Abstract
This chapter first introduces the bare, structural outline of the Dialectical Forge model (8.1). Individual components of this model are drawn forth and attached to the general outline in subsequent sections. The development of uṣūl-theory in proto-system jadal is examined (8.2), followed by an overview of current paradigms for the evolution of uṣūl al-fiqh, tested for consonance or dissonance with this study’s conception of the dialectical forge (8.3), and a recap of the model’s uṣūl-theory components (8.4). Then the development of jadal-theory in proto-system jadal is examined (8.5), followed by a recap of the model’s jadal-theory components (8.6). The chapter closes with a presentation of the Dialectical Forge model in its most complete, if still provisional, form (8.7).
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Notes
- 1.
Istiḥsān, of course, was a hotly debated principle in proto-system legal theory, and thus itself the object of proto-system juridical dialectic. A key witness is al-Shāfiʿī’s Book on the Nullification of Juristic Preference (Kitāb Ibṭāl al-Istiḥsān).
- 2.
In the end, I believe maʿqūl does not have equivalents so much as descendants in the lens-texts: the domains within the larger category of Maʿqūl Aṣl and the Adillat al-Maʿqūl.
- 3.
Origins, p. 126.
- 4.
Here, Schacht also cites numerous other instances from treatises of the Umm, the Risāla, and the Ikhtilāf al-Ḥadīth.
- 5.
Schacht continues: “Ijtihād must be exercised by ʿaql…; Allah has endowed mankind with ʿaql and guides them either by an explicit text or by indications on which to base their ijtihād…;” twice citing the Risāla (Origins, p. 126).
- 6.
A confirming reference may be found in Éric Chaumont’s EI 2 entry on al-Shāfiʿī. Under section (2) “Doctrine,” subsection (b), “uṣūl al-fiqh,” Chaumont explains, with regard to al-Shāfiʿī’s modes of derivation of aḥkām:
This legal statute is either presented as such in the scriptural sources (the Ḳurʾān and the Sunna), which al-S̲h̲āfiʿī calls “the foundation” (al-aṣl), or is it possible, by means of analogical reasoning (ḳiyās [q.v.]) to infer it from the aṣl, the latter being the bearer of a latent “rationally deducible content”, the maʿḳūl al-aṣl ? All the efforts of al-S̲h̲āfiʿī–and herein lies his originality in comparison with his predecessors–were subsequently to be applied to defining with precision, establishing critically and ranking in order of priority these different sources (aṣl and maʿḳūl al- aṣl) and to determining the modalities of their usage.
Chaumont’s translation of maʿqūl al-aṣl as “rationally deducible content” is in perfect consonance with not only the ʿaql and maʿqūl we have found in the Umm, but with the arch-category of maʿqūl aṣl as we find it in our jadal-theory texts. Also of note is Joseph Lowry’s extensive discussion on the topic of maʿqūl and ʿaql in his Early Islamic Legal Theory, which I may briefly summarize as follows. First, he notes that al-Shāfiʿī refers to ʿaql in three different ways in his Risāla: (1) with seeming disapproval, in reference to the Ahl al-ʿUqūl; (2) positively, as “a tool furnished by God so that His servants can do what is most important: perform legal reasoning; and (3) by referring to mas’ala solutions as maʿqūl (pp. 313–14). With regard to the passages cited for (2), Lowry observes: “Shāfiʿī seems less overtly hostile to ʿaql, but also unwilling to let it operate unconstrained by revelation” (p. 314). With regard to the specific sense of maʿqūl in two examples, Lowry describes the term: (1) as corresponding to “the most obvious implication of the [Qur’ānic] passages in question (ashbahuhumā bi’l-maʿqūl al-ẓāhir),” and as bearing a similarity to “the identification of the maʿnā in maʿnā-based qiyās;” and (2) as corresponding to “simply a sensible [solution], apparently unanchored in a revealed text.” As for Lowry’s final analysis: “it can be said that Shāfiʿī disapproves of reason as a substitute for revelation but recognizes the necessity of using reason as a tool for interpreting revelation” (pp. 315–17). Importantly, Lowry’s discussion of ʿaql and maʿqūl is taking place within a larger chapter entitled: “Internal Evidence for the Risāla’s Polemical Content.” In other words, he is well-aware of the Risāla’s dialectical features.
