clear, however, that the maxim
is not cited with the purpose of establishing a legal principle, but rather
as a justi¬cation for a highly speci¬c doctrine concerning the rent of
residential property. If a house is rented, and the contract includes no
stipulation as to the purpose for which it was rented, then the operat-
ive assumption “ which the said maxim legitimizes “ would be that it
was leased for residential and not commercial or other purposes. The
tendency to con¬ne custom to very speci¬c cases “ which is evident in
Sarakhsc™s work “ is only matched by its acceptance under the guise of
other formal principles, such as istiMsAn and consensus. Custom was often
treated in the law and law books qua custom, pure and simple, this being
an unambiguous indication of the inability of jurists to introduce it into
the law under the guise of established methodological tools.205

Until, that is, our author, Ibn cfbidcn, not only rejuvenated interest in his position,
201

but essentially revived it, as we shall see later.
Ibn Nujaym, al-AshbAh wal-NaUA ”ir, 131 (on the authority of vahcr al-Dcn b. Ammad);
202

Suyesc, al-AshbAh wal-NaUA ”ir, 93. For Marghcnanc™s statement that “an explicit tex-
tual ruling is stronger than a custom and one does not abandon something stronger in
favor of something weaker,” see Gedeon Libson, “On the Development of Custom as
a Source of Law in Islamic Law,” Islamic Law and Society, 4, 2 (1997), 145.
203
See next note. For a biographical account of Sarakhsc, see Ibn Quslebugha, TAj al-
TarAjim, 52“53.
204
Sarakhsc, MabsES, XV, 130: “al-ma clEm bil- curf kal-mashrES bil-naQQ.” See also XV, 85“
86, 132, 142, 171; XII, 142 and passim.
205
It would, in this context, be instructive to explore the possible reasons that lie behind
the incorporation of customary practices into law through these two distinctly di¬erent
channels, namely, direct incorporation (= custom qua custom) and incorporation via
formal and supplementary sources. Granting, as I do, the valid explanation in terms of
chronological developments (whereby custom came into law as part of the evolution-
ary processes that gave rise to both positive law and legal theory), there remains the
question as to why the supplementary and formal sources of law could not permit,
under their own rubric, the total absorption of customary practices in the later period.
The jurisconsult, the author“jurist, and legal change 217
The incorporation into the law of custom qua custom seems to have
increased some time after the sixth/twelfth century, although this in-
corporation was to remain on a case-by-case basis. While the cumulative
increase in the instances of custom was evident, there was still no formal
place for it in the methodological and theoretical scheme, no doubt
because legal theory and methodology had become too well established to
allow for a structural and fundamental change.
By the tenth/sixteenth century, it had become obvious that custom had
to be accounted for in a manner that adequately acknowledged its role in
the law but which did not disturb the postulates and basic assumptions of
legal theory. This was no easy task. In the nana¬te school, Ibn Nujaym
(d. 970/1563)206 seems to have been one of the more prominent author“
jurists to undertake the articulation of the relationship between law, legal
theory, and custom. In his important work al-AshbAh wal-NaUA ”ir, he
dedicates a chapter to custom, signi¬cantly titled “Custom determines
legal norms” (al- cFda muMakkima).207
The ¬rst issue traditionally discussed in the exposition of legal sources is
authoritativeness (Mujjiyya), namely, a conclusive demonstration through
textual support (dalCl qaS cC ) that the source in question is valid, admissible,
and constitutes an authoritative basis for further legal construction. But
all Ibn Nujaym can adduce in terms of textual support is the allegedly
Prophetic report “Whatever Muslims ¬nd good, God ¬nds it likewise,”208
which is universally considered to be de¬cient. Ibn Nujaym acknowledges
that the report lacks the ¬nal link with the Prophet, insinuating that it
originated with Ibn Masced.209 Al-naqkafc al-cAla™c also observes that after
an extensive search he could ¬nd it in none of the MadCth collections
except for Ibn nanbal™s Musnad.210 Curiously, despite his obvious failure
to demonstrate any authoritative basis for custom “ a failure shared by
the entire community of Muslim jurists “ Ibn Nujaym proceeds to discuss
those areas in the law where custom has traditionally been taken into
account.211

206
Brockelmann, Geschichte, II, 401“03.
207
Ibn Nujaym, al-AshbAh wal-NaUA”ir, 129.
“MA ra”Ahu al-MuslimEna Masanan fa-hwa cinda AllAhi Masan.” 209 Ibid., 129“30.
208

