Extended Dialectical Sequences

Young, Walter Edward

doi:10.1007/978-3-319-25522-4_5

Walter Edward Young⁴

Part of the book series: Logic, Argumentation & Reasoning ((LARI,volume 9))

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Abstract

This chapter opens the monograph’s analytical core, with detailed analyses for the twelve extended Q&A disputation sequences found in the Kitāb Ikhtilāf al-ʿIrāqiyyayn / ʿIrāqiyyīn. After some brief notes on translation and analytical method (Sect. 5.1), these sequences—on a diverse range of early Islamic legal topics—are presented as “masā’il-sets” (Sect. 5.2). They appear in parallel translation, and are followed by detailed, play-by-play analyses revealing a rich variety of juridical dialectical features.

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Notes

1.
Mawsūʿa, vol. 9, pt. 14, pp. 7–235. Ḥassūn’s edition, though lacking in extensive critical apparatus, is a praiseworthy contribution. For descriptions of the manuscripts and fragments he employed, his methods of collation, etc., see vol. 1 (Intro.), pp. 116–21, 125–6. ʿAbd al-Muṭṭalib’s edition of the subject-text (Umm, pt. 8, pp. 217–390) boasts a much more detailed and refined critical apparatus, and has been relied upon particularly wherever interpretive difficulties arose. I have also relied on other scholarly editions, among them: Būlāq (pt. 7, pp. 87–150); and Maṭrajī (pt. 7, pp. 161–250). Ḥassūn points out numerous problems he encountered with the Būlāq edition, which he refers to by name of the Amīriyya press (Mawsūʿa, vol. 1 [Intro.], pp. 123–4).
2.
Schacht’s numbering system—by which he made references to the subject-text and other treatises from the Umm in his Origins—was, unfortunately, unsuitable for the current project. The numbered sections by which he refers to our subject-text are more in the way of thematic groupings, and incorporate large swathes of text. Ḥassūn, on the other hand, has apportioned the text into much smaller, discrete units. Occasional errors in the sequence occur (e.g., the numbers §§880–889 were omitted, though without loss of text), but these will not effect us in the main. Rather than add yet another numbering system to the mix, I have followed Ḥassūn’s.
3.
Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā.
4.
I have also directly consulted the Mabsūṭ myself, employing the same edition upon which al-Afghānī relied (al-Sarakhsī, Kitāb al-Mabsūṭ, Muḥammad Rāḍī, et al., eds.) Additional sources upon which I relied for solving difficult passages may be found in the list of references at the end of this chapter.
5.
The Origins of Muhammadan Jurisprudence.
6.
To my knowledge, there is only one extant commentary (sharḥ) for the Kitāb al-Umm, and it is a modern and incomplete “ordering according to the categories of derived rulings” (tartīb ʿalā abwāb al-fiqh) still in manuscript form at the Dār al-Kutub al-Miṣriyya, by Aḥmad Bek b. Yūsuf b. Aḥmad al-Ḥusaynī al-Muḥāmī (d.1332/1913), and titled Murshid al-Imām li-Birr Umm al-Imām. At 24 vols., the author had only dealt with the first books of ritual obligations (ʿibādāt) before his passing; I am uncertain as to whether he incorporated material from our subject-text. See Ḥibshī, Jāmiʿ al-Shurūḥ, vol. 1, pp. 270–1.
7.
Details regarding the program may be obtained from <http://shamela.ws/index.php/main>.
8.
Consisting, in the main, of presentation categories A, B, and C in the table following.
9.
Presentation categories D through G.
10.
At the same time, none of the selected dialectical sequences are “complete” either—whether in the sense of whole from start to finish, or of preserving all the details and components of a real disputation. In consonance with the didactic aims of al-Shāfiʿī in this, and other, ikhtilāf treatises, the sequences of dialectic he presents are both abridged and abstracted, and, quite often, appear only as segments—singular facets of what can only have been multi-faceted and much longer debates. In terms of abridgment we are placed at a far greater disadvantage when confronted with arguments outside of Q&A sequences (presentation categories C, D, and E), and at even greater disadvantage by plain statements of substantive rulings, unaccompanied by full arguments (F and G). These latter require a significant amount of background research and conjecture—reconstituting the bases of istidlāl and iʿtirāḍ from later reports of a jurist’s reasoning—in order to identify the components of such arguments, and the role they would have played in the dialectical encounters certain to have spawned them.
11.
The most prominent illustration of theory-oriented, as opposed to fiqh-oriented, dialectic is what I have labeled method-naqḍ. See, among other places, the analyses for §§288, 646–7, 766–7, and 1057 ff.
12.
Ḥassūn ed., vol. 9, pp. 25–7; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 230–2.
13.
For expositions on bayʿ-commutation and related rulings, see MF, s.v. “البيع” (vol. 9, pp. 5–42), and sub-topics (e.g., “البيع الفاسد”, vol. 9, pp. 98–114); EI ², s.v. “Bayʿ”; DJP, vol. 2, pp. 153–231; and Hallaq, Sharīʿa, pp. 247–50. See EI ², s.v. “ʿAṭā’,” for details regarding this historical pension/soldiers’ pay; and also MF, s.v. “عطاء” (vol. 30, pp. 150–8) for a full treatment of different categories and associated substantive rulings.
14.
For §§89–90, see al-Sarakhsī, Mabsūṭ, vol. 13, pp. 26–7. The reasoning (ʿaql) and transmitted support (naql) for both Abū Ḥanīfa’s and Ibn Abī Laylā’s positions are there explained.
15.
See Lane, Lexicon, s.v. “دين حالّ”: “A debt of which the appointed term, or period, is ended…; a debt falling due…; contr. of مُؤَجَّل….” Interestingly, though stating that Ibn Abī Laylā embraced the doctrine of ʿĀ’isha (who said that the distribution of the ʿaṭā’ was something known by custom—early or late only rarely—and thus the contract is tied to a known term [ajal maʿlūm]), al-Sarakhsī’s Mabsūṭ (vol. 13, pp. 26–7) explains his ruling (that the contract is allowed, but the property due) thus: “because when the contract is unsound due to the term which he mentioned, his mention of it is null.” Rather than an argument that the ʿaṭā’ constitutes a known term, this appears an automatic cancelling of invalid terms by operation of law. The Mabsūṭ thus presents us with two very different arguments for Ibn Abī Laylā: (1) ʿĀ’isha’s declaration that the ʿaṭā’ is a known term; and (2) the ʿaṭā’ is an unknown term, but unknown terms—though by nature invalid—are automatically cancelled without invalidating the contract. Only the second argument makes sense with regard to his ruling (in §90[a]) that the contract is allowed, but the property presently due (thus cancelling the term).
16.
I.e., Abū Ḥanīfa and Ibn Abī Laylā maintain their variant solutions across all cases under the rubric “commutation tied to an unknown term.” This signifies adherence to variant principles of contract: for Abū Ḥanīfa, an invalid stipulation invalidates the whole contract; but for Ibn Abī Laylā, an invalid stipulation is automatically annulled (in a way, simply ignored) and the remainder of the contract stands.
17.
The phrase is qā’im bi-ʿaynihi, meaning something like “existing in its (original) substance.” If this is a correct interpretation, then use of the term ʿayn in the sense of “substance” may offer a tantalizing glimpse at the cross-fertilization of technical terms among disciplines. Van den Bergh (EI ², s.v. “ʿAyn”) notes that ʿayn “can also denote the effect of the function of sight, the aspect, the thing viewed, and especially in the plural, aʿyān, the particular things that are perceived in the exterior world.” He continues: “It is therefore not astonishing when we read in Ḵh^wārizmī’s Mafātīḥ al-ʿUlūm… that in an old translation of Aristotle’s Categories which he ascribes to ʿAbd Allāh b. al-Muḳaffaʿ, the first category, οὐσία, substance, which signifies a particular concrete individual, e.g. a particular horse or a particular man, was rendered by ʿayn. However, in a later translation of the Categories by Isḥāḳ b. Ḥunayn the word ʿayn is replaced by the Persian word djawhar and this word becomes the technical term in all later philosophy for all the meanings of οὐσία, substance.” We also learn from Van den Bergh that Ibn Sīnā, in discussing the opening to Aristotle’s Hermeneutics, “uses for the things in the exterior world (in Greek τὰ πράγματα) the term aʿyān.” As for al-Khwārizmī’s observation, it is confirmed by referencing an edition of Ibn al-Muqaffaʿ’s al-Manṭiq, edited by Muḥammad Taqī Dānish’pazhūh and published in Tehran in 1978 (pp. 7 ff., passim). Abū Ḥanīfa, a contemporary of Ibn al-Muqaffaʿ, may well have understood ʿayn in the categorical sense of “substance.”
18.
Abū Ḥanīfa thus allows party X to unilaterally ‘rectify’ the invalid contract after it has been concluded; al-Shāfiʿī will contest this ruling in the dialectical sequence of §§96–102.
19.
See Q.2:282.
20.
For further reference, see MF, s.v. “البيع الفاسد” (vol. 9, pp. 98–114, esp. at §10), which summarizes the main points of this mas’ala, in much the same terms, under the heading: “reasons of invalidity (asbāb al-fasād)” (pp. 100 ff., §§7–10).
21.
Bear in mind this is under an invalid contract—X must return the commodity. The question here is what happens if it is destroyed or damaged before he can do so.
22.
Rāḍī, et al. eds., vol. 13, pp. 26–7.
23.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 82 f.; Ibn ʿAqīl, K. al-Jadal, pp. 39 f.; al-Bājī, Minhāj, Turkī ed., p. 144, §298.
24.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 96; Ibn ʿAqīl, K. al-Jadal, p. 50, §251; al-Bājī, Minhāj, Turkī ed., p. 166, §§357 and 359.
25.
Support for this interpretation of Ibn Abī Laylā’s argument is found in the early ikhtilāf work of al-Ṭabarī (d.310/923), wherein the famed polymath says: “And the ʿilla of one who says: The bayʿ-contract is permitted when the terms are unknown: it is that the bayʿ-contract is one maʿnā-quality, and the postponement (ta’jīl) another, so permissibility for the bayʿ-contract is not nullified due to the invalidity (fasād) of the unknown term (al-ajal al-majhūl)—such being like an invalid stipulation (al-sharṭ al-fāsid). And the ʿilla of one who nullifies the bayʿ-contract by way of a sharṭ-stipulation of invalid term (al-ajal al-fāsid) is like the one whose ʿilla nullifies the bayʿ-contract by way of invalid stipulation (al-sharṭ al-fāsid)” (Ikhtilāf al-Fuqahā’, Kern ed., p. 54).
26.
Cf. §90[b], above, where the respective Abū Ḥanīfa and Ibn Abī Laylā positions are maintained across all buyūʿ tied to an unknown ajal.
27.
(Shīr.VII.9 [especially type 2]; Bāj.IX.8) al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 108 ff.; Ibn ʿAqīl, K. al-Jadal, pp. 60 f., §290 ff.; al-Bājī, Minhāj, Turkī ed., pp. 173 ff., §§381 ff.
28.
«…يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنْتُمْ بِدَيْنٍ إِلَى أَجَلٍ مُسَمًّى» Al-Ṭabarī’s juridical exegesis (tafsīr) of this verse sheds light upon its connection to bayʿ-commutation tied to a known term (al-Aḥkām al-Fiqhiyya, Ismāʿīl ed., pp. 189–90). First, he interprets “when you contract debt” (idhā tadāyantum) as “when you contract commutation” (idhā tabāyaʿtum, or ishtaraytum) etc.; and “to a designated term” (ilā ajal musamman) as “to a known time (waqt maʿlūm) which you have fixed between yourselves.” He then mentions the latter might include interest-free loan (qarḍ) and advanced-payment sale (salam), and implies the possibility of “commutation of lawfully sold, present property for term-specified payment” (bayʿ al-ḥāḍir al-jā’iz bayʿahu min al-amlāk bi’l-athmān al-mu’ajjala). All of these, he says, are “term-specified debts tied to a designated term (al-duyūn al-mu’ajjala ilā ajal musamman), when their terms are known to a precisely designated limit.” Interestingly, he concludes by saying: “And Ibn ʿAbbās used to say: This verse was revealed regarding advanced-payment sale (salam), specifically (khāṣṣatan).” If such a “reason for revelation” (sabab al-nuzūl) was indeed attributed to Ibn ʿAbbās in al-Shāfiʿī’s time, then we might conceive of another layer of complexity in al-Shāfiʿī’s istidlāl from this verse—as supported by another saying of Ibn ʿAbbās. In other words, if Ibn ʿAbbās was thought to have considered this verse salam-specific, an opponent might have objected to al-Shāfiʿī’s twinning his bayʿ-oriented athar-tradition with his istidlāl from the Qur’ān.
29.
Cf. al-Shīrāzī’s examples of dalīl al-khiṭāb (Maʿūna, al-ʿUmayrīnī ed., pp. 35–6). Note that al-Shāfiʿī’s istidlāl above does not conform, however, to al-Bājī’s istidlāl bi’l-ḥaṣr, which is restricted to ruling-pronouncements preceded by the lafẓ-expression of “only” (innamā); nor does it belong to the additional markers al-Bājī attributes to his teacher al-Shīrāzī (alif lām, dhālika, and iḍāfa)—with which al-Bājī disagrees (Minhāj, Turkī ed., pp. 25–6, §46; cf. al-Shīrāzī, al-Lumaʿ, Mustū ed., pp. 105–6, §115). Sānū’s definitions, however (Muʿjam, s.v. “دليل الخطاب” and “مفهوم المخالفة”), are certainly broad enough to include al-Shāfiʿī’s istidlāl above. Finally, I should note al-Shīrāzī reviews all of the variant opinions regarding dalīl al-khiṭāb and its restrictions in his Tabṣira (Hītū ed., pp. 218–39).
30.
Q.49:6.
31.
al-Shīrāzī, Lumaʿ, Mustū ed., p. 106.
32.
In terms of presentation types, §§96–102 is category A, while §§89–90 were both G, and §§91–4, collectively, category D.
33.
I label §§96–102 as “instructional” dialectic due to the didactic intent evinced by the formulae employed: “To one professing the doctrine of Abū Ḥanīfa, it is said: ‘X.’ And if he says: ‘Y;’ It is said to him: ‘Z;’ etc.” The sequence reads as a script for the jurist who might find himself in the role of Q undermining a proponent with Abū Ḥanīfa’s position. Note that I have attempted, throughout this study, to consistently refer to the proto-system juridical dialectic of the Umm as “jadal teaching and practice.” This is intended to suggest a mode of jadal-tradition transmission from jurist to student across generations, and in lieu of specialized, systematic treatises. §§96–102, and all the many dialectical sequences preserved in the Umm for that matter, stand witness to a proto-system jadal teaching and practice. Some sequences have more of a “historical” character (“And one of the people [baʿḍ al-nās] said to me: ‘X;’ so I said to him: ‘Y;’ etc.”); while others—such as that which presently concerns us—have a more “instructional” character; and yet others meld both intentions together.
34.
The other formula is a-lā tarā, meaning, roughly, “Do you not [yourself] see/opine…?”
35.
Whenever ra’ā formulae appear in analyzed sequences, I will identify them by categories which will be reviewed at the end of Chap. 6. Al-Shāfiʿī’s a-ra’ayta in §96 is dialogical, and pushes concession to premises for a final charge of tanāquḍ.
36.
Ḥassūn ed., vol. 9, pp. 50–5; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 246–53.
37.
For expositions on shufʿa-preemption and related rulings, see MF, s.v. “شفعة” (vol. 26, pp. 136–69); EI ², s.v. “Sh ufʿa”; DJP, vol. 2, pp. 307–16; and Hallaq, Sharīʿa, pp. 306–7.
38.
Ḥassūn (in Umm, vol. 9, p. 50, n. 2) notes that in his manuscript ك this section begins with “al-Rabīʿ reported to us, saying: al-Shāfiʿī said…” (أخبرنا الربيع قال: قال الشافعي). Al-Afghānī (in Abū Yūsuf, Ikhtilāf, p. 37, n. 2) quotes al-Sarakhsī (no page citation): “And according to the opinion (qawl) of Muḥammad and Zufar the right to preemption (shufʿa) belongs to him when he attains legal maturity (adraka); and it is the opinion of Ibn Abī Laylā. We have explained it in the [book of] shufʿa-preemption.”
39.
Schacht (Origins, pp. 271–2) finds the debate over this mas’ala (§48 by Schacht’s system; §§236–8 by Ḥassūn’s) symptomatic of his decline paradigm:

