A Picture of Proto-System Jadal

Abstract

In this chapter, “A Picture of Proto-System Jadal,” all the findings of preceding analyses are summarized under categorical headings, placing the whole of the subject-text’s dialectical elements in contradistinction to those of the jadal-theory lens-texts surveyed in Chap. 4. These are grouped according to what is more consonant with full-system theory (7.1), and what is more unique to proto-system teaching and practice (7.2), then followed by a host of additional elements from non-sequence arguments (7.3). Ordered listings of the subject-text’s unique question and argument modes, and distinctive formulae of subsumption, extension, and objection, support several of the study’s core theses: there were, indeed, “proto-systems” of both juridical dialectic and legal theory; detailed portraits of these proto-systems emerge through lens-text analysis; and there are clear, genetic relationships between proto-systems and full-systems. Certain elements of wider historical interest are then listed (7.4), and the chapter closes with a few brief remarks on the overall character of proto-system juridical jadal (7.5).

7.1 What is Common: Elements More Consonant with Full-System Theory

7.1.1 Introduction

Some of the questions, justifications, and objections of our subject-text have fallen easily, or relatively easily, into the categories of our lens-texts. Others have not, and may possibly (but not necessarily) represent dialectical phenomena unique to proto-system juridical jadal.¹ I will focus on the former in this section, and on the latter in the section following. Bear in mind that the findings reviewed in these sections are culled only from the analyses in Chaps. 5 and 6; and with regard to presentation category C, I have reviewed only the functions of its dialectical formulae. The bulk of arguments in category C, along with all the arguments of categories D through F, and the bare substantive rulings of category G, must await further (and considerably more difficult) study.

Bear in mind also that my lens-text identifications are not assertions that proto-system jurists would have recognized all the terms by which I have categorized their arguments—though they certainly would in many instances. I have examined proto-system material through a lens of jadal-theory fashioned at least two centuries later; and I have doubtless applied a more refined set of categories and definitions than existed in the proto-system era.² Nevertheless, my analytical categories are not an anachronistic back-projection of system and term; rather, I have endeavoured only to discover and categorize the theory and practice of an earlier time. If there is a key message to be read from the following presentation of findings, it is this: although elements of full-system theory were absent to a considerable extent from proto-system juridical dialectic, an extraordinary number were nevertheless practiced, and very evidently so. This obtains with regard to elements of full-system uṣūl al-fiqh and jadal-theory both.

The remarkable continuity from proto-system jadal teaching and practice to full-system jadal-theory treatises is what the findings of this first section should most impress. At the same time, one will recognize the extraordinary elaborations and refinements—the true, comprehensive system—which jadal theorists of the fourth/tenth through fifth/eleventh centuries achieved. They were the true Aristotles of Islamic juridical disputation praxis and legal theory. Their systems, however, were not created ex nihilo, nor were they taken over from other epistemic communities. Rather, they represent the analytical distillation of a continuous tradition of teaching and practice, increasingly refined over preceding centuries, and already marked by a high level of sophistication by the time of al-Shāfiʿī.

A final preparatory note: I will continue to abbreviate the names of disputing jurists throughout the summary tables of this chapter, and so present them again for reference:

7.1.2 Proto-System Dialectical Questions Within the Categories of the Lens-Texts

We should not be surprised by the absence of al-Bājī’s questions #1 and #2 from the dialectical sequences of the Kitāb Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn. This may be explained by our subject-text’s abbreviated nature; for each instance in which a dialectical sequence occurs, the mas’ala of contention had already been determined, and opposing solutions were already known. All that remained for al-Shāfiʿī, therefore, was to present such portions of his narrative or instruction wherein the dalīl-indicant was, or ought to be, elicited (su’āl #3); wherein the mode of the dalīl-indicant, if not clear, was, or ought to be, elicited (su’āl #4); and wherein the questioner proceeded, or ought to proceed, to critique (su’āl #5). Any assessment in terms of absences would only hold true if we understood al-Shāfiʿī and other proto-system jurists to have adhered to an ordered question-schema like that proffered by al-Bājī; there are, however, more than a few indications that they did not.

The following, therefore, is only a list of those questions which correspond to al-Bājī’s schema, if not always a precise match. Identifications were often difficult to make: many questions appeared to combine information-seeking and refutational intentions. Many more were directed at an opponent’s objection rather than his justification, and yet others simply found no easy classification in our lens-texts. For the most part, these latter will be treated in following sections as potentially unique to proto-system jadal.

Su’āl #3: The Question about the Indicant (dalīl) [of the madhhab-opinion]

• “Upon which thing did you (pl.) rely [for proof] (ʿalā ayyi shay’in iʿtamadtum)?”○

  • §253 (SH)

• “Provide me an indicant for this (fa-dlulnī ʿalā hādhā)” (in the spirit of a muṭālaba)○

  • §260 (SHAQ)

• “How have you arrived at this opinion, to the exclusion of other doctrines… (kayfa dhahabta ilā hādhā dūna ghayrihi min al-aqāwīl…)?”○

  • §1072 (SHAQ; following up with three counter-doctrines)

• “Why did you assert X (lima zaʿamta X)?”○

  • §1224 (SHAQ; as first stage in pushing concession to his qiyās [see SHAQ in §1227])

• “From where do you claim X (min ayna zaʿamtum X)?”○

  • §1407, 1409 (SHAQ; [X = SH ʿilla-interpretation]; possibly su’āl #4; in §1409 he repeats his request for the dalīl-indicant: “what is it (wa mā huwa)?”

• “From where do you say this (min ayna qulta hādhā)?”○

  • §36 (SHAQ)

• “What provides indication for what you have stated (mā dalla ʿalā mā dhakarta)?”○

  • §51 (SHAQ)

• Su’āl #3 as the means of eliciting premises for a charge of method-naqḍ○

  • [in the way of a rhetorical reductio]■

    • Q states the uṣūl and farʿ for R’s qiyās, then asks: “Is X (which is absurd) the qiyās; or Y (which is absurd) the qiyās?”

      • §1057 (SH)

  • ○ Q asks: “Did you rule as you did because of dalīl-indicant X? (dalīl X being that dalīl which R has not consistently applied, and which is also Q’s dalīl)■

    • §1059 (SH)

  • ○ Q asks: “Why did you rule in the negative, is it because X is different from Y?” (this difference being the farq-distinction that R has not consistently observed)■

    • §1323 (SH)

Su’āl #4: The Question about the Mode (wajh) of the Dalīl-indicant

• “And how does [my dalīl-indicant] not contradict [your dalīl-indicant] (kayfa lā yukhālifu…)?”○

  • §256 (SHAQ)

• “How does X resemble (kayfa tushbihu) Y?”○

  • §285 (SHAQ; in the spirit of muṭālaba bi-ithbāt al-waṣf fi’l-farʿ)

• “And how is that” (wa kayfa dhālika)?”○

  • §645 (SHAQ; in the spirit of a “su’āl ʿan wajh al-iʿtirāḍ” or “su’āl ʿan wajh al-muʿāraḍa”)³

• “Then which of the two doctrines most resembles the qiyās (fa-ayy al-qawlayn ashbahu al-qiyās)?”○

  • §650 (SHAQ; in the spirit of a “su’āl ʿan wajh al-iʿtirāḍ” or “muṭālaba bi-taṣḥīḥ al-iʿtirāḍ”)

• “But how is the qiyās regarding this (wa kayfa yakūnu al-qiyās fīhi)?”○

  • §661 (SHAQ; in the spirit of a “su’āl ʿan wajh al-muʿāraḍa”)

• “How is [X] lawful (kayfa jāza), and more than [X] not lawful (lam yajuz)?”○

  • §63 (SHAQ; in the spirit of a muṭālaba)

Su’āl #5: The Question According to the Mode of Critique (ʿalā wajh al-qadḥ) [against the dalīl-indicant]

Muṭālabāt (as setting the stage for Mumānaʿāt)

• Indeterminate Type○

  • §§63 (SHAQ); 258 (SHAQ); 260 (SHAQ; in the form of su’āl #3, but in the spirit of a critical demand for a dalīl-indicant)

• muṭālaba bi-ithbāt al-waṣf fi’l-farʿ○

  • (Bāj.IX.A.1.6)■

    • §285 (SHAQ; setting stage for manʿ al-waṣf fi’l-farʿ)

• muṭālaba bi-taṣḥīḥ al-akhbār○

  • §1076 (SHAQ: “Then where is the Sunna for it [fa-ayna al-Sunna fīhi]?” likely the first stage of an intended [but never realized] muṭālaba)

Not many of the questions we encountered fit easily into al-Bājī’s schema. Even such obvious candidates as “Provide me an indicant for this (fa-dlulnī ʿalā hādhā)” for question #3 were often uttered with a patently refutational design. Note this as an overall characteristic of our window on proto-system jadal: its dialectical questions do not conform well to the structured categories of later theory—at least, that is, with regard to those (##1–4, and the muṭālabāt of #5) which comprise the initial information-seeking stage of disputation. As for iʿtirāḍāt and muʿāraḍāt, however, there is a remarkable correspondence between proto-system practice and full-system theory. I will turn to these now, arranging identifications according to the organizing principle of our lens-texts.

7.1.3 Proto-System Istidlālāt and Iʿtirāḍāt Within the Adilla Domains of the Lens-Texts

Recall that our early jadal theorists organized the domains of istidlāl and iʿtirāḍ according to three supersets: aṣl, maʿqūl aṣl, and istiṣḥāb ḥāl. I will follow this arrangement in presenting the proto-system justifications and objections which conform to the categories of later theory. The immediate impression is that a remarkable amount of the arguments and dialectical moves of our subject-text would have been recognized and easily explained by later theorists. It is my thesis, of course, that this is no coincidence. It would appear that the system of al-Shīrāzī, for example, was not only formulated from the practice and pedagogy of his more immediate teachers (e.g., Abū al-Ṭayyib al-Ṭabarī [d.450/1058]) and teachers’ teachers (in the line of Ibn Surayj and students), but by an analysis and structuring of the practice and teaching of such jurist-dialecticians as Abū Ḥanīfa, Abū Yūsuf, Muḥammad b. al-Ḥasan, and al-Shāfiʿī.

A few important caveats before the review. First of all, remember the abbreviated presentations of the subject-text—particularly in such categories as were not overtly dialectical—sometimes brought me to propose identifications of a more hypothetical nature. The juxtaposition of opposing rulings and arguments guided me in surmising the forms of objection they would represent in a venue of face-to-face dialectical debate. Of course, as a work of ikhtilāf, the contents of our subject-text were invariably the object of real-time dialectic at some point or another—they were rarely “transcripted” as such, however. I will therefore mark such objections identified by more conjectural means—inferred through the contrast of opinions—as “implied.”

Recall also that abbreviated presentations—particularly for Abū Ḥanīfa, Ibn Abī Laylā, and Abū Yūsuf—often caused me to seek out later reports of background reasoning. These will also be labelled in what follows, as emanating either from the reports of al-Ṭabarī or al-Sarakhsī. As for all arguments and objections which do not bear the markers of “implied” or “reported,” they may be considered as clearly indicated in our subject-text itself. Since we are dealing at present only with “overtly dialectical” material, this applies more to the copious dialectical moves which will follow.

A final important caveat, and one which applies to the whole of our analytical venture, and all of the discussions straight through to the end of this chapter: my analyses have been conducted with regard to portions of a single, early treatise of ikhtilāf, which itself constitutes less than a twentieth of the volume of the Kitāb al-Umm. Nor is the Umm the only early compendium in which patently dialectical material may be found in abundance. Our window onto proto-system jadal is thus a fraction of a fraction, and I am understandably reluctant to extend the picture we are provided beyond its borders to the whole of proto-system jadal. Bear this in mind as we proceed to assess this sliver of light cast onto the early juridical dialectical scene. Unless stated otherwise, my observations apply to our jurist-dialecticians only insofar as the masā’il of our subject text is concerned—they are not (necessarily) to be extended to their overall (and mostly unexamined) practice, and certainly not to the practice of their unnamed predecessors and peers. That being said, I will begin, by reviewing the superset of aṣl, and its subsets of Kitāb, Sunna, Ijmāʿ, and Qawl al-Wāḥid min al-Ṣaḥāba.

Kitāb (“the Book,” i.e., the Qur’ān)

Incidents of Drawing Indication (Istidlālāt)

• §§1052 (AH; Q.5:95; implied [Qur’ānic dalīl-indicant is introduced by a-lā tarā ilā… i.e., presented by way of muʿāraḍa]); 1056 (SH; God’s decree in Q.5:95; accompanied with SH tafsīr-explanation of «mithlu»); 1077 (SH; he claims his istidlāl from Sunna and ijmāʿ is “in the maʿnā-intension of” Q.2:178); 1410 (SH; Q.2:230; followed by mufassir Sunna)

Incidents of Objection (Iʿtirāḍāt)

• sharing the indicant (al-mushāraka fi’l-dalīl); with respect to [its] most apparent meaning (min jihat al-ẓāhir)” (Shīr.I.4[.1]; Bāj.I.3.1.2)○

  • §§1056 (SH; SH istidlāl focuses upon a different component of AH dalīl-indicant in Q.5:95; supported by āthār-traditions, qiyās, and maʿqūl);⁴ 1061 (SH)

This seems a small representation of argument from the Qur’ān; it is not true of our subject-treatise as a whole, however. There are a dozen additional Qur’ānic justifications occurring outside of overtly dialectical material.⁵ I would also propose that—with the Qur’ān occupying the uppermost rank of epistemic authority as it does—problem cases of ikhtilāf occurred more frequently in other domains of istidlāl which enjoyed less in the way of consistency and consensual interpretation in the proto-system era: particularly, the increasingly-important corpus of sunan.⁶ The nascent science of the Ahl al-Ḥadīth (and its material) was newer to the Islamic intellectual landscape than that of the exegetes. Finally, bear in mind that we have examined but a single treatise of the Kitāb al-Umm; the whole of this compendium is replete with many hundreds of arguments from the Qur’ān.

The sole iʿtirāḍ from overtly dialectical presentations I have identified in this domain is “sharing the indicant” (al-mushāraka fi’l-dalīl). This might suggest that the relation of the rulings of the Qur’ān to various genera of the evolving fiqh of proto-Sunnism had already been well-argued and more or less delineated by the time of al-Shāfiʿī, but no positive confirmation can be made without a great deal more research. We may certainly observe, however, that the arguments of al-Shāfiʿī incorporate the complementary Qur’ān-Sunna relationship central to what Joseph Lowry has labelled al-Shāfiʿī’s “concept of the Bayān,” as formulated in his Risāla.⁷ The role of Prophetic Sunna is indeed a large one in our dialectical sequences, and not only in the hands of al-Shāfiʿī, as we have seen.