Ibn cfbidcn, Nashr al- cUrf, 115; Suyesc, al-AshbAh wal-NaUA”ir, 89. This MadCth is also
210

used by Shaybanc in justi¬cation of consensus. See W. B. Hallaq, “On the Authoritative-
ness of Sunnc Consensus,” International Journal of Middle East Studies, 18 (1986), 431.
211
An inductive survey of the instances of custom that have been incorporated into law
appears to have been often o¬ered as a substitute for a proof of authoritativeness
(Mujjiyya), although such a substitute clearly involved begging the question. It is per-
haps the jurists™ acute awareness of the pernicious e¬ects of circularity that prevented
them from claiming inductive knowledge to constitute a solution to the problem of
Mujjiyya.
218 Authority, continuity, and change in Islamic law
After listing a number of legal cases acknowledged by the community
of jurists as having been dictated by customary conventions, he argues
that, in matters of usury not stipulated by the revealed texts, custom must
be recognized. Those commodities that are measured by volume and/or
by weight and which have been regulated by the revealed texts as lying
outside the compass of usurious transactions are in no way a¬ected by
customary usage, of course. This, he maintains, is the opinion of Abe
nancfa and Shaybanc, but not that of Abe Yesuf, who, as we have seen,
permitted the intervention of custom. Abe nancfa and Shaybanc™s opin-
ion, he further asserts, is strengthened by Ibn al-numam™s arguments
(wa-qawwAhu f C FatM al-QadCr)212 in which the latter stresses, along with
vahcr al-Dcn (d. 619/1222),213 that a clear text (naQQ) cannot be super-
seded by considerations of custom.214
Ibn Nujaym distinguishes between two types of custom, namely,
universal (curf cAmm) and local custom (curf khAQQ). The former prevails
throughout Muslim lands, while the latter is in e¬ect in a restricted
area or in a town or village.215 When the former does not contravene
a naQQ, the authoritative doctrine of the nana¬te school is that it ought
to be taken into consideration in legal construction. The contract of
istisnA c is but one example in point.216 However, the nana¬tes di¬ered
over whether local custom has any legal force. Najm al-Dcn al-Zahidc
(d. 658/1259),217 for instance, refused to acknowledge that local custom
had any such force, since the weight of local considerations is negli-
gible. Others, such as the Bukharan jurists, disagreed. Indeed, as quoted
by Ibn Nujaym, Zahidc gives us to understand that these jurists were
the ¬rst in the history of the nana¬te school to advocate such an

212
FatM al-QadCr being Ibn al-Humam™s (d. 681/1282) work which is a commentary on
Marghcnanc™s HidAya.
vahcr al-Dcn Abe Bakr Mumammad b. Ammad, the author of the well-known fatwA
213

collection al-VahCriyya. See Qurashc, al-JawAhir al-MuKC ”a, II, 20.
214
Ibn Nujaym, al-AshbAh wal-NaUA”ir, 131.
Ibid., 137; Ibn cfbidcn, Nashr al- cUrf, 132. On universal and local customs, see
215