On the exercise of a minor’s right of preemption, Abū Ḥanīfa, followed by Abū Yūsuf, holds a reasonable and defensible opinion. Shaibānī, however, with complete disregard for the stability of real property, applies purely formal reasoning (see Sarakhsī, xiv. 155; xxx. 145); in this he is followed by Shāfiʿī. Both seem to lose sight of the purpose of preemption and to regard it as an institution existing for its own sake. This attitude heralds the end of the formative period of Muhammadan law.
40.
This is a reference to commixion; that is to say, “the shufʿa-preemption belongs to the partner in a partnership of commixion.” Hallaq (Origins, p. 44, n. 47) defines this relationship as follows: “Partnership of commixion refers to a property owned by two or more persons without clear definition of their individual shares in it, such as a residential property inherited by two or more persons.”
41.
Al-Afghānī (in Abū Yūsuf, Ikhtilāf, p. 37, n. 3) writes: “And it is the doctrine (qawl) of his two companions [i.e., Abū Yūsuf and al-Shaybānī]. And the mas’ala is in vol. 14, p. 94 of the Mabsūṭ. He [al-Sarakhsī] said: ‘And this, i.e., the doctrine of ʿAlī and Ibn ʿAbbās [cf. §241], is the doctrine of the Ahl al-Madīna [the “Folk of Medina,” meaning its legal scholars], but the Ahl al-Kūfa don’t subscribe to it, except that Ibn Abī Laylā turned to it (etc.) But as for us, we embrace the doctrine of ʿUmar.’” Schacht (Origins, pp. 219 f.) discusses this mas’ala and its implications in considerable detail:

The following example, taken from the doctrine of pre-emption, will show how cross-references to other schools enter into the development of legal doctrine in the pre-literary period. The result of this development, as it affected pre-emption, was that two opposite doctrines prevailed in the Medinese and the Iraqian school respectively: the Medinese restricted the right of pre-emption to the owner of a share in undivided property, and the Iraqians extended it to the neighbor. [Here he cites (n.6) not only this section (§49 by his system), but two recensions of the Muwaṭṭa’, the Āthār works of both Abū Yūsuf and al-Shaybānī, the K. Ikhtilāf Mālik wa’l-Shāfiʿī, and the K. Ikhtilāf al-Ḥadīth.] The oldest Iraqian formula, however, was that ‘the right of pre-emption goes by gates, and the person whose gate is nearest has the best right to pre-emption’; it was projected back to Ibrāhīm Nakhaʿī as his alleged former opinion, and on the fictitious authority of Ibrāhīm back to Shuraiḥ. This formula, which reflects the social background of the institution of pre-emption in early Muhammadan law, seems to be the common starting-point of the Medinese and of the Iraqian doctrines. [fn.7: A tradition in Kindī… reflects the change in Egypt from the common ancient to the final Medinese doctrine, and the arguments adduced in favour of the latter.]

The Basrians, while essentially maintaining this opinion, justified it as against the Medinese restriction of the right of pre-emption by pointing out that the lane, on which the several adjoining plots abutted, remained undivided and constituted an interest common to them all. The earlier Kufians, on the other hand, extended the right of pre-emption to all owners of plots within a single block or section not traversed by a thoroughfare, irrespective of whether the plots adjoined or opened on the same lane. Final systematic consistency was achieved in Iraq only in the time of Abū Ḥanīfa and his companions who gave the right to pre-emption to the owner of a share in undivided property in the first place [fn.1: This distinction is perhaps the result of further reference to the Medinese doctrine], then to the owner of a separate plot who had, however, retained a common interest in the lane, and finally to the owner of an adjoining plot. [fn.2: This opinion was also projected back to Shuraiḥ (Sarakhsī, xiv. 92)].
42.
That is, the first ʿAbbāsid Caliph, al-Saffāḥ (r. 132–6/750–4).
43.
This allusion to a caliph’s interference in a matter of substantive law may illustrate larger issues contested in modern scholarship. See, among others, Crone and Hinds, God’s Caliph; Zaman, Religion and Politics; and a very relevant discussion in Hallaq, Origins, pp. 43 ff. An isolated occurrence in the subject-text, it may serve as indicant for variant claims. On the one hand, it may support a claim that early caliphs were legislators, or pressured jurists. Or it may be read as polemic—a slight against the integrity of Ibn Abī Laylā, bound by his judgeship (unlike Abū Ḥanīfa), and disallowed from administering the “right” doctrine. But it may also illustrate a caliph-qāḍī-jurist symbiosis. The issue, after all, begins with jurists’ ikhtilāf, itself arising from the conflicting doctrines/practices of ʿAlī, Ibn ʿAbbās, and ʿUmar; and, in the end, al-Saffāḥ is not imposing a self-made, novel decree, but that of the Ahl al-Ḥijāz (“Folk of Hejaz”; meaning its legal scholars), and he applies it to the real practice of a qāḍī in his court. Nor should we be surprised—considering the nature of the ʿAbbāsid daʿwā—that its first caliph would lean on a qāḍī straddling the Umayyad-ʿAbbāsid divide to abandon the doctrine of ʿUmar and take up that of ʿAlī and Ibn ʿAbbās. Most interesting of all, however, is what Hallaq (Origins, p. 44) relates of an earlier caliph-qāḍī dialogue on very nearly the same subject:

The qāḍīs’ practice of writing letters seeking caliphal opinion on difficult cases confronting them in their courts was evidently a common one. So were caliphal letters to the qāḍīs, most of which appear to have been solicited, although some were written on the sole initiative of the caliph himself or—presumably—in his name, by his immediate advisors. Iyās [b. Muʿāwiya: qāḍī in Baṣra], for instance, used to grant neighbours—merely by virtue of being neighbours—the right of preemption (shufʿa), a practice that did not seem to accord, for some reason, with caliphal public policy. On hearing of Iyās’ practice, ʿUmar II (99/717–101/720) wrote a letter ordering him to confine preemption rights to domiciles having a shared right of access (e.g., two houses sharing one gate) and to properties owned as partnerships of commixion [citing (n.47) the Akhbār al-Quḍāt of Wakīʿ]. The same caliph wrote to another qāḍī in Egypt imposing a similar, but even more restrictive decree, saying: ‘We used to hear (kunnā nasmaʿ) that preemption rights can be enjoyed by the partner only, not by the neighbor’ [citing (n.48) the Akhbār Quḍāt Miṣr of al-Kindī]. It seems reasonable to infer that many qāḍīs were in the habit of bestowing rights of preemption on the neighbor, and this caliph deemed it necessary to intervene.
44.
Here in §§242–44 (and without notice) Ḥassūn includes text relegated to nearly identical footnotes in the Būlāq (vol. 7, p. 100, n. 1), Maṭrajī (vol. 7, p. 176), and ʿAbd al-Muṭṭalib (vol. 8, p. 247, n. 5) editions. These notes are all preceded by the phrase: “Here, in some of the copies, there is more; this is its text…” followed by nearly the same transcription as in Ḥassūn’s edition. There are some very minor differences—in §244, Būlāq (but not Maṭrajī and ʿAbd al-Muṭṭalib) reads حجاج, rather than الحجاج ; and there are, in Būlāq and Maṭrajī (but not ʿAbd al-Muṭṭalib), two adjacent qāla s.
45.
The “Folk of Baṣra,” meaning its scholars.
46.
That is, because they are partners in the (unpartitioned) passageway (ṭarīq) or trough/fountain (mashrab).
47.
Ḥassūn (Umm, vol. 9, p. 52, n. 1) and ʿAbd al-Muṭṭalib (Umm, vol. 8, p. 249, n. 1) define saqab as “nearness” (qurb). Ḥassūn further notes: “He who obliges the right to shufʿa-preemption for the neighbor (jār)—even if he is not a partner (muqāsim)—argues by way of this ḥadīth (yaḥtaju bi-hādhā al-ḥadīth).” I have followed ʿAbd al-Muṭṭalib insofar as the placement of quotation marks, as it seems likely the transmitted Prophetic statement included “when the passageway (ṭarīq) is but one” (Ḥassūn leaves that outside). In the Ikhtilāf al-Ḥadīth attributed to al-Shāfiʿī (and included in many editions of the Umm), the Jābir-ʿAbd al-Mālik transmission reads: [الجار أحق بشفعته ينتظر بها وإن كان غائبا إذا كانت الطريق واحدة]—that is, “the neighbour has the greater right to his shufʿa-preemption—because of it he is waited for, even if absent—when the passageway is but one” (ʿAbd al-Muṭṭalib [Umm, vol. 10, p. 215] and Najjār [Umm, vol. 8, p. 536] render this entire phrase in quotations; but Maṭrajī [Umm, vol. 9, p. 608] provides no quotation marks at all, and neither does the Būlāq edition [Umm, vol. 7, p. 264 (margin)]). As noted by Lane (Lexicon, s.v. “سقب”), it may also be that saqab—though bearing the connotation of “nearness”—was intended to mean shufʿa. Thus, the phrase al-jār aḥaqq bi-saqabihi might be rendered “the neighbour has the greater right to his shufʿa-preemption”—in consonance with the Jābir-ʿAbd al-Mālik transmission in the Ikhtilāf al-Ḥadīth. I have, however, preferred “… due to his nearness;” the dialectical sequence of §§252 ff. makes it plain that “nearness” was a key point of contention.
48.
Schacht (Origins, p. 155) cites al-Shāfiʿī’s K. Ikhtilāf al-Ḥadīth where the Ahl al-Baṣra’s ḥadīth on Jābir is discussed, noting: “Shāfiʿī mentions that the specialists on traditions suspect it because of Jābir’s doctrine to the contrary.”
49.
The first two transmissions are (1) Abū Salama – Jābir – Prophet; and (2) Abū al-Zubayr – Jābir – Prophet; and they accord with a third, which is (3a) Ḥijāzī – ʿAṭā’ – Jābir – Prophet; but if we take the Ahl al-Baṣra ḥadīth as the third—(3b) ʿAbd al-Mālik b. Abī Sulaymān – ʿAṭā’ – Jābir – Prophet—they are contrary in intension. Thus the first combination of 1, 2, and 3a is epistemically superior.
50.
That is to say, the efficient property (maʿnā) which, for al-Shāfiʿī, occasions the ruling of no shufʿa-preemption, is present in the house or land separated by the passageway or fountain/trough in §247.
51.
That being the intervening but jointly-owned passageway or fountain/trough in §247.
52.
In other words, if the lots are separated by a passageway or fountain/trough for which shufʿa-preemption is lawful, then the shufʿa-preemption applies only to that intervening passageway or fountain/trough—not to the lots separated by it.
53.
This reference to “The Easterners” (al-Mashriqiyyūn) provides an indicant for the intellectual groupings and trends, and geo-political diffusions, of al-Shāfiʿī’s times. In fact, he refers to “al-Mashriqiyyūn,” or to “Baʿḍ al-Mashriqiyyīn,” or to the “Aṣḥāb al-Mashriqiyyīn,” some thirty-six times throughout the Umm. An explanation is offered by al-Rabīʿ who, in the context of a chapter on juridical disagreement regarding apostates (al-khilāf fi’l-murtadd), explains al-Shāfiʿī’s references as follows (Umm, Ḥassūn ed., vol. 7, pt. 12, p. 627, §23834): “When he [al-Shāfiʿī] says: some of the people (baʿḍ al-nās); they are the Mashriqiyyūn. And when he says: one of our companions (baʿḍ aṣḥābinā), or one of the folk of our country (baʿḍ ahl baladinā); it is Mālik.” Yet another clue surfaces in the dialectic of the Kitāb Ikhtilāf Mālik wa’l-Shāfiʿī, during a discussion of the imām who must remain seated throughout the duration of prayer due to illness (Umm, Ḥassūn ed., vol. 9, pt. 14, p. 368, §§178–9): “So I said to al-Shāfiʿī: And has any one of the Mashriqiyyūn professed your doctrine (qawl)? And he said: Yes, Abū Ḥanīfa professes our doctrine regarding it, but his two companions [i.e., Abū Yūsuf and al-Shaybānī] disagree with him (yukhālifuhu ṣāḥibāhu).” From these references, we gather that Abū Ḥanīfa was among the Mashriqiyyūn, but Mālik was not. We might conclude that the term was used in a similar way as “Iraqis”—a means of distinguishing such jurists who were not a part of, or did not subscribe to, the doctrines current in the Ḥijāz. Elsewhere in the K. Ikhtilāf Mālik wa’l-Shāfiʿī we learn that among the Mashriqiyyūn there are ḥadīth specialists (Ahl al-Ḥadīth; see Umm, Ḥassūn ed., vol. 9, pt. 14, p. 374, §§201–3). It is also significant that, for the most part, al-Shāfiʿī tends to call the Mashriqiyyūn by this name when the attributed doctrine conflicts with his own; it is certain that he does not include himself in this group. Moreover, the Mashriqiyyūn often appear in contrast with “Our Companions” (aṣḥābunā) (see, e.g., such references as occur in the K. Ibṭāl al-Istiḥsān, in Umm, Ḥassūn ed., vol. 10, pt. 15, p. 134, §§146 ff.) Significantly, so far as I have yet discovered, the only other reference to the Mashriqiyyūn among the books of the Shāfiʿī madhhab is that of al-Māwardī (d.450/1058), in his commentary on the Mukhtaṣar al-Muzanī (see al-Ḥāwī al-Kabīr, Maʿʿūd, et al., eds., vol. 5, pp. 307–8).
54.
See Schacht (Origins, p. 164), who considers this a maxim of Iraqian doctrine (thus, for Schacht, Mashriqiyyūn = Iraqian).
55.
In other words, the specifics inherent to the Easterner’s more general (jumla) tradition must be provided elsewhere, which is what al-Shāfiʿī believes his own interpreting (mufassir) ḥadīth to do.
56.
This line is from a short qaṣīda attributed to the famed Maymūn b. Qays al-Aʿshā (d. ca. 629 CE). A variant may be found in the Kitāb Ṣubḥ al-Munīr fī Shiʿr Abī Baṣīr (Geyer ed., p.183, qaṣīda 41, line 1):

يَا جَارَتِي بِينِي فإِنَّكِ طَالِقَهْ كَذَاكِ أُمُورُ النَّاسِ غَادٍ وَّطَارِقَهْ