Sunna (The Prophet’s Instruction and Exemplary Conduct)

Incidents of Drawing Indication (Istidlālāt)

• Qawl (Saying of the Prophet)○

  • §§37 (SH; qaḍā Rasūl Allāh…; SH tafsīr-explanation links efficient properties to the mas’ala at hand); 52 (SH; qaḍā Rasūl Allāh…); 239 (AH); 247 (Ahl al-Baṣra); 254 (SHAR of the Mashriqiyyūn); 1075 (SH); 1077 (SH; combined with ijmāʿ and [ambiguous] maʿnā-intension of Q.2:178)

• Fiʿl (Deed of the Prophet)○

  • §§64–5 (SH; 3x; accompanied by tafsīr-explanation of his hermeneutic); 261 (SH; ḥadīth is used incidentally as supporting dalīl-indicant to illustrate usage of lafẓ-expression contended by SHAQ); 276 (IAL); 543 (SHAR); 1125 (AH; reported by al-Sarakhsī); 1225 (SH; accompanied by SH tafsīr-explanation)

• undetermined type○

  • §§78 (SH; general appeal to Sunna as witness to farq-distinction between ʿitq-manumission and all other transactions); 1410 (SH; as mufassir to Q.2:230)

Incidents of Objection (Iʿtirāḍāt)With Reference to the Chain of Transmission (Isnād)

• Indeterminate: “a singular mode [of transmission] (min wajhin wāḥidin) which the Ahl al-Ḥadīth do not grant full confirmation (lā yuthbituhu… kulla tathbīt).”○

  • §667 (SH; dismissing possible exception to his hypothetical muʿāraḍa)

• Indeterminate: it is an error (ghalaṭ) “because the Ḥuffāẓ have not preserved anything of the sort (lam yaḥfaẓū hākadhā).”○

  • §1119 (SH)

With Reference to the Transmitted Text (matn) [as a Self-Initiated Saying of the Prophet (qawl mubtada’)]

• claim of ambiguity (daʿwā al-ijmāl)○

  • daʿwā al-ijmāl regarding God’s Law (Sharʿ)■

    • (Shīr.II.C.3.1; Bāj.II.2.2.3.2)

      • §53 (SH)

  • daʿwā al-ijmāl regarding the Arabic Language (lugha); Contestation regarding the general scope (al-munāzaʿa fi’l-ʿumūm): [Q] claims ambiguity (ijmāl) regarding [the expression]○

    • (Shīr.II.C.3.2; Bāj.II.2.2.3.2)■

      • §247 (SH)○

        • R’s ḥadīth is jumla; Q’s is mufassir: §255 (SH; supported by adilla-indicants: āthār-traditions of ʿUmar, Abān b. ʿUthmān, and al-Ḥakam, and later by other āthār-traditions)

• sharing the indicant (al-mushāraka fi’l-dalīl)○

  • (Shīr.II.C.4; Bāj.II.2.3.1.2)■

    • §544 (SH employs the same ḥadīth as dalīl-indicant, but focuses upon a different lafẓ-expression)

• abrogation by way of the contradictory doings of the Companions (al-naskh bi-ʿamal al-Ṣaḥāba bi-khilāfihi)○

  • (Shīr.II.C.6.3; Bāj.II.2.5.3)■

    • §1126 (IAL/[old] AY; implied by al-Sarakhsī’s report)

• counter-indication by way of divinely-sanctioned decree (muʿāraḍa bi’l-nuṭq)○

  • (Shīr.II.C.8.1; Bāj.II.2.7.1)■

    • §§248 (SH; x2); §544 (SH; counter-ḥadīth introduced by a-lā tarā)

• counter-indication by way of the occasioning factor (muʿāraḍa bi’l-ʿilla)○

  • general■

    • (Shīr.II.C.8.2; Bāj.II.2.7.2)

      • §1126 (IAL/[old] AY; implied)

  • when the Sunna is general (ʿumūm), allowing the possibility of particularization (takhṣīṣ)■

    • (Shīr.II.C.8.2.3; Bāj.II.2.7.2.3)

      • §248 (SH); §257 (SH)○

        • Jawāb: Shīr. and Bāj. recommend arguing against Q’s dalīl-indicant so as to eliminate it, then persisting in istidlāl from the ʿumūm■

          • §258 (SHAR)

With Reference to the Transmitted Text (matn) [as the Prophet’s deed (fiʿl)]

• sharing the indicant (al-mushāraka fi’l-dalīl)○

  • (Shīr.II.E.4; Bāj.II.4.5)■

    • §544 (SH; hypothetical; SH does not in fact concede that the concerned ḥadīth bears what SHAR has claimed of it, but if it did…)

• counter-indication by way of the occasioning factor (muʿāraḍa bi’l-ʿilla)○

  • (Shīr.II.E.8.2; Bāj.II.4.9.3.2)■

    • §274 (AH)

Modes of Preponderance (Tarjīḥāt)

• Regarding the Chain of Transmission (Isnād)○

  • one of the two [khabar-reports] is more narrated; it is superior (awlā)■

    • (Shīr.IX.1.5; Bāj.XVI.1.1.3)

      • §248 (SH)

• Regarding the Transmitted Text (Matn)○

  • one of the two khabar-reports is consistent (muwāfiq) with another dalīl-indicant, from an authoritative source-case (aṣl), or what is rationally understood from one (maʿqūl aṣl)■

    • (Shīr.IX.2.1)

      • §§276 (IAL; continuation of Prophet’s transaction at Khaybar under the reigns of Abū Bakr and ʿUmar); 277 (IAL/AY; “And indeed, according to us, the qiyās for this concurs with the athar-tradition”); 1226 (SH; supports his istidlāl by way of Sunnaic deed with allusion to unnamed Companions)

This is a fine show of justifications and objections in the domain of Sunna. With regard to larger subcategories, only representatives of the Prophet’s acknowledgment (iqrār), and iʿtirāḍāt oriented to the prompted saying of the Prophet (qawl khārij ʿalā sabab)—al-Bājī’s Prompted Sunna (Sunna wārida ʿalā al-sabab)—are missing.⁸ Of particular note with regard to proto-system istidlāl bi’l-Sunna is the following: (1) al-Shāfiʿī’s tafsīr-explanation not only of the contents of a particular khabar-report, but of his own hermeneutic; (2) the support of his Sunna-interpretation via elements from other uṣūl (Qur’ān and Ijmāʿ); and (3) his employing Sunna as interpreter (mufassir) to Qur’ān, and as an incidental dalīl-indicant for lafẓ-expression interpretation with regard to another Sunnaic aṣl. These are legal theoretical elements which go beyond the mere claim of Sunnaic consonance for one’s solution to the mas’ala at hand, and have all been brought forth in a dialectical venue.

As far as iʿtirāḍāt and tarjīḥāt in this domain, we are also provided a number of insights with regard to proto-system practice. First of all, note the vague form which al-Shāfiʿī’s transmission-oriented objections often take; and this assessment applies to the greater part of our subject-treatise. This is certainly not to say that al-Shāfiʿī was not a master of (and contributor to) the transmission-theory of his time.⁹ In the main, however, his objections are formulated as “the Ahl al-Ḥadīth do not confirm its like.” Significantly, the other jurists of our treatise are quite silent with regard to transmission-oriented objections, although we must not assume that such did not play a role in the much abbreviated accounts of their arguments, or elsewhere in their dialectical encounters.

With regard to matn-oriented dialectical moves, I would highlight a number of features: (1) a concern with ambiguity/generality (ijmāl), and the appearance of al-Shāfiʿī’s jumla-mufassir distinction in a Sunna-to-Sunna encounter; (2) the repeated practice of critiquing an opponent’s interpretation of a particular lafẓ-expression; (3) the preponderating of one’s Sunnaic dalīl-indicant by way of supporting adilla-indicants of a weaker epistemic value; (4) the muʿāraḍa of ḥadīth by ḥadīth; and (5) the supplanting of an opponent’s conception of an efficient property with one’s own conception (al-muʿāraḍa bi’l-ʿilla). Once again, all of these features depend upon legal-theoretical methods which go beyond a mere claim that one’s ruling is more in consonance with the Prophet’s Sunna. There is a developed hermeneutic in place, and the fine-honing of epistemic justification through dialectical encounter is plain to see.

Ijmāʿ (Consensus)

Incidents of Drawing Indication (Istidlālāt)

• §1077 (SH; ijmāʿ on two substantive rulings is combined with a Sunnaic decree and claimed to be “in the maʿnā of” Q.2:178)

• [ijmāʿ as aṣl for qiyās]¹⁰○

  • §§274–5 (AH; ijmāʿ re: aṣl reported by al-Ṭabarī); 277 (IAL/AY; ijmāʿ re: aṣl reported by al-Ṭabarī); 691 (SH; ijmāʿ re: aṣl stated clearly); 1075 (SH; al-qiyās ʿalā al-ijmāʿ)

• [Q’s general charge: R’s violation of [what] ‘the people claim’ ([mā] zaʿama al-nās); and of the ‘majority doctrine’ (madhhab al-ʿāmma)]¹¹○

  • §§696 (SH; twinned with naqḍ as component of “naqḍ dilemma”); 703 (SH; “If you rule X, you contradict the madhhab of the ʿāmma;” violation of ijmāʿ is the first option of “naqḍ-dilemma”)

Incidents of Objection (Iʿtirāḍāt)

• against drawing indication by way of consensus of the Companions (istidlāl bi-ijmāʿ al-Ṣaḥāba): demand for validation of consensus (muṭālaba bi-taṣḥīḥ al-ijmāʿ)○

  • (Shīr.III.2; Bāj.III.1.1)■

    • §§635 (AH; implied); 636 (IAL; implied); 639 (SH; implied); 1402 (AH; implied by al-Sarakhsī’s report); 1405 (SH; implied; āthār-tradition decrees of five of the Companions)

• against drawing indication by way of consensus of the Companions (istidlāl bi-ijmāʿ al-Ṣaḥāba): disagreement (khilāf) of another Companion○

  • (Shīr.III.3; Bāj.III.1.2)■

    • §§635 (AH; implied); 636 (IAL; implied); 637 (IAL; implied; āthār-traditions increased from one to three); 639 (SH; implied; khilāf of three āthār-tradition decrees [same as IAL]); 640–1 (SH; raises own āthār-traditions to four, AH āthār-traditions to five; then clearly indicates khilāf of Companions); 1402 (AH; implied by al-Sarakhsī’s report); 1405 (SH; implied; āthār-tradition decrees of five of the Companions)

Although the samples of ijmāʿ-oriented iʿtirāḍāt are almost entirely of the “implied” sort, note that the istidlālāt are either reported by al-Ṭabarī or clearly stated in our subject-text. Moreover, there are a number of occurrences from other presentation categories awaiting further study. I would highlight the following features with regard to this small set of early ijmāʿ-oriented dialectical moves: (1) al-Shāfiʿī’s skilful blending of ijmāʿ with Sunna and Qur’ān for the accretion of epistemic justification; (2) a common role for ijmāʿ in sanctioning an aṣl for qiyās with all key jurists of our subject-text; (3) al-Shāfiʿī’s formulae of “[mā] zaʿama al-nās,” and “madhhab al-ʿāmma” (both of which harmonize with Aristotle’s endoxa-set); (4) the absence—so far as I can immediately discern—of reference to subcategories of ijmāʿ; and (5) the absence of demands for validation (taṣḥīḥ) of one’s claim of ijmāʿ (beyond the domain of ijmāʿ al-Ṣaḥāba).¹²

As for the two objections against ijmāʿ al-Ṣaḥāba, these are mostly the result of my conjecture as to how our jurists might have employed their collections of supporting āthār-traditions when confronted with an opposing set. Though hesitant to generalize, I would submit our subject-text provides little indication that ijmāʿ was conceived of in anything like the more sophisticated manner of later uṣūl and jadal-theory systems. On the other hand, what little we have encountered in the way of ijmāʿic formulae and application corresponds well with the dialectic of Aristotle’s Topics, from two perspectives: (1) appeals to ijmāʿ, to [mā] zaʿama al-nās, and to the madhhab al-ʿāmma (paralleling subsets within Aristotle’s larger endoxa set); and (2) the employing of ijmāʿ-sanctioned rulings as uṣūl for qiyās (paralleling Aristotle’s use of endoxa premises). Twinned with the hierarchy of epistemic authority inherent to our jurists’ Islamic argumentation episteme (God, Sunna, ijmāʿ, qiyās, etc.), this latter parallel (the use of endoxa premises) may be said to extend to the full gamut of epistemic justifications in Islamic legal theory. Moreover, we may observe that it was juridical disputation that largely determined what these endoxa premises themselves would be. Thus, juridical jadal at once depended upon, and determined, what was endoxon for the Muslim jurist.¹³

Qawl al-Wāḥid min al-Ṣaḥāba (The Saying of a Solitary Companion)

Incidents of Drawing Indication (Istidlālāt)

• One Companion○

  • §§52 (SH; athar-tradition judgment of ʿUmar, in support of Sunnaic judgment; SH tafsīr-explanation shows his ʿilla (and its rationale) at work in this athar-tradition dalīl-indicant); 89 (AH; athar-tradition decree of Ibn ʿAbbās; reported by al-Sarakhsī); 90[a] (IAL; athar-tradition of ʿĀ’isha; reported by al-Sarakhsī); 92–3 (RB relating SH; athar-tradition decree of Ibn ʿAbbās); 636 (IAL; athar-tradition decree of ʿAlī); 1061 (SHAR; taqlīd of ʿUmar b. al-Khaṭṭāb); 1067, 1069–70 (AH; athar-tradition deed of Ḥasan b. ʿAlī; al-Sarakhsī reports this was also ʿAlī’s dying wish—i.e., it is also an athar-tradition decree of ʿAlī);¹⁴ 1126 (IAL/[old] AY; reported by al-Sarakhsī; athar-tradition deed of ʿAlī); 1313[b] (AH; athar-tradition of Ibn ʿAbbās); 1318 (SHAR; same athar-tradition of Ibn ʿAbbās employed by AH in §1313[b])

• Two Companions○

  • §§241 (IAL; enforced Caliphal decree is doctrine of Ḥijāzīs = āthār-tradition decrees of ʿAlī and Ibn ʿAbbās); 279 (IAL/AY; āthār-tradition deeds of Saʿd b. Abī Waqqāṣ and Ibn Masʿūd; used to support ḥukm extended by qiyās); 1406 (SHAQ; āthār-tradition decrees of Ibn ʿUmar and Ibn ʿAbbās)

• Multiple Companions (in the attempt to preponderate another aṣl, or show ijmāʿ al-Ṣaḥāba, or simply by way of taqlīd)○

  • §§242–4 (SH; āthār-tradition decrees of ʿUmar, Abān b. ʿUthmān, and al-Ḥakam; used as adilla-indicants for iʿtirāḍ against istidlāl bi’l-Sunna); 267 (SH; ʿUmar I, ʿUthmān; and some Successors: ʿUmar II and others; used incidentally to support SH ḥadīth interpretation); 278 (IAL/AY; āthār-tradition deeds of ʿUmar, Ibn Masʿūd, and ʿUthmān; used to support aṣl for qiyās); 635 (AH; āthār-tradition decrees of Abū Bakr, Ibn ʿAbbās, ʿĀ’isha, Ibn al-Zubayr); 637 (IAL; āthār-traditions increased by addition of āthār-tradition decrees of Zayd b. Thābit and Ibn Masʿūd); 639 (SH; āthār-tradition decrees of Zayd b. Thābit, ʿAlī, and Ibn Masʿūd [same as IAL]); 640 (SH; āthār-traditions increased by addition of athar-tradition decree of ʿUthmān)

• Unstated Number of Companions○

  • §§1054 (IAL; taqlīd of the athar-tradition re: ʿanāq and jafra; confirmed by al-Sarakhsī, with a host of other supports, all of which constitute istiḥsān); 1226 (SH; as support for his istidlāl by way of Sunnaic deed); 1405 (SH; athar-tradition decree of ʿUmar, and other kibār Aṣḥāb al-Nabī; al-Sarakhsī reports: āthār-tradition decrees of ʿUmar, ʿAlī, Ubayy b. Kaʿb, ʿImrān b. al-Ḥuṣayn, and Abū Hurayra)

• Mixed: Companions and Successors (in attempt to show ijmāʿ, or to preponderate the athar-tradition decree of a Companion, or simply by way of taqlīd)○

  • §1402 (AH; reported by al-Sarakhsī: āthār-tradition decrees of Ibn ʿAbbās, Ibn ʿUmar, Ibrāhīm, and the companions of ʿAbd Allāh b. Masʿūd)

Incidents of Objection (Iʿtirāḍāt)

• qawl al-wāḥid min al-Ṣaḥāba idhā lam yaẓhar is not a ḥujja (al-Bājī)○

  • §§283 (SH; matn of opposing āthār-traditions is “not confirmed by its like”)

• advancing qiyās over qawl al-wāḥid min al-Ṣaḥāba○

  • (Bāj.V.1)

    • §1316 (AY/MIH)

• conveyance of khilāf from one of the Companions○

  • (Shīr.IV.3; Bāj.V.2)■

    • §§89 (AH; implied by al-Sarakhsī’s report); 90[a] (IAL; implied by al-Sarakhsī’s report); 635 (AH; khilāf of four Companions against IAL athar-tradition); 636 (IAL; khilāf of one); 637 (IAL; āthār-traditions increased from one to three); 639 (SH; khilāf of three āthār-tradition decrees [same as IAL]); 640 (SH; āthār-traditions increased from three to four); 1061 (SH; 2x); 1319 (SH; unique “hypothetical” iʿtirāḍ; he maintains the same principle of isnād-critique against the khilāf-proving athar-tradition he brings, as he does against the athar-tradition he opposes); 1402 (AH; implied by al-Sarakhsī’s report: āthār-tradition decrees of Ibn ʿAbbās and several Successors); 1405 (SH; implied; āthār-tradition decrees of five of the Companions)

• [Q] counter-indicates it (yuʿāriḍuhu) with the unambiguous text (naṣṣ) of Qur’ān or Sunna○

  • (Shīr.IV.2)■

    • §§1052 (AH; the nuṭq is Q.5:95; introduced by a-lā tarā ilā); 1061 (SH; the nuṭq is Q.5:95); 1078 (SH; the nuṭq is a Sunnaic decree); 1125 (AH; reported by al-Sarakhsī; the nuṭq is a Sunnaic deed)

By far the most numerous subset of aṣl—as opposed to maʿqūl aṣl—employed for both istidlāl and iʿtirāḍ in the subject-text is āthār-traditions of the Companions. Adding to their important role in proto-system jadal, I would note that transmission-oriented objections with regard to them (treated below) enjoy a significant presence in our subject-text. Moreover, objections of this kind consist of the same arguments employed against faulty transmissions of Prophetic Sunna. Such a transmission-oriented mode of iʿtirāḍ was not treated by our lens-texts with specific regard to āthār-traditions, however.