B. Johansen, “Coutumes locales et coutumes universelles,” Annales Islamologiques, 27
(1993): 29“35.
216
IstiQnA c is a manufacturing contract whereby a sale is concluded with the condition of
future delivery. The contract may also be one of hire, such as when a person gives a
blacksmith a certain amount of metal so that the latter manufactures therefrom a pot
or container, for a stipulated payment. Being of the same type as the salam contract,
istiQnA c goes against the principles of qiyAs which require the avoidance of risk (gharar)
by ensuring that the object of sale or hire be in existence at the time of sale. See
Sarakhsc, MabsES, XV, 84 ¬.
217
For a biographical notice, see Ibn Quslebugha, TAj al-TarAjim, 73; Brockelmann,
Geschichte, I, 382 (475).
The jurisconsult, the author“jurist, and legal change 219
opinion.218 But Zahidc emphatically states that the correct opinion (al-
QaMCM) is that local practices are e¬ectively insu¬cient to establish them-
selves as legally admissible customs.
Ultimately, however, the question is not whether local custom can
or cannot generate legal norms, for it was clear to the jurists that such
customs cannot yield universal and normative legal rules, but only, if
at all, particular ones. A universal rule simply cannot emanate from a
local custom (al-Mukm al- cAmm lA yathbut bil- curf al-khAQQ).219 This, Ibn
Nujaym asserts, is the authoritative doctrine of the school (al-madhhab),
although a good number of nana¬te jurists have issued fatwAs on the
basis of local custom and in contravention of this doctrine. It is interest-
ing that Ibn Nujaym ¬nally takes the side of these jurists, in a conscious
and bold decision to go against the madhhab doctrine.220
Ibn Nujaym™s recognition of custom as an extraneous legal source
represents only a later stage in a checkered historical process that began
with the three founders of the nana¬te school. The religio-legal develop-
ments between the second/eighth and fourth/tenth centuries221 appear
to have led to the suppression of Abe Yesuf ™s doctrine in favor of a less
formal role for custom. Sarakhsc™s recognition of custom on a case-by-case
basis is but one illustration of the success of the thesis of divine origins of
the law, a thesis that ensured the near decimation of Abe Yesuf ™s doctrine
and its likes. But the serious demands imposed by custom persisted. The
practices and writings of the Bukharan jurists, among others, were con-
ducive to a process in which the informal role of custom as a source of law
was expanded and given more weight. Ibn Nujaym™s writings, in which
he selectively but skillfully draws on earlier authorities, including the
Bukharans, typify the near culmination of this process.
The process reached its zenith with the writings of the last major
nana¬te jurist, the Damascene al-Sayyid Amcn Ibn cfbidcn (1198/1783“
1252/1836), whose career spanned the crucial period that immediately
preceded the introduction of Ottoman tanUCmAt. There is no indication
that Ibn cfbidcn held an o¬cial post in the state, and he seems to have
been distant from the circles of political power. His training and later
career were strictly traditional: He read the Quran and studied language
and Sha¬cite law with Shaykh Saccd al-namawc. Later, he continued

218
Ibn Nujaym states that these Bukharans themselves formulated this opinion
(aMdathahu ba cK ahl BukhArA), it being almost certain that their opinion is a re¬‚ection
of their juridical practices. See his al-AshbAh wal-NaUA”ir, 138.
219
Ibid., 137.
220
Ibid., 138: “lAkin aftA kathCr min al-mashAyikh bi-i ctibArihi, fa-aqElu calA i ctibArihi.”
221
As brie¬‚y alluded to in n. 200, above.
220 Authority, continuity, and change in Islamic law
his legal studies with Shaykh Shakir al-cAqqad who apparently persuaded
him to convert to nana¬sm. With him he studied arithmetic, law of
inheritance, legal theory, MadCth, Quranic exegesis, re¬sm, and the
rational sciences. Among the texts he read with his shaykh were those
of Ibn Nujaym, radr al-Sharcca, Ibn al-Humam, and of other signi¬cant
nana¬te authors.222 His successful career brought him distinction in
several spheres, not the least of which was his rise to prominence as a
highly celebrated author and muftC. As a professor, he seems to have had
an equally successful career, involving, among other things, the privilege
of bestowing ijAzas on such important men as the Ottoman shaykh
al-Islam cfrif nikmat Bey.223
True, Ibn cfbidcn ¬‚ourished before the tanUCmAt started, but he was
already witness to the changes that began to sweep the empire long before.
When his legal education began, the NizAm-i Cedid of Selim III was well
under way, and when his writing career reached its apex, Mammed II and
his men centralized, in an unprecedented but immeasurably crucial move,
the major charitable trusts of the empire under the Ministry of Imperial
Pious Endowments, which was established in 1826.224 These signi¬cant
developments, coupled with the changes that Damascene society experi-
enced due to western penetration and intervention, already e¬ected a new
outlook that culminated not only in the tanUCmAt reforms but also in a
rudimentary rupture with traditional forms.225 Ibn cfbidcn™s writings do
not mirror any clear sense of crises, either in epistemological or in cultural
terms, but they do re¬‚ect a certain measure of subtle and latent impa-
tience with some constricting aspects of tradition. This perhaps explains
an insightful remark made nearly a century ago by one of the shrewdest
commentators on Islamic law. Nicholas Aghnides has pointed out that
Ibn cfbidcn™s magnum opus, NAshiyat Radd al-MuMtAr, “may be said to be
the last word in the authoritative interpretation of nana¬te law. It shows
originality in attempting to determine the status of present practical