The line as it appears in §262, however, is repeated in a number of ḥadīth commentaries, fiqh works, etc., most often employed, as it is here, to illustrate a connotation of “neighbour” (jār) and its effects on preemption rulings. By way of example, see Ibn Baṭṭāl’s (d.449/1057) Sharḥ Ṣaḥīḥ al-Bukhārī (Ibrāhīm ed., vol. 6, p. 381).
57.
The ism al-jiwār, possibly in the sense of “the noun of vicinity/neighbourhood,” and referring to the designation jār, “neighbour”.
58.
That is, either (1) “neighbour” intending partner, or (2) “neighbour” intending one who is close.
59.
In other words, since the Easterner appears to have contradicted both possible connotations of “neighbour” (meaning either a partner, or one who is close)—and thus both al-Shāfiʿī’s ḥadīth and his own—why wouldn’t he extend the right to preemption to one whose house is forty houses distant: neither partner nor close?
60.
Here I follow ʿAbd al-Muṭṭalib (vol. 8, p. 252) and the Būlāq edition (vol. 7, p. 101), which have وقال به من التابعين, rather than وقال بعض من التابعين, as with Ḥassūn.
61.
Note the significant addition of “whatever it may be” (mā kāna) in this transmission.
62.
The athar and Prophetic ḥadīth s recorded in §§270–2—though very relevant to previous “neighbour” arguments—have no bearing on the intervening mas’ala of §§268–9 (picked up again by al-Shāfiʿī in §273), which concerns the buyer of a house who subsequently contracts an unfairly priced advanced-payment sale (salam) to the pre-emptor (shafīʿ)—this being the last mas’ala of the chapter on preemption in our subject-text. These reports appear to have been tacked on to the end of the Shaybānī Version’s chapter on shufʿa—either as incorporated notes of al-Shaybānī, or additional proofs listed by Abū Yūsuf for the earlier “neighbour” masā’il. Their disordered appearance here in the Umm Version—sandwiched between a non-related mas’ala, and al-Shāfiʿī’s evaluation of the same—provides another indicant for the authenticity of both the Shaybānī and Umm Versions. Notably, §§270–2 retain their tacked-on position at the end of the shufʿa chapter in al-Afghānī’s edition of the Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā (pp. 38–40). We might surmise that the version available to al-Shāfiʿī had the very same feature of tacked-on proofs; and these were faithfully reproduced, in situ, in his commentary, even though irrelevant to the immediate mas’ala. The odd position of these reports in the Umm Version—and their lack of excision or relocation—suggests a strong redactional bond between the Umm and Shaybānī Versions as they have come down to us.
63.
§§268–72 thus mark a return to the Shaybānī Version material, with the final rulings and arguments of al-Shāfiʿī (§273) closing the chapter. The mas’ala of §§268–9 and 273 will not be treated in the current analysis.
64.
Rāḍī, et al. ed., vol. 30, p. 145: “lahu al-shufʿa idhā adraka” is said to be the doctrine of Muḥammad [b. al-Ḥasan], Zufar, and Ibn Abī Laylā (the complete reference in the Mabsūṭ is quoted without page-citation by al-Afghānī, p. 37, n. 2).
65.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 125–7; al-Bājī, Minhāj, Turkī ed., pp. 234–40, §§533–48. Please see the appendices for a full translation of each type; and cf. Ibn ʿAqīl, K. al-Jadal, pp. 21–5 for his discussion on Tarājīḥ fi’l-ʿIlal, and pp. 26–7 for his Masā’il al-Khilāf fi’l-ʿIlal.
66.
See the notes attached to §240 in the translation, above.
67.
The rulings of Abū Ḥanīfa and pre-compulsion Ibn Abī Laylā correspond to the position of al-Shāfiʿī’s Mashriqiyyūn, and may be set over and against the position of al-Shāfiʿī and the Ahl al-Ḥijāz. See my note attached to §252 in the translation for a brief investigation into the meaning of Mashriqiyyūn.
68.
“li-anna” is perhaps the most common marker for introducing an ʿaql argument/explanation in the subject-text; others include “li-”, “min qibali”, and “fa-”.
69.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 59–60. Cf. Ibn ʿAqīl, K. al-Jadal, p. 34, §§179–80, who employs the same typology and example-masā’il as his teacher al-Shīrāzī.
70.
al-Shīrāzī, op. cit. Al-Bājī’s typology is somewhat more refined, and we find an iʿtirāḍ even closer to al-Shāfiʿī’s objection to the Mashriqiyyūn: “al-Munāzaʿa fi’l-ʿUmūm bi-daʿwā al-ijmāl” (Bāj.II.2.2.3.2; Minhāj, Turkī ed., p. 102, §198).
71.
Notably, this objection—like all manʿ/mumānaʿa objections—is confined to the domain of istidlāl bi’l-qiyās in the jadal-theory texts. I would mark this as an expanded application in proto-system jadal.
72.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 67. Cf. Ibn ʿAqīl, K. al-Jadal, p. 36, §190, who once again employs the same typology and example-masā’il as his teacher. Al-Bājī, however, has developed a more refined typology by which we can precisely identify al-Shāfiʿī’s muʿāraḍa when he employs it again—with a shift in tactic—against the Mashriqiyyūn in §§255 ff. For now, we can locate his §248 muʿāraḍa more generally, under Bāj.II.2.7.1, or al-iʿtirāḍ ʿalā al-istidlāl bi’l-Sunna min jihat al-muʿāraḍa bi-nuṭq (Minhāj, Turkī ed., p. 119 ff., §§233 ff.)
73.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 67. The referenced treatments of tarjīḥāt begin on p. 121.
74.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., 121–2. Cf. Ibn ʿAqīl, K. al-Jadal, 24, §128; and al-Bājī, Minhāj, Turkī ed., 223–4, §508. Al-Bājī accompanies his discussion with a Mālikī vs. Ḥanafī example which parallels the above tarjīḥ of al-Shāfiʿī in a number of ways.
75.
He discusses this ikhtilāf in more detail in his Lumaʿ (Mustū ed., p. 174), and in his Tabṣira (Hītū ed., p. 348). In the latter he mentions not only the above ḥadīth as dalīl-indicant, but a Qur’ānic indicant as well, in conjunction with the shahāda argument of opponents to this type of tarjīḥ and—significantly—the proper jawāb against it. It is evident throughout the jadal literature that dialectical disputation was as much the forge for systems of jadal as is it was for systems of uṣūl al-fiqh. The Kāfiya of al-Juwaynī is particularly rich in expositions on jadal-theory ikhtilāf.
76.
al-Bājī, Minhāj, Turkī ed., p. 221, §504.
77.
That “no shufʿa where boundaries occur” is the maʿnā-intension which al-Shāfiʿī references here is immediately clarified by his following dialectical question (§249), in which he pushes the opponent to concede to it.
78.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 67–8, n. 6. NB: this is reproduced from al-ʿUmayrīnī’s manuscript of al-Shīrāzī’s Mulakhkhaṣ fi’l-Jadal. The anticipated “muʿāraḍa bi’l-ʿilla,” listed at the start of this chapter of the Maʿūna, is missing from both Maʿūna MSS. Turkī also notes this in his edition of the Maʿūna (p. 184, n. 11), but he does not fill the lacuna from another source, as al-ʿUmayrīnī does. Intriguingly, the K. al-Jadal of Ibn ʿAqīl also indicates two types of muʿāraḍa (p. 36, §190), but proceeds only to name and treat one (muʿāraḍa bi’l-nuṭq). Al-Bājī, however, provides a full treatment of muʿāraḍa bi’l-ʿilla, using the same sub-categories as al-Shīrāzī (for when R’s Sunnaic dalīl is naṣṣ, ẓāhir, or ʿumūm; see Minhāj, Turkī ed., pp. 123–5, §§244–7).
79.
Cf. the āthār-decrees transmitted by al-Shāfiʿī in §§242–4, and the athar-decree “tacked on” by Abū Yūsuf or al-Shaybānī in §270, all of which contain components of this ḥadīth-decree.
80.
Al-Shāfiʿī’s a-lā tarā in §249: rhetorical, pushing concession to an endoxon dalīl which contradicts the opposing qawl; followed by a tanāquḍ-like charge.
81.
It is noteworthy that al-Shāfiʿī uses “makhraj” here in a sense similar to the “jawāb” of later jadal systems—this latter constitutes a study of response-method: R’s means of overcoming Q’s iʿtirāḍ. By claiming no makhraj al-Shāfiʿī assures that the opponent can have no real jawāb to the objection, and that elenchus will be sure to follow.
82.
For this analysis I utilize a basic set of symbols for predicate logic, as employed by Rodes and Pospesel in Premises and Conclusions (especially at pp. 113–206).
83.
“Part A of the property is jointly owned and boundaries occur in it; therefore the right to shufʿa obtains in part A.”
84.
Al-Shāfiʿī has divided the mas’ala into two: one part in which the ʿilla occasioning shufʿa obtains (and thus, the opponent’s ḥukm—if restricted to it—is correct), and one part in which it does not (and thus, the opponent’s ḥukm—extended to it—is wrong). Al-Shāfiʿī’s solution thus requires two separate ḥukm s when the dividing (but not divided) portion of the property may itself be subject to shufʿa, whereas the opponent’s problematic solution has but one ḥukm.
85.
al-Bājī (Minhāj, Turkī ed., pp. 34, 36, §§64 and 70) calls it “the question about the indicant of the opinion” (al-su’āl ʿan dalīl al-madhhab) and “the question about the indicant” (al-su’āl ʿan al-dalīl); Q asks: “what is the indicant for that” (mā al-dalīl ʿalā dhālika)? In his short section on the “types of question” (aqsām al-su’āl) Ibn ʿAqīl also refers to “the question about the indicant” (al-su’āl ʿan al-dalīl); his Q asks: “what is your indicant for this opinion” (mā dalīluka ʿalā hādhā al-madhhab)? (K. al-Jadal, p. 42, §220).
86.
NB: although for the sake of consistency I maintain different usages for “athar” (as reported saying/act of Companions and Successors) and “ḥadīth” (as reported saying/act/acknowledgment of the Prophet), the ancient practice was far more fluid and interchangeable. In §254, for instance, we have athar followed by akhbaranā and terminating in a qawl of the Prophet.

87.

Joseph Lowry, in “The Legal Hermeneutics of al-Shāfiʿī and Ibn Qutayba” sheds considerable light on the terms here employed by al-Shāfiʿī. First (p. 22), he points to a discussion in the Risāla (Shākir ed., §§624–35) where al-Shāfiʿī utilizes a jumla/mufassar distinction, and he translates jumal as “non-specific.” Further on (pp. 36–7), he supplies a definition of jumla as understood in the Risāla (“a general rule the details of which are found elsewhere”), and he describes al-Shāfiʿī’s use of jumla vs. naṣṣ: “Passages in the Qur’ān labelled jumla contain a general but undefined obligation (e.g., aqīmū al-ṣalāṭ!) the details of which are supplied by ḥadīth s. Passages that do not require to be supplemented by another text (that is, are hermeneutically self-sufficient), are labelled naṣṣ.” Finally, in a footnote (p. 37, n. 85), Lowry observes that naṣṣ and sometimes mufassar are opposed to jumla/jumal. To this I would add some additional notes. First, in the context of §255 it would seem that the active mufassir is more appropriate than the passive mufassar; this is borne out by the sense of the passage, and by a parallel distinction (in this case, jumal/mufassira) in the Risāla (Shākir ed., §314). There, al-Shāfiʿī explains the role of the Sunna as an exemplification of the naṣṣ, and an interpreter of the jumal of the Qur’ān:

314 – And God explained for them that He only abrogated what he abrogated of the Kitāb by means of the Kitāb, and that the Sunna is not a nāsikha (abrogator) to the Kitāb; rather, it only followed the Kitāb, representing what was revealed as naṣṣ (univocal), and a mufassira (interpreter) of the maʿnā-intension of what God revealed of it as jumal (equivocal).	314 – وأبان ﷲ لهم أنه إنما نسخ ما نسخ من الكتاب بالكتاب، وأن السنةَ لا ناسخةٌ للكتاب، وإنما هي تَبَع للكتاب، يُمَثِّلُ ما نَزل نصاً، ومفسِّرةٌ معنى ما أنزل ﷲ منه جُمَلاً.

The Sunna, we see, not only exemplifies (yumaththilu) what God sent down as univocal (naṣṣan), but is an [active] interpreter (mufassira) for the maʿnā-intension of such as God revealed as ambiguous/equivocal (jumalan). And it is this same sense of “active interpreter/specifier” and “equivocal/non-specific” which appears to be at work in §255 above. Certainly, elsewhere in the Risāla (§§418 and 698) we find the passive mufassar, and precisely in the sense which Lowry aptly describes as “hermeneutically self-sufficient.” These distinctions, of course, all fall within the hermeneutical purview of most later uṣūl al-fiqh works, and are discussed under the headings of mufassar/mubayyan (clear) vs. mujmal (ambiguous; note that jumla and mujmal are cognates). See Hallaq, History of Islamic Legal Theories, pp. 43 ff., and note that he cites relevant chapters from a number of important uṣūl works. Finally, we might add that al-Muzanī—expounding on the same mas’ala of §255 above—confirms all of this in his Mukhtaṣar (Būlāq ed., vol.3, p. 48 [margin]; Maṭrajī ed., vol. 9, p. 130; Najjār ed., vol. 8, p. 119):

88.

“And your ḥadīth does not contradict our ḥadīth—because it is equivocal, and our ḥadīth is an interpreter, and the interpreter clarifies the equivocal.”	وَحَدِيثُكَ لاَ يُخَالِفُ حَدِيثَنَا – لأَنَّهُ مُجْمَلٌ وَحَدِيثُنَا.مُفَسِّرٌ وَالْمُفَسِّرُ يُبَيِّنُ الْمُجْمَلَ

al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 59–60; al-Bājī, Minhāj, Turkī ed., p. 102, §198; Ibn ʿAqīl, K. al-Jadal, p. 34, §180. Intriguingly, both al-Shīrāzī and Ibn ʿAqīl employ the same example of an ambiguous decree (qawl mujmal): the Prophet’s maxim “the security is for what it was pledged for” (al-rahn bimā fīhi). This same maxim crops up in §378 of the subject-text, and a number of other places in the Umm (see the note attached to §378 in my dissertation: “Dialectical Forge,” pt. 2, p. 106). Although occurring mostly in the midst of dialectical sequences, the issue at stake in §378 does not seem to be the ijmāl of this maxim, however.

89.
al-Bājī, Minhāj, Turkī ed., p. 41, §78.
90.
al-Bājī, Minhāj, Turkī ed., pp. 39–40, §76.
91.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 67–8, n. 6 [NB: this is part of the lacuna reproduced from the Mulakhkhaṣ fi’l-Jadal]; al-Bājī, Minhāj, Turkī ed., p. 125, §§247).
92.
Sānū, Muʿjam, s.v. “المطالبة.” The reference to “premises” doubtless marks this definition as emanating from a later source/sources. I have yet to find a more precise match in the early jadal-theory texts, although we might consider Q’s muṭālaba as similar to al-Bājī’s “demanding from [R] confirmation of the property in the source-case” (al-muṭālaba lahu bi-ithbāt al-waṣf fi’l-aṣl); Bāj.IX.A.1.5; Minhāj, Turkī ed., p. 151, §312), if we consider al-Shāfiʿī’s jār-sharīk of commixion correspondence as critical to establishing the efficient property of his aṣl-ḥadīth.
93.
Due to the wording of Q’s demand, we might be tempted to identify this as al-muṭālaba bi’l-dalīl. It would seem, however, that this particular species of muṭālaba is restricted to the domain of qiyās—specifically for demanding the dalīl by which R provides indicant that the ḥukm is occasioned by a certain ʿilla (Sānū, Muʿjam, s.v. “المطالبة بالدليل”). Al-Bājī’s several dalīl-oriented muṭālabāt seem to bear this out (Bāj.IX.A.1.2–4; Minhāj, Turkī ed., pp. 149–50, §312).

94.