Note also that our lens-texts are concerned only with decrees of singular Companions which bear no indicant of wide-spread adherence. The convention of categorizing by one, two, or multiple Companions is my own, and has been prompted by two considerations. First, I thought it likely that—just as the solitary report (khabar al-wāḥid) may have more than one transmitter at any, or all, stages of transmission, requiring only a falling-short of the conditions for “unbroken, consistent transmission with multiple transmitters at every stage” (tawātur) to be labelled solitary (wāḥid)—so too might the matching decrees of two, or even three Companions still be considered in the domain of qawl al-wāḥid min al-Ṣaḥāba, requiring only a falling-short of the conditions of ijmāʿ al-Ṣaḥāba to be labelled as wāḥid. Any positive claims as to this supposition on my regard must await a great deal more of research and comparison, however.

A second consideration was to see, by isolating references to one or two Companions from references to multiple Companions, if some sort of pattern would emerge. To a certain extent, we might say that one has, and may be described in the following terms. The singular athar-tradition of a Companion constituted a kind of lower-epistemic-grade glass weight which, in the absence of stronger adilla-indicants, could tip the scale in favour of a particular solution to the mas’ala at hand. As a source for taqlīd, of course, it could stand on its own, but would immediately be outweighed by a stronger dalīl-indicant from Kitāb, Sunna, or even qiyās (see, e.g., §§1052, 1061, 1125, and 1316). In consonance with another dalīl-indicant, however, the decree of a Companion would only add to that dalīl-indicant’s utility for epistemic justification (witness, among others, §§52; 92; 278–9; 1054). Moreover, in sufficient numbers, matching decrees of Companions might provide indication for the reinterpretation (§§242–4) or even naskh (implied in §1126) of Prophetic Sunna itself.

Not surprisingly, we find āthār-traditions of Companions playing a number of roles in iʿtirāḍāt outside the domain of qawl al-wāḥid min al-Ṣaḥāba (i.e., besides against each other, as above in the numerous instances of “conveyance of khilāf from one of the Companions”). Within this domain, however, a few more points are worthy of highlighting: (1) al-Shāfiʿī’s epistemic devaluation of opposing āthār-traditions because it is “not confirmed by its like,” or it is “waḥdahu”—unaccompanied by another dalīl-indicant; (2) the apparent advancing of qiyās over āthār-traditions by both Ibn Abī Laylā and al-Shāfiʿī; (3) the balancing of one āthār-set against another āthār-set we witness in §§635ff., resulting in al-Shāfiʿī’s observation that khilāf was split down the middle between opposing Companion-sets; and (4) al-Shāfiʿī’s “hypothetical” iʿtirāḍ, whereby he critiques his opponent’s athar-tradition by showing he can bring one of equally problematic transmission but conveying the opposite ḥukm. Once again, arguments such as these go beyond mere claims that one’s ruling is consonant with the decree of a Companion; they draw deeper into argument axioms of preponderance, epistemology of qiyās, and epistemic valuation of conveyance-modes. This is proto-system legal theory wrought in the dialectical forge, and we will revisit some of these in the next chapter. At present, I will turn to the second superset of Indicants in Consonance with God’s Law (adillat Sharʿiyya), the maʿqūl aṣl and its subsets of faḥwā al-khiṭāb, dalīl al-khiṭāb, maʿnā al-khiṭāb, etc.

7.1.4 Laḥn al-Khiṭāb (the Unspoken Implication of the Instruction), Faḥwā al-Khiṭāb (the A Fortiori Signification of the Instruction), Dalīl al-Khiṭāb (the [Restrictive] Indicant of the Instruction), and al-Ḥaṣr (Restriction)

Nothing corresponding to laḥn al-khiṭāb or al-ḥaṣr was encountered in the course of analyses. This indicates nothing more than the absence of adilla-indicants with contended features relevant to these categories in the relatively few masā’il of ikhtilāf fully explored in the current project. Nor are the merely singular occurrences of faḥwā al-khiṭāb and dalīl al-khiṭāb—and those only in the domain of istidlāl—particularly indicative of anything by their low representation.¹⁵ As for the former, recall that al-Shāfiʿī’s opponent was reported as arguing, from Sunnaic basis: “When the killing of female polytheists, who do not believe, is forbidden; then it is all the more appropriate (awlā) that the female believer who apostatizes from Islam should not be killed” (§1320). This is faḥwā al-khiṭāb of the species a minore ad maius, where the khiṭāb is the Prophet’s, and he “cites the lesser (adnā) and [thus] draws attention to the greater (aʿlā).” And as for the latter, we have seen al-Shāfiʿī himself infer from the naṣṣ of Q.2:282—whereby God allows “debt [tied] to a ‘designated’ term (dayn ilā ajal musamman)”—that God does not allow debt tied to an undesignated term (dayn ilā ajal ghayr musamman) (§91).¹⁶ This is dalīl al-khiṭāb, and, as we recall, it bore the additional stamp of conforming to Ibn Surayj’s stipulation that God’s khiṭāb be expressed via a conditional expression (lafẓ al-sharṭ).

Maʿnā al-Khiṭāb, fa-huwa al-Qiyās (the Intension-Property of the Instruction—Meaning Correlational Inference)

Incidents of Drawing Indication (Istidlālāt)

• Qiyās al-ʿIlla (Correlational Inference of the Occasioning Factor)○

  • Jalī (Clearly-Disclosed)■

    • §§274–5 (AH; efficient property indicated; al-Ṭabarī reports aṣl and ʿilla and that aṣl enjoys sanction of ijmāʿ al-kull); 691 (SH; ʿilla of two efficient properties; aṣl is ijmāʿ); 1075 (SH; al-qiyās ʿalā al-ijmāʿ)

  • ○undetermined subtype■

    • §§35 (SH; ʿilla and aṣl clearly indicated); 1310 (AH; ʿilla and aṣl reported by al-Sarakhsī); 1311 (IAL; aṣl reported by al-Sarakhsī)

• Qiyās al-ʿAks (Correlational Inference of The Opposite)○

  • §1410 (SH; ʿilla and aṣl clearly indicated; aṣl is clarified by a mufassir-hermeneutic combining istidlāl bi’l-Kitāb with istidlāl bi’l-Sunna)

• Type I Qiyās al-Dalāla (Correlational Inference of Indication)○

  • §§540 (SH; hypothetical; in context of method-naqḍ, showing what SHAR should have done to be consistent in his qiyās-method); 643 (SHAR of Ahl al-Kalām; via three endoxa khiṣāl: ḥukm A, ḥukm B, and “nominal” waṣf)¹⁷

• Type III Qiyās al-Dalāla: Qiyās al-Shabah (Correlational Inference of Resemblance)○

  • §§157 (SH); 277 (IAL/AY; aṣl introduced via a-lā tarā; aṣl and aḥkām supported by āthār-traditions; al-Ṭabarī reports aṣl and ʿilla and that aṣl enjoys sanction of ijmāʿ al-kull); 286 (SHAQ; same as IAL/AY in §277)

• Indeterminate Type of Qiyās○

  • §§785 (SH); 1125 (AH; reported by al-Sarakhsī); 1126 (IAL/[old] AY; reported by al-Sarakhsī); 1128 (SHAR); 1130 (SHAR); 1316 (AY/MIH; aṣl is Sunnaic prohibition)

Incidents of Objection (Iʿtirāḍāt)

• against ʿilla-justification by way of the name (al-taʿlīl bi’l-ism), Type 1 (al-Baṣrī)○

  • §649 (SH; note that his opponent, who is doing qiyās based on the ism al-ubuwwa, is of the Ahl al-Kalām)

• Denying the Property (manʿ al-waṣf/mumānaʿa fi’l-waṣf); in the branch-case (farʿ):○

  • (Shīr.VII.4; Bāj.IX.6.1.2)■

    • §§89 (AH; implied); 90[a] (IAL; implied); 155 (SH); 662 (SH; this mas’ala cannot be a farʿ, because it shares no maʿnā with an aṣl)

      • Jawāb: tafsīr-explanation and dalāla-indication○

        • §89 (AH; implied by al-Sarakhsī’s report)

• Professing the compelling agency of the occasioning factor (al-Qawl bi-mūjib al-ʿilla):○

  • (Shīr.VII.9.2; Bāj.IX.8)■

    • §90[a] (IAL; implied by al-Sarakhsī’s report)

• Inconsistency (Naqḍ) (Shīr.VII.7)○

  • when [R’s] ʿilla is posited for the genus (wuḍiʿa li’l-jins), being in the position (manzila) of the definition (ḥadd)■

    • (Bāj.IX.B.11.1)

      • §§693–700 (SH); 700–703 (SH); 702 (SH) [sequence = components of “naqḍ-dilemma” which is sprung in §§703–4]; 740–1 (SH; rhetorical elenchus in §741; SHAR is silenced); 743 (SH; double naqḍ; masā’il al-naqḍ delivered by a-ra’ayta); 1125 (AH and/or al-Sarakhsī; a-lā tarā introduces mas’alat al-naqḍ)

  • ○ when [R’s] ʿilla is posited for the affirmation of rulings for individuals (wuḍiʿa li-ithbāt al-aḥkām fi’l-aʿyān)■

    • (Bāj.IX.B.11.2.1)

      • §§536 (SH; double charge of naqḍ)○

        • Jawāb: “[R] does not concede to the mas’alat al-naqḍ”■

          • §1230 (SHAR)

• Reversal (Qalb)○

  • (Shīr.VII.14.1) or (Bāj.IX.B.9.1.2)■

    • Reversal by way of an intended ruling (Qalb bi-Ḥukm Maqṣūd) or Reversal of one/some of the properties of the occasioning factor (qalb bi-baʿḍ awṣāf al-ʿilla)

      • §651 (SH); 653 (SH; a-ra’ayta); 655–60 (SH; hypothetical qalb in stages)

• Lack of Efficiency (ʿAdam al-ta’thīr)○

  • for a property (waṣf) such as which the ʿilla is not destroyed by its removal; this is called “stuffing” (ḥashw)■

    • (Shīr.VII.6.2; Bāj.IX.B.14.2)

      • §1129 (SH; SHAR’s waṣf shown to have no relevance to efficiency of the ʿilla)

• Invalid Compatibility-Comparison (Fasād al-iʿtibār)○

  • for what is known by way of the authoritative source-cases (uṣūl)■

    • (Shīr.VII.12.2.2; Bāj.IX.B.10.2.2)

      • §§78 (SH; foreshadowed); 80 (SH; aṣl may not serve as an aṣl due to general farq-distinction demonstrated in a number of masā’il al-furūq); 1316 (AY/MIH; NB: this is the very example we find in the jadal-theory texts); 1320 (SHAR; implied)○

        • Jawāb: confirmation of taswiya between aṣl and farʿ■

          • §1326 (SH; NB: this is the very jawāb we find in al-Bājī)

• Counter-Indication (Muʿāraḍa)○

  • Counter-Indication with a Divinely-Sanctioned Decree (al-Muʿāraḍa bi’l-Nuṭq)■

    • (Shīr.VII.15.1; Bāj.IX.B.15.1)

      • §§37 (SH; the nuṭq is Sunnaic judgment); 64–5 (SH; opponent’s attempted qiyās from an exception-khabar-report is blocked by tafsīr-explanation and argument from Sunnaic adilla-indicants); 276 (IAL; implied; the nuṭq is Sunnaic deed); 282 (SH; the nuṭq [x2] is Sunnaic proscription and deed); 288 (SH; the nuṭq is Sunnaic proscription); 703 (SH; the nuṭq is ijmāʿ); 1219 (SH; implied); §1225 (SH; the nuṭq is Sunnaic deed)

  • ○ Counter-Indication of qiyās by qiyās (al-Baṣrī); or Counter-Indication with a Self-Initiated Occasioning Factor (al-Muʿāraḍa bi-ʿIlla Mubtada’a)■

    • (Shīr.VII.15.2.1; Bāj.IX.B.15.2.1)

      • §§155 and 157 (SH); 691 (SH; implied); 1125 (AH and/or al-Sarakhsī); 1126 (IAL/[old] AY; implied)

  • ○ Counter-Indication with the Occasioning Factor of the Source-Case—which is Invalidating Distinction (al-muʿāraḍa bi-ʿillat al-aṣl wa huwa al-farq); by way of Correlational Inference of the Occasioning Factor (al-Farq bi-Qiyās al-ʿIlla); by way of the Occasioning Factor of the Ruling (farq bi-ʿillat al-ḥukm)■

    • (Shīr.VII.15.2.2.1; Bāj.IX.B.15.2.2.1.1)

      • §§64 (SH; hypothetical; were it not for the exception-khabar-report, SH would supplant opponent’s ʿilla with that derived from “the aṣl of our madhhab”); 277 (IAL/AY; ʿilla reported by al-Ṭabarī); 1310 (AH; strongly indicated by al-Sarakhsī’s report); 1311 (IAL; suggested by al-Sarakhsī’s report)

  • ○ Invalidating Distinction by way of Correlational Inference of Indication (al-Farq bi-Qiyās al-Dalāla)■

    • (Shīr.VII.15.2.2.2.1; Bāj.IX.B.15.2.2.2.1)

      • §§662–7 (SH; hypothetical)

  • ○ Invalidating Distinction by way of Correlational Inference of Resemblance (al-Farq bi-Qiyās al-Shabah)■

    • (Shīr.VII.15.2.2.3; Bāj.IX.B.15.2.2.2.4)

      • §288 (SH; hypothetical [he does not actually believe qiyās obtains here])

      • ○Indeterminate subtype of muʿāraḍat al-ʿilla bi’l-ʿilla

    • ■(Shīr.VII.15.2; Bāj.IX.B.15.2)

      • §§1218[b] (AY); 1406 (SHAQ; his qiyās having been performed by the “younger set” of Companions)

  • ○Indeterminate type of farq-distinction

    • §§1125 (AH and/or al-Sarakhsī; zinā is makhṣūṣ among its naẓā’ir); 1131 (SH; farq-distinction between SHAR’s aṣl and farʿ; but SH’s overall objection appears to be muʿāraḍa bi’l-nuṭq); 1219 (SH; implied); 1228ff. (SH; farq-distinction against SHAQ’s qiyās al-dalāla; but SH’s overall objection appears to be muʿāraḍa bi’l-nuṭq)

Modes of Preponderance (Tarjīḥāt)

• Indeterminate Preponderance of (Potentially-Efficient) Intension-Properties (Tarjīḥ al-Maʿānī):○

  • §§236 (AH; implied); 238 (IAL; implied); 245[a] (SH; implied)

This remarkable array of qiyās-oriented istidlālāt and iʿtirāḍāt should impress upon the reader a number of important points, not least of which is a confirmation of Hallaq’s observation: “Qiyās, the primary method of legal reasoning in Islamic law, is indeed the focal point of dialectic.”¹⁸ From what we see in the subject-text, this was just as true in the second/eighth century as it was in al-Baṣrī’s day, and after. Even in the limited number of masā’il analyzed, nearly the full gamut of al-Shīrāzī’s qiyās typology is represented, along with a significant number of qiyās-oriented iʿtirāḍāt, including the full range of muʿāraḍāt. Such a showing speaks volumes for the sophistication of proto-system jadal, and demands further exploration of qiyās-oriented justifications and objections in the treatises of the Umm. The window has barely been cracked open in this regard.