For Ibn cfbidcn™s biographical notices, see Khalcl Mardam Bck (Bey), A cyAn al-Qarn
222

al-ThAlith cAshar f C al-Fikr wal-SiyAsa wal-IjtimA c (Beirut: Mu™assasat al-Risala, 1977),
36“39; cAbd al-Razzaq al-Bcsar, Nulyat al-Bashar fC TArCkh al-Qarn al-ThAlith cAshar,
ed. M. B. Bcsar, 3 vols. (Damascus: Masbacat al-Majmac al-cIlmc al-cArabc, 1963),
III, 1230“39; Ziriklc, AclAm, VI, 42.
223
Mardam, A cyAn, 37.
224
See Madeline C. Zil¬, “The Ilmiye Registers and the Ottoman Medrese System prior to
the Tanzimat,” in Contributions à l™histoire ©conomique et sociale de l™Empire ottoman
(Leuven: Editions Peeters, 1983), 309“27, at 312“13.
225
For a general history of Damascus during this period, see George Koury, “The
Province of Damascus” (Ph.D. dissertation: University of Michigan, 1970); Yesuf
Naccsa, Mujtama c MadCnat Dimashq, 2 vols. (Damascus: tlas, 1986).
The jurisconsult, the author“jurist, and legal change 221
situations, as a rule, shunned by others.”226 This originality, which mani-
fests itself even more acutely in his writings on custom, may be seen as
representing a euphemism for a discursive attempt to twist and transform
legal concepts within the fetters of an authoritative and binding tradition.
Originality often does take such forms.
Some time in 1243/1827, Ibn cfbidcn wrote a short gloss on his cUqEd
Rasm al-MuftC, a composition in verse which sums up the rules that
govern the o¬ce of iftA”, its functions, and the limits of the muftC ™s ¬eld
of hermeneutics.227 In the same year, he authored a risAla in which he
ampli¬es his commentary on one line in the verse, a line that speci¬c-
ally addresses the role of custom (curf ) in law.228 Having been written at
the same time, cross-references between the two risAlas are many.229 The
disintegration of textual boundaries between the two treatises is further
enhanced by constant reference to, and juxtaposition with, his super-
gloss NAshiyat Radd al-MuMtAr. In the latter he also refers,230 in the past
tense, to his two risAlas, and in the two risAlas, in the same tense, to his
NAshiya.231 This synchronous multiple cross-referencing suggests that Ibn
fbidcn composed his two risAlas during the lengthy process of writing
c

the NAshiya, which he never completed.
Establishing for these treatises a chronological order, or the absence
thereof, is particularly important here because a correct analysis of Ibn
fbidcn™s concept of custom depends on the relationship of his epistemo-
c

logical and authority-based assumptions in Nashr al- cUrf to the hierarchy
of authority which he sets forth in, and which governs the discourse of,
his NAshiya.232 That Nashr al- cUrf and NAshiya were written simultane-
ously and that the former in fact represents a discursive extension of the
latter, suggests that Ibn cfbidcn continued to uphold the structure of
authority and epistemology as he laid it down in his NAshiya and as it had
been articulated in the nana¬te school for several centuries before him.
It is precisely the resolution of the tension between this structure of
authority and the role he assigned to custom in the law that presented
Ibn cfbidcn with one of his greatest challenges.
The declared raison d™être of Nashr al- cUrf is that custom presents the
jurist with several complexities which Ibn cfbidcn™s predecessors had not

Aghnides, Mohammedan Theories, 183. 227 Ibn cfbidcn, SharM al-ManUEma, 1“53.
226

Ibn cfbidcn, Nashr al- cUrf, 114; the line runs as follows: “wal- curf fC al-shar c la-hu
228

i ctibAr / li-dhA calayhi al-Mukm qad yudAr.”
229
Ibid., 114, 125, and passim; SharM al-ManUEma, 48 and passim.
Ibn cfbidcn, NAshiya, IV, 364, 434, 519, and passim.
230