As discussed in the note attached to §262, above, variants of this bayt appear in a number of ḥadīth commentaries, fiqh works, etc., usually for the purpose of interpreting jār in connection to preemption. Al-Muzanī, in a detailed discourse on shufʿa in his Mukhtaṣar (Būlāq ed., vol. 3, pp. 48–9 [margin]; Maṭrajī ed., vol. 9, p. 130; Najjār ed., vol. 8, p. 119), reproduces a number of lines from the poem, prefaced by the following “historical” dialectical Q&A (bear in mind that al-Muzanī was purportedly praised as a master dialectician by al-Shāfiʿī):

He said: And does the ‘label of proximity’ fall upon the partner?	قَالَ: وَهَلْ يَقَعُ اسْمُ الْجِوَارِ عَلَى الشَّرِيكِ؟
I said: Yes—is your wife closer to you, or your partner?	قُلْتُ: نَعَمْ – امْرَأَتُكَ أَقْرَبُ إلَيْكَ أَمْ شَرِيكُكَ؟
He said: My wife, of course! Because she is my bed-fellow.	قَالَ: بَلْ امْرَأَتِي، لأَنَّهَا ضَجِيعَتِي
I said: And so the Arabs say the wife of a man is his neighbor.	قُلْتُ: فَالْعَرَبُ تَقُولُ امْرَأَةُ الرَّجُلِ جَارَتُهُ
He said: But where?	قَالَ: وَأَيْنَ؟
I said: Al-Aʿshā said: O jāra of ours: part, and you are indeed divorced [etc.]	قُلْتُ: قَالَ الأَعْشَى: أَجَارَتَنَا بِينِي فَإِنَّكِ طَالِقَهْ…[إلخ

Note that the “the label of proximity” (ism al-jiwār) of this discussion also occurs in §263 above, and that al-Muzanī’s dialectical sequence parallels that of al-Shāfiʿī vs. the Mashriqī Q quite closely. I would consider this an example of a proto-system transmission of jadal teaching and practice, from al-Shāfiʿī to al-Muzanī. If al-Muzanī did in fact engage in the above dialectic, and if he learned its basic structure and premises from the Umm, than the didactic role of Umm dialectical sequences would be illustrated here in bold relief.