- 7.
I will try to avoid repetition here; please see the tables in Chap. 7, and accompanying notes.
- 8.
See also, in Chap. 7, the table: “Arguments and Rulings Bearing upon the Epistemology of Evidentiary Procedure.”
- 9.
Note that al-Shāfiʿī employs qā’im, and not some cognate of ithbāt as we usually find in the later uṣūl literature.
- 10.
NB: This mirrors the Aristotelian notion whereby a complete definition is properly including (jāmiʿ) all that should fall under its rubric, and excluding (māniʿ) all that should not.
- 11.
A disclaimer: due to constraints of space, this section is inevitably reductive; many of the paradigms reviewed are quite complex, but will here be abbreviated to outline form. Though I have avoided problematic distortions to the best of my ability, a full grasp of the trajectories and historical models which follow—with all their important details and implications—may only be gained through consulting their authors’ full expositions.
- 12.
Pages 4–6 of his Principles of Islamic Jurisprudence.
- 13.
See in particular the overview of al-Shāfiʿī’s contributions in his lengthy introduction (Mawsūʿa, vol. 1, pp. 151 ff.)
- 14.
See the introduction to his translation of al-Shīrāzī’s Kitāb al-Lumaʿ, esp. at pp. 3–16.
- 15.
I will focus only on those which bear most upon the Dialectical Forge model—some of which, in fact, were essential to my understanding of developments from proto-system to full-system legal theory. My approach, in this regard, is therefore doubly-reductive; for I am forced to set aside certain important narratives (e.g., the evolution from proto-qāḍī to full-fledged judiciary, the formation of doctrinal madhāhib, the creation of “axes of authority,” etc.) which integrate into Hallaq’s larger paradigm for the concerned period, as well as reduce such narratives as I do address to outline form.
- 16.
Hallaq, Sharīʿa, pp. 43–5. For a more detailed rendering, see Hallaq, Origins, pp. 63–6.
- 17.
Our subject-text is filled with references to Ibrāhīm in particular, and we will note that he was (like Ibn Abī Laylā, Abū Ḥanīfa, and Abū Yūsuf after him) a Kūfan. What is more, he was famed for his cautious recourse to ra’y in conjunction with sunan (see Lecomte’s EI 2 entry, s.v. “al-Nakhaʿī”).
- 18.
Besides the conception of epistemic authority residing in the Qur’ān and the sunan, there are the argumentation axioms expressed in these sources themselves. With regard to the Qur’ān, see pp. 93–209 of Heinrich’s edition of al-Ṭūfī’s ʿAlam al-Jadhal fī ʿIlm al-Jadal, where the author presents an analysis of the jadal of the Qur’ān, sūra by sūra. In Chap. 6, I mentioned that ra’ā formulae appear in the Qur’ān; I would note here that variants of a-ra’ayta occur some twenty times (most often as a-ra’aytum), and with the very same syntax (interrogative alif with conditional) as we find in our subject-text (see, e.g., Q.6:40–1, 46–7; 10:50, 59; etc.) A-lā tarā enjoys at least one occurrence (Q.12:59; as a-lā tarawn), and so far as I have investigated these they appear to exhibit similar rhetorical functions as when employed by Abū Ḥanīfa and the other jurists of the subject-text. Also with regard to the argumentation of the Qur’ān, see Gwynne’s Logic, Rhetoric, and Legal Reasoning in the Qur’ān. Analyzing the arguments of our subject-text, and of the Umm as a whole, through the argumentation methods of the Qur’ān is an important study yet to be done. With regard to the argument axioms of the sunan, we have encountered in our analyses references to the qiyās of the Ṣaḥāba, and will see a relevant observation in the next paradigm (Hallaq on the evolution of Sunnaic epistemic authority).
- 19.
Hallaq, Sharīʿa, pp. 40–8. In more detail: Hallaq, Origins, pp. 69–78, 102–9, 117–20.
- 20.
Hallaq, Sharīʿa, pp. 48–51. In more detail: Hallaq, Origins, pp. 113–21.