Ibn cfbidcn, Nashr al- cUrf, 139 and passim; SharM al-ManUEma, 15.
231

Ibn cfbidcn, NAshiya, I, 70 ¬. See also SharM al-ManUEma, 16“18.
232
222 Authority, continuity, and change in Islamic law
adequately addressed.233 (In treating this presumably neglected area, Ibn
fbidcn seems to promise a certain measure of originality.) A careful read-
c

ing of the risAla reveals that these complexities revolve around custom as a
legal source as well as around its relationship to both the unambiguous
revealed sources234 and the authoritative opinions embodied in UAhir
al-riwAya.
But before proceeding to unravel these complexities, Ibn cfbidcn
attempts a de¬nition of custom (cAda). What is important about the
de¬nition is not so much its substance as the manner in which it is
expounded. And it is this manner of discursive elaboration that char-
acterizes, in distinctly structural ways, the methods and ways of the
author“jurist. Here, as elsewhere in the risAla, the mode of discourse
is selective citation and juxtaposition of earlier authorities, a mode that
has for centuries been a common practice of the author“jurist. However
conventional or novel they may be, arguments are presented as falling
within the boundaries of authoritative tradition, for they are generally
adduced as the total sum of quotations from earlier authorities, cemented
together by the author™s own interpolations, interventions, counter-
arguments, and quali¬cations. Through this process, new arguments
acquire the backing of tradition, represented in an array of voices that
range from the highly authoritative to the not-so-authoritative. This
salient feature of textual elaboration makes for a discursive strategy that
we must keep in mind at all times, whether reading Ibn cfbidcn or other
author“jurists.
Once a de¬nition has been constructed, a necessary second step in the
exposition of any legal source is to demonstrate its authoritativeness, and
custom, if it must claim the status of a source, proves no exception to this
rule. Here, Ibn cfbidcn falls back on Ibn Nujaym™s by now familiar argu-
ment which is itself exclusively based on Ibn Masced™s weak tradition.
Realizing the weakness of the tradition and thus the invalidity of this
argument, he remarks that custom was so frequently resorted to in the law
that it was made a principle (aQl ), as evidenced in Sarakhsc™s statement:
“What is known through custom is equivalent to that which is stipulated
by the clear texts of revelation.”235 But Ibn cfbidcn™s compensatory argu-
ment does nothing to conceal the fact that custom could never ¬nd

Ibn cfbidcn, Nashr al- cUrf, 114.
233
234
That is, the naQQ, as distinguished from ambiguous texts which are by de¬nition
capable of more than one interpretation. See Bajc, NudEd, 42 ¬. The ambiguous,
equivocal texts did not present a challenge to custom because their hermeneutical
e¬ects were indeterminate.
235
Sarakhsc, MabsES, XV, 130: “al-ma clEm bil- curf kal-mashrES bil-naQQ.”
The jurisconsult, the author“jurist, and legal change 223
any textually authoritative vindication. Nor does justi¬cation in terms of
frequent use in the law lead to anything but a petitio principii, namely,
that custom should be used in the law because it is used in the law. Be
that as it may, Ibn cfbidcn states his piece and moves on, being scarcely,
if at all, perturbed by his own, and tradition™s, failure to persuade on this
matter. Scarcely perturbed, because the focus of his agenda lay elsewhere:
he, and the tradition in which he wrote, were cognizant of the theological
and epistemological limitations that had been imposed on custom when
legal theory was still in the process of formation. The challenge he now
faced was to circumvent these limitations.
Thus, the real issue for Ibn cfbidcn is one of more immediate and
practical concern. It is one that is problematized through the introduction
of two competing opinions on the relationship between custom and the
doctrines of UAhir al-riwAya. In his Qunya, Zahidc is reported to have
maintained that neither the muftC nor the qAKC should adopt the opinions
of UAhir al-riwAya to the utter exclusion of custom. Both Hindc236 and
Bcrc237 cited Zahidc™s argument, apparently approving its conclusion.
These assertions, Ibn cfbidcn argues, raise a problem, since the common
doctrine of the school is that the opinions of UAhir al-riwAya remain
binding unless the leading legal scholars (al-mashAyikh) decide to replace
them by other opinions that have been subjected to taQMCM. The problem
is accentuated in those areas of the law where the opinions of UAhir
al-riwAya were constructed on the basis of revealed texts of an unambigu-
ous nature (QarCM al-naQQ) and/or sanctioned by the conclusive authority of
consensus. In these areas, custom does not, nor should it, constitute a
source, for unlike the texts, it may simply be wrong. In what seems to
be an attempt to accentuate this problematic, Ibn cfbidcn invokes Ibn
Nujaym™s statement to the e¬ect that custom must be set aside in the
presence of a text, and conversely, that it may be taken into consideration
only when no text governing the case in question is to be found.
Before Ibn cfbidcn begins his treatment of this problematic, he intro-
duces, in the footsteps of Ibn Nujaym, the distinction between universal
and particular custom. Each of these two types is said to stand in a par-
ticular relationship with both the unambiguous revealed texts and UAhir
al-riwAya, thereby creating what is in e¬ect a four-fold classi¬cation. But
Ibn cfbidcn reduces them to a two-part discussion, one treating custom™s
relationship with the unambiguous revealed texts, the other its relation-
ship with UAhir al-riwAya.