95.
One might claim, in fact, that al-Shāfiʿī’s Risāla represents a distillation of these epistemically-superior methods as developed over time in al-Shāfiʿī’s disputations, not to mention presented in a style of didactic dialectic. Here in §263 we find something in that spirit of the Risāla.
96.
In this sense, al-Shāfiʿī’s charge could be read as one of hypocrisy. This is verging upon something we will encounter later, which I have labelled “method-naqḍ.”
97.
Note that al-Shāfiʿī does not refer to it by its last narrator—his own teacher, Ibn ʿUyayna—but prefers to label it by the next narrator in the isnād.
98.
al-Bājī, Minhāj, Turkī ed., p. 14; and p. 185 (§142). Cf. the definitions of al-Shīrāzī and al-Baṣrī as discussed in Chap. 4. The opening (§276) of Ibn ʿAqīl’s Chapter on Inconsistency (Bāb al-Naqḍ) begins: “Naqḍ is presence of the occasioning factor despite absence of the ruling (wujūd al-ʿilla maʿa ʿadam al-ḥukm), and that is the opposite (ḍidd) of efficiency (ta’thīr), because ta’thīr is presence of the ruling without the occasioning factor (wujūd al-ḥukm bi-ghayr al-ʿilla). And such is a valid question according to the doctrine of who does not profess particularization of the occasioning factor (takhṣīṣ al-ʿilla), and such are our Ḥanbalī companions” (K. al-Jadal, p. 56).
99.
Again, note this expanded range for naqḍ as a feature of proto-system jadal.
100.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 105.
101.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., 106.
102.
Clearly, if the lafẓ-expression may possibly bear two commands, then Q may base his iʿtirāḍ upon one and R his jawāb upon the other. The initial vehicle for both would be tafsīr of the lafẓ-expression.
103.
al-Bājī, Minhāj, Turkī ed., p. 185, §412.
104.
al-Bājī, Minhāj, Turkī ed., p. 185, §413. Of particular import here is an evident correspondence between the classical requirements of definition: “what subsumes” and “what excludes” (jāmiʿ and māniʿ), and of jarayān (ṭard and ʿaks). This is an idea worthy of further investigation in light of al-Bājī’s twofold typology of the ʿilla, and that the first is “in the manzila of the ḥadd,” while the second is for “individuals (aʿyān).”
105.
The ʿilla of his mas’alat al-naqḍ is composed of two efficient properties (“he is a jār” and “he is separated by forty houses”); together, these occasion a ḥukm of “he has the right to a portion of the waṣiyya.” According to the procedure of al-ṭard wa’l-ʿaks, the ḥukm must be present wherever the ʿilla is present, and absent wherever it is absent. Clearly, however, in the mas’ala of the waṣiyy who bequeaths to his jīrān, the ḥukm of “he has the right to a portion of the waṣiyya” is not dependent solely upon the ʿilla “he is a jār separated by forty houses”—were he the jār next door he would have his portion.
106.
al-Bājī, Minhāj, Turkī ed., p. 185, §415. Cf. Ibn ʿAqīl’s discussion on naqḍ (K. al-Jadal, pp. 56 ff., §§276 ff.); he follows the same typology as al-Bājī, and from this we might surmise that al-Shīrāzī’s was the same (as the teacher of both).
107.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 62, 63–4. Cf. Ibn ʿAqīl (K. al-Jadal, p. 35, §185) and al-Bājī (Bāj.II.2.5.3; Minhāj, Turkī ed., p. 112, §219), both of whom employ the same definition as their teacher, and the same mas’ala example.
108.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 123.
109.
Ḥassūn ed., vol. 9, pp. 57–9; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 253–5.
110.
For expositions on sharecropping on tillable land (muzāraʿa) and related rulings, see MF, s.v. “مزارعة” (vol. 37, pp. 49–85); and EI ², s.v. “Muzāraʿa.” For sharecropping with trees/vines (muʿāmala/musāqāt) and related rulings, see MF, s.v. “مساقاة” (vol. 37, pp. 112–147); EI ², s.v. “Musāḳāt”; and DJP, vol. 2, pp. 293–300. As noted by Lane (Lexicon, s.v. “عامله” [form 3 under “عمل”]), muʿāmala is synonymous with musāqāt—the first being the Iraqi term, and the second the Ḥijāzī—meaning: “The employing a man to take upon himself, or manage, the culture [or watering, etc.] of palm-trees or grape-vines [or the like] on the condition of his having a certain share of their produce.”
111.
See EI ², s.v. “Kh aybar,” for a detailed exposition on this historically-important oasis, especially renowned for its date-palms.
112.
On the speculative or “sleeping” partnership (muḍāraba/qirāḍ) and related rulings, see MF, s.v. “مضاربة” (vol. 38, pp. 35–99); EI ², s.v. “Muḍāraba” and “Ḳirāḍ”; DJP, vol. 2, pp. 284–92; and Hallaq, Sharīʿa, pp. 254–6.
113.
On musāqāt, see the note for §274, above.
114.
The “Folk of Khaybar,” meaning the inhabitants of the conquered oasis.
115.
For this forbidden transaction, known as muḥāqala, see MF, s.v. “بيع المحاقلة” (vol. 9, p. 138).
116.
On mukhābara—generally understood as synonymous with muzāraʿa—see MF, s.v. “مخابرة” (vol. 9, p. 138).
117.
On muzāraʿa, see the note for §274, above.
118.
See the note for §252, above, where al-Rabīʿ explains that baʿḍ al-nās refers to the “Easterners,” meaning, most likely, the Iraqis. The attributed opinions in the latter part of the current §282 confirm this.
119.
That is, whoever sanctions both muʿāmala of palm/vine and muzāraʿa of tillable land (like Ibn Abī Laylā and Abū Yūsuf), has contradicted one of the Prophet’s sunna s (the proscription on sharecropping “white land”); while whoever proscribes both muʿāmala of palm/vine and muzāraʿa of tillable land (like Abū Ḥanīfa), has contradicted the other sunna (the Prophet’s sanctioning of sharecropping date palms).
120.
The “Ḥadīth Folk,” meaning the traditionists and specialists in transmission. ʿAbd al-Muṭṭalib transcribes instead [فمما لا يثبت هو مثله ، ولا هذا الحديث] (vo. 8, p. 255). I have followed Ḥassūn’s transcription, finding it easier to make sense of, and more consonant with other ḥadīth valuations in the subject-text.
121.
This is a critical illustration of al-Shāfiʿī’s epistemology of authority in practice: Companion traditions confirmed neither by their like, nor by ḥadīth specialists, cannot stand as proof (ḥujja) unless supported by Prophetic Sunna.
122.
Referring to Abū Yūsuf in §277, and his use of the speculative partnership (muḍāraba) as an authoritative root-case (aṣl), for correlational inference (qiyās) in support of his adherence to Ibn Abī Laylā’s ruling.
123.
The “Folk of Deep Understanding [of God’s Law],” meaning the legal specialists.
124.
In other words, ʿUmar and ʿUthmān justified the muḍāraba contract by way of correlational inference from the Prophet’s date-palm sharecropping. By justifying sharecropping by qiyās from muḍāraba, Abū Yūsuf has committed the fallacy of circulus in probando.
125.
The principal is “the owner of the property” (rabb al-māl), which is also the term for the “sleeping partner” of a muḍāraba contract.
126.
That is to say, the activities by which crops are raised share no properties with such as bring trees to bear fruit, or capital to bear surplus.
127.
Abū Ḥanīfa’s a-ra’ayta in §275: rhetorical, posing an untenable consequence: a derived case which is more logically necessary and immediate, and contingent-possible, supporting a ruling with an efficient property (identified); for an overall justification/objection of istidlāl bi’l-qiyās/muʿāraḍa bi-ʿilla of opposing istidlāl bi’l-Sunna.
128.
Ikhtilāf al-Fuqahā’, Kern ed., pp. 147–8.
129.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 77; al-Bājī, Minhāj, Turkī ed., pp. 134–5, §272 ff. Cf. Ibn ʿAqīl, K. al-Jadal, p. 38, §200, who mentions this species but provides neither discussion nor example nor response. Note my identification procedure above is meant to mimic a disputant employing the istidlāl-based organizing principle of al-Shīrāzī, Ibn ʿAqīl, and al-Bājī. This is the logic of topoi at work—the same as is propounded in the Topics. A practiced disputant who has memorized the many argument types according to larger sets and subsets may quickly “locate” the largest set of counter-arguments relevant to the opponent’s argument, then proceed through subsets until locating the precise form of relevant counter-argument, and finally go about collecting from the opponent such premises by which that counter-argument will transform into elenchus.
130.
al-Bājī, Minhāj, Turkī ed., p. 135, §274.
131.
In the strict sense of contraries, both rulings may not be true, but both may be false. According to al-Shāfiʿī’s rulings, such is the case here. Abū Ḥanīfa rules “al-muzāraʿa and al-musāqāt are bāṭil;” Ibn Abī Laylā rules the contrary “al-muzāraʿa and al-musāqāt are jā’iz;” while al-Shāfiʿī rules “al-muzāraʿa is bāṭil and al-musāqāt is jā’iz.”
132.
al-Shīrāzī, Maʿūna, Turkī ed., p. 262, §147 [missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., p. 201, §454; Ibn ʿAqīl, K. al-Jadal, p. 70, §327.
133.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 123.
134.
This is an act of frequent occurrence in the subject-text, and a clear sign that “following the ḥujja” held sway over teacher/school loyalties.
135.
Cf. al-Ṭabarī (Ikhtilāf al-Fuqahā’, Kern ed., p. 148): “And as for the ʿilla of the one who professes the doctrine of Abū Yūsuf and Muḥammad [b. al-Ḥasan al-Shaybānī], it is [in] the qiyās from the ijmāʿ al-kull for the allowance of muqāraḍa; etc.” Muqāraḍa is synonymous with muḍāraba.
136.
Abū Yūsuf’s a-lā tarā in §277: rhetorical, bringing supporting evidence as a parallel case with an established ḥukm, sharing elements of the mas’ala at hand, identified (or obviously intended) as an aṣl for qiyās; for an overall justification/objection of istidlāl bi’l-qiyās / muʿāraḍa bi’l-qiyās of the opposing istidlāl bi’l-Sunna; and as a qiyās in support of an athar (as a kind of tarjīḥ).
137.
Ikhtilāf al-Fuqahā’, Kern ed., p. 148.
138.
al-Bājī, Minhāj, Turkī ed., pp. 202–3, §459.
139.
al-Shīrāzī, Maʿūna, Turkī ed., pp. 262–3, §149.
140.
Ibn ʿAqīl, K. al-Jadal, p. 70, §327.
141.
al-Bājī, Minhāj, Turkī ed., p. 135, §274.
142.
al-Bājī, Minhāj, Turkī ed., pp. 155 ff., §326 ff.
143.
Note that all three are, as al-Shāfiʿī said, Easterners/Iraqis.
144.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82. Importantly, we may infer from this that both Q and R may belong to the Shāfiʿī madhhab. This reminds us that juridical dialectic was far more than an inter-madhhab contest, but a critical venue for testing the ijtihād of jurist-peers within one’s own doctrinal school.
145.
al-Bājī, Minhāj, Turkī ed., pp. 134 ff., §296; al-Shīrāzī, (op. cit.); Ibn ʿAqīl, K. al-Jadal, p. 39, §207. All these authors discuss means by which R might attempt to support his qawl al-wāḥid min al-Ṣaḥāba as ḥujja.
146.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 52 ff.; al-Bājī, Minhāj, Turkī ed., pp. 76 ff., §147 ff. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 30 ff., §161 ff.
147.
NB: Aristotle’s σόφισμα (Top. VIII.11, 106a16–17) was most often translated as mughāliṭ or mughālaṭa. See, Badawī, Manṭiq Arisṭū, vol. 3, p. 758; and Goichon, Vocabulaires Comparés, p. 23.
148.
Schacht, Origins, p. 124.
149.
al-Bājī, Minhāj, Turkī ed., pp. 155 ff., §326 ff.
150.
See the discussion in Sect. 4.7, under “τὸ ἐν ἀρχῇ αἰτεῖσθαι” (asking the original point/petitio principii).
151.
Again, see the discussion in Sect. 4.7, under “παρὰ τὸ μὴ αἴτιον ὡς αἴτιον” (non-cause as cause). In this case, the “effect” (muḍāraba is jā’iz) has been mistaken as the “cause” for what is, in fact, its own “cause” (musāqāt is jā’iz).
152.
al-Bājī, Minhāj, Turkī ed., pp. 158 ff., §335 ff.
153.
As we shall soon see quite plainly, the term maʿnā for al-Shāfiʿī denotes the property (waṣf) or collective properties (awṣāf) which are efficient in occasioning the ḥukm in the aṣl, and which—in qiyās procedure—are claimed to be shared by the farʿ.
154.
al-Bājī, Minhāj, Turkī ed., 39 f., §76.
155.
al-Bājī, Minhāj, Turkī ed., p. 150, §312; and pp. 166–7, §359.
156.
Muʿjam, s.v. “المطالبة”.
157.
Al-Shāfiʿī employs a similar expression in §1131: “mukhālif… fi’l-bad’i wa’l-mutaʿaqqabi.” It is obvious that these phrases are meant to convey a certain comprehensiveness of difference between two things which are claimed by an opponent to be similar. Neither phrase occurs elsewhere in the Umm, however.
158.
See al-Bājī’s typology of qiyās al-ʿilla: Minhāj, Turkī ed., pp. 26–7, §47; and al-Shīrāzī’s typology of qiyās in Sect. 4.3, above.
159.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 117–8; al-Bājī, Minhāj, Turkī ed., p. 203, §461; pp. 205–6, §466 (using the same example-mas’ala as his teacher). Ibn ʿAqīl does not appear to discuss muʿāraḍa by way of qiyās al-shabah in his K. al-Jadal.
160.
Ibn Khaldūn, as we have seen, also speaks of two ṭarīqa s of jadal known in his time: that of al-Bazdawī, and that of al-ʿAmīdī. The distinction between them, however, does not correspond to “fiqh-oriented” dialectic vs. “uṣūl al-fiqh-oriented” dialectic. Rather, as his exposition makes clear, al-Bazdawī’s was a specialized ṭarīqa for juridical dialectic by way of al-adilla al-sharʿiyya, while al-ʿAmīdī’s ṭarīqa was more general, treating adilla from any ʿilm, and with particular focus on istidlāl (Muqaddima, Shaḥāda ed., p. 579; Rosenthal trans., vol. 3, p. 33).
161.
Ḥassūn ed., vol. 9, pp. 117–20; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 296–8.
162.
For expositions on inheritance (mīrāth/irth), inheritance shares (farā’iḍ), and related rulings, see MF, s.v. “إرث” (vol. 3, pp. 17–80); EI ², s.v. “Mīrāth”; DJP, vol. 2, pp. 411–42; and Hallaq, Sharīʿa, pp. 291–5.
163.
“Them,” as the three Companions previously mentioned are included.
164.
Thus al-Shāfiʿī begins to explain the disagreement (khilāf) between these respected Companions by tracing the lineage of the two doctrines. The “wrong” doctrine (from his perspective) appears to have begun with Abū Bakr.
165.
The “Folk of Dialectical Theology,” meaning rational theologians, and, quite possibly, early Muʿtazilites in particular.
166.
The ism al-ubuwwa, possibly in the sense of “the noun of fatherhood,” and referring to the designation ab, “father”.
167.
See Lane, Lexicon, s.v. “دلو” (near the end of form 4. “أدلى”).
168.
In his edition of the Shaybānī Version, al-Afghānī informs us that both Abū Yūsuf and al-Shaybānī sided with Ibn Abī Laylā and his naql support as regards the focus mas’ala (p. 84, n. 2).
169.
Note later historical and biographical authors narrate a number of face-to-face disagreements and disputes between them. See the sources listed in EI ², s.v. “Abū Ḥanīfa, al-Nuʿmān b. Thābit” and “Ibn Abī Laylā.”
170.
Cf. instances of manzila-subsumption translated in part 2 of my dissertation (§§202, 346, 391 m, 474, 537, 752, 987, 1072, 1204, 1341, 1348, 1350–2, 1358–9). In the entirety of the Umm there are some 56 occurrences of the phrase “bi-manzila.”
171.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 82 f.; al-Bājī, Minhāj, Turkī ed., p. 144, §298. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 39 f.
172.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 80–1. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §204, employing the same example mas’ala. Al-Bājī’s typology is somewhat more refined, and the Abū Ḥanīfa position Q would proceed according to one of the three types of al-muṭālaba bi-taṣḥīḥ al-ijmāʿ wa ẓuhūrihi (Minhāj, Turkī ed., pp. 139–40, §§281–4).
173.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 81; al-Bājī, Minhāj, Turkī ed., p. 140, §285. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §205.
174.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 121–2; al-Bājī, Minhāj, Turkī ed., pp. 223–4, §508. Cf. Ibn ʿAqīl, K. al-Jadal, p. 24, §128.
175.
Again, I would consider this a clear sign of al-Shāfiʿī’s sincere dialectical ethic. Mentioning additional adilla-indicants for the opposing position is a mark of “good” dialectic.
176.
Cf. this same dialectical debate as it plays out in the Risāla (Shākir ed., pp. 591 ff., §§1773 ff.)
177.
Including this instance, the Ahl al-Kalām are referenced eight times by al-Shāfiʿī in the Umm.
178.
Khadduri, in his translation (p. 347, n. 30) claims: “It is the Ḥanafī’s opinion which the interlocutor supports.” As we see here, however, al-Shāfiʿī attributes this attempted qiyās-support to the Ahl al-Kalām. This appellation is commonly understood to reference the Muʿtazila. See, e.g., Schacht, Origins, p. 128, where he references this very debate in our treatise under the heading “The Muʿtazila,” observing: “Shāfiʿī, in Tr. I, 122, reports their analogical reasoning on a question of law and refutes it. They reject traditions on account of naẓar and reason, and use qiyās as a basis for criticizing traditions.” In a footnote attached to this last sentence, he refers the reader to Ibn Qutayba’s Ta’wīl Mukhtalif al-Ḥadīth. I would question Schacht on two counts: (1) in our dialectical sequence above (his Tr. I, 122), the opponent of the Ahl al-Kalām is attempting to use qiyās as a means of preponderating opposing sets of āthār—he is neither rejecting nor criticizing his own set, whatever Ibn Qutayba might accuse the Ahl al-Kalām of doing elsewhere; and (2) I see no objection to “Ahl al-Kalām” as applied in a broader sense, encompassing those who engage in dialectical theology, rather than a specific reference to the Muʿtazila.
179.
Schacht (Origins, p. 124) interprets this as follows: al-Shāfiʿī “recognizes its limits [i.e., the limits of qiyās], in opposition to the ahl al-kalām….”
180.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 123.
181.