Although expressed in a different language of maʿnā-intensions/qualities, or indirectly through markers such as “because it is X” (li’annahu X), and “just like Y” (kamā Y), etc., with the terms ʿilla and waṣf entirely absent,¹⁹ and attribute (ṣifa) occurring only in a non-technical sense, and none of the language of ṭard and ʿaks, jarayān and ta’thīr; despite this, all of it, the proto-system method of qiyās revealed in our subject-text was very nearly as complex in practice as the full-system methods which theorists would formulate centuries later. What we may observe in the table above is ample evidence to support a premise which motivated the research and writing of this monograph: philological studies of legal-theoretical terms, and the comparison of these terms between earlier and later periods, are—though important ventures in a larger study—insufficient, by themselves, for the task of revealing the real nature of proto-system legal theory and disputation. We must also analyze the argumentation of early jurists in order to understand the relative sophistication and development of their methods. And nowhere is this more urgent than in the domains of qiyās-oriented justification and objection.

I will briefly highlight a number of features before moving on. As for istidlāl by way of qiyās, there are several items of note, including: (1) al-Shāfiʿī’s frequent resort to “hypothetical” qiyās, when he does not believe qiyās to obtain in the mas’ala at hand, but nevertheless pursues a qiyās-method “for argument’s sake” in order to problematize his opponent’s reasoning; (2) an anonymous opponent from the Ahl al-Kalām employs the term khaṣla/khiṣāl in much the same way that al-Shīrāzī employs the term khaṣīṣa/khaṣā’iṣ, both in the domain of qiyās al-dalāla; and (3) the relevant frequency with which uṣūl for qiyās are sanctioned by ijmāʿ.

As for iʿtirāḍāt, first note that the opponent from the Ahl al-Kalām performs qiyās based, in part, on the ism al-ubuwwa, and that al-Shāfiʿī refutes him in a manner later suggested by al-Baṣrī. Considering that: (1) al-Baṣrī is our only jadal-theorist to treat al-taʿlīl bi’l-ism as a domain for iʿtirāḍ, and (2) he was also a significant figure in the history of the Muʿtazila, one might ask: was al-taʿlīl bi’l-ism a technique particularly employed by dialectical theologians from the second century through to al-Baṣrī’s day? This question cannot be pursued in this study, but I would mark al-taʿlīl bi’l-ism as a site for potential (and early) cross-germination between speculative and normative epistemic projects. I would further note the astonishing frequency of charges of naqḍ, qalb, fasād al-waḍʿ, and farq-distinction, along with the numerous arguments by which ʿilla and qiyās are supplanted by way of muʿāraḍa. Many of these instances are accompanied by our familiar ra’ā formulae, and there is every reason to believe the frequent occurrences of a-ra’ayta and a-lā tarā among the earlier jurists (Abū Ḥanīfa, Ibn Abī Laylā, Abū Yūsuf, and al-Shaybānī)—blocked from deeper analysis by the terseness of the text—are nevertheless a sign that the general rubric of reductio arguments to which they are currently restricted was in fact populated by a number of distinctive and well-honed objection-types.

7.1.5 Istiṣḥāb al-Ḥāl (Presumption of Continuity of the Legal Status Quo Ante)

We have encountered little which may be claimed—and that only with hesitancy—by the domain of Istiṣḥāb al-Ḥāl. This is not surprising; it has been asserted, in the main, that the principle of istiṣḥāb is absent from the legal theory of al-Shāfiʿī.²⁰ In addition to this, a number of secondary works concerned with early legal theory do not appear to treat istiṣḥāb at all,²¹ while more comprehensive histories do not treat of its origins, but only later manifestations.²² Muṣṭafā al-Khinn, on the other hand, provides no less than five masā’il—claiming there are many more—in which the practice of istiṣḥāb by early mujtahids is supposedly made clear. Moreover, most of his examples begin with an argument by al-Shāfiʿī.²³ With a singular exception, however, I have not found al-Khinn’s examples to support this claim.²⁴ The exception occurs in a mas’ala treating the inheritance of the missing party (irth al-mafqūd), and not only shows al-Shāfiʿī adhering to an istiṣḥāb-like principle, but is followed by an illuminating dialectical sequence.²⁵ Moreover, the same mas’ala has served as one of the more common illustrations for istiṣḥāb.²⁶

Returning to our subject-text, I have discovered only one instance of something resembling istiṣḥāb: in §700, al-Shāfiʿī employs the term ẓāhir in a way which may be interpreted as a “sensory status quo.” That is, in the absence of bayyina-evidence, one must assume the original state of a household object to be “jointly-possessed” between husband and wife. This might relate to an early conception of istiṣḥāb al-ḥāl; on the other hand, it occurs in a qiyās-oriented debate, and al-Shāfiʿī’s own qiyās (stated in §691) is from an aṣl sanctioned by ijmāʿ. I would be hesitant—despite the istiṣḥāb-like qualities of al-Shāfiʿī’s “ẓāhir” in this case—to locate his reasoning outside the domain of istidlāl bi’l-qiyās. At present, I think it more probable that istiṣḥāb has its real theoretical origins sometime in the century or two following al-Shāfiʿī, though it is very likely to have evolved from an analysis of masā’il of ikhtilāf such as that mentioned by al-Khinn above, which afterwards remained a key illustrative example.

7.1.6 Proto-System Istidlālāt and Iʿtirāḍāt Expanded to Other Domains

Certain objections we encountered in the subject-text corresponded well with lens-text categories, but enjoyed a broader range of application in proto-system jadal than in the discussions of later theorists; I will review these briefly before proceeding to the proto-system’s unique dialectical moves. We have seen naqḍ and manʿ applied in the domain of istidlāl bi’l-Sunna, whereas they are both confined to the domain of qiyās in our lens-texts. We have also seen transmission-oriented objections employed against istidlāl from the āthār-traditions of Companions, whereas we do not find them within this domain of the jadal-theory works—there, they are restricted to the domain of istidlāl bi’l-Sunna. I will list these expanded-range objections here, along with modes of istidlāl which appear, as components of objection, outside their lens-text domains.

Naqḍ in Domains Besides Qiyās al-ʿIlla

• Against al-istidlāl bi’l-Sunna○

  • cf. (Shīr.VII.7; Bāj.IX.B.11.2.1)■

    • §263 (SH)

• Against Type I qiyās al-dalāla○

  • §646–7 (SH; more likely a method-naqḍ; inconsistency pushed in §647 with a-ra’ayta)

• Against Type III qiyās al-dalāla○

  • §649 (SH; 3x; the “nominal” waṣf is present in three masā’il al-naqḍ, but not the ḥukm of transfer; thus, the waṣf is not efficient)

Manʿ in the Domain of Istidlāl bi’l-Sunna

• denial of the ruling in the source-case (manʿ al-ḥukm fi’l-aṣl; mumānaʿa fī ḥukm al-aṣl)○

  • cf. (Shīr.VII.3; Bāj.IX.B.5)■

    • §248 (SH)

Transmission-Oriented Objections in the Domain of Qawl al-Wāḥid min al-Ṣaḥāba

• “its like is not confirmed by the Ahl al-Ḥadīth”

• ○(indeterminate, but resembles: Shīr.II.B; Bāj.II.1 [against isnād for Sunna])■

  • §§283 (SH); §1318 (SH)

Tarjīḥ in the Domain of Qawl al-Wāḥid min al-Ṣaḥāba

• tarjīḥ of an athar-tradition decree due to a Companion being closer to the Messenger of God○

  • cf. (Shīr.IX.1.3)■

    • §1405 (SH; implied)

• tarjīḥ of an athar-tradition decree due to more narrators○

  • cf. (Shīr.IX.1.5; Bāj.XVI.1.1.3)■

    • §§635 (AH; implied); 1402 (AH; implied by al-Sarakhsī’s report); 1405 (SH; implied; āthār-tradition decrees of five Companions)

• tarjīḥ of an athar-tradition decree due to a Companion being greater in terms of companionship with the Prophet (ṣuḥba)○

  • cf. (Shīr.IX.1.6)■

    • §1405 (SH; implied)

• tarjīḥ of āthār-tradition decrees by showing they are the qiyās○

  • cf. (Shīr.IX.2.1)■

    • §§642 (Ahl al-Kalām); 651 (SH; hypothetical: if qiyās obtained [it doesn’t], then the same properties for qiyās should produce a ḥukm closer to his own doctrine, derived from āthār-traditions)

These expanded categories may have several explanations. Among them is simply the possibility they were just as expanded in the practice of early jadal theorists, but for some reason it was not customary to treat, e.g., naqḍ outside the domain of qiyās in theoretical discourse. When we consider the systematic thoroughness of our authors, however, this explanation seems less likely than another: with far less choate and/or consensually-established legal-theoretical and dialectical bases to draw upon, it would only be natural had our proto-system jurists encountered ikhtilāf due to a greater variety of epistemic differences. As legal-theory grew more refined in dialectical debates, a role for naqḍ in the domain of Sunna may simply have disappeared. Similarly, a change in the theory and epistemic valuation of what was to become known as qiyās al-dalāla might have caused naqḍ charges to fall away. As for the use of āthār-traditions of the Companions in general, and the necessity for tarjīḥ and transmission-oriented objections regarding them, one can easily discern a decline of the whole domain over time. The role of āthār-traditions in full-system jadal and uṣūl theory is dwarfed by the expansive practice of our subject-text. One thing appears certain: the proto-system practice of the Kitāb Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn—though quite sophisticated—is less choate and in many ways dissimilar from the systems posited by early theorists. Gathering together the question types, justifications, and objections with no match in our lens-texts will make this plain.

7.2 What is Distinct: Elements More Unique to Proto-System Teaching and Practice

7.2.1 Proto-System Question Strategies Outside the Categories of the Lens-Texts

It was no easy task to match the question types and strategies of the subject-text to the strict procedural orderings of the lens-texts. Of particular note are objection-oriented questions, and the Topics-like strategy of Q’s acquiring premises one at a time from R for eventual elenchus.

Objection-Oriented Questions (As’ila) and Demands (Muṭālabāt)

• “muṭālaba bi’l-farq” (Q’s demand for farq-distinction)○

  • §§79 (SHAQ; “mā farraqa bayna al-ʿitq wa ghayrihi?”); 287 (SHAQ)

• “muṭālaba bi’l-tarjīḥ” (Q’s demand for a decree from a Companion supporting R’s ḥadīth interpretation: specifically, a demand for Shīr.IX.2.1)○

  • §§264, 266 (SHAQ)

• “su’āl ʿan/muṭālaba bi-wajh al-iʿtirāḍ” (question about/demand for the mode of objection)○

  • §§645 (SHAQ; eliciting the manner of SH’s iʿtirāḍ [which is a kind of muʿāraḍa]); 651–2 (SHAQ; initial stages of muṭālaba [with SH’s critique being qalb]); 692 (SHAQ; muṭālaba [with SH’s critique being ʿadam al-ta’thīr])

• “muṭālaba for [qiyās] al-shabah” (Q’s response to the rejection of his aṣl, consequent to a reinterpretation of the efficient property in the farʿ)○

  • §156 (SHAQ challenges SH to produce a parallel among permitted bayʿ-contracts)

Q Procures Premise After Premise from R for Elenchus (in the Manner of the Topics)

• elenchus is via tanāquḍ (reductio ad impossibile):○

  • sequence: §§96 (SH; via a-ra’ayta); 98 (SH; disjunctive question, one option absurd); 100 (SH)

  • ○ sequence: §§249 (SH; a-lā tarā introduces ḥadīth); 250 (SHAR jawāb explains: this is not contradiction)

• elenchus is via naqḍ○

  • sequence: §§693–702 (SH, 3x naqḍ; he subsequently springs “naqḍ-dilemma” in §§703–4 [NB: §694 pushes premise with a-ra’ayta; §696 pushes premise with “And have you not claimed—and the people claimed…?” (a-fa-laysa qad zaʿamta wa zaʿama al-nās…?)]

  • ○sequence: §§740 (SH a-ra’ayta pushes SHAR to rule on the mas’alat al-naqḍ minus a property of the mas’ala at hand); 741 (SH restores the property, rhetorically asks SHAR to rule again; elenchus: naqḍ); 742–3 (SH closes other exits with additional charges of naqḍ)

• elenchus is via hypothetical qalb (qiyās does not obtain here, but if it did…)○

  • sequence: §§653 (SH; via a-ra’ayta); 655ff. (SH vs. SHAR); 658 (SH introduces mas’alat al-qalb); 660 (SH; elenchus via hypothetical qalb)

• elenchus is via hypothetical muʿāraḍa (qiyās does not obtain here, but if it did…)○

  • sequence: §§662ff. (SH); 663 (SH; a-ra’ayta introduces Qur’ānic aṣl); 665 (SH; premise #2); 667 (SH; elenchus via hypothetical muʿāraḍa)

• elenchus is via farq-distinction and method-naqḍ○

  • sequence: §§756–60 (SH; farq-distinction #1); §§761–7 (SH; farq-distinction #2 [NB: §§765–7 has additional charge of method-naqḍ]); §§768–70 (SH; farq-distinction #3 and #4; rhetorical elenchus via farq-distinction and method-naqḍ); §§771–3 (SH; farq-distinction #5; final SH elenchus via farq-distinction and method-naqḍ)

• elenchus is via method-naqḍ○

  • sequence: §§1057 (SH; method-naqḍ premise #1); 1059 (SH; method-naqḍ premise #2); 1061 (SH seals method-naqḍ elenchus with series of rhetorical questions and supporting counter-naql)

  • ○ sequence: §§1321 (SH; method-naqḍ premise #1 elicited by a-ra’ayta); 1323 (SH; method-naqḍ premise #2 elicited by al-Bājī’s su’āl #3); 1325 (SH; rhetorical charge of method-naqḍ: inconsistent observance of the farq-distinction); 1326 (SH; second charge of method-naqḍ [for a related mas’alat al-naqḍ] by rhetorically bringing forth all premises as though pre-conceded by SHAR)

• SHAQ attempts elenchus via method-naqḍ (but SH succeeds in demonstrating farq-distinction)○

  • sequence: §1224 (SHAQ; method-naqḍ premise #1); §1227 (SHAQ; multiple premises, then attempted elenchus: “how do you deny qiyās from X to Y?”); §§1228ff. (SH demonstrates farq-distinction between X and Y; then counters with his own charge of naqḍ)

As for the objection-oriented questions and demands, they would be natural to any dialectical engagement; I am uncertain why they do not enjoy independent treatment by theorists. One possible explanation is that al-Shīrāzī, et al., considered their thorough expositions on recommended responses (ajwiba) sufficient, without needing to elaborate a separate schema of counter-questions. In the end this genre of question and demand likely existed in the practice of theorists and their peers, but was not included in their systematizing discourse. Nevertheless, I will mark it as unique to proto-system jadal. Perhaps, as schemas like al-Bājī’s were developed and imposed in real-time dialectical encounters, this older style of questioning the objection qua objection fell out of use. Once the roles of R and Q reversed due to muʿāraḍa, the new Q would simply proceed through the same, orderly schema his opponent had followed, testing his muʿāraḍa as a new, counter-istidlāl.

Q’s Topics-like acquisition of premise after premise from R, then proceeding to a well-constructed elenchus, is a feature we might expect to find in the copious example-masā’il provided by our jadal theorists. But we do not. Again, I suspect this was nevertheless a feature of full-system practice, but simply omitted from theory discourse. Its absence from the example-masā’il, however, is difficult to explain. As a procedural style it is, of course, in full consonance with Aristotle’s dialectical method. After some consideration, and picturing how a dialectical disputation following al-Bājī’s procedure might appear if narrated/transcripted, I would conclude the following: the intentions and procedures of proto-system vs. full-system disputation signify—at times, but not always—distinctly different dialectical styles.

In other words, the aim and comportment of Q in questioning R was conspicuously different in al-Shāfiʿī’s day than it was—assuming consistency of theory and practice—some two and a half centuries later. With regard to aim, there is a prominent proto-system concern with internal, logical contradiction—tanāquḍ—which simply does not figure into the theory and categories of our lens-texts.²⁷ In combination with the premise-gathering approach, however, it is in perfect consonance with the dialectical aims and methods of the Topics. In the systems of al-Shīrāzī and al-Bājī we witness something different at work. Programs for fashioning elenchi from R’s conceded premises are not the focus; rather, Q follows an ordered procedure for probing and problematizing R’s istidlāl, and, should R’s istidlāl collapse, he supplants it via muʿāraḍa, the roles reverse, and the new Q submits him to the same program. But we also observe this in the dialectical sequences of the subject-text, with plentiful examples of muʿāraḍa and other features as witness.

Thus, the proto-system jadal of our subject-text at once incorporated Topics and Minhāj styles of dialectical method, whereas the full-system theory of our lens-texts treated only the latter. Proto-system jadal was, in this respect, broader with regard to method; and the significance of this for evolutionary narratives is clear. Recall the model of “common origins, parallel development, and cross-germination” proposed in Chap. 4. The “common origins” would have comprised a number of argumentation epistemes common to the pre-Islamic intellectual landscape of the Near East; some among them were patently Aristotelian, and indeed Aristotle and his commentators were directly studied and taught. With the rise of a Muslim intelligentsia, a host of Islamic axioms fused with various of these pre-existing epistemes, and new Islamic argumentation epistemes developed in numerous intellectual projects.

What we see in the dialectic of the Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn is an earlier stage in the development of epistemes which were eventually to become peculiar to uṣūl al-fiqh and juridical jadal theory. The broader scope of features—additional question types, strategies, objection-domains, and distinctive argument categories—exposes the proto-system as a wider collection of continually-evolving argumentation axioms, both prior and Islamic. Through the working of the dialectical forge, this wider collection became more refined, more precise, and consequently more narrow in terms of accepted and practiced axioms. Thus, although far more systematic, the full-system theory of al-Shīrāzī, al-Bājī, et al., was more restricted in terms of procedures and argument content. Among many other things, a focus on premise-by-premise construction of elenchi via tanāquḍ seems to have fallen away.

7.2.2 Proto-System Istidlālāt and Iʿtirāḍāt Outside the Adilla Domains of the Lens-Texts

Dialectical moves and strategies apparently unique to proto-system dialectic have appeared frequently. Divided into categories, they may be listed as follows:

Reported Istiḥsān

• §1054 (al-Sarakhsī reports IAL/AY/MIH reasoning = istiḥsān based on (1) naql: āthār-traditions of Companions; (2) ʿaql: a fortiori reasoning; (3) iʿtirāḍ: AH’s qiyās = qiyās al-manṣūṣ bi’l-manṣūṣ; and (4) ʿaql: the hady can be an ʿanāq, etc.)

Istidlāl/Taqlīd of the Decree of a Successor

• §§686–7 (AH & [old] AY; athar-tradition decree of Ibrāhīm al-Nakhaʿī); 1218[b] (AY; taqlīd of ʿUrwa b. al-Zubayr’s qiyās al-ʿilla/manzila-subsumption; reported by al-Sarakhsī)

Objections Against Istidlāl/Taqlīd of the Decree of a Successor

• Naqḍ or Kasr○

  • cf. (Shīr.VII.7; Bāj.IX.B.11.1) and (Shīr.VII.8; Bāj.IX.B.12.2.1)■

    • §688 (AY [new]; implied; 3x naqḍ/kasr against AH athar-tradition decree of Ibrāhīm)

• Muʿāraḍa○

  • By way of ʿilla mubtada’a■

    • cf. (Shīr.VII.15.2.1; Bāj.IX.B.15.2.1)

      • §691 (SH; implied; against the qiyās of Ibrāhīm and IAL)

Charges of Method-Naqḍ

• endoxon qiyās-method shown in parallel mas’ala, but R does not practice it in the mas’ala at hand; R is inconsistent with his qiyās-method○

  • §§288 (SH); 540 (SH shows what SHAR should have done); 1227 (SHAQ; “how do you deny qiyās from X to Y?”)

• against R’s manzila-subsumption (same status consideration shown in parallel mas’ala, but R does not practice manzila-subsumption there)○

  • §646–7 (SH; potentially a qiyās al-dalāla-oriented naqḍ; inconsistency pushed in §647 with a-ra’ayta)

• against R’s taswiya-subsumption (R does not consistently observe taswiya-subsumption [X with Y], thus his rulings are inconsistent)○

  • §§786–8 (SH; if SHAR treats X as Y, then X should belong to Y bi-kulli ḥālin)■

    • Jawāb: §787 (SHAR attempts farq-distinction, or perhaps even takhṣīṣ al-ʿilla)

• against R’s inconsistent observance of a farq-distinction○

  • §§80 (SH; the opponent observes the demonstrated farq-distinctions elsewhere, but not in the four masā’il at hand); 761–7 (SH; along with farq-distinction #2, §§765–7 has additional charge of method-naqḍ; final SHAR concession is to both farq-distinction and method-naqḍ); 768–70 (SH; along with farq-distinction #3 and #4; rhetorical elenchus via farq-distinction and method-naqḍ); 771–3 (SH; farq-distinction #5; final SH elenchus via furūq and method-naqḍ); 1229 (SH; a-lā tarā introduces endoxon mas’alat al-naqḍ exposing the farq-distinction); §1231 (SH; double charge of method-naqḍ with two masā’il al-naqḍ); 1317ff. (SH; SHAR is accused of ignoring a previously observed farq-distinction for the mas’ala at hand, and his faḥwā al-khiṭāb is thus destroyed; SHAR’s methodology is attacked: he ought either to employ faḥwā al-khiṭāb in the masā’il al-naqḍ, or to not employ it in the mas’ala at hand); 1321–5 (SH gathers premises and delivers rhetorical charge of method-naqḍ); 1326 (SH; rhetorically states premises as though pre-conceded by SHAR, for second charge of method-naqḍ)

• R applies Qur’ānic principle elsewhere, but then ignores it for the mas’ala at hand○

  • §§1057 (SH; multiple charges); 1057–61 (SH; collects method-naqḍ premises from SHAR; seals elenchus with rhetorical questions and counter-naql)

• R acknowledges ḥadīth elsewhere, but ignores it for the mas’ala at hand○

  • §544 (SH; delivered via a-lā tarā)

“Naqḍ Dilemma” (Q Blocks all Exits with Multiple Charges)

• §§693–700 (SH; first charge of naqḍ from conceded premises); 700–703 (SH; second charge of naqḍ without R’s response); 702 (SH; third charge of naqḍ without R’s response); 703–4 (SH; “naqḍ-dilemma”: if you rule X, you violate ijmāʿ; if you rule Y, you must do the same for the mas’ala at hand)

Method-Muʿāraḍa

• R violates a fundamental principle (by attempting qiyās where there is an established khabar-report); Q supplants R’s istidlāl bi’l-qiyās with Q’s istidlāl bi’l-Sunna○

  • §644 (SH)

Linguistic Appeals

• Drawing a dalīl-indicant from Prophetic Era Poetry to determine usage of a lafẓ-expression○

  • §262 (SH)

• Apparent argument to “customary linguistic usage” (ʿurf al-lugha) (= endoxon usage which R and Q share)○

  • §647 (SH)

7.2.3 Modes of “Consistent Generalizing of the ʿIlla”

In addition to these partly-unique modes of istidlāl, iʿtirāḍ, and multi-stage objection strategies, we have encountered a family of formulaic legal arguments evincing a marked concern for doctrinal consistency. I have called these manzila-subsumption, taswiya-subsumption, and farq-extension. They share many elements of the qiyās-oriented istidlālāt and iʿtirāḍāt of our lens-texts; but the relative uniformity with which these arguments were expressed, coupled with an absence of independent treatment by our theorists, suggests we should consider them unique to proto-system jadal. I have placed them all under a rubric of “Consistent Generalizing of the ʿIlla;” as they constitute a family of arguments sharing a singular concern.

General Arguments to manzila-subsumption

• §§634 (AH); 643 (SHAR); 752 (AH); 1072 (SHAQ reporting decree of one of the Ahl al-ʿIlm); 1051 (AH; clarified by report of al-Sarakhsī); 1125 (AH; reported by al-Sarakhsī); 1126 (IAL/[old] AY; reported by al-Sarakhsī); 1218 (AY; implied)

General Objections to manzila-subsumption

• via muʿāraḍa bi’l-nuṭq○

  • cf. (Shīr.VII.15.1; Bāj.IX.B.15.1)■

    • §1078 (SH; the nuṭq is a Sunnaic decree)

• via method-naqḍ○

  • (Shīr.VII.7; Bāj.IX.B.11.1)■

    • §1080 (SH; via exposing a self-inflicted “double-farq-distinction”)

      • SH mas’alat al-farq #1: they claim ḥukm A for the legal category of the mas’ala at hand, but ḥukm ¬A for the subsuming legal category

      • SH mas’alat al-farq #2: they claim ḥukm B for the legal category of the mas’ala at hand, but ḥukm ¬B for the subsuming legal category○

        • thus they are inconsistent in applying their manzila-subsumption to the mas’ala at hand

• via particularization○

  • §1125 (AH and/or al-Sarakhsī; zinā is makhṣūṣ among its naẓā’ir)

Arguments from a Substantive Legal Principle for the Efficiency of a Quality for manzila-Subsumption

• from principles of legal status○

  • §§744, 746 (AH; principle: partial manumission = slave in the eyes of the law)

  • ○ §§745, 747ff. (IAL/AY/MIH; principle: partial manumission = entirely free in the eyes of the law)

Objections to a Substantive Legal Principle, or Against the Efficiency of a Quality for manzila-Subsumption

• against a principle of legal status○

  • via reductio argument■

    • §§748–9 (IAL/AY/MH a-ra’ayta; reductio to untenable consequence of tanāquḍ; and premise in larger objection of muʿāraḍa)

  • ○via muʿāraḍa■

    • §§750–1 (AY/MIH/IAL a-lā tarā; delivers aṣl for istidlāl bi’l-qiyās and muʿāraḍa)

      • Jawāb: Objection to muʿāraḍa qiyās○

        • §§755ff. (SH; farq-distinction employed; method-naqḍ employed)

Arguments to Taswiya-Subsumption

• §§540 (SH); 691 (SH); 1127 (SH); 1313[a] (AH & IAL, reported by AY/MIH); 1317 (SH); 1326 (SH)

Arguments to Farq-Extension

• §§78ff. (SH; firāq of ʿitq-manumission from all other transactions); 755ff. (SH); 1232 (SH; implied); 1321ff. (SH)

A final assessment regarding manzila-subsumption, taswiya-subsumption, and farq-extension: all of these categories constitute a sort of “super-qiyās” whereby the efficient properties relevant to the mas’ala at hand are brought into relationship with a larger genus of masā’il, or a category of substantive rulings. For manzila-subsumption, to say that X is in the manzila of Y for all Z is to say that X and Y share the relevant efficient properties occasioning the same ḥukm throughout the category of Z. For taswiya-subsumption, to say that “hādhā kulluhu sawā’un,” is to claim that the stated set of masā’il share the same efficient properties necessary to constitute an ʿilla occasioning the same ḥukm for each mas’ala in that set. And as for farq-extension, to demand the farq-distinction between two types of legal entity be observed across relevant genera of substantive rulings is to simultaneously extend two sets of opposing ʿillas occasioning opposing ḥukms across those genera. All three categories are marked by a concern with consistency and an aversion to intra-doctrinal contradiction; and I would claim that all three are prompted, in the end, by an anticipation of naqḍ and its avoidance.

7.2.4 Objections to Objections

I have presented objection-oriented questions and demands as a special feature of the dialectic of the Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn. Here I will review a similar category of objections to objections, of which there are two species. The samples for both belong to al-Shāfiʿī.

• Objection to an Objection Against a Substantive Principle for Manzila-Subsumption○

  • via Farq-distinction between opponent’s qiyās for muʿāraḍa and the mas’ala at hand■

    • §§756–60 (SH; farq-distinction #1 [partial ownership vs. partial marriage] in stages, with rhetorical elenchus); 761–7 (SH; farq-distinction #2 [kitāba for divorce vs. kitāba for manumission] in stages, §§765–7 has additional charge of method-naqḍ; with final SHAR concession to elenchus via farq-distinction and method-naqḍ); 768–70 (SH; farq-distinction #3 [joint-ownership of wife vs. joint-ownership of slave] and farq-distinction #4 [gifting of wife vs. gifting of slave]; rhetorical elenchus via farq-distinction and method-naqḍ); 771–3 (SH; farq-distinction #5 [master re-enslaving slave vs. husband re-marrying wife; introduced by a-ra’ayta]; final SH statement seals elenchus via furūq and method-naqḍ: “we don’t know of anything more distant from it, than what he correlated it with” [fa-mā naʿlamu shay’an abʿada mimmā qāsahu bihi minhu])

• Objection to a Charge of Fasād al-Iʿtibār Against Qiyās○

  • via method-naqḍ (opponent who charged fasād al-iʿtibār is accused of inconsistent observance of a farq-distinction)■

    • §§1321ff. (SH)

7.2.5 Arguments of a More Ancient Tenor

I will now turn to arguments and features of our subject-text which appear most unique of all; and gathering them together has served to highlight the more antique character they exude. In this way, they draw closer to prior argumentation epistemes, infused with Islamic axioms, which lay at the root of juridical jadal’s long developmental history. Whatever their origins, if such could ever be traced, one thing is certain: the categories which follow receive no theoretical treatment by our jadal theorists. Nor have I yet detected them in the example-masā’il our lens-texts provide.

Tanāquḍ

• Purely internal logical contradiction [R’s solution asserts both X and ¬X]○

  • “your doctrine is contradictory” (fa qawluka mutanāqiḍ):■

    • §102 (SH; with demonstration of the tanāquḍ)

  • ○ “…I found their doctrine self-contradicting” (wajadtu maʿa dhālika qawlahum mutanāqiḍ):■

    • §1079 (SH; he clearly shows the two contradictory premises of the opposing solution, then announces the consequence: “they have not adhered to their doctrine, but have contradicted it [mā lazimū qawlahum wa laqad naqaḍūhu]”)

• R’s istidlāl from a dalīl-indicant contradicts the maʿnā-intension of that dalīl-indicant [He derives ¬X from X]○

  • “no one who professes this doctrine finds a way out from [self-contradiction]” (wa lā yajidu aḥadun qāla bi-hādhā al-qawl makhrajan min [tanāquḍ])■

    • §§249, 251 (SH)

  • ○ “[dalīl-indicant X] does not possibly carry but one of two maʿnā-intensions, and you have contradicted them both together (qad khālaftahumā maʿan)” (while simultaneously claiming dalīl-indicant X)■

    • §263 (SH; 2x)

• R’s istidlāl contradicts endoxa adilla-indicants (which we assume R to have pre-conceded)○

  • “I know not a single one of the people saved from contradicting the Prophet (lam arā baʿḍ al-nās salima min khilāf al-nabī)… in either of the two matters—neither the one who sanctioned [X and Y], together, nor the one who proscribed [X and Y], together” (because the Prophet made X ḥalāl and Y ḥarām)■

    • §282 (SH)

General Reductio Arguments

• §§37 (SH; impossible result consequent to the application of IAL’s ruling); 263 (SH; two consequences of opponent’s solution combine to produce absurdity); 64 (SH; impossible result consequent to the application of SHAR’s ruling); 275 (AH; delivered by a-ra’ayta; hypothetical); 748–9 (IAL/AY/MH; premises delivered with a-ra’ayta; conclusion with kayfa; rhetorical);²⁸ 753 (AH; a-ra’ayta introduces triple reductio barrage; rhetorical); 1057 (SH; two consequences of opponent’s qiyās are absurd)

• plus, the relevant (in sequence) ra’ā formulae arguments reviewed at the end of Chap. 6

Argumentum ad Verecundiam (Paralleling Appeals to Aristotle’s endoxa Set of “the Wise”)

• Appeals to the Ahl al-Ḥadīth○

  • §§283; 667; 1318–19 (SH)

• Appeals to the Ḥuffāẓ○

  • §1119 (SH)

• Appeals to the method of the Ahl al-Fiqh○

  • §284 (SH)

• Appeals to the Ahl al-ʿIlm○

  • §§1072–4 (SHAQ, 3x)

Q’s Objection to R’s Affirming the Consequent (Aristotle’s Fallacy of Consequent)

• §284 (SH; opponent implies that Companions’ ruling X confirms that the Prophet ruled X)

Q’s Objection to R’s Petitio Principii or Mistaken Cause

• §284 (SH; using the verb yaghlaṭu, claims opponent has reversed aṣl X and farʿ Y, making Y the aṣl for X)

a fortiori Argument (Outside the Domain of faḥwā al-khiṭāb)

• §64 (SH; hypothetical; the aṣl madhhabinā forbids partial X; all the more so should full X be forbidden in the mas’ala at hand [if not for the exception-making khabar-report])

• §743 (SH; sealing a triple-charge of naqḍ with an “a fortiori punch”: “laqad ankarū aqall min hādhā” (i.e., SH’s opponents have rejected less invalid contracts, all the more so should they reject invalid mufāwaḍa)

The Charge of Taḥakkum: R’s Reasoning Rendered Arbitrary via Lack of Dalāla-Indication

• §1116 (SH; “And should we say: [opposing opinion X]? This is arbitrariness!” (fa-amma an naqūl [X], fa-hādhā taḥakkum!)○

  • naqḍ via e silentio:■

    • §1118 (“He should say [X] about [Y]. But there is no such doctrine.” [wa laysa hākadhā bi-qawlin])

Empirical Inductive Argument

• §91 (SH; with lā narā; ʿaṭā’-distribution never comes but early or late)

7.2.6 Arguments to the Maʿqūl, Appeals to Legal Theory, and Caliphal Imposition

In addition to the many categories of questions, istidlālāt, and iʿtirāḍāt both within and without the domains of our lens-texts, there are three additional argument-categories worthy of note. The first has every appearance of an ancient category of “indicants of God’s Law” (adillat al-Sharʿ), though its true nature has remained elusive thus far: it is the maʿqūl and the ʿaql, a combined source-category which seems to belong to al-Shāfiʿī alone. The second is what I have termed “open appeals to legal theory,” all of which constitute a genus of dialectical argument, and all examples of which, once again, belong to al-Shāfiʿī. The third feature is not an argument, but must be included as an element of interest in proto-system jadal—for it brought a mujtahid and qāḍī to change his practice and profess a different opinion. The decree of the first ʿAbbāsid caliph shifted Ibn Abī Laylā from agreement (ittifāq) to disagreement (ikhtilāf) with Abū Ḥanīfa.

Arguments to al-Maʿqūl and al-ʿAql

• objection: the opponent has violated the ʿaql (among other sources)○

  • §651 (SH)

• objection: the opponent has violated the maʿqūl (among other sources)○

  • §1056 (SH)

• objection: “the aṣl of the maʿqūl was that nothing is made lawful for [party X] through the action of [party Y]”; and “it was not permitted that we do qiyās from [God’s exception] for what diverges from it, if the aṣl belongs to what is rationally understood (maʿqūl fīhi)”○

  • §1411 (SH)

Open Appeals to Legal Theory

• §52–3 (SH asserts hermeneutic: Sunna is al-naṣṣ al-mufassira providing indicant for (tadullu ʿalā) jumla Sunna; he then explains this hermeneutic at work in the mas’ala at hand)

• §248 (SH; “two [transmitters]—when they concur on the transmission on Jābir’s authority, while the third is in concordance with them—are superior in affirming the ḥadīth, to when it diverges from the third”)

• §257 (SH explains multiple applications of a focal lafẓ-expression; then acknowledges the need for a Prophetic dalīl-indicant to back his usage)

• §263 (SH criticizes SHAQ for not bringing dalāla-indication about the Prophet [i.e., SHAQ—unlike SH—brings no dalīl-indicant for his particularization of the focal lafẓ-expression])

• §265: (SH asserts: “Nor would it harm us, anyway—since it is confirmed on the authority of the Prophet…—if no one at all [among the Companions] professes it.” The principle is that an established ḥadīth can stand alone; this is also a refutation of an e silentio argument.)

• §283 (SH; “And as for what was narrated concerning [Companions X and Y], that they [did Z]: it is neither confirmed by its like, nor by the Ahl al-Ḥadīth. But if anything is confirmed regarding someone with the Prophet…: [it is] decisive proof (ḥujja).”

• §284 (SH; qiyās is done for those beneath the Prophet, on the basis of what the Prophet did; not the reverse [i.e., we cannot presume to know the Prophet’s commands based only upon āthār-traditions of the Companions])

• §§1410ff. (SH istidlāl bi’l-Sunna [as mufassir to Qur’ān] = Prophet clarifies [bayyana] God’s decree: nikāḥ means the licit sexual intercourse of the intervening husband [iṣābat al-zawj])

• §1411 (SH; “it was not permitted that we do qiyās from [God’s exception] for what diverges from it, if the aṣl belongs to what is rationally understood [maʿqūl fīhi]”)

Caliphal Decree Alters Mujtahid’s Doctrine and/or Practice as Qāḍī

• §240 (IAL; forced to adhere to the doctrine of the Ḥijāzīs by al-Saffāḥ)

7.2.7 Formulae of Subsumption, Extension, and Objection

Having reviewed the genera and species of dialectical argument encountered during analyses of the subject-text’s dialectical sequences, I would quickly note one last outstanding feature. With regard to several of the categories above—and noticeable throughout the whole of our subject-treatise—there is a remarkable formulaic consistency. The scripting of Q&A sequences, the presentation (and extension) of prior substantive rulings, and Abū Yūsuf’s adherence to one doctrine or another require little in the way of comment—they speak for themselves, and provide insight to the nascent proto-system of the “science of disagreement” (ʿilm al-khilāf). But many families of argument also enjoy a considerable consistency of presentation, shedding light on a hidden method—the ṭarīqa—of proto-system jadal teaching and practice. Though far removed from the refinements of full-system jadal, the proto-system was a system nonetheless—with its own transmitted conventions. Nowhere is this more obvious than in recurrent argument formulae. Perhaps the most significant examples are the ra’ā formulae reviewed in Chap. 6. Here, however, I will review a select set of additional formulae we have encountered in the analyses, divided into two sets.

• A. Formulae of Subsumption and Extension

Manzila-Subsumption

• X is bi-manzilat Y fī kull Z: §634 (AH)

• X is bi-manzilat Y idhā Z: §635 (in the decrees of several Companions)

• wa kadhālika qāla [so-and-so] fī hādhā al-manzila: §637 (IAL)

• You rule A for party X, wa kadhālika manzilat party Y: §643 (SHAR; x2)

• Even if X corresponds to manzilat Y in this mawḍiʿ, neither you nor I rule Z: §646 (SH)

• X, all of it, is in the manzila of Y: §752 (AH)

• fa-anzala X bi-manzilat Y: §1072 (SHAQ reporting doctrine of one of the Ahl al-ʿIlm)

Taswiya-Subsumption

• fa-sawā’un dhālika kulluhu: §691 (SH)

• wa sawā’un X and Y: §§540 (SH); 1127 (SH)

• kāna hādhā wa’l-bāb al-awwal sawā’an fī qawlihimā jamīʿan: §1313[a] (AH & IAL, reported by AY/MIH)

• lā farqa bayn X and Y: §1317 (SH)

• for indeed A happens wherever B happens, with regard to substantive legal genera X and Y: §1326 (SH)

Extension of ḥukm to Relevant Genus of Substantive Law

• fī qawlihimā jamīʿan: §1313[a] (AH & IAL taswiya-subsumption reported by AY/MIH)

• kadhālika qawluhumā fī kull

  X: §90[b] (AY reporting AH vs. IAL)

• wa kadhālika X: §687 (AH & [old] AY)

• and in case Y, the ḥukm is ʿalā mā waṣaftu fī qawlihimā [re: case X] jamīʿan: §690 (re: AH & IAL)

• “Every X with ʿilla Y has ḥukm Z”: §94 (SH)

Maʿnā-Sharing

• X is fī mithli maʿnā Y: §§286 (SH); 1075 (SH; fī mithli maʿnā al-Sunna)

• X is in the maʿnā of Y: §1077 (SH; his istidlāl from Sunna and ijmāʿ is “in the maʿnā of” Q.2:178)

• B. Formulae of Objection/Refutation ²⁹

Formulae with Manaʿa

• innamā manaʿanā min (al-qawl bi- [R’s thesis/proof])○

  • setting stage for muʿāraḍa of qiyās by qiyās, or al-muʿāraḍa bi-ʿilla mubtada’a■

    • §155 (SH)

  • ○ setting stage for muʿāraḍa bi’l-nuṭq against istidlāl bi’l-Sunna■

    • §248 (SH)

• al-maʿnā alladhī manaʿnā bihi [ḥukm of R’s ḥadīth] qā’iman fī [Q’s ḥadīth]○

  • setting stage for muʿāraḍa bi’l-ʿilla against istidlāl bi’l-Sunna■

    • §248 (SH)

Broad, Multiple Objection Formulae

• “al-qawl alladhī akhtarta abʿad min [1] al-qiyās [2] al-ʿaql”○

  • §651 (SH)

• “wa lā aʿlamu man qāla X, illā khālafa [1] al-Qur’ān, [2] al-āthār, [3] al-qiyās, [4] al-maʿqūl”○

  • §1056 (SH)

• “kayfa khālaftahu [ʿUmar b. al-Khaṭṭāb], wa maʿahu [1] al-Qur’ān, [2] al-qiyās, [3] al-maʿqūl, [4] ghayrahu min Aṣḥāb al-Nabī?”○

  • §1061 (SH)

Emphatic Expressions of Farq-Distinction

• it is not allowed that X be a qiyās on the basis of Y, while it is “mufāriq lahā fi’l-mubtada’ wa’l-mutaʿaqqab”○

  • §288 (SH)

• X is mukhālif to Y “fi’l-bad’ wa’l-mutaʿaqqab”○

  • §1131 (SH)

I have analyzed only twelve masā’il-sets concluding in category A extended dialectical sequences, and ten category B short dialectical sequences—a mere fraction of the contents of the subject-text, itself less than a twentieth of the pages of the Umm compendium. But an impressive array of dialectical elements—both consonant with, and diverging from, the contents of full-system jadal treatises—has been revealed. The larger implications will be discussed in the following chapter. Before this, however, I will add to the above an outline of the most salient elements manifesting themselves during my surface analysis of material outside overtly-dialectical presentation categories. The window on proto-system juridical jadal will than be as complete as the current study allows.

7.3 Additional Elements from Non-Sequence Arguments

What follows is far from a complete listing of features, nor is it a thorough analysis. It is designed only to exhibit what has arisen through my surface analysis of the remaining presentation categories, and to hint at the treasure of argument awaiting further study. For material familiar to our lens-texts, I will only employ general categories—combined justifications and objections for the familiar domains of istidlāl—with large groupings of examples. This will be followed by an inventory of more unique arguments and features culled from lists drawn at an earlier stage of research. In particular, the arguments of categories C through E remain open to exploration—as are the ʿaql-explanations of category F (largely absent from the below); while much may yet be distilled from the plain substantive statements of category G.³⁰ Much of what follows will be familiar from the categories above, but a number of new categories will also surface. This should provide an impression of how much more the subject-treatise may teach us about proto-system argumentation and legal theory.³¹

Istidlālāt and Iʿtirāḍāt Within the Adilla Domains of the Lens-Texts

Qur’ān

• §§565 (SH; Q.65:2; Q.2:282); 581 (AH & AY; Q.65:2); 583 (SH; support by interpretation of stipulation (sharṭ) of God in verses of §§565ff.); 1102 (SH); 604–5 (SH; Q.2:282 plus athar-tradition Ibn ʿAbbās); 677 (SH; with tafsīr-explanation, as aṣl for qiyās); 913–14 (AH; Q.4:102 [and āthār-traditions Ibn ʿAbbās and Ibrāhīm]); 955–6 (RB gives preponderance to a contrary SH solution over a previous SH solution via Qur’ānic dalīl-indicant); 1035 (SH; Q.5:96 and tafsīr-explanation of one of the Ahl al-ʿIlm); 1238 (SH; Q.4:23); 1257 (SH; Qur’ānic indicant for interpretation of Sunna); 1280 (SH; Q.66:1–2 as component of aṣl for qiyās); 1296 (AH; Q.65:6; “Why, when God has decreed X?” [lima, wa qad qāla Allāhu X?] = muṭālaba bi’l-dalīl plus muʿāraḍa bi’l-nuṭq])

Sunna

• §§31 (SH uses Sunnaic Qāʿida [al-kharāj bi’l-ḍamān] as basis for Faḥwā al-Khiṭāb); 42–3 (AH & AY); 48 (AH & AY); 60 (AH); 107–8 (SH; Prophet uses a-ra’ayta); 110–11 (AH & AY); 271–2 (AH & AY; x2); 378 (AH & AY; Qāʿida [al-rahn bimā fīhi]); 537–8 (AH & AY); 547 (SH); 609 (AH; Qāʿida [al-bayyina ʿalā al-muddaʿī]); 612 (SH; Sunnaic Qāʿida [al-bayyina ʿalā al-muddaʿī]; muʿāraḍa bi’l-nuṭq of opposing thesis); 705, 707–9 (AH & AY; Sunna supported by āthār-traditions of ʿUmar, Ibn Masʿūd, and al-Shaʿbī); 710–12 (SH; tafsīr-explanation of two maʿnā-intensions); 796 (SH; wa hādhā maʿnā al-Sunnati naṣṣan); 820 (SH); 901 (AH & AY; Sunna followed by comparison with multiple āthār-traditions); 911 (SH reasons from Prophet’s Sunna and objects to a claim of naskh); 916 (IAL); 919 (SH; Prophet’s Sunna was “in this maʿnā”); 922 (SH; with tafsīr-explanation); 928 (khabar-report of Prophet supports SH taswiya-subsumption); 981–2 (IAL & AY; with tafsīr-explanation); 991 (AY); 1010 (AY supplies AH naql: “something of that sort on the Prophet”); 1024 (SH); 1032 (SH & anon. opponent); 1039 (SH; with tafsīr-explanation including definition of a key lafẓ-expression); 1084 (SH muʿāraḍa bi’l-nuṭq; Sunna is the khilāf of opposing thesis); 1109 (AH & AY); 1111–12 (SH); 1113 (AH & AY); 1135 (AH); 1135–41 (SH muʿāraḍa of Sunna and āthār-traditions with better Sunna and āthār-traditions); 1147 (AH & AY; AY/MIH claims that AH confirmed ḥadīth as marfūʿ); 1199 (AH); 1213–16 (AH/AY/SH vs. IAL debate focused upon interpretation of single Sunnaic lafẓ-expression: “nisā’uhā”; each position is an iʿtirāḍ of the other); 1247 (SH); 1255 (AH & AY; application of principle via interpretation of lafẓ-expression [“consulted”]); 1257 (SH; Sunna interpreted by tafsīr-explanation, more Sunna, and Qur’ān); 1262–8 (AH vs. IAL & SH; mushāraka fi’l-dalīl [they interpret the ḥadīth Barīra differently]); 1269–73 (AH vs. IAL & AY & SH; mushāraka fi’l-dalīl [they interpret the Sunnaic Qāʿida (al-walad li’l-firāsh…) differently]); 1280 (SH; with Q.66:1–2; as aṣl for qiyās); 1415 (IAL; along with āthār-traditions); 1417 (SH; along with āthār-traditions); 1420 (IAL & AY); 1422 (AH & AY)

Ijmāʿ

• §§566–7 (SH reported by RB; ijmāʿ re: maʿnā-intension of Q.65:2/Q.2:282); 1383 (SH supports his ruling by fourfold citing of ijmāʿ)

Ijmāʿ al-Ṣaḥāba or Tarjīḥ by Accumulation of Companions (?)

• §§330–1 (SH taswiya-subsumption supported by four Companions); 912 (SH; four Companions; tafsīr-explanation for ʿUthmān’s practice); 1049 (SH supports ruling as “following upon” four Companions, four Successors, “and others”); 1417 (SH; four Companions plus Sunna)

Qawl al-Wāḥid min al-Ṣaḥāba

• §§3–4 (AH; ʿAlī); 24–6 (AH & AY; ʿAlī); 75–6 (AH & AY; ʿUmar); 120–2 (AH & AY; Ibn Masʿūd and ʿUmar [and Ibrāhīm]); 207–9 (AH & AY; ʿUmar, ʿUthmān, and Ibn Masʿūd); 212 (AH & AY; Ibn Masʿūd); 215 (SH; Ibn ʿAbbās); 340 (AH; Abū Bakr); 355 (AH; Ibn ʿAbbās); 454–5 (SH; ʿAlī and other Companions); 468 (SH reported by RB; ʿUmar); 496 (AH & AY; ʿAlī; muʿāraḍa of IAL āthār-traditions of Successors in §497); 506 (AH & AY; ʿUmar); 531–2 (AH; ʿAlī); 604–5 (SH; Ibn ʿAbbās; in support of istidlāl from Q.2:282); 620 (AH & AY; ʿUmar [and Shurayḥ]); 627 (AH & AY; Ibn Masʿūd [and Shurayḥ]); 705, 707–9 (AH & AY; ʿUmar, Ibn Masʿūd, and al-Shaʿbī [supporting Sunna]); 724 (SH; ʿUmar); 725 (SH; ʿĀ’isha); 727 (SH; ʿUmar); 798 (AH & AY; ʿAbd Allāh b. ʿUmar); 804–5 (SH; Ibn ʿUmar [and Shurayḥ]); 832 (AH; ʿAlī); 839 (AH; Ibn Masʿūd); 909 (IAL; ʿUmar [via Ibn ʿAbbās] and ʿAlī); 913–14 (AH; Ibn ʿAbbās [supporting Q.4:102; and supported by athar-tradition of Ibrāhīm]); 941 (SH; Ibn ʿUmar); 947 (IAL & AY; Ibn ʿAbbās); 959 (AH/AY; ʿAlī); 990 (AH; ʿUmar); 996 (AH/AY; ʿUmar); 1016 (IAL; Ibn ʿAbbās; muʿāraḍa of AH athar-tradition of Ibrāhīm); 1027 (anon. opponent; ʿUmar); 1028 (anon. opponent; Ibn ʿUmar); 1032 (SH & anon. opponent); 1041 (IAL/AY; Ibn ʿAbbās and Ibn ʿUmar); 1062–4 (IAL/AY; Ibn Masʿūd [and ʿĀmir (b. ʿAbd Allāh b. Masʿūd?) and ʿAṭā’ b. Abī Rabāḥ]); 1099 (AH & AY; Ibrāhīm); 1135 (AH; ʿAlī and Ibn Masʿūd); 1140 (SH; Abū Bakr); 1141 (SH; ʿĀ’isha); 1181 (AH; Ibn ʿAbbās); 1234–5 (AH; two āthār-traditions of ʿUmar [supported by athar-tradition of Ibrāhīm]); 1238 (SH; support of Q.4:23 with ʿAbd Allāh b. Jaʿfar and ʿAbd Allāh b. Ṣafwān); 1244 (AH; ʿAlī); 1275 (AY; Ibn Masʿūd); 1288 (AH; ʿUmar, ʿAlī, Ibn Masʿūd, Zayd b. Thābit); 1297 (AH; ʿUmar supporting Q.65:6); 1300 (AH & AY; Ibn ʿAbbās); 1392 (SH; ʿAbd al-Raḥmān [b. ʿAwf]); 1393 (IAL; Ibn Masʿūd); 1413 (AH; ʿAlī); 1415 (IAL; Abū Bakr and ʿAlī; along with Sunna)

Faḥwā al-Khiṭāb

• §§30–1 (SH; a maiore ad minus from Sunnaic Qāʿida: al-kharāj bi’l-ḍamān)

Dalīl al-Khiṭāb

• §§734 (SH; “when we decree X, we do not permit the reverse of X” [aṣl not mentioned]); 1241 (SH; “God only made ḥarām through ḥalāl; and the ḥarām is the opposite of the ḥalāl”)

Maʿnā al-Khiṭāb (Qiyās)

• §§8–9 (anon. opponent); 10 (SH; farq-distinction and naqḍ); 14 (anon. opponent); 19 (SH); 135–6 (SH); 167 (SH; manʿ of the ʿilla in the farʿ); 184 (SH; farq-distinction); 212 (AH & AY; reported by al-Sarakhsī); 292 (SH); 322 (SH ruling supported by qiyās [x3] = muʿāraḍa of AH ʿilla); 329 (SH ruling = muʿāraḍa of AH ʿilla); 337–8 (SH); 344–5 (SH; qiyās correlation between genera is underscored); 388 (SH; qiyās correlation between two genera of contracts is underscored); 389 (AH & AY; qiyās with another genus of contract); 391 (AY extends IAL ruling to related mas’ala by way of qiyās); 417 (SH); 460 (AH/AY); 509 (SH; aṣl is from Qur’ān); 556 (SH supports parallel to AH §554 with qiyās); 633 (SH); 671–2 (SH; 2x qiyās al-ʿilla, with full explanation of efficient properties); 677 (SH; from Qur’ān; supported by tafsīr-explanation, and athar-tradition of ʿAṭā’); 726 (SH; farq-distinction); 729 (SH vs. anon. opponent); 960 (SH); 968 (SH); 987 (IAL; muʿāraḍa by qiyās with another genus of zakāt); 992 (muʿāraḍa of AH position via a fortiori qiyās and another qiyās); 997 (SH; muʿāraḍa-qiyās of AH & AY ʿilla); 1012 (SH); 1017–20 (SH qiyās a maiore ad minus; as X is in the maʿnā of Y, or akhaffu minhu); 1032 (SH); 1066 (SH; 2x qiyās); 1097 (SH); 1101 (SH); 1149 (SH; aṣl is Sunna); 1161 (AH & [new] AY; implied); 1195 (SH); 1233–5 (AH & AY; muʿāraḍa of IAL ʿilla, supported by āthār-traditions); 1243 (AH); 1280 (SH; aṣl consists of: Prophetic Sunna, Q.66:1–2); 1283 (SH); 1309 (SH); 1370 (SH; naqḍ); 1427–30 (AH/AY/SH vs. IAL; ʿilla of each implies iʿtirāḍ of the other’s)

Tarjīḥāt

• §§7ff. (SH; qiyās vs. qiyās via supporting āthār-traditions); 607 (SH; Ibn ʿAbbās vs. Ibn al-Zubayr; Ibn ʿAbbās closer to Qur’ān and qiyās); 796 (SH preponderates a maʿnā-intension as more appropriate [Schacht calls this: “a potiori” qiyās], supports with ʿaql: hypothetical situation in which one maʿnā-intension causes less harm)

Istidlālāt and Iʿtirāḍāt Outside the Adilla Domains/Categories of the Lens-Texts

General Appeal’s to God’s Decrees (without mention of specific adilla-indicants); [= testimony of the primary source-cases (shahādat al-uṣūl)?]

• §308 (SH; re: testimony and procedure)

Reasoning from the Silence of the Uṣūl

• §931 (SH claims no Prophetic report has been preserved—min wajhin yathbutu mithluhu—contrary to his ruling; an anticipation of attempted muʿāraḍa bi’l-nuṭq?)

Argument from “Rights of God” vs. “Rights of People” Distinction

• §§509–10 (SH & RB); 1149–50 (SH; qiyās extended to “every ḥadd of God;” ruling for all ḥuqūq al-ādamiyyīn shows clear distinction of rights and consequences; subsidiary ruling combines both domains for theft)

Tarjīḥ-Oriented (?) Laying Out and Comparison of Āthār-traditions

• §§900–8 (AH & AY; comparison of Prophetic Sunna and āthār-traditions of Abū Bakr, Ibn Masʿūd, ʿUmar, Ibn ʿAbbās, Ibn ʿUmar [with tafsīr-explanation of his decree], ʿAlī, and Muʿāwiya [with explanation of Kūfan vs. Syrian practices stemming from these latter two])

Transmission-Oriented Objections re: Āthār-traditions of Companions/Successors

• §§15–16 (anon. opponent; ʿAlī; SH claims as weak); 17 (anon. opponent; ʿUmar; SH claims as weak); 18 (anon. opponent; ʿAlī; SH claims as weak); 31 (SH against athar-tradition of ʿUmar; al-Bayḥaqī reports: because it is mursal; and against athar-tradition of ʿAlī); 1139 (SH); 1379 (SH)

Use of Āthār-traditions of Successors and Famed Jurists in Arguments

• §§11–12 (anon. opponent; Shurayḥ); 19 (SH; ʿAṭā’ b. Abī Rabāḥ); 120–2 (AH & AY; Ibrāhīm [supporting Ibn Masʿūd and ʿUmar]); 123–4 (IAL; ʿUmar II); 307 (SH; Shurayḥ); 340 (AH; Ibrāhīm); 356 (AH; Ibrāhīm); 374–6 (AH & AY; Ibrāhīm [x2], Abū Jaʿfar, ʿAṭā’); 465–6 (IAL & AY; Shurayḥ); 497 (IAL; Shurayḥ and Ibrāhīm; muʿāraḍa of AH/AY athar-tradition of ʿAlī in §496); 528 (AH & AY; Shurayḥ); 566 (SH reported by RB; Mujāhid; used for tafsīr-explanation of Qur’ānic dalīl-indicant); 571 (SH/RB; Shurayḥ); 585 (AH; Shurayḥ); 620 (AH & AY; Shurayḥ [supporting athar-tradition of ʿUmar]); 627 (AH & AY; Shurayḥ [and Ibn Masʿūd]); 677 (SH; ʿAṭā’; supporting qiyās from Qur’ān); 714 (AH & [old] AY; Ibrāhīm); 720 (AH; Ibrāhīm); 804–5 (SH; Shurayḥ [supporting Ibn ʿUmar]); 810 (AY/MIH; Ibrāhīm in support of AH ruling); 846[a] (IAL; Shurayḥ); 893–4 (IAL & AY; Ibrāhīm and ʿĀmir [b. ʿAbd Allāh b. Masʿūd?]); 898 (AH & AY; Ibrāhīm); 913–14 (AH; Ibrāhīm [supporting Q.4:102 and Ibn ʿAbbās]); 938 (IAL; Ibrāhīm); 939 (AH & AY; Ibrāhīm; muʿāraḍa: contrary naql from same Successor); 942 (IAL; Ibrāhīm); 948 (AH; Ibrāhīm); 971 (AH; Ibrāhīm); 979 (AH; Ibrāhīm; AY believes this to be AH’s naql); 1014 (AH; Ibrāhīm); 1042 (AY; ʿAlī b. ʿAbd Allāh b. ʿAbbās; transmitted by anonymous shaykh); 1045 (SH; long, fully-quoted athar-tradition of ʿAbd al-Aʿlā b. ʿAbd Allāh b. ʿĀmir and his mother); 1048 (IAL/AY; ʿAṭā’ b. Abī Rabāḥ); 1062–4 (IAL/AY; ʿĀmir [b. ʿAbd Allāh b. Masʿūd?] and ʿAṭā’ b. Abī Rabāḥ [supporting Ibn Masʿūd]); 1233 (AH; Ibrāhīm [supporting two āthār-traditions of ʿUmar]); 1250–1 (IAL; ʿĀmir [b. ʿAbd Allāh b. Masʿūd?], Shurayḥ, and Ibrāhīm); 1286 (SH supports ruling with decree of Abū Bakr b. ʿAbd al-Raḥmān b. al-Ḥārith b. Hishām);³² 1379 (anon. opponent; ʿUmar [II?]); 1381 (SH; Ibn al-Zubayr); 1396 (AH/AY; Ibrāhīm); 1399–1400[a] (AH; Ibrāhīm and ʿAṭā’ b. Abī Rabāḥ)

Appeals to One, or Some, of the Ahl al-ʿIlm (Aristotle’s endoxa-set of “the Wise”?)

• §§1035 (SH supports ruling with Q.5:96 and tafsīr-explanation of one of the Ahl al-ʿIlm); 1046 (SH supports ruling with doctrine of “more than one of the Ahl al-ʿIlm”)³³

Unique “Role-Reversal” Qiyās

• §1222 (IAL; cf. SH’s strategy in §658)

“Limited Qiyās”

• §1261 (SH brings a parallel genus of contract, underscoring first the efficient property in the parallel which does not apply to the current mas’ala, then he details the shared efficient property common to both contracts)

Qiyās Based Upon Another Qiyās (?)

• §9 (anon. opponent)

Athar-tradition to be Preferred Over Qiyās

• §793 (SH attributes anon. opponent position to the Ahl al-Qiyās; [as we see from the main SH argument elsewhere in the Umm (from naql: athar-tradition of ʿĀ’isha), this is an accusatory charge for those who would prefer qiyās over an athar-tradition])

Argument to al-maʿqūl

• §§402 (SH; the maʿqūl of a contract type: ḥawāla); 633 (SH; the maʿqūl of a contract type: waṣiyya); 929 (SH; reasoning from a maʿqūl in a khabar-report of the Prophet: Prophet aimed at showing farq-distinction)

Argument to Custom or Convention

• §§481 (IAL; because it is “a manifest custom” (ʿurf ẓāhir) among the people);³⁴ 875 (SH efficient property occasioning ḥukm is “idhā faʿala dhālika al-fiʿl alladhī yufʿalu bi-mithlihi fī dhālika al-waqt”—i.e., the ʿilla is “his action was consonant with sea-faring convention”)

Claimed/Reported Istiḥsān

• §§478 (IAL);³⁵ 484 (IAL);³⁶ 730 (AH);³⁷ 799 (IAL);³⁸ 801 (IAL);³⁹ 811 (AH);⁴⁰ 874 (IAL);⁴¹ 1021 (AH)⁴²

Precaution (Iḥtiyāṭ) as a Guiding Principle

• §§1018 (SH; “it is preferable to me” [aḥabba ilayya] ruling linked with iḥtiyāṭ)

Unique Argument Types of a More Ancient Tenor

Charges of tanāquḍ/qawl mutanāqiḍ

• §469 (SH)

General Reductio Arguments

• §§13 (SH); 407 (IAL); 1194 (SH); 1289 (AH; a-lā tarā)

• plus, the relevant (non-sequence) ra’ā formulae arguments reviewed at the end of Chap. 6

A Fortiori Arguments (Outside the domain of Faḥwā al-Khiṭāb)

• §§215 (SH; a maiore ad minus); 992 (SH; qiyās; a minore ad maius); 1017–20 (SH qiyās a maiore ad minus; as X is in the maʿnā of Y, or akhaffu minhu); 1084 (SH; a minore ad maius); 1102 (SH; a maiore ad minus); 1241 (SH overrides ʿilla concerns of previous sections by upgrading the mas’ala to full zinā—an “a fortiori strategy”)⁴³

Argument via Restrictive Disjunction

• §1395 (AH/AY; unlawful sex act must incur either ṣadāq-dowry or ḥadd-punishment—if not one, then it must be the other)

Schacht’s “a potiori” qiyās:

• §796 (SH preponderates a maʿnā-intension as more appropriate (aḥrā), supports with ʿaql: hypothetical situation in which one maʿnā-intension causes less harm)

Ra’y, According to Schacht:

• §975 (AY; lā arā X);⁴⁴ §1044 (SH; wa lā arā—wa Allāhu Taʿālā aʿlam—that X is permitted)⁴⁵

Other Argument Categories/Elements

Open Appeals to Legal Theory

• §§56 (SH; several legal theoretical principles); 293 (SH; lack of āthār-traditions justifies use of qiyās); 609 (AH; “The oath is not transferred from the locus [mawḍiʿ] upon which the Prophet… placed it [waḍaʿahā]”); 1139 (SH; “laysat fī aḥadin maʿa al-nabī… ḥujjatan”)

Appeal to Theological Principle

• §1425 (SH; “the ruling of God is one, it does not contradict [itself]” [ḥukm Allāhi wāḥidun lā yakhtalifu])

Practice of “precaution” (Iḥtiyāṭ)

• §503 (SH; in the context of “Qāḍī Instruction”)

Apparent “public welfare considerations” (Maṣlaḥa) in Āthār-Traditions of Companions

• §15 (ʿAlī)

Apparent Maṣlaḥa in Reasoning/Practice? Al-Shāfiʿī Conceals His Real Solution, Out of Fear of Negative Societal Consequence

• §§20 (SH, reported by RB: fear of iniquitous artisans); 309 (SH, reported by RB: fear of iniquitous qāḍīs); 1179 (SH, reported by RB: fear of iniquitous qāḍīs)

Rulings Rendered According to Social Categories

• §590 (SH; “mosque folk” [ahl al-masjid] vs. “tribe folk” [ahl al-qabīla] vs. “market person” [sūqī])

Presumptions or Hypothetical Possibilities of Parties’ Strategizing as Premises in Argument

• §§198 (SH); 273 (SH); 348–50 (SH); 590–1 (SH); 1175 (SH)

Ra’ā Formulae Appearing in Sunna/Āthār-Traditions of Successors

• §§11 (Shurayḥ uses a-ra’ayta); 107–8 (SH; Prophet uses a-ra’ayta)

Al-Shaybānī Supplies a Later Doctrine of Abū Yūsuf

• §§514 (“my memory of Abū Yūsuf is that he professed X after that” [wa ḥifẓī ʿan Abī Yūsuf annahu qāla baʿdu: X]); 588 (“after that, Abū Yūsuf professed X” [wa qāla Abū Yūsuf baʿda dhālika: X])

Al-Rabīʿ Supplies Additional (More Clear/Correct) Doctrine of al-Shāfiʿī; or Alternate Ruling of al-Shāfiʿī

• §§199; 350; 439 (“my memory of al-Shāfiʿī is that he judged X” [ḥifẓī ʿan al-Shāfiʿī… annahu yaqḍī X]); 510; 843 (SH ruling lacking, so RB—in apparent reference to doctrine of AH & IAL—says: “al-Shāfiʿī had a response here” [li’l-Shāfiʿī… hāhunā jawābun]); 955–6 (RB presents SH doctrine contrary to that presented by SH previously; preponderates the new doctrine with ʿaql and Qur’ānic dalīl-indicant); 1004 (RB supplies a contrary SH ruling he found “in another place [mawḍiʿ];” supports it with argument)

Al-Rabīʿ’s Tafsīr-Explanation of al-Shāfiʿī’s Ruling

• §499

Legal Theory Concepts and Terminology in Arguments

Naṣṣ in the Sense of “univocal”

• §796 (SH; wa hādhā maʿnā al-Sunnati naṣṣan)

ʿĀmm/Khāṣṣ Distinction

• §§74 (RB uses a-lā tarā to show the distinction); 510 (RB; khāṣṣ distinction)

Qur’ānic and Sunnaic/Āthāric Hermeneutic, and Complementary Interplay

• §§566 (SH reported by RB; athar-tradition Mujāhid supports tafsīr-explanation of Qur’ānic dalīl-indicant); 570–1 (SH/RB; athar-tradition Shurayḥ conflicts with Qur’ān); 1213–16 (debate is focused upon interpretation of single lafẓ-expression: “nisā’uhā”); 1257 (SH; Sunna interpreted by tafsīr-explanation, Sunna, and Qur’ān); 1425 (SH; Prophetic Sunna “is in the maʿnā of” Q.5:42 and Q.5:49)

Consistent Generalizing of the ʿIlla (“super-qiyās”)

Manzila-Subsumption

• §§201 (AH & AY); 202 (IAL); 346 (AH & AY); 391m (AH & AY); 474 (IAL); 537 (AH & AY); 987 (IAL); 1204 (IAL); 1341 (AH); 1348 (AH); 1350–2 (AH, AY, IAL); 1358–9 (AH, IAL)○

  • §§1343–53: extensive ikhtilāf (IAL & AY vs. AH & SH [and new AY in §1350 (!)]) re: the manzila of a partially manumitted male slave

  • ○ §§1354–60: extensive ikhtilāf (AH & SH vs. IAL & AY) re: the manzila of a partially manumitted female slave

Taswiya-Subsumption

• §§7 (SH); 38 (SH); 69 (SH); 210 (SH); 329 (SH); 336 (AY); 380 (SH); 383 (SH); 461 (IAL); 462 (SH); 495 (SH); 525 (AY); 669 (AH & IAL); 928–9 (SH; lā takhtalifu X and Y, because each is mawṣūla); 970 (AH); 1097 (SH); 1110 (AH & IAL); 1149 (SH); 1163 (SH); 1178 (2x, SH); 1189 (AY); 1192 (SH); 1246 (AY); 1328 (AH & IAL); 1398 (AH)

Extension of Ḥukm to Relevant Genus/Genera (of transaction, parties, objects, etc.)

• §§332 (SH); 559 (SH); 671 (SH); 856 (SH); 891 (AH); 1000 (SH); 1149 (SH; qiyās extended to “every ḥadd of God”); 1277–8 (AH/AY)

Formulaic Modes of Objection

“all that prevents us from…” (innamā manaʿnā)

• §§68–9 (SH; x2); 394 (SH)

7.4 Elements of Wider Historical Interest

7.4.1 Elements of Additional Interest

The picture of proto-system dialectic and argument provided by our subject-treatise is almost complete. What follows is a listing of elements, mentions, etc. which—although incidental to the current project—will be of interest to the legal and social historian of early Islam. Without a doubt, and as will already be plain from the translated sequences in Chaps. 5 and 6, the Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn contains a treasure-trove of material for studying the legal status of women in the second/eighth century; the legal status of slaves (and the institution of slavery in general); the laws of contract and commerce; etc. Features relevant to these domains would be too numerous to list, so I will mention only narrower topics here, and refer the reader to the subject-text itself for these broader concerns. What follows is only a sampling, not a thorough survey.

Of Legal-Historical Import

• Reference to Taqlīd○

  • §1061 (of ʿUmar)

• Caliphal Decree Alters Mujtahid’s Doctrine and/or Practice as Qāḍī○

  • §240 (AY/MIH re: IAL)

• Mention of Iniquitous Qāḍīs○

  • §§309 (SH, reported by RB); 1179 (SH, reported by RB)

• Reference to Community of Jurists (by Region)○

  • Ahl al-Baṣra: §§247ff.

  • ○ Mashriqiyyūn: §§252ff.; 737

  • ○Ahl al-Ḥijāz: §240

• Reference to Epistemic Community (by Project/Specialization)○

  • Ahl al-Fiqh: §§284; 1429 (excluded from exemption from the ḥadd-punishment for ignorance of the law)

  • ○ Ahl al-Ḥadīth: §§283; 667; 929; 1318–19; 1379 (Ahl al-ʿIlm bi’l-Ḥadīth)

  • ○ Ahl al-Kalām: §§642ff.

  • ○ Ahl al-Qiyās: §793 (with apparent accusation of preferring qiyās over an athar-tradition of ʿĀ’isha)

  • ○ Ahl al-ʿIlm: §1046; 1072 (three separate doctrines mentioned)

  • ○ The Ḥuffāẓ: §1119

• Different Rulings for Different Social Categories○

  • Sūqī vs. ʿArab: §584

  • ○ Ahl al-Masjid vs. Ahl al-Qabīla vs. Sūqī: §590

• Reference to Testimonial Subgroups, Evidentiary Specialists, and Court Functionaries○

  • dhawā ʿadlin: §32

  • ○ Ahl al-Maʿrifa al-Bāṭina: §§502–3

  • ○ the qā’if: §680

  • ○ Ahl al-Khibra bi’l-Mashhūd ʿalayhi: §685

  • ○the jilwāz: §1428 (in context of real Kūfan practice)

• Rulings re: Written Instruments○

  • kitāb al-qāḍī ilā al-qāḍī: §§554ff.; 577ff.; 1161ff.

  • ○ dhikr ḥaqq: §§477–86

  • ○ ʿuhda: §§232–3

• Rulings re: the Qāḍī’s memory and the Epistemic Value of what is Registered in his Dīwān○

  • §§1156ff.; 1176ff.

• Step-by-Step “Qāḍī Instruction” re: Procedural Concerns○

  • §§129; 227; 437–8 (including what to write in the qaḍā’); 502–4; 1162–3 (re: verifying kitāb al-qāḍī ilā al-qāḍī)

• Examples of a Mujtahid-Qāḍī Putting his Rulings into Practice○

  • §§446 (AY, as reported [apparently] by MIH); 539 (IAL); 555 (IAL); 595 (IAL); 597 (IAL); 706 (IAL); 1165 (IAL); 1166 (AY); 1190 (IAL; x2); 1198 (IAL; x4); 1423 (IAL; firmly asserted by AY/MIH comment: wa qad faʿala dhālika); 1428 (IAL, as witnessed by AY)

• Regional Variations for Appellation of Contract○

  • §202 (old Iraqi muʿāmala for Ḥijāzī musāqāt)

• Jurists Indicate Regional Variations of Practice Resultant of Different Customs of Different Companions○

  • §§900–8 (AH/AY/MIH listing of naql and explanation shows, among other things, Kūfans taking up practice of ʿAlī and Syrians taking up practice of Muʿāwiya)

Of Other Historical Import

• References to (and Clarifications of) Weights and Measures○

  • §§973–6 (ṣāʿ, wasq, raṭl, mudd, makhtūm by the Ḥajjājī standard, makhtūm by the Greater Hāshimī standard, the ṣāʿ of the Prophet); 985ff. (mithqāl, dirham, dīnār)

• Re: Canonization of the Qur’ān○

  • §909 (IAL mentions ʿUmar as reading two “sūras” for qunūt [NB: these same sūras are found only in the non-canonical codex of Ubayy b. Kaʿb];⁴⁶ AY explains IAL transmitted [yuḥaddithu] this from Ibn ʿAbbās)

• Rulings with regard to the Kharijites○

  • §§176–8

One last area of interest from our subject-text bears upon a tentative hypothesis raised in the next chapter: the possible interplay between the epistemologies of evidentiary procedure, of disputation procedure, and of ijtihād. Disputation between litigants in the qāḍī’s majlis, after all, shares certain features in common with disputation between jurist-dialecticians in a majlis of jadal; and the argumentation epistemes of this latter enterprise, as I hope will be plain, exerted a pressure dynamic on the epistemes of private ijtihād.

Arguments and Rulings Bearing Upon the Epistemology of Evidentiary Procedure

• Appeals to Sunnaic Qāʿida: «the burden of proof is on the claimant (al-bayyina ʿalā al-muddaʿī)…»○

  • §§610–13

• Rulings regarding “the Benefit of Assumption”○

  • §§1–2; 50; 133–4; 196–9; 359–61; 860–4; 1276–80

• “Evidentiary Tarjīḥ”○

  • witness disqualification (jarḥ) is superior (awlā) to witness qualification (taʿdīl): §564

  • ○ the Qāḍī’s personal knowledge (ʿilm) [of a party/event] is superior (awlā) to witness testimony: §305

  • ○ confession (iqrār) is superior (awlā) to witness-testimony (shuhūd): §479; 482

  • ○ confession (iqrār) is superior (awlā) to bayyina-evidence: §477

  • ○ Testimony and Oaths “according to one’s knowledge” (ʿalā ʿilm) vs. “with categorical certainty” (al-battata):■

    • §§504 (al-shahāda ʿalā al-batti tu’awwalu ilā al-ʿilm); 614–19; 685 (maʿnā al-batt maʿnā al-ʿilm, wa maʿnā al-ʿilm maʿnā al-batt)

• on the impossibility of determining which witnesses are lying/truthful: §590ff.

• Rulings re: the Qāḍī’s knowledge of prior litigation○

  • §§304–8 (epistemological concerns/terms include: ʿilm, ẓāhir, shakk, yaqīn)

  • ○ §§1156ff., 1176ff. (the Qāḍī’s memory and the epistemic value of his dīwān)

• “Qāḍī Instruction” guided by Epistemological Concerns○

  • §§502–4 (epistemological concerns/terms include: iḥtiyāṭ, maʿrifa, iḥāṭa, ʿilm, al-batt); 682ff.; 1168–71 (epistemological concerns/terms include: ẓāhir)

7.5 Remarks on the Character of Proto-System Juridical Jadal

The wealth of information our relatively short subject-text is capable of providing, even to the limited extent I have analyzed it, is astonishing. The small window it provides opens onto a vista which ought not to surprise us at all, however: it is a juridical landscape blending prior Near Eastern argumentation epistemes (of which I have only pointed out the most Aristotelian) with those of early Islam, the whole of which—though broader in content, and in every way sophisticated—is not nearly as systematic and refined as its descendant-systems were to become over the following three centuries. As examples of the infusion of prior epistemes with Islamic axioms in the constitution of a new, and distinct, argumentation episteme, I would cite the evident differences between: (1) the Aristotelian endoxa set vs. the early Islamic endoxa hierarchy; and (2) the organizing principle of the Topics vs. that of our lens-texts.

As for the first, we observe in proto-system jadal an Islamic hierarchy of epistemic authority at a relatively advanced stage, along with plentiful evidence that the ranking of uṣūl was still being wrought in the dialectical forge. Parallels with the Aristotelian “everyone” (ijmāʿ al-kull) and “the wise” (ijmāʿ of the Companions, or ʿulamā’) and “the famous of the wise” (the Sunna of the Prophet, qawl al-wāḥid min al-Ṣaḥāba, taqlīd of a venerated mujtahid) are still quite evident, and may be witnessed in the full heat of a dialectically-motivated epistemic valuation. By the era of our jadal-theory texts, much more had been resolved in this regard—at least within the nascent Sunnism to which our lens-texts belong—and again through the venue of dialectical encounter. Contention remained in a number of areas, however, as all our theorists report.

As for organizing principles, note that Aristotle’s topoi of predicables are not at all easy to distinguish in either our subject-text or lens-texts. Overtly syllogistic formulations are absent from both as well. The general aims and procedures of “good dialectic” are evident, but our lens-text organizing principles are in accordance with the axioms of Islamic epistemic valuation (the hierarchy of uṣūl). In the proto-system Ikhtilāf al-ʿIrāqiyyayn/ʿIrāqiyyīn, we also see these features at a relatively advanced stage in practice, although elements which appear quite Aristotelian (especially premise-gathering for reduction to tanāquḍ, absurdity, etc.) are far more evident than in any of the theory texts, if not in fact entirely particular to our proto-system.

I believe these observations justify referring to the jadal teaching and practice of the subject-text as belonging to a proto-system. It is “proto” in the sense that it is a less-refined precursor to such as evolved over the following centuries; and it is a “system” with respect to all its transmitted conventions—especially with regard to the formulae of subsumption and extension and other justifications, reduction to untenable consequences and other objections, question and response, and statements of substantive rulings. To this I would add a remarkable consistency of both substantive and legal-theoretical technical terms, though this latter set in particular would continue to evolve (e.g., from maʿnā to waṣf and ʿilla, from qiyās to qiyās al-ṭard, qiyās al-ʿaks, qiyās al-ʿilla, qiyās al-dalāla, etc.)

But I also must reiterate an earlier caveat: these analyses, categories, and assessments can only be said, at this point, to belong to the subject-text, and to the comportment of its dialectician-jurists only insofar as its contended masā’il are concerned. Nevertheless, although at a very early stage of exploration, and understandably hesitant to abstract findings into broader strokes of the legal-historian’s brush, I will attempt to distil certain dynamics from these findings and incorporate them into larger themes of legal-historical development.