236
In KhizAnat al-RiwAyAt. See Brockelmann, Geschichte, II, 221 (286).
237
Whom I could not identify.
224 Authority, continuity, and change in Islamic law
In line with traditional juristic epistemology, it remains Ibn cfbidcn™s
tenet that whatever contravenes, in every respect (min kulli wajh), the
explicit and unequivocal dictates of the revealed texts is void, carrying
neither legal e¬ect nor authority. The case of intoxicants a¬ords an
eloquent example of this sort of contravention. The key element in the
formulation of this tenet is the clause “in every respect,” a clause that quite
e¬ectively limits the boundaries of those texts that engender exclusive
authority by removing from their purview all cases that posit no straight-
forward or direct contravention of these texts. A partial correspondence
between the text and custom does not therefore render the latter inadmiss-
ible, for what is being considered in such cases is the corresponding part,
not the di¬erential. That part therefore particularizes (yukhaQQiQ) the text,
but does in no way abrogate it. However, in order for custom to have this
particularizing e¬ect, it must be universal. If universal custom can particu-
larize a text, then it can, a fortiori, override a qiyAs which is no more than
a probabilistic inference. IstiQnA c, as we have seen, is a case in point.238
Turning to particular custom, Ibn cfbidcn makes the categorical state-
ment that, according to the school™s authoritative doctrine (madhhab),
it is not taken into consideration (lA tu ctabar). But this rather forward
statement of doctrine is undermined by Ibn cfbidcn™s introduction of a
succession of qualifying and opposing opinions expressed by other jurists.
Before doing so, however, he states, on the authority of earlier jurists, the
traditional school doctrine, thereby engaging in what amounts to polem-
ical maneuvering. As might be expected, Ibn Nujaym™s weighty attesta-
tion is given ¬rst, the intention being to introduce not so much an
a¬rmation of the school™s doctrine as Ibn Nujaym™s partial quali¬cation
and exception that many jurists have issued fatwAs in accordance with
particular custom.239 This is immediately followed by another, more
drastic statement made by Ibn Maza who reported that the Balkh jurists,
including Naqcr b. Yamya240 and Mumammad b. Salama,241 permitted,
among other things, a certain type of rent which is otherwise deemed
prohibited. The permissibility of this type was justi¬ed on the grounds
that the practice was not explicitly regulated by the texts and that it
had become customary among the people of Balkh. The license of this
exception in no way meant that the principles of rent were set aside. If
this type of rent was permitted, it was deemed to be an exception, in the

Ibn cfbidcn, Nashr al- cUrf, 116. 239 See at n. 220, above.
238
240
Mumammad al-Mudarris, MashAyikh Balkh min al-Nana¬yya, 2 vols. (Baghdad:
Wizarat al-Awqaf, Silsilat al-Kutub al-nadctha, 1979), I, 53, 76, and see index at II,
942.
241
Ibid., I, 53, 89, and see index at II, 938.
The jurisconsult, the author“jurist, and legal change 225
same manner istiQnA c represents an exception to the principle that the
object being sold must at the time of sale be in existence.
But Ibn Maza does not, in the ¬nal analysis, agree with the Balkh
jurists. Having fully stated their case, he cautions that exceptions, made
through particularization (takhQCQ) on the basis of a particular custom,
are not deemed valid because the weight of such a custom is negligible,
and that this engenders doubt (shakk) which does not exist in the case of
istiQnA c, a pervasive practice that has been shown “to exist in all regions”
( f C al-bilAd kullihA). In support of Ibn Maza, Ibn cfbidcn interjects Ibn
Nujaym™s discussion of particular custom, which is in turn based on a
series of citations from other jurists. Here he concludes that qiyAs cannot
be abandoned in favor of particular custom, although, as we have seen,
some of Ibn Nujaym™s authorities do recognize it. The commentators, Ibn
fbidcn argues, have upheld the rule that wheat, barley, dates, and salt are
c