There are a number of salient features in the summation of the opponent’s stance in §643 alone; among them are: (1) the term madhhab in the sense of doctrinal opinion; (2) the term khiṣāl (s. khaṣla) in the sense of “quality, property”—cf. al-Shīrāzī’s use of khaṣīṣa in discussing qiyās al-dalāla; (3) the acknowledgement of a doctrinal consensus as conveyed through the descriptor mujtamiʿūna maʿanā ʿalayhā; (4) a technical usage of manzila; and (5) a “nominal” hermeneutic—i.e., the semantic connecting of the common denomination of a thing (“father”) to its legal status. A search for these elements and terms in early kalām works might help us to identify more precisely the theological affiliation of these Ahl al-Kalām—be they Muʿtazila or otherwise. Of greater import, however, is the fact that al-Shāfiʿī may here be engaged in disputation with a dialectical theologian on a point of law (as opposed to only a proponent of their qiyās for this mas’ala). If such is the case, it illustrates the “many hats” paradigm in conjunction with “cross-germination between epistemic communities.” That is to say that dialectic marked the procedure—the form of disputation—whether an individual scholar was engaged in theological speculation, normative inference, or other projects. One might be a specialist in one field or another, but the origins of terms, concepts, and methods may not necessarily be attributable to one field over another. They are better linked to the individual projects of individual scholars across thematic domains. In other words, we need not interpret al-Shāfiʿī’s dialectic as an absolute convergence of prior Kalām-method and nascent legal theory/dialectic, as some might claim it to be. Both al-Shāfiʿī and the opponent of the Ahl al-Kalām position appear to have “worn more than one hat.”
182.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 36, 116–17; Turkī ed., pp. 140, 263–4. al-Bājī, Minhāj, Turkī ed., p. 27, §48; pp. 203 f., §461 f. Ibn ʿAqīl, K. al-Jadal, p. 13, §62.
183.
This serves to illustrate what ties all subtypes of qiyās al-dalāla together: the ʿilla is not in fact known. Instead indication (dalāla) is drawn from shared rulings, qualities, etc., with the objective of demonstrating aṣl and farʿ likely share the same ḥukm (whatever the ʿilla may be).
184.
Cf. the discussion near the end of Sect. 4.5, above, where al-Juwaynī compares muʿāraḍa and munāqaḍa, saying: “Know that inconsistency/contradiction (munāqaḍa) is a type of counter-indication (muʿāraḍa), and that it is the strongest of the types of counter-indications (muʿāraḍāt); and that every munāqaḍa is a muʿāraḍa, even though not every muʿāraḍa is a munāqaḍa.”
185.
Al-Shāfiʿī’s a-ra’ayta in §647: rhetorical, soliciting a ruling for a parallel mas’ala, constituting a charge of method-naqḍ or qiyās al-dalāla-oriented naqḍ.
186.
Cf. al-Shīrāzī’s example jawāb as regards the first type of the second iʿtirāḍ against al-istidlāl bi’l-Kitāb (Maʿūna, al-ʿUmayrīnī ed., p. 42). The Ḥanafī R appeals to the ʿurf of the lugha, as “the khiṭāb [of the Qur’ān] is in the lugha of the Arabs.”
187.
al-Baṣrī, K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1039; Hallaq, “Treatise,” pp. 216–17.
188.
We do find several relevant challenges among the ajwiba-responses suggested by our jadal authors, but they do not receive a separate classification or typology. As such, it is a more difficult task to “name” these iʿtirāḍ-oriented questions/objections, except by combining formulaic elements from the classified categories of istidlāl-oriented questions/objections, as I have attempted here. A disclaimer: my invention of such terms as “su’āl ʿan wajh al-iʿtirāḍ” is exactly that—an invention—and is not meant to suggest that jadal practitioners or theorists ever entertained such labels. I am merely attempting to describe, with an appropriate Arabic terminology, what I perceive Q intends with his questions. This is similar to my use of endoxon: unless otherwise stated, it is simply a descriptor, not a strict identification of the subject dialectician’s source or “unspoken” classification.
189.
It is quite likely, as one kind reader suggested to me, that even the most thorough of jadal-theory treatises would not have accounted for all of the questions and objections which might occur in an actual dialectical exchange. What is important here, however, is the great number of “unfamiliar” questions and objections (in terms of the later theory) we find in proto-system jadal, and their formulaic nature; this strongly suggests that earlier manifestations of juridical jadal were indeed quite different from later ones, and that the dialectic of our subject-text and lens-texts represent different phases in the evolution of a larger tradition.
190.
We will encounter maʿqūl when we analyze the dialectical sequences of §§1056, 1061, and 1411. A final interpretation as to precisely what al-Shāfiʿī means by ʿaql and maʿqūl will be presented in Sect. 8.2, below.
191.
See my entry on “Uṣūl al-Fiqh,” in Oxford Islamic Studies Online.
192.
Umm, Ḥassūn ed., vol. 10, pt. 15, p. 346.
193.
Umm, Ḥassūn ed., vol. 10, pt. 15, p. 162. Note that both of these books are ikhtilāf treatises, replete with short and extended dialectical sequences.
194.
A treatise on legal theory which is every bit as important as the Risāla, but often overlooked.
195.
Umm, Ḥassūn ed., vol. 10, pt. 15, p. 125, §89–90.
196.
See my dissertation for a translation of this passage (“Dialectical Forge,” pt. 2, pp. 358–9, appendix II.§651).
197.
§1458, Shākir ed., 505. A kind reader has also pointed out to me the reference to an Ahl al-Murū’a wa’l-ʿAql in §1304 (Shākir ed., p. 470).
198.
Remarkably, a search among a great many pre-modern sources of Shāfiʿī fiqh has revealed no other occurrence of the Ahl al-ʿUqūl, while among Uṣūl al-Fiqh literature in general, I have only found mention in: (1) the Iḥkām fī Uṣūl al-Aḥkām of the Ẓāhirī Ibn Ḥazm (whose Taqrīb has been mentioned) (Shākir ed., vol. 1, p. 28; vol. 5, pp. 146, 161; vol. 8, p. 96); (2) a line of verse quoted by al-Khaṭīb al-Baghdādī in his Al-Faqīh wa’l-Mutafaqqih (Al-ʿAzzāzī ed., vol. 2, p. 402); (3) the famed Muwāfaqāt of al-Shāṭibī (Āl Salmān ed., vol. 2, pp. 41, 214); and (4) the Baḥr al-Muḥīṭ of al-Zarkashī (Dār al-Kutubī ed., vol. 6, p. 493; and vol. 8, p. 96—in paraphrase of the Risāla passage [§1458, above]).
199.
In so many words, al-Shāfiʿī will say that—were qiyās valid here—the same properties should indicate a ḥukm closer to his own doctrine than that of the opponent.
200.
NB: thus we witness yet another usage of the a-ra’ayta formula: presenting R with a dichotomous choice, in this case: “kinship via X, or kinship via not-X?” Al-Shāfiʿī’s a-ra’ayta in §653: dialogical, as part of a reductio sub-strategy: framing a disjunction of premises (have you considered: is it X or Y?); the endoxic choice (Y) serving as a premise justifying his choice of aṣl for a “hypothetical” muʿāraḍa-qiyās, which is itself a reductio sub-strategy within a larger, non-reductio argument scheme (a “real” muʿāraḍa bi’l-nuṭq).
201.
I.e., if qiyās actually obtained here, which it does not…
202.
Being the ‘reverse’ of the Abū Ḥanīfa/Abū Bakr āthār-traditions—hence ‘qalb’.
203.
Kitāb al-Qiyās al-Sharʿī, al-Mays ed., pp. 1040 f., 1048 ff.; Hallaq, “Treatise,” pp. 217 f., 224 ff.
204.
al-Shīrāzī, Maʿūna, Turkī ed., pp. 259–61 [missing from al-ʿUmayrīnī ed.]; Ibn ʿAqīl, K. al-Jadal, pp. 62–3 §§295–301; al-Bājī, Minhāj, Turkī ed., pp. 174 ff., §385 ff.; al-Juwaynī, Kāfiya, pp. 217 ff.
205.
al-Bājī, Minhāj, Turkī ed., pp. 175–6, §387.
206.
Al-Shāfiʿī’s a-ra’ayta in §663: dialogical, as a reductio sub-strategy drawing attention to an endoxon dalīl (from Qur’ān) for a “hypothetical” muʿāraḍa-qiyās, which is itself a reductio sub-strategy within a larger, non-reductio argument scheme (a “real” muʿāraḍa bi’l-nuṭq).
207.
Note this again demonstrates the spirit of “good” dialectic; al-Shāfiʿī leaves no opposing stone unturned, even when his opponent has not mentioned it himself.
208.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 116–17; al-Bājī, Minhāj, Turkī ed., pp. 203–4, §461–2.
209.
See the relevant discussions in Sect. 4.7, above (under “Reduction ad impossibile [εἰς τὸ ἀδύνατον]” etc.), and note especially that “proof per impossibile” was rendered into Arabic as “the qiyās [meaning syllogism] which comes by way of bringing the [contradictory] argument to an impossibility” (al-qiyās alladhī yakūnu bi-rafʿ al-kalām ilā al-muḥāl).
210.
Ḥassūn ed., vol. 9, pp. 123–6; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 301–3.
211.
The context for both cases is one in which ownership is disputed. For the one whose spouse dies, ownership might be disputed by a third party linked to the deceased (heirs, pledgor-debtors, etc.); while the divorcée might dispute ownership with her former husband. For further details and rulings, see MF, s.v. “متاع” (vol. 36, pp. 63–4; esp. §3).
212.
Again, “the people” (al-nās) may be understood as a reference to Iraqi jurists (see note for §252, above)—or, perhaps, as a general, Muslim-communal consensus (cf. the “majority doctrine” [madhhab al-ʿāmma] in §703, below).
213.
What appears between brackets differs in almost every edition consulted. I have preferred the Būlāq edition (Umm, vol. 7, p. 121): [… وتركت الظاهر قيل لك], of which I can make better sense. Ḥassūn (Umm, vol. 9, p. 125) renders: [وتركت الظاهر؟ قيل ذلك]; while Maṭrajī has [… ،وتركت الظاهر قيل ذلك]; and ʿAbd al-Muṭṭalib (Umm, vol. 8, pp. 302–3) has [… ،وتركت الظاهر قبل ذلك]. Not one of the editions makes a note of their different renderings, nor of diverging manuscript witnesses.
214.
Matters of taqlīd or istidlāl from a Successor-jurist do not seem to be discussed in our lens-texts; I would mark this as a unique feature—and a frequent one, as we shall see—of proto-system juridical jadal. Bear in mind also that Ibrāhīm al-Nakhaʿī was famed as a proponent of “considered opinion” (ra’y), so long as it was twinned with reliable narrations (riwāyāt); see, among other sources, Lecomte’s short article on al-Nakhaʿī in the EI ², and Sezgin’s references culled from Abū Naʿīm’s Ḥilyat al-Awliyā’ (Tārīkh al-Turāth al-ʿArabī, vol. 1, pt. 3, pp. 18 f.).
215.
Al-Afghānī (Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā, p. 87, n. 1) cites al-Sarakhsī (Mabsūṭ, vol. 5, p. 213), who lists a host of opinions on masā’il ##1–3 from prominent early jurists. Here, Abū Ḥanīfa’s reasoning is portrayed as based upon conceptions of use (istiʿmāl) and the husband’s “possession” of the wife. When the object comes under dispute, he ruled on the benefit of assumption, saying: “The [considered] claim is that of the user (mustaʿmil), for possession (yad) of the user in this case is stronger in terms of what is appropriate (ṣāliḥ) to one of the two; and as for what is appropriate for them both: the side of the husband is given preponderance in cases of ṭalāq-divorce, because he is the owner of the house, and she had been among the chattels (matāʿ) in his possession,” etc.
216.
Again, we are provided indication of Abū Yūsuf’s “following the ḥujja”—i.e., practicing the “good dialectic,” not polemically defending a doctrine out of loyalty to region or teacher.
217.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 104 ff. and 107 f.; al-Bājī, Minhāj, Turkī ed., p. 185, §413 and pp. 192 f., §436. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 56 ff., §§276 ff. and pp. 65 f., §§305 ff. Bāj.IX.B.12.2.1 seems especially apt: “[Q] eliminates a property which is not efficient (ghayr mu’aththir) in occasioning the ḥukm which was made contingent upon the ʿilla [by R].”
218.
Al-Afghānī (p. 87, n. 1), citing Mabsūṭ, vol. 5, p. 213.
219.
The a-lā tarā formula occurs, astonishingly, well over two thousand times in al-Sarakhsī’s Mabsūṭ; it appears mostly employed by al-Sarakhsī himself, but at other times in arguments related from others. A-ra’ayta, though far less frequent, still enjoys some 150 occurrences.
220.
This ijmāʿ, as we shall see, is further alluded to as the claim of both the opponent and “the people (al-nās)” in §696, and of the “majority doctrine” (madhhab al-ʿāmma) in §703. These terms, linked with ijmāʿ, provide considerable data for al-Shāfiʿī’s conception of consensus, which is sometimes disputed.
221.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1044; Hallaq, “Treatise,” p. 221.
222.
al-Shīrāzī, Maʿūna, Turkī ed., p. 262, §148 [missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., p. 201, §455. Cf. Ibn ʿAqīl, K. al-Jadal, p. 71, §330.
223.
al-Bājī, op. cit.
224.
Al-Shāfiʿī’s a-ra’ayta in §694: dialogical, introducing a parallel mas’alat al-naqḍ to cancel the opponent’s ʿilla, as a component in a larger strategy of naqḍ-dilemma, itself within a larger move of muʿāraḍa.
225.
It is worth considering al-Shāfiʿī’s use of the term existence (kaynūna), here. He employs kaynūna some fourteen times in the Umm, and almost always—as in §696—in combination with “possession” (yad). Thus, although kaynūna is cognate to the kawn, kiyāna, kā’in, etc. of theological and philosophical discussions, it appears to bear, in al-Shāfiʿī’s usage, a technical association with possession: as “ the kaynūna of object X in the yad of party Y.”
226.
As such, the “naqḍ-premises” ##1–2 constitute general masā’il al-naqḍ, but I have chosen to present them as premises for the convenience of showing how they link together with naqḍ-premise #3, resulting in a thoroughly confounding conclusion of the opponent’s inconsistency.
227.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 104 ff.; al-Bājī, Minhāj, Turkī ed., p. 185, §§412–13. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 56 f., §§276–7; and al-Baṣrī, K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., pp. 1041 ff.; Hallaq, “Treatise,” pp. 218 ff.
228.
Although istiṣḥāb al-ḥāl is conspicuously absent from al-Shāfiʿī’s legal theory, we might conjecture as to whether or not this argument may be subsumed by what was later to become known as istiṣḥāb al-ḥāl al-ʿaql—or even, considering that al-Shāfiʿī’s aṣl for qiyās enjoys the sanction of ijmāʿ, the highly-contended istiṣḥāb ḥāl al-ijmāʿ. I will revisit this question briefly in Chap. 7.
229.
Waraqāt, Qāsimī and Balkhī ed., p. 46.
230.
Turkī ed., p. 11, §14. “tajwīz amrayni fa-zā’idan, aḥaduhumā aẓharu min al-ākhar.”
231.
Ultimately, al-Shāfiʿī plays these various contexts against each other in order to lay bare the opponent’s inconsistency and internal contradictions.
232.
al-Shīrāzī, Maʿūna, Turkī ed., p. 262, §147 [Missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., p. 201, §454. Cf. Ibn ʿAqīl (K. al-Jadal, p. 70, §327) who, unlike al-Shīrāzī, mentions only qiyās in conflict with Kitāb and Sunna. Al-Bājī directs us to earlier discussions, by which I assume he includes ijmāʿ along with Kitāb and Sunna.
233.
Ḥassūn ed., vol. 9, pp. 132–5; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 308–10.
234.
On full manumission (ʿitq), walā’-patronage, and related rulings, see MF, s.v. “عتق” (vol. 29, pp. 264–74) and “ولاء” (vol. 45, pp. 119–34); EI ², s.v. “ʿAbd” (esp. §3.j-k) and “Mawlā” (esp. §II.5); and DJP, vol. 2, pp. 441–52 (esp. pp. 444–5, where the current mas’ala is discussed).
235.
Here I have preferred the passive wa-lā yukhayyaru ṣāḥibuhu, rather than Ḥassūn’s active voice (Umm, vol. 9, p. 132), as it is not the first partner who grants the second his khiyār-options, but an operation of law.
236.
I.e., the Kitāb Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā, the Shaybānī Version, which is the object of al-Shāfiʿī’s commentary.
237.
Meaning, the a-lā tarā argument in §750.
238.
Kitāba or mukātaba is a form of manumission contract by which, usually in regular installments, the slave (called a mukātab) purchases his freedom. In this case, it is asked if a man, whose wife seeks divorce, can contract a similar arrangement by which she gradually pays for a unilateral divorce (ṭalāq), which only he can pronounce (hence unilateral). For more on kitāba/mukātaba and related rulings, see MF, s.v. “مكاتبة” (vol. 38, pp. 360–3); and DJP, vol. 2, pp. 453–68.
239.
Abū Yūsuf’s or al-Shaybānī’s a-ra’ayta in §748: rhetorical, posing an untenable consequence in the form of a self-contradicting formulation, supporting a ruling with an analogous aṣl (identified in §750 via a-lā tarā) which avoids the contradiction inherent to the contrary opinion; constituting a justification/objection of istidlāl bi’l-qiyās / tanāquḍ / muʿāraḍa bi-ʿilla of the opposing istidlāl bi’l-qiyās.
240.
NB: at this stage, Abū Yūsuf’s / al-Shaybānī’s argument consists purely of ʿaql, from the basic logical principle of non-contradiction.
241.
Abū Yūsuf’s or al-Shaybānī’s a-lā tarā in §750: rhetorical, pushing concession to a parallel case with an established ḥukm, as an endoxon aṣl for qiyās, which qiyās avoids the internal, logical contradiction inherent to the contrary opinion; the whole constituting a justification/objection of istidlāl bi’l-qiyās / muʿāraḍa bi-ʿilla of opposing istidlāl bi’l-qiyās.
242.
NB: from this, and earlier references to khaṣla/khiṣāl in §§643 ff., it is evident that khaṣla is as likely to refer to a ḥukm re: an entity at hand, as it is to a property of that entity. In that sense, it is quite similar to the khaṣīṣa of al-Shīrāzī in his qiyās al-dalāla discussion.
243.
Abū Ḥanīfa’s a-ra’ayta in §753: rhetorical, posing untenable consequences in the form of contingent-possible derived cases, as a triple-reductio supporting his rulings from an identified principle; the whole constituting a justification/objection of istidlāl bi’l-qiyās / muʿāraḍa bi-ʿilla of opposing istidlāl bi’l-qiyās (aṣl not stated).
244.
NB: all rulings from all positions are underpinned by a set of conflicting general principles: (1) Abū Ḥanīfa: if any portion remains enslaved, then the whole individual is in the manzila of the slave; and (2) Ibn Abī Laylā et al.: if any portion is manumitted, then the whole individual is in the manzila of the manumitted. In essence, this ikhtilāf is due to conflicting notions of efficiency in occasioning manzila-subsumption. For Abū Ḥanīfa, the portion enslaved occasions manzila-subsumption under the genus of slave; for Ibn Abī Laylā et al. the portion freed occasions manzila-subsumption under the genus of freed.
245.
See §681 of Ḥassūn’s edition, vol. 9, p. 122; and the translation in my dissertation (“Dialectical Forge,” pt. 2, p. 177).