- 21.
I have borrowed this apt descriptor from Hallaq; see #6 in the following paradigm of the “Great Synthesis.”
- 22.
I have avoided speaking of ra’y throughout my analyses and reviews, with the explicit intention of moving beyond this nebulous category, and getting at the true substance of proto-system argumentation outside of later “canon” domains of istidlāl. Perhaps now that we have seen which argument types lay outside of this later canon, and which lay within, we might consider subsuming the former set under the later “negative connotation” of ra’y.
- 23.
This topic is more than worthy of pursuit, and remains an open door for future study.
- 24.
Note that this ever-advancing argumentation episteme itself had a determinant: the generally pious, truth-seeking comportment of jurist-dialecticians as we have seen it time and again. This is an important point, for argumentation epistemes in a more sophistical environment cannot advance in the same manner as those in an environment of “good” truth-seeking dialectic, if they advance at all.
- 25.
Hallaq, Sharīʿa, pp. 55–9. In more detail: Hallaq, Origins, pp. 122–7.
- 26.
See EI 2, s.v. “Miḥna,” for an introduction to this period of “trial” initiated by the Caliph al-Ma’mūn (r. 198-218/813-833), who sought to impose—in inquisitional fashion, and to multiple political, theological, and juristic ends—a doctrine of the Qur’ān’s createdness.
- 27.
Although we have seen an earlier case of Caliphal imposition in our subject-text, outside of the Miḥna period such occurrences were rare and had no programmatic, inquisitional qualities. Caliphal interference—before or after the Miḥna—was not a decisive factor in the evolving argumentation episteme of Islamic law and legal theory. Which is not to say Caliphs were not keenly interested in the juristic enterprise; but they were, rather, participants within an established, scholarly practice—not imposers of self-formulated decrees. This is true of both al-Saffāḥ and al-Ma’mūn as well; the substance of their decrees—though imposed—was not self-formulated, but the provenance of particularly favored epistemic communities (e.g., Ḥijāzī jurists and the Muʿtazila).
- 28.
Besides the transformation of proto-Ḥanbalism (#8 in the above outline), Hallaq points to the eventual extinction of Ẓāhirism due to its strict stance against rational-inferential methods which had become endoxa within the remainder of the Sunni sphere (Sharīʿa, p. 59).
- 29.
Hallaq, Sharīʿa, pp. 59–60. In more detail: idem, Origins, pp. 127–8; idem, History, pp. 30–5; idem, “Was al-Shāfiʿī the Master Architect.”
- 30.
It is possible that he even composed one (or several) in literary form, as he is credited with some 400 works (al-Shīrāzī, Ṭabaqāt, al-Mays ed., p. 118).
- 31.
Sharīʿa, p. 59.
- 32.
See “Was al-Shāfiʿī the Master Architect,” p. 596, where he notes: “…Qaffal was the author of both a commentary on the Risāla and a treatise on legal theory, as well as the first to have written on juridical dialectic [citing Ibn Khallikān’s Wafayāt]. That both [al-Ṣayrafī and Qaffāl] were distinguished uṣūlīs, muḥaddiths, speculative theologians, and dialecticians betrays their debt to Ibn Surayj who mastered all these sciences and placed them in the service of the law.”
- 33.
al-Shīrāzī, Ṭabaqāt, al-Mays ed., p. 118.
- 34.
See Schacht’s EI 2 entry on Ibn Surayj for a complete rendering of the mas’ala.
- 35.
al-Shīrāzī, Ṭabaqāt, al-Mays ed., p. 118; Ibn Qāḍī Shuhba, Ṭabaqāt, ʿAbd al-ʿAlīm Khān ed., vol. 1, pp. 113, 116–7.
- 36.
al-Shīrāzī, Ṭabaqāt, al-Mays ed., p. 118.
- 37.
A comparison of dialectical styles between Risāla and Umm constitutes another worthy research project.
- 38.
As has been pointed out to me by Hallaq himself, we must bear in mind that al-Qaffāl al-Shāshī would have approached both Umm and Risāla at a significant developmental remove from the era of their authorship. That is to say, the nascent sciences of uṣūl and jadal (of which al-Shāshī would be among the first, if not the first, to systematize in comprehensive fashion) had developed significant refinements in the intervening century. Among other things, al-Shāshī would have read these texts from a perspective of more advanced hermeneutics.