to be sold, without exception, by volume, while gold and silver are to be
sold by weight. This rule is dictated by a well-known and explicit Proph-
etic tradition. Thus, the sale of wheat by weight and of gold by volume is
unanimously considered null and void, whether or not it is sanctioned by
custom. The explicit texts must always stand supreme. However, other
commodities that carry no stipulations in the texts may be sold in accord-
ance with the custom prevalent in a certain society.242
An apparently hypothetical interlocutor is made to state, on Quderc™s
authority, that Abe Yesuf allowed custom to prevail over the Prophetic
tradition concerning usury in the sale of certain commodities. Accord-
ingly, gold might be sold in volume if custom dictated that it should
be so.243 This departure from the imperatives of the revealed texts there-
fore justi¬es the practice of usury and other unlawful matters as long as
custom requires it.
Taking this to be a distortion of Abe Yesuf ™s position, Ibn cfbidcn
argues that what the master meant to do was to use custom as the ratio
legis of the textual prohibition. If the Prophetic tradition dictated meas-
urement by weight for certain commodities, and by volume for others, it
was merely because it was the custom to do so at the time of the Prophet.
Had custom been di¬erent, it is entirely conceivable that the Prophetic
tradition might have permitted the sale of gold by volume, and that of
barley by weight. Therefore, Ibn cfbidcn concludes, “if custom undergoes
change, then the legal norm (Mukm) must change too. In taking changing
and unprecedented custom into consideration there is no violation of the
texts; in fact, if anything, such consideration constitutes adherence to [the

Ibn cfbidcn, Nashr al- cUrf, 118.
242 243
Cf. Quderc, MukhtaQar, 87.
226 Authority, continuity, and change in Islamic law
imperatives of ] the texts.”244 At this point, Ibn cfbidcn hastens to add
that certain pecuniary practices prevalent in his time “ such as “buying
darAhim for darAhim” or borrowing money on the basis of face value (or
by count, cadad ) “ do not in fact constitute violations of the texts, thanks
to Abe Yesuf ™s doctrine. “May God abundantly reward Abe Yesuf for
what he did for the people of these times of ours. He saved them from the
serious a¬„iction that is usury.”245
The liberties granted with regard to borrowing money at face value and
not by weight or volume were reached by means of takhrCj, representing
a direct extension of Abe Yesuf ™s doctrine.246 This was originally Sacdc
Afandc™s takhrCj, con¬rmed later by Siraj al-Dcn Ibn Nujaym (d. 1005/
1596)247 and others. Nabulusc,248 however, thought the entire juristic con-
struction needless since the coins struck by the state had a speci¬c weight,
and borrowing or exchange by denomination was e¬ectively the same
as representation of weight. Ibn cfbidcn introduces Nabulusc™s argument
only to disagree with it, apparently using it as a rhetorical pretext to
bolster his arguments further. It may have been the case, he maintains,
that in Nabulusc™s time coins were equal in terms of weight and value;
nevertheless, “in these times of ours” ( f C zamAninA) each sultan struck
currency of lower quality than that struck by his predecessor. The prac-
tice during Ibn cfbidcn™s period involved the use of all sorts of currency,
some containing a high ratio of gold and silver as well as those of a lower
quality. When people borrow, for instance, they do not specify the type
of currency but only the number, for when repayment becomes due, they
may use any type of currency as long as the value of the amount paid
equals that which had been borrowed.249 Had it not been for Abe Yesuf ™s
doctrine, these types of transactions could have been said to involve usury
because the weight of the coins borrowed was never identical to that with
which repayment was made. If, on the other hand, such transactions were

Ibn cfbidcn, Nashr al-cUrf, 118: “takEnu al- cAda hiya al-manUEru ilayhA fa-idhA
244

taghayyarat taghayyara al-Mukm, fa-laysa fC i ctibAri al-cAda al-mutaghayyira al-MAditha
mukhAlafa lil-naQQ bal f C-hi ittibA c al-naQQ.”
Ibid., 118: “fa-law ta cArafa al-nAsu bay ca al-darAhima bil-darAhima aw istiqrAKahA
245

bil- cadad, ka-mA f C zamAninA, lA yakEn mukhAlifan lil-naQQ. Fa-AllAh ta cAlA yajzC al-
ImAm AbA YEsuf can ahl hAdhA al-zamAn khayra al-jazA ” fa-laqad sadda can-hum bAban
c
aUCman min al-ribA.”
246
On takhrCj and its relationship to the doctrines of the schools™ founders, see chapter 2,
section III, above.
247
In his al-Nahr al-FA”iq. See Brockelmann, Geschichte, Suppl. 2, 266.
Probably Ismaccl b. cAbd al-Majcd al-Nabulusc (d. 1043/1633). See Brockelmann,
248