246.
Umm, Ḥassūn ed., vol.9, pt.14, pp. 362–5.
247.
See §750, above. The problem is more felicitously worded as a statement in al-Muzanī’s paraphrase, as follows: فإن قال قائل لا تكون نفس واحدة بعضها عبدا وبعضها حرا كما لا تكون امرأة بعضها طالقا وبعضها غير طالق …, “And if one should say: A single individual is not part slave and part free, just like a wife is not part divorced and part not-divorced…” (see the editions of the Mukhtaṣar, and al-Māwardī’s Ḥāwī al-Kabīr, Maʿʿūd, et al., eds., vol. 18, pp. 25–6). Al-Māwardī, commenting on al-Muzanī’s paraphrase of this argument (and al-Shāfiʿī’s dialectic with its proponent), attributes the manumission-divorce correlation to both Abū Ḥanīfa and Ibn Abī Laylā; perhaps “their proponent” (qā’iluhum) mentioned above refers to Abū Yūsuf. Al-Māwardī points out that those who prevent the combination of freedom and slavery in a single individual (Abū Ḥanīfa and Ibn Abī Laylā) oblige the slave to earn his remaining ransom, while those who allow such a combination (Mālik and al-Shāfiʿī) do not oblige the ransom-earning; he proceeds to a detailed and systematic rendering of al-Shāfiʿī’s counter-arguments as we find them here in our subject-text (al-Ḥāwī al-Kabīr, op. cit.)
248.
I have, due to several features of interest, presented the whole of this Kitāb al-ʿItq in parallel translation in my dissertation (“Dialectical Forge,” vol. 2, appendix II.§755, pp. 360–4).
249.
NB: This offers a fascinating window on proto-system jadal teaching and practice: al-Shāfiʿī initiates an “instructional” dialectic, against a (recently re-discovered) thesis from a “historical” dialectic, in order to prepare the student for an encounter with a proponent of the “historical” thesis.
250.
Meaning: if the proponent argues the impossibility of combining “freedom” and “slavery” in a single individual, by way of qiyās from the impossibility of combining “divorced” and “not-divorced” in a single woman—the objective being to prove impossible the freedom-slavery combination.
251.
This may be rendered as: (x)[Wx → (Mx v ¬Mx)]; reading: “For any x, if x is a woman, then x is either entirely married (mankūḥa), or entirely not married.”
252.
The exchange in §§756–60 is reminiscent of discussions found in later treatises on qiyās-invalidating inter-case distinctions (furūq)—though absent the common formula: “but there’s a difference between them” (wa’l-farq baynahumā). Here, Q (al-Shāfiʿī) confronts the qiyās-proponent with the invalidating distinction (farq) between partial-purchase of a slave (permitted) vs. partial-marriage of a woman (not permitted). His elenchus is sealed with a rhetorical question (§760), asking, in so many words: “what does the slave have to do with the wife, that you correlate them in qiyās?” Notably, al-Māwardī identifies this (and al-Shāfiʿī’s subsequent arguments) as the dialectical move of farq (al-Ḥāwī al-Kabīr, Maʿʿūd, et al., eds., vol. 18, p. 25).
253.
Note the didactic intent in al-Shāfiʿī’s saying “and it is also said to him…” (wa qīla lahu ayḍan). We have moved, in other words, from the first topos—the first “location” of stored argument relevant to the opponent’s thesis—to the second topos.
254.
Al-Shāfiʿī’s a-ra’ayta in §771: dialogical, soliciting a ruling on a final derived mas’ala [the last in a series of masā’il al-farq], for an imminent charge of compound method-naqḍ (opponent observes a farq-distinction in the parallel masā’il, but ignores it in the mas’ala-at-hand).
255.
Again, the extended dialectic of §755–73 is a recognizable predecessor of the furūq literature; a clearer indication of the dialectical origins of this genre could hardly be found. Note the cases in the contended correlation do, in fact, appear quite similar—a woman cannot be both partly married and partly divorced, how then, can a slave be both partly enslaved and partly manumitted? But Q invalidates such a correlational inference by highlighting the critical differences between these cases (such as are announced, in the furūq literature, with: wa’l farq baynahumā). Al-Shāfiʿī here brings no less than five furūq; and these, as seen in §§760, 765, 767, and 770, are followed up with (mostly rhetorical) demands for qiyās-justifying bases of resemblance or occasioning elements. If not the properties exposed as different, then what is it that links these cases? Having cycled through a sufficiency of divergent elements, al-Shāfiʿī closes (§773) with a definitive pronouncement: nothing is further from manumission than the qiyās-proponent’s alleged source-case of divorce.
256.
Ḥassūn ed., vol. 9, pp. 178–80; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 345–7.
257.
The muḥrim is a consecrated pilgrim, having entered a ritual state (iḥrām) for undertaking the greater pilgrimage (ḥajj), or the lesser (ʿumra). Among numerous norms pertaining to the muḥrim is a strict ban on hunting (ṣayd). The ʿanāq and jafra are usually understood to be goat kids or lambs, with the jafra having just been weaned and put to pasture and the ʿanāq somewhat older (though less than a year). For more on the ritual state of iḥrām and related rulings, see MF, s.v. “إحرام” (vol. 2, pp. 128–95; esp. §§160 ff., on hunting); EI ², s.v. “Iḥrām”; DJP, vol. 1, pp. 381–90 (esp. 388–90, on hunting) and pp. 424–33 (on reparations for hunting); and Hallaq, Sharīʿa, p. 237.
258.
The hady is the animal offered to God, in the holy precinct (ḥaram), as expiatory sacrifice; the hady al-ṣayd is offered for breaking the ban on hunting, and the hady al-mutʿa is offered for incorporating the lesser into the greater pilgrimage. The jadhaʿ is usually understood to be a goat or sheep which has reached its second year, while thaniyy refers to similarly matured cows, camels, etc. For more on the hady see MF, s.v. “هدي” (vol. 42, pp. 231–52); and EI ², s.v. “Hady”.
259.
Here (and throughout) I have followed al-Afghānī in the Shaybānī version (يجزئ), rather than Ḥassūn and Maṭrajī (يجزي), or Būlāq, Najjār, and ʿAbd al-Muṭṭalib (يجزى).
260.
A ḥamal is a young ram.
261.
Referring to traditions (āthār) reported on certain Companions (see §1061, below; and al-Sarakhsī, Mabsūṭ, vol. 4, p. 93).
262.
Al-Afghānī (in Abū Yūsuf, Ikhtilāf, p. 141, n. 2) considers this instance of “and he embraced it” (or, as it appears in his Shaybānī Version, “and we embraced it”) a mistake, since Abū Yūsuf (and al-Shaybānī) disagreed with Abū Ḥanīfa regarding the sacrifice of ʿanāq and jafra, agreeing with him only for such game as does not reach them in equivalence (explained in al-Sarakhsī, Mabsūṭ, op. cit.) That these doctrine-embracing formulae appear in both Shaybānī and Umm Versions may be interpreted as indicating the authenticity of the former. Should one argue that al-Afghānī’s Shaybānī Version was extracted from the Umm Version by a later scholar, one would have to explain why this attribution of agreement with Abū Ḥanīfa—inconsistent with later reports on his companions—was not “corrected”.
263.
Meaning “like” or “equivalent”.
264.
That is, a kid which has been weaned and started to drink and graze on its own (see al-Māwardī, al-Ḥāwī al-Kabīr, Maʿʿūd, et al., eds., vol. 4, p. 284).
265.
Note this as a kind of taswiya-subsumption, though neither Abū Ḥanīfa nor al-Sarakhsī after him employ the sawā’un formula.
266.
Mabsūṭ, vol. 4, p. 93; quoted by al-Afghānī in Abū Yūsuf, Ikhtilāf, pp. 141–2, nn. 1–2.
267.
Abū Ḥanīfa’s a-lā tarā in §1052: rhetorical, bringing supporting evidence by way of an epistemically-authoritative, primary aṣl, brought to bear directly; the whole constituting a justification/objection of istidlāl bi-naṣṣ al-Kitāb / iʿtirāḍ against istidlāl bi-qawl al-wāḥid min al-Ṣaḥāba, type 2 (Shīr.IV.2).
268.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §208.
269.
Vol. 4, p. 93.
270.
Cf. the discussion about ʿaql and maʿqūl for §651, above; the further instances in §1061, and §1411, below; and my final assessment of what al-Shāfiʿī means by these terms in Sect. 8.2.
271.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 44.; al-Bājī, Minhāj, Turkī ed., pp. 59 f., §114. Cf. Ibn ʿAqīl, K. al-Jadal, p. 28, §148.
272.
Al-Bājī’s more refined typology not only hits the mark exactly, but his example mas’ala is closely related to the very mas’ala under consideration in §1051–61, and employs the same Qur’ānic aṣl. First he defines this subtype of Kitāb-oriented iʿtirāḍ: “Each one of them [R&Q] links [the ḥukm] to the verse by way of a different lafẓ-expression from that to which the other links it, and he gives preponderance to his lafẓ-expression.” Then, he presents his example mas’ala. In brief: (1) the Mālikī R draws upon Q.5:95 [lafẓ #1] to support his opinion re: the penance (kaffāra) for the one who unlawfully kills game (qātil al-ṣayd) (=feeding the poor); and (2) the Shāfiʿī Q objects, saying he draws ḥujja from the same verse [but lafẓ #2] for his opinion (=the hady is the compensation for the ṣayd, not kaffāra).
273.
They are answered, collectively, by R in §1058.
274.
NB: again, maʿqūl appears in a list of “sources,” this time Qur’ān, qiyās, and āthār.
275.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §208.
276.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82; al-Bājī, Minhāj, Turkī ed., p. 144, §298. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §209.
277.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., 44.; al-Bājī, Minhāj, Turkī ed., 59 f., §114. Cf. Ibn ʿAqīl, K. al-Jadal, 28, §148. See previous note re: Al-Bājī’s illustration by way of this very mas’ala.
278.
Ḥassūn ed., vol. 9, pp. 182–4; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 348–9.
279.
No edition attempts to explain Abū Ḥanīfa’s peculiar identification of a family-member’s murderer as the heirs’ “ṣāḥib”. I have simply rendered it as “man”, avoiding the more positive connotations usually associated with this word.
280.
On intentional homicide (qatl ʿamd), retaliation (qiṣāṣ), blood-money (diya), and related rulings, see MF, s.v. “قتل عمد” (vol. 32, pp. 336–43), “قصاص” (vol. 33, pp. 259–78), and “ديات” (vol. 21, pp. 44–95); EI ², s.v. “Ḳatl,” “Ḳiṣāṣ,” and “Diya”; DJP, vol. 2, pp. 478–514; and Hallaq, Sharīʿa, pp. 320–2.
281.
Al-Ḥasan b. ʿAlī (d.49/669) was the Prophet’s grandson, son of ʿAlī b. Abī Ṭālib (d.40/661), and second Shīʿī Imam.
282.
The “Folk of Knowledge,” meaning, presumably, the most highly respected scholars.
283.
Note this is the position of Abū Ḥanīfa in §1067.
284.
That is, by going ahead with the retaliatory killing regardless of the co-heir’s wishes.
285.
Ibn al-Nadīm attributes no Book of Blood-Money (Kitāb al-Diyāt) to al-Shāfiʿī. In fact, there are only two such titles in the whole of the Fihrist—one of which, intriguingly, is attributed to Muḥammad b. al-Ḥasan (Fihrist, p. 345). A search through the Umm compendium also reveals no such title. There is, however—in addition to the Chapter on Blood-Money (Bāb al-Diyāt) in our subject-text—a Bāb al-Diyāt in the Kitāb Ikhtilāf ʿAlī wa ʿAbd Allāh b. Masʿūd (Ḥassūn ed., vol.9, pt.14, 287 ff.), and another in the Kitāb al-Radd ʿalā Muḥammad b. al-Ḥassan (Ḥassūn ed., vol.10, pt.15, 141–50). The first contains little of relevance to the mas’ala at hand; the second: nothing of relevance whatsoever (though replete with extensive and complex debate in dialectical format). Perhaps the discussion most relevant to this current mas’ala is found in the Kitāb Jirāḥ al-ʿAmd under the subheading of Wulāt al-Qiṣāṣ (Ḥassūn ed., vol.7, pt.12, 43 ff., §§20980 ff., especially at §§20985–9).
286.
Referencing the anonymous scholar of §1072.
287.
Note this not only as a double instance of self-inflicted farq-distinction, but also a charge of method-naqḍ; the opponents acknowledge these distinctions elsewhere but ignore them in the case at hand.
288.
This is confirmed by al-Sarakhsī (Mabsūṭ, vol. 26, p. 174; al-Afghānī [p. 143–4, n. 2] quotes a portion of the relevant material in full).
289.
Compare Abū Ḥanīfa and Ibn Abī Laylā in the current mas’ala with their rulings in mas’ala-set #2, §§236–8, above.
290.
Mark this as another example of Abū Yūsuf “following the ḥujja” and practicing the “good dialectic”; here, he has supplied material to help explain the opposing position.
291.
Note also that it is a markedly Shīʿī isnād, depending on Abū Jaʿfar (Muḥammad al-Bāqir; 5^th Ithnā ʿAsharī Shīʿī Imām, d. btwn. 114–126/732–743). Perhaps this is why al-Sarakhsī goes a step further and claims the retaliation was in fact ʿAlī’s dying decree to his son Ḥasan (Mabsūṭ, op. cit.)
292.
al-Bājī, Minhāj, Turkī ed., p. 26, §47.
293.
Lumaʿ, Mustū ed., p. 106.
294.
al-Bājī, Minhāj, Turkī ed., p. 40, §78.
295.
al-Shīrāzī, Maʿūna, Turkī ed., p. 262, §147 [missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., p. 201, §454. Cf. Ibn ʿAqīl, K. al-Jadal, p. 70, §327.
296.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §208.
297.
Cf. §§102 and 469.
298.
It may even be that mutanāqiḍ and naqaḍa convey a sense of “being contradictory to,” while khilāf and khālafa convey “being contrary to.” Any confirmation or denial of this assertion, however, will require a great deal more of searching and comparison throughout the Umm and other works. For the present, I will note that all but two of the 28 occurrences of mutanāqiḍ in the Umm compendium are employed as descriptors of a doctrine (qawl), as in the basic formula: “and regarding this you have professed a self-contradicting doctrine” (wa qulta fī hādhā qawlan mutanāqiḍan). Interestingly, the term mutanāqiḍ does not appear in the Risāla, and so may have escaped the notice of previous Risāla-centered studies of al-Shāfiʿī’s legal theory.
299.
Ḥassūn ed., vol. 9, p. 191; ʿAbd al-Muṭṭalib ed., vol. 8, p. 354.
300.
Meaning: he rules amputation of the thief’s hand.
301.
On the divinely-sanctioned punishment (ḥadd) for theft (sariqa), and related rulings, see MF, s.v. “سرقة” (vol. 24, pp. 292–347); EI ², s.v. “Sariḳa”; DJP, vol. 2, pp. 536–46; and Hallaq, Sharīʿa, pp. 316–18.
302.
Here, “[X] is different from [Y], from start to finish” (fa-[X] mukhālifun li-[Y] fi’l-bad’ wa’l-mutaʿaqqab). And compare, in §288 above, “So [X] is not allowed to be a qiyās based upon [Y], while [X] is divergent from [Y] from start to finish” (fa-lā yajūzu an yakūna qiyāsan ʿalayhā wa huwa mufāriqun fi’l-mubtada’ wa’l-mutaʿaqqab). These formulaic phrases appear to serve as “final word” statements, closing a farq-distinction refutation of qiyās. A search for this formula (in its current form, ending with mutaʿaqqab) has only produced one additional instance, however, in the Umm; and this instance, though preserving the same sense of “from start to finish”, does not occur in a context of qiyās-refutation.
303.
Mark this as another example of his truth-seeking ethic.
304.
From al-Shāfiʿī’s anonymous opponent in §1128 we might infer that Ibn Abī Laylā’s aṣl for double-confession is the endoxon ruling requiring two witnesses for theft (sariqa). R’s position in §1128 is that of Ibn Abī Laylā in §1126, and he amputates only for two confessions, by qiyās on the basis of the aṣl of cutting only for two witnesses. This aṣl is signalled by “just as” (kamā) at the start of R’s profession in §1128.
305.
Vol. 9, p. 182; quoted by al-Afghānī in Abū Yūsuf, Ikhtilāf, pp. 152–3, n. 1.
306.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 82. Cf. Ibn ʿAqīl, K. al-Jadal, p. 39, §208.
307.
al-Baṣrī, K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1044; Hallaq, “Treatise,” p. 221; al-Shīrāzī, Maʿūna, Turkī ed., p. 262, §148 [missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., p. 201, §455. Cf. Ibn ʿAqīl, K. al-Jadal, p. 71, §330.
308.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 104 ff.; al-Bājī, Minhāj, Turkī ed., p. 185, §§412–13. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 56 ff., §§276 ff. This is al-Bājī’s first type of naqḍ, against an ʿilla which is “posited for the genus” (wuḍiʿa li’l-jins)—for Ibn Abī Laylā’s manzila-subsumption treats the witness/confession requirements for theft under the genus of ḥadd-punishments.
309.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 63 f.; al-Bājī, Minhāj, Turkī ed., pp. 112 f., §219. Cf. Ibn ʿAqīl, K. al-Jadal, p. 35, §185.
310.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 67 f., n. 6; al-Bājī, Minhāj, Turkī ed., pp. 123 ff., §§244 ff.
311.
See note above for Abū Ḥanīfa’s identical objection.
312.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 102 f.; al-Bājī, Minhāj, Turkī ed., p. 200, §452. Cf. Ibn ʿAqīl, K. al-Jadal, 70, §274.
313.
Al-Shīrāzī’s second mode of jawāb to this iʿtirāḍ (Maʿūna, al-ʿUmayrīnī ed., p. 102) is of some interest, for it shows us a good strategy by which al-Shāfiʿī’s opponent might have benefited, and the example mas’ala belongs to a domain similar to that of our subject-text’s mas’ala-set above.
314.
Cf. §288, above.
315.
Ḥassūn ed., vol. 9, pp. 205–7; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 364–6.
316.
For expositions on the role of the guardian (walī) in marriage (nikāḥ), and related rulings, see MF, s.v. “نكاح,” esp. §§66–115 on the walī (vol. 41, pp. 247–94); EI ², s.v. “Nikāḥ” (esp. §I.3); DJP, vol. 2, pp. 8–19; and Hallaq, Sharīʿa, pp. 274–6. Schacht summarizes certain elements from §1217 ff. in his EI ² entry on “Nikāḥ”: “The father or grandfather… has the right to marry his daughter or granddaughter against her will, so long as she is a virgin (he is therefore called walī mudjbir, walī</Emphasis> with power of coercion); the exercise of this power is, however, very strictly regulated in the interests of the bride. As minors are not in a position to make a declaration of their wishes which is valid in law, they can only be married at all by a walī mudjbir. According to the Ḥanafīs, on the other hand, every blood relative acting as walī is entitled to give a virgin under age in marriage without her consent; but a woman married in this way by another than her ascendant is entitled on coming of age to demand that her marriage be declared void ( faskh ) by the ḳāḍī. A bridegroom who is a minor may also be married by his walī mudjbir.”