- 39.
They are the Lumaʿ, Sharḥ al-Lumaʿ, and Tabṣira of al-Shīrāzī; the Iḥkām al-Fuṣūl fī Aḥkām al-Uṣūl and Kitāb al-Ishāra fī Maʿrifat al-Uṣūl wa-l-Wajāza fī Maʿnā al-Dalīl of al-Bājī; the Kitāb al-Wāḍiḥ fī Uṣūl al-Fiqh of Ibn ʿAqīl; and the Burhān fī Uṣūl al-Fiqh and Waraqāt of al-Juwaynī. All of these have been edited and appear in print.
- 40.
Abū Zahra, Uṣūl al-Fiqh, pp. 13–14.
- 41.
He names Saʿīd b. al-Musayyab in Medina, and ʿAlqama and Ibrāhīm al-Nakhaʿī in Iraq.
- 42.
Note also that in the following descriptions of manāhij for Abū Ḥanīfa, Mālik, and Abū Yūsuf, all three are discretely tied to juridical disputation, whether in the form of contentious students (an illustration of the ‘study circle’ [ḥalaqa] as a site for jadal), or published critical rejections of ḥadīth, or in disputational treatises and epistles.
- 43.
Abū Zahra, Uṣūl al-Fiqh, pp. 13–18.
- 44.
After this point, Abū Zahra gently debates an Imāmī Shīʿī claim that the Imām Muḥammad al-Bāqir was the first to set down in writing the ʿilm uṣūl al-fiqh and to regulate it. In brief, he reiterates the claim that al-Shāfiʿī’s precedence arises only from his compilation and systematization; it is acknowledged that his predecessors possessed and elaborated programs of their own and transmitted them, but not that they produced written systematizations (Uṣūl, pp. 16–18).
- 45.
See the concluding chapter of his Early Islamic Legal History entitled: “The Risāla and its Relationship to Mature Uṣūl al-Fiqh.” In a brief but comprehensive review, Lowry narrows the loci of major differences (and markers of elaboration and advancement) from al-Shāfiʿī’s legal theory to that of full-system uṣūl al-fiqh: (1) the relationship between uṣūl and furūʿ; (2) “the capacity for abstraction;” (3) epistemological tools; (4) linguistic argument; and (5) theoretical vs. functional aims (Early Legal Theory, pp. 359–68).
- 46.
Admittedly, this line of inquiry is of dubious benefit; but focus on the three mentioned criteria (systematic categorization, refinement of definition, and comprehensiveness of scope), with regard to all that we know of Aristotle’s and al-Shāfiʿī’s respective systematization projects, is telling. Al-Shāfiʿī’s project—at a level of genius in its own right—still falls far short, in a quantitative and qualitative sense, of Aristotle’s. Nor, we might add, did al-Shāfiʿī’s Risāla and other treatises ever play, in subsequent centuries of the ʿilm uṣūl al-fiqh, anything like the role which Aristotle’s Organon played in the subsequent millennium and more of logic studies. Contributions on a par with Aristotle in terms of our three criteria and subsequent influence belong to later systematizers of uṣūl al-fiqh, and not likely to a single individual at that.
- 47.
Abū Zahra, Uṣūl al-Fiqh, pp. 18–25.
- 48.
As Abū Zahra makes plain, despite the Shāfiʿī/Ḥanafī appellations, scholars from all doctrinal-madhāhib engaged in and wrote uṣūl works, in both trends.
- 49.
Abū Zahra delves into the Shāfiʿī ṭarīqa in much greater detail in pages 20–2 of his Uṣūl al-Fiqh. He stresses, among other things, the prescriptive role of this branch of the ʿilm al-uṣūl. He names the three greatest works of the Shāfiʿī/Mutakallimūn ṭarīqa as follows: (1) the Muʿtamad of al-Baṣrī; (2) the Burhān of al-Juwaynī; and (3) the Mustaṣfā of al-Ghazālī. These spawned many commentaries, abridgments, and glosses. The Maḥṣūl of Fakhr al-Dīn al-Rāzī and the Iḥkām of al-Āmidī both built upon these great works, and were in turn the objects of abridgement and commentary.
- 50.
Abū Zahra also turns to a more detailed discussion of the Ḥanafī ṭarīqa in pages 22–5. He stresses how their method measured furūʿ against the qawāʿid of the uṣūl, and how their istinbāṭ was thus verified, and that by means of it they were equipped for undertaking jadal and munāẓara. Whereas the uṣūl al-Shāfiʿiyya were a program for rational inference (minhāj li’l-istinbāṭ) and prescriptive (ḥākima ʿalayhi), the Ḥanafī ṭarīqa was not prescriptive with regard to derived rules (ḥākim ʿalā al-furūʿ) after they had been set down in writing—i.e., they derived the qawāʿid that aided their doctrinal-madhhab, and they defended them (cf. Hallaq vs. Calder with regard to the prescriptive vs. descriptive function of uṣūl al-fiqh). Several contributions of this ṭarīqa to jurisprudence in general are mentioned, and then Abū Zahra begins to list the most important works, as follows: (1) the Uṣūl of al-Karkhī (being the oldest book of this type); (2) the uṣūl work of al-Jaṣṣāṣ (“broader and more detailed” than al-Karkhī’s); (3) the Ta’sīs al-Naẓar of al-Dabbūsī; (4) the Uṣūl of al-Bazdawī (the clearest and most straightforward work of the Ḥanafī ṭarīqa); and (5) the uṣūl work of al-Sarakhsī (like al-Bazdawī’s, but broader and more detailed). These spawned commentaries, etc., and works in the ṭarīqa by authors of other madhāhib are mentioned, with reference even to the Imāmī Shīʿa and Zaydīs. Note that I have considered al-Karkhī and al-Dabbūsī as authors in the proto-system of the ʿilm al-khilāf, in Chap. 3; and a review of their named treatises will show how different was the enterprise in which they were engaged, as compared to al-Jaṣṣāṣ and al-Bazdawī.
- 51.
Abū Zahra first mentions the Badīʿ al-Niẓām of Ibn al-Sāʿātī (combining the works of al-Bazdawī and al-Āmidī), then proceeds to list other important works from this synthetic genre.
- 52.
See his “Does Shāfiʿī Have a Theory of ‘Four Sources’ of Law?;” and pp. 11f. of his Early Islamic Legal Theory. The whole of Lowry’s Risāla research constitutes a thorough antidote to previous “four sources” hierarchy readings of the Risāla, and provides a comprehensive exposition as to its true theoretical thrust: Bayān theory.
- 53.
See Miller, “Islamic Disputation Theory,” pp. 196 ff. There may be more than a chronological coincidence between synthetic projects, of course, and this is worthy of further exploration.
- 54.
Due to the structure of Calder’s article, a number of his observations and theses will not appear in the same order in my summaries. I have attempted as chronological an arrangement here as possible. A more complete conception of Calder’s view on uṣūl al-fiqh—its literature, origins, development, nature, and function—may only be obtained through referencing the EI 2 article and other works, such as his Studies.
- 55.
Calder, “Uṣūl al-Fiḳh,” EI 2, ¶6.
- 56.
Ibid.
- 57.
Ibid., ¶1. Citing Hallaq, “Was al-Shāfiʿī the Master Architect;” and his own Studies (Chap. 9).
- 58.
NB: Calder does not mention the Shāfiʿī predecessors Ibn Surayj (d.306/918) and his students. As we have seen, it is this circle of scholars which Hallaq observes to be “the first and foremost Shāfiʿite authors who [wrote] on uṣūl al-fiqh” (History, p. 33; and see, in more detail, “Was al-Shāfiʿī the Master Architect,” pp. 595–6). This marks, in my opinion, something of a Ḥanafī-method bias on Calder’s part, and others will follow. Note also that attribution of the Uṣūl al-Shāshī to Aḥmad b. Muḥammad al-Shāshī (d.344/955) should very likely be discounted, as I have mentioned briefly at the end of Sect. 4.1 (see also my dissertation [pt. 1, pp. 93–7] for a more complete argument).
- 59.
Calder, “Uṣūl al-Fiḳh,” EI 2, ¶7. The distinguishing factor is named as tajrīd (abstraction), following which Calder says only “the theologians abstracted the principles and the rules of the science from their normative exemplification.” Here, as elsewhere (see, especially, “Al-Nawawī’s Typology of Muftīs”), he maintains a strict priority for the “descriptive” over the “prescriptive” function of uṣūl al-fiqh.
- 60.
Calder, “Uṣūl al-Fiḳh,” EI 2, ¶7. The following authors and works are listed: (1) Qāḍī ʿAbd al-Jabbār (Muʿtazilī, d.415/1025): K. al-ʿUmda; (2) the commentary on this by Abū al-Ḥusayn al-Baṣrī (d.436/1044): al-Muʿtamad; (3) Imām al-Ḥaramayn al-Juwaynī (Shāfiʿī, d.478/1085): K. al-Burhān; (4) al-Ghazālī (Shāfiʿī, d.505/1111): al-Mustaṣfā; (5) Fakhr al-Dīn al-Rāzī (Shāfiʿī, d.606/1209): al-Maḥṣūl; and (6) Sayf al-Dīn al-Āmidī (Shāfiʿī, d.631/1233): al-Iḥkām. Then Calder names the “two standard textbooks of Ibn Ḵh̲aldūn’s time”: (1) Ibn Ḥājib (Mālikī, d.646/1249): al-Mukhtaṣar; (2) al-Bayḍāwī (Shāfiʿī, d. 685/1286 or 692/1293): al-Minhāj.
- 61.
Ibid., ¶8.
- 62.
Ibid. Calder points out that Ibn Khaldūn’s “survey” of uṣūl al-fiqh tradition represents only “his assessment of highlights” (Ibid., ¶9).
- 63.
Noting: “Ibn Ḵh̲aldūn identified these tendencies as that of the theologians and that of the jurists respectively” (ibid., ¶2).
- 64.
Ibid. Note that Calder sees the Mustaṣfā as exemplary of: (1) the standard contents of an uṣūl al-fiqh book; (2) a high point in the Shāfiʿī tradition (“a peak of organisation and expression”). He observes it had much influence on later works (ibid., ¶4).
- 65.
He cites Chaumont’s Bāqillānī, and Ibn Ḵh̲aldūn (Ibid., ¶4).
- 66.
Ibid., ¶8. Note this being “more focused on the rules of the law and the discovery of principles that justify the rules” is reminiscent of Abū Zahra’s description of the Ḥanafī ṭarīqa.
- 67.
All of the following assertions are in ibid., ¶11.
- 68.
Calder rightly notes that “caveats” surround use of this term.
- 69.
It is not clear how this is meant to support claims of a “defence of the madhhab” primary orientation for uṣūl al-fiqh. Moreover, Hallaq has shown quite plainly how the machinery of development and change was built into the very structure of the Islamic jurisprudential enterprise, largely through the activities of muftīs and author-jurists (muṣannifs); see his Authority, Continuity and Change, especially Chaps. 5 and 6.
- 70.
Calder, “Uṣūl al-Fiḳh,” EI 2, ¶12.
- 71.
Sharīʿa, pp. 72 ff.; on “The function of legal theory.”
- 72.
Pp. 8–11.
- 73.
I have not treated Nadwī’s narrative here for several reasons. Besides offering no additions to the narratives included thus far, it seems never to have been intended to provide a comprehensive overview. At first, he paints with broad strokes, whereby al-Shāfiʿī’s Risāla (as our first extant uṣūl work) is followed by ʿulamā’ writing on this art, until al-Shāṭibī wrote his Muwaffaqāt, which “rose above all [works] ancient and modern, as regards the bayān-explanation of the induced aims of God’s Law (maqāṣid al-Sharīʿa) and its universal principles (qawāʿid al-kulliyya).” He then narrows focus to Ḥanafī scholars, citing the most famed works on the subject to be: (1) the Uṣūl of al-Karkhī; (2) the Ta’sīs al-Naẓar of al-Dabbūsī; and (3) the Uṣūl of al-Bazdawī. Then he presents the Uṣūl al-Shāshī as “one of the most important Mukhtaṣars belonging to the Ḥanafī’s for this noble art,” it being much studied, relied upon, commented upon, etc., all over the Islamic world (Uṣūl al-Shāshī, pp. 5–6).
- 74.
Uṣūl al-Shāshī, al-Mays ed., p. 8.
- 75.
The so-called Uṣūl al-Shāshī. Most likely an incorrect attribution, due to the anachronistic references pointed out by Nadwī in his edition.
- 76.
Chap. 6, pp. 275–318.
- 77.
Weiss also provides: (1) a discourse on the nature of the mas’ala, mentioning (with regard to uṣūl al-fiqh in general): “its entire range of issues is determined by a long history of debate;” (2) a discussion of al-Āmidī’s dialectical presentation of material (with statement of the mas’ala, various opinions, invalid arguments, objections, etc.); and (3) a useful overview of the interplay between objection and counter-argument (Weiss, Search, pp. 46–50; see also his “Medieval Islamic legal education as reflected in the works of Sayf al-Dīn al-Āmidī”).
- 78.
I am quoting Robert Wisnovsky, from a class lecture on “Dialectic and Ādāb al-Baḥth.” With particular regard to the vital relationship between dialectic and uṣūl al-fiqh, the trend continues. At the time of writing, the latest, relevant secondary publication of which I am aware is David Vishanoff’s Formation of Islamic Hermeneutics. This is an exceedingly thorough work in terms of both the secondary literature on uṣūl al-fiqh and its primary sources. There is no treatment of juridical dialectic, however, despite a significant exposition on al-Shāfiʿī, and frequent reference to uṣūlists who were famed dialecticians and/or authors of jadal-treatises. This is not so much an oversight of the author’s as a by-product of dialectic’s continuing low visibility in legal-theoretical—and, indeed, in historical-intellectual—studies.
- 79.
“Treatise,” p. 197. Italics are mine.
- 80.
Ibid., pp. 199–200.
- 81.
A very brief, preliminary exploration of dialectical “givens” and “motives” will be presented in Sect. 9.2.
- 82.
As Weiss shows, detailed works such as al-Āmidī’s Iḥkām are also exceptions; the place of dialectic as a formative dynamic is made quite plain by the author’s treatment of each legal theoretical premise.
- 83.
That is, not only as “the one doing istidlāl,” or “the respondent.”
- 84.
History, pp. 94 f., citing al-Ghazālī (Mustaṣfā) and al-Bājī (Iḥkām).
- 85.
Anticipation of this sort may best be considered a “natural” consequence of pre-knowledge of a forthcoming examination or debate. In the rhetorical realm of political debate, the politician will attempt to anticipate the justifications and objections of his/her opponent, along with the attitudes of his/her audience. In the presumably “good” dialectic of academia, the researcher will attempt to anticipate the criticism of colleagues in the presentation of his/her research, and in the construction of supporting arguments from empirically sound or endoxon premises.
- 86.
Top. I.2, 101a36-101b4.; trans. Forster. See also the variant views on the role of dialectic as regards archai and the demonstrative sciences set forth by G.E.L. Owen, “Tithenai ta phainomena;” Robin Smith, “Dialectic and Method in Aristotle;” and Robert Bolton, “The Epistemological Basis of Aristotelian Dialectic.”
- 87.
Primary among these is that parallels alone do not indicate probability of genetic relation, but only possibility; and possibilities do not accumulate to produce probability. That is to say, even if I have gathered as many parallels as I seem to have done, this does not make it probable that our early jurists were reading Aristotle; only some other indicant of a greater epistemic weight (e.g., direct in-text references to the Organon, or confirmed accounts of a jurist’s studying Aristotle, etc.) can shift our parallels into the realm of probability or certainty. Nor does the cynical stance that a pathetic monolith of “Islamic Tradition” conspired to hide or disguise traces of “Greek logic” in its earlier history constitute any sort of argument at all; the burden of proof lies with the claimant, and one who makes such a claim as this must bring strong evidence of conspiratorial erasure and/or camouflage. Incidentally, it may be considered an added benefit of the Dialectical Forge model—with regard to the gradual disappearance of prior axioms from various evolving Islamic epistemes—that it offers an alternative explanation to claims of a “denaturalized Hellenism.”
- 88.
Of course, this does not preclude the existence of cognates and verbal forms. Should the term and cognates prove entirely absent from the Risāla, then such would provide indicant for a conclusion certain scholars (e.g., Ḥassūn and Schacht) reached with regard to our subject-text; namely, that its contents are representative of al-Shāfiʿī’s “Old Doctrine,” whereas the Risāla is representative of his “New.” The implications are interesting in two ways: (1) my analyses might not only have uncovered a picture of proto-system jadal, but a very specific snapshot of al-Shāfiʿī’s “Old Doctrine” legal theory and method; and (2) the mechanisms of the Dialectical Forge model, as I have described them, may be seen as working not only within the general argumentation episteme of the community of jurists, but within a single jurist throughout his career. This latter should not be viewed as surprising. It is already documented—a recognition of al-Shāfiʿī’s evolution from Old to New Doctrines, in the legal literature, biographies, etc.
- 89.
The two instances which appear in the K. Jimāʿ al-ʿIlm call for particular scrutiny; there is a great deal to be learned from an analysis of this treatise.
- 90.
Umm, Ḥassūn ed., vol. 4, pt. 8, p. 195.
- 91.
Umm, Ḥassūn ed., vol. 9, pt. 14, p. 575.
- 92.
Al-Fārābī (d.339/950) spent most of his life in Baghdād, and did not leave for Syria until 330/942.
- 93.
I have preferred my own translation, but should note that Miller (“Disputation Theory,” pp. 54–5 and n. 10) also translates the first part of this same definition, as follows: “The art (ṣināʿa) of dialectic is the art through which a man acquires the capacity to (1) fashion from commonly accepted premises a syllogism that destroys a thesis whose subject is universal, and that he obtains through questioning a respondent who was entrusted with defending either part of a contradictory alternation, whatever that happens to be; and (2) to defend any proposition with a universal premise by opposing himself to a questioner entrusted with destroying either part of a contradictory alternation, whatever that happens to be” (Miller cites a typescript of a MS, but I have located this passage in Rafīq al-ʿAjam’s ed. [al-Fārābī, Al-Manṭiq ʿinda al-Fārābī: al-Juzʼ al-Thālith: Kitāb al-Jadal, p. 13], which apparently relies upon the same MS, as the folio numbers in the margins coincide perfectly). Compare this also with DiPasquale’s translation in Alfarabi and the Starting Point of Islamic Philosophy, Appendix 1.
- 94.
The editor finds this “kull” in one of his MSS, but has not included it in his transcription (al-ʿAjam ed., p. 13, n. 2).
- 95.
On the other hand, the term muḍādd occurs at least once in the Fuṣūl of al-Jaṣṣāṣ, twice in the Muʿtamad of al-Baṣrī, and twice in the Burhān of al-Juwaynī; while the term muḍādda(t) is found six times in the Uṣūl of al-Sarakhsī, and eight times in the Burhān of al-Juwaynī. As for the terms muqābil and muqābala, they enjoy great frequency in all of these texts; muqābala may also be found four or five times in the Tabṣira of al-Shīrāzī.
- 96.
All of the numerals in this table (excepting zero, of course) should be qualified by the descriptor “at least;” e.g., there are at least 64 occurrences of the term naqīḍ in the Muʿtamad of al-Baṣrī.
- 97.
I am certainly not implying this is not a worthwhile pursuit—there is a great deal to be learned yet from a terminological comparison between our earliest legal theoretical and dialectical texts. These are complex undertakings, however, and demand a far more careful study than can be undertaken in the current project.
- 98.
In a similar fashion, note that the formula a-lā tarā—a staple of proto-system dialectic—also enjoys great currency in these same uṣūl texts we have treated (at least 180 occurrences in the Fuṣūl of al-Jaṣṣāṣ, 170 in the Muʿtamad of al-Baṣrī, 120 in the Tabṣira of al-Shīrāzī and 