Geschichte, Suppl. 2, 476.
For a detailed discussion of ¬scal issues in law, see Ibn cfbidcn, TanbCh al-RuqEd calA
249

MasA”il al-NuqEd, in his MajmE cRasA”il, II, 58“67.
The jurisconsult, the author“jurist, and legal change 227
to be regulated by Abe nancfa and Shaybanc™s doctrines “ which require
the stipulation in the contract of the type of currency and the year of
minting “ the outcome would surely be objectionable since all pecuni-
ary contracts and transactions would be deemed null and void. Their
doctrines would thus lead to great di¬culties (Maraj caUCm), since they
would also necessarily entail the conclusion that “the people of our age are
unbelievers.” The only way out of this quandary, Ibn cfbidcn asserts, is to
go by Abe Yesuf ™s doctrine which is left as the only basis of practice.250
In favoring Abe Yesuf ™s weaker doctrine over and against the other
one “ also held by Abe nancfa and Shaybanc “ there is an undeniable
di¬culty. Bypassing three authoritative doctrines by the most in¬‚uential
¬gures of the school in favor of a weak opinion certainly called for an
explanation. Ibn cfbidcn alludes to two possible solutions, one by uphold-
ing custom qua custom as a su¬cient justi¬cation, the other by resorting
to the notion of necessity (KarEra).251 But Ibn cfbidcn does not articulate
the distinction between these two means of justi¬cation, for he imme-
diately abandons custom in favor of necessity. This is to be expected.
Rationalizing the relevance of Abe Yesuf ™s doctrine and the need for it by
means of custom amounts to rationalizing custom by custom, an argu-
ment involving the fallacy of a petitio principii. Falling back on necessity is
thus left as the only logical choice.
Although the notion of necessity has been used to justify a number
of departures from the stringent demands of the law, it is, like custom,
restricted to those areas upon which the explicit texts of revelation are
silent. Abe Yesuf, for instance, was criticized when he held the opinion
“ which ran against the dictates of Prophetic Sunna “ that cutting grass
in the Sacred Precinct was permissible due to necessity. In this case, Ibn
fbidcn does not seem to agree with Abe Yesuf, his reasoning being that
c

since the Prophet excluded from the prohibition the idhkhir plant,252 we
must conclude that the prohibition remains in e¬ect, and that removal
of the prohibition due to necessity is applicable only to that particular
plant. More important, the hardship that may result from the prohibition
against cutting the grass pales into insigni¬cance when compared with
the consequences of forcing a society to change its habits and customs.

Ibn cfbidcn, Nashr al- cUrf, 119: “fa-yalzam min-hu tafsCq ahl hAdhA al- caQr,
250

fa-yata cayyan al-iftA” bi-dhAlika calA hAdhihi al-riwAya can AbC YEsuf.” (See also ibid.,
119“24, where similar arguments are made.)
251
Ibid., 120: “wa- calA kullin, fa-yanbaghC al-jawAz wal-khurEj can al-ithm cinda AllAh
ta cAlA immA binA”an calA al- camal bil- curf aw lil-KarEra.”
252
An aromatic plant that grew around Mecca and was used, when cut, in decorating
houses and in funerals. See Ibn Manuer, LisAn al- cArab, IV, 302“03.
228 Authority, continuity, and change in Islamic law
Ibn cfbidcn lists a number of cases in which hardship was mitigated due
to necessity but then concludes that these cases are in no way comparable
to the enormity of the hardship resulting from the imposition of a legal
norm that contradicts prevailing social customs.
Having thus established necessity a fortiori, Ibn cfbidcn seeks to locate
it in the hierarchy of school doctrine. Probably drawing on Ibn Nujaym,
who argued that a good number of nana¬te jurists issued fatwAs on the
basis of local custom, Ibn cfbidcn asserts that the acceptance of local

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