317.
For expositions on these variant forms of marriage dissolution and their associated rulings, see MF, s.v. “طلاق” (vol. 29, pp. 5–77), “إيلاء” (vol. 7, pp. 221–40), and “ظهار” (vol. 29, pp. 189–210); EI ², s.v. “Ṭalāḳ”; DJP, vol. 2, pp. 71–120 (ṭalāq), pp. 121–6 (īlā’), and pp. 127–39 (ẓihār); and Hallaq, Sharīʿa, pp. 280–3 (ṭalāq) and pp. 286–7 (īlā’ and ẓihār).
318.
Al-Shāfiʿī’s response once again illustrates the move of farq-distinction; a critical difference between fathers and other awliyā’-guardians renders qiyās untenable in this mas’ala.
319.
Al-Shāfiʿī seals his elenchus with what might be read as a snappish remark, then refers us to the details of his argument in another “book” (kitāb). As with other such references, one should note we are directed to written material. If this is al-Shāfiʿī’s genuine voice, then his discourses, explications, and didactic dialectics (whether dictated or written by his own hand) must have been available for reference in his own time. Even if this is the voice of a later compiler/editor, it may yet refer to a treatise written or dictated by al-Shāfiʿī himself and published in his day—it need have no bearing on al-Shāfiʿī’s genuine authorship of that kitāb, nor of its prior availability. Certainly the title is found in the Umm compendium (see Ḥassūn ed., vol. 5, pt. 10, pp. 7–192). Moreover, there is another internal cross-reference to a Kitāb al-Nikāḥ in the Umm: in the Book of Judgments (Kitāb al-Aqḍiya; see Ḥassūn ed., vol. 8, pt. 13, p. 181, §25252); and, most importantly, no less than four more references to a Kitāb al-Nikāḥ in this current Chapter on Marriage of our subject-text (at §§1241, 1253, 1257, and 1268; see pt. 2 of my dissertation for translations). Some of these are quite specific in reporting the indicants and arguments of this kitāb. Returning to our current mas’ala (the farq-distinction between fathers and other awliyā’), we find—as promised—a more detailed discussion in the Umm compendium’s Kitāb al-Nikāḥ. This mas’ala, in fact, receives its own subheading: “What has Come Down to Us Regarding Marriage [Contracted by] Fathers” (Mā Jā’a fī Nikāḥ al-Ābā’; see Ḥassūn ed., vol. 5, pt. 10, pp. 57–61, §§15394–15414), under which al-Shāfiʿī’s indicants and arguments are laid out in full. Interestingly, no Kitāb al-Nikāḥ is attributed to al-Shāfiʿī by Ibn al-Nadīm; though it could certainly have been among the (only partially-listed) contents of his Mabsūṭ (as transmitted by al-Rabīʿ and al-Zaʿfarānī; see Fihrist, p. 353). Finally, it may be noteworthy that he does attribute one to al-Shaybānī (Fihrist, p. 345).
320.
Vol. 4, p. 214 [mistakenly cited as p. 215 by al-Afghānī in Abū Yūsuf, Ikhtilāf, p. 169, n. 2].
321.
Ibid., p. 215; quoted by al-Afghānī, p. 170, n. 1.
322.
NB: the formulation of this last argument—“This (farʿ) is an (ʿilla-property), so (ḥukm), like (aṣl)”—is precisely the same as we find in most example-masā’il brought by jadal-theorists a generation or so after al-Sarakhsī.
323.
al-Shīrāzī, Maʿūna, Turkī ed., pp. 262 ff., §§148 ff. [missing from al-ʿUmayrīnī ed.]; al-Bājī, Minhāj, Turkī ed., pp. 201 ff., §§455 ff. Cf. Ibn ʿAqīl, K. al-Jadal, p. 71, §§330.
324.
Al-Shāfiʿī’s a-lā tarā in §1229: rhetorical, delivering a mas’ala of both farq and method-naqḍ; all as components of a larger muʿāraḍa bi’l-nuṭq.
325.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 104; al-Bājī, Minhāj, Turkī ed., p. 185, §415; p. 186, §419 (this jawāb is further subdivided depending upon whether or not R actually has a madhhab regarding the mas’alat al-naqḍ; see §§420–2). Bearing in mind this is an “instructional” dialectic, we can see that al-Shāfiʿī is “covering all the bases” which his pupil might encounter in course of a disputation on this mas’ala. This charge of naqḍ would have been sufficient had R professed the same ḥukm as al-Shāfiʿī for the mas’alat al-naqḍ.
326.
NB: R is thus shown to be a proponent of Abū Yūsuf’s position (cf. §§1217 and 1218b).
327.
See my analysis of §78 in Chap. 6.
328.
Ḥassūn ed., vol. 9, pp. 219–21; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 377–9.
329.
On apostasy (ridda/irtidād) and related rulings, see MF, s.v. “ردة” (vol. 22, pp. 180–201; esp. §44 re: the effects of apostasy on marriage); EI ², s.v. “Murtadd”; DJP, vol. 2, p. 552; and Hallaq, Sharīʿa, pp. 319–20.
330.
Ibn al-Nadīm (Fihrist, p. 353) lists both a Small and Large Book on the Apostate (Kitāb al-Murtadd al-Ṣaghīr and Kitāb al-Murtadd al-Kabīr) among works attributed to al-Shāfiʿī; and, significantly, we find a Large Chapter on the Apostate (Bāb al-Murtadd al-Kabīr) in the Umm compendium (see Ḥassūn ed., vol. 7, pt. 12, pp. 587 ff.) We also find another reference in the Umm to a Kitāb al-Murtadd, under the last subheading—“On the Apostate” (Fi’l-Murtadd)—of a long Book on the Ruling for Fighting Polytheists and the Problem of the Resident of an Enemy Polity’s Property (Kitāb al-Ḥukm fī Qitāl al-Mushrikīn wa Mas’alat Māl al-Ḥarbī; Ḥassūn ed., vol. 5, pt. 9, p. 481, at §15126). As for the current mas’ala of our subject-text, it is treated in the Bāb al-Murtadd al-Kabīr, at the opening of a subheading entitled Property of the Apostate and Wife of the Apostate (Māl al-Murtadd wa Zawjat al-Murtadd; Ḥassūn ed., vol. 7, pt. 12, p. 601, §§23701 ff.)
331.
The “Folk of Islam,” or Muslims.
332.
That is, the “Folk of Polytheism,” or polytheists.
333.
Once again, baʿḍ al-nās refers to a proponent of an Iraqi position; significantly, however, the position (she is not to be killed) is that of Abū Ḥanīfa (and, eventually, of Abū Yūsuf), but not of Ibn Abī Laylā (another Iraqi). We might infer from this that “nās” had both more general (Iraqi) and particular (proto-Ḥanafī) nuances for al-Shāfiʿī.
334.
The “Abode of War,” meaning the lands of combatant, non-Muslim polities.
335.
Meaning, presumably, a Muslim ascetic.
336.
The “Folk of War,” meaning resident combatants of the Dār al-Ḥarb.
337.
Mabsūṭ, vol. 5, p. 49; partially quoted [though incorrectly cited as p. 59] by al-Afghānī in Abū Yūsuf, Ikhtilāf, p. 199, n. 1.
338.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., [initial section missing, remainder on p. 116]; Turkī ed., pp. 262–3 §§149; al-Bājī, Minhāj, Turkī ed., pp. 202 f. §§459 f. As we read in the Mabsūṭ, the objection to Ibn Abī Laylā’s position rests upon a farq between his aṣl (wherein ikhtilāf al-dīn is not itself an immediate mūjib for furqa) and the farʿ (wherein objection to ridda is itself a mūjib for furqa). The Ḥanafī position thus brings another aṣl (the maḥramiyya), wherein the same ʿilla (i.e., “it is an obstacle to nikāḥ” [a property of forbidden degrees in the aṣl, and of ridda in the farʿ]) is found. Thus the same ḥukm of immediate separation may be transferred to the farʿ (i.e., to the mas’ala at hand). This corresponds perfectly to al-Shīrāzī’s objection of al-farq bi-qiyās al-ʿilla and al-Bājī’s al-farq bi-ʿillat al-ḥukm. Note that al-Bājī provides a finer subdivision, according to whether the maʿnā (of the aṣl) is agreed or disagreed upon (by R and Q). We can see that in Abū Ḥanīfa’s iʿtirāḍ of Ibn Abī Laylā’s position (as culled from statements in the Mabsūṭ), there is agreement as to the maʿnā of Ibn Abī Laylā’s aṣl — the disagreement lies in the maʿnā of the farʿ; thus we may make a very precise identification (Bāj.IX.B.15.2.2.1.1).
339.
That is to say, their separation—effected by his apostasy—does not subject them to the same requirements as if it had been effected by a ṭalāq-divorce. We find al-Shāfiʿī’s reasoning in the Mabsūṭ as well (vol. 5, p. 49; not quoted by al-Afghānī), but I find it difficult to reconcile with what al-Shāfiʿī says here in §1312. “Al-Shāfiʿī… said: If [the apostate] did not consummate the marriage, then it is [as in the Ḥanafī position: apostasy causes irrevocable separation]. But if [the apostasy] occurs after consummation of the marriage (dukhūl), the dissolution of marriage is not conditional upon the elapsing of three menstruations, building upon his [al-Shāfiʿī’s] source-case (aṣl)—regarding the farq-distinction between confirmation (ta’akkud) of marriage by way of consummation, and its lack of confirmation—according to what we have explained regarding becoming a Muslim [i.e., the mas’ala brought to expose the farq-distinction, wherein the non-Muslim spouse converts to Islam]. For [the apostate], by way of apostasy, aims at secession from the religious community (munābadhat al-milla), not from the wife (al-ḥalīla), so such is not an efficient cause for separation (mūjib li’l-furqa) after its [the marriage’s] confirmation [by way of consummation], so long as there is not combined with it another reason (sabab): like when one of them converts to Islam.”
340.
Mark this as another sign of Abū Yūsuf’s dialectical ethic.
341.
It conforms particularly well to al-Bājī’s first mode of iʿtirāḍ against this domain of istidlāl: “[Q] says: ‘This is the saying of a solitary Companion, so qiyās is advanced over it.’” (Minhāj, Turkī ed., p. 144, §§296 f.)
342.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 114 f.; al-Bājī, Minhāj, Turkī ed., pp. 181 f., §§402ff, especially at §405. Cf. Ibn ʿAqīl, K. al-Jadal, p. 64, §303.
343.
Indeed, in the middle of §405, al-Bājī asserts: “and this category is one of the broadest categories of objections” (wa hādhā al-bāb min awsaʿ abwāb al-iʿtirāḍāt).
344.
al-Bājī, op. cit.
345.
We will see below that al-Shāfiʿī’s jawāb to his questioner in the ensuing dialectic (al-Shāfiʿī having taken up Ibn Abī Laylā’s position) is also found in our lens-texts.
346.
Minhāj, Turkī ed., p. 182, §405.
347.
This is a common formula throughout the Umm. A preliminary search shows some 130 instances of khālafanā… fa-qāla…, and the subsequent dialectical sequence of our current mas’ala-set, or something like it, appears actually to have occurred. Al-Shāfiʿī persists in “historical” mode, employing past tenses (qīla, qāla, qultu)—to this, we may contrast the “instructional” dialectic, which employs conditionals (fa-in qāla…, qīla….) Note that al-Shāfiʿī never names his opponent, but we may assume he is a proto-Ḥanafī, since he draws upon the same naql and proposes the same rulings as Abū Ḥanīfa and Abū Yūsuf in previous sections.
348.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 82 f.; al-Bājī, Minhāj, Turkī ed., p. 144, §298. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 39 f.
349.
Note also that it occurs with great frequency in our lens-texts, especially in the modes of preponderance (tarjīḥāt); see the listings at the end of Appendices II and III.
350.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 35; al-Bājī, Minhāj, Turkī ed., p. 24, §45. Cf. Ibn ʿAqīl, K. al-Jadal, pp. 11–12, §§53–6 (al-qiyās al-jalī). As mentioned, this is of the a minore ad maius variety, or, in al-Bājī’s formula: “[God, or the Prophet] clearly designates the lesser (adnā) and [thus] draws attention to the greater (aʿlā)” (al-Shīrāzī’s is practically identical).
351.
See previous note for §1316, above. The opponent’s position is one and the same, with the same implied iʿtirāḍ.
352.
Al-Shāfiʿī’s a-ra’ayta in §1321: dialogical, soliciting R’s ruling on parallel / derived masā’il (masā’il al-farq, for this species of method-naqḍ), for an eventual charge of method-naqḍ (R observes a farq-distinction in the parallel masā’il, but ignores it in the mas’ala-at-hand).
353.
This is mirrored, as we have seen, by the jawāb against fasād al-iʿtibār in al-Bājī’s third mas’ala example. There, the distinction between original state of unbelief (al-kufr al-aṣlī) and unbelief of apostasy (kufr al-ridda) is underscored (see the discussion for §1317, above).
354.
Minhāj, Turkī ed., p. 182, §405.
355.
Ḥassūn ed., vol. 9, pp. 231–2; ʿAbd al-Muṭṭalib ed., vol. 8, pp. 386–8.
356.
In other words, her second marriage to the first man begins with a clean slate of three possible ṭalāq-statements, rather than only two (which would be the case had she not married another in the meantime). On rulings related to the procedures and consequences of ṭalāq-divorce, see the references cited in the note for §1219, above. In the more accepted procedure of divorce (ṭalāq sunnī), the husband pronounces a single ṭalāq-statement (the first), then the wife enters her three-month waiting period (ʿidda), during which two things might occur which cause the marriage to resume: (1) they might have sexual intercourse; and (2) the husband might recant his repudiation. If neither occurs before the end of the waiting period, the divorce is effected and their marriage contract is dissolved—no second or third ṭalāq-statement is required. However, they might remarry—under a new nikāḥ-contract—without the restriction of an intervening marriage with another man. If they do so, and the husband again pronounces a single ṭalāq-statement (the second), then the wife enters her three-month waiting period again, with the same conditions (1) and (2). If neither occurs and their second marriage is dissolved, then they might again remarry under a new contract without the intervening marriage restriction. If they do so, but the husband again pronounces a single ṭalāq-statement (the third), then the wife enters her three-month waiting period a final time—but the (third) marriage contract is dissolved immediately, there is no revoking the divorce and returning to the married state, and there is no remarrying with a new nikāḥ-contract until the wife has contracted, consummated, and dissolved an intervening marriage with another man. In the frowned-upon triple-ṭalāq (ṭalāq bidʿī)—whereby the husband makes all three ṭalāq-statements at once—this final set of consequences occurs immediately (i.e., no resumption of the marriage, and no remarrying until an intervening marriage with another is consummated and dissolved).
357.
Which is to say, an intervening marriage only wipes the slate clean of ṭalāq-statements if it occurs after the first husband’s third ṭalāq-statement.
358.
Ḥarrama, “to make ḥarām,” here delivers the same sense of “forbidden” which applies to a man’s female relatives within the “forbidden degrees” of marriage.
359.
Al-Shāfiʿī partially quotes Q.2:230: «And if he unilaterally divorces her (ṭallaqahā), she is not lawful for him thereafter until she contracts marriage with another husband besides him (ḥattā tankiḥa zawj ^an ghayrahu).»
360.
It must be remembered that nikāḥ—besides the contract of marriage—has another meaning: “coitus.”
361.
That is, in this one, exceptional case—after the first husband’s third ṭalāq-statement—only.
362.
Again, see Sect. 8.2 for the meaning of aṣl al-maʿqūl.
363.
Mabsūṭ, vol. 6, p. 95; quoted by Afghānī in Abū Yūsuf, Ikhtilāf, p. 216, n. 2. NB: al-Sarakhsī’s mention of al-Shāfiʿī corresponds with al-Shāfiʿī’s opinion in §1404, and his authoritative transmissions in §1405. Interestingly, and although al-Shāfiʿī’s opinion is referenced many hundreds of times in the Mabsūṭ, it appears only six times in al-Sarakhsī’s commentary on the Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā (in Mabsūṭ, vol. 30, pp. 128–67). Moreover, as we have seen above with regard to §1312, his reported reasoning does not always reconcile easily with what is found in the Umm Version. From this we might conclude that something like the Shaybānī Version—devoid of al-Shāfiʿī’s arguments—was available and accessed by al-Sarakhsī for his commentary on the Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā.
364.
Importantly, al-Sarakhsī notes (Mabsūṭ, vol. 6, p. 95), as regards the naql-adherence of the opposing Abū Ḥanīfa/Abū Yūsuf vs. al-Shaybānī/al-Shāfiʿī positions: “So the younger set of the jurists (al-shubbān min al-fuqahā’) [al-Shaybānī, al-Shāfiʿī, Zufar] adhered to the doctrine of the elder set of the Companions (al-mashā’ikh min al-Ṣaḥāba) [ʿUmar, ʿAlī, et al.]… and the elder set of jurists [Abū Ḥanīfa, Abū Yūsuf] adhered to the doctrine of the younger set of Companions [Ibn ʿAbbās, Ibn ʿUmar, et al.]” Al-Shāfiʿī’s reference to “other kibār of the Aṣḥāb al-Nabī” corresponds with this observation, and gives weight to the possibility that this “shubbān vs. mashā’ikh of the Companions” distinction may have played a role in his argument. Whether or not this is a question of design on the part of our jurists is difficult to confirm. It is possible, however, that when two opposing opinions were backed by comparable (in terms of number) sets of Companion āthār-traditions, a further epistemic consideration was put into effect for purposes of tarjīḥ. Those jurists adhering to the doctrine of the elder set of Companions might claim greater authority due to their having been closer to the Prophet. This finds a parallel in a different domain: the isnād-related tarjīḥāt of al-Shīrāzī. His third mode is: “That one of the two is closer (aqrab) to the Messenger of God; he is given precedence over [the other], because he is more perceptive/attentive (awʿā)” (Shīr.IX.1.3). Even more relevant is his sixth mode: “That one of the two is greater in terms of companionship [with the Prophet] (ṣuḥba); he is given precedence, because he is more knowing (aʿraf) of what persists of exemplary traditions (sunan)” (Shīr.IX.1.6). See the listings of tarjīḥāt at the end of Appendices II and III; and Maʿūna, al-ʿUmayrīnī ed., pp. 121–2.
365.
Cf. §1318, above, and §1377 in my dissertation (“Dialectical Forge,” pt. 2, p. 337).
366.
Minhāj, Turkī ed., p. 144, §§296 f.
367.
See the references to Joseph Lowry, al-Shāfiʿī’s Risāla, and other observations in the analysis of §255 above.
368.
Cf. §§402, 633, 651, 929, and 1056.

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Young, W.E. (2017). Extended Dialectical Sequences. In: The Dialectical Forge. Logic, Argumentation & Reasoning, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-25522-4_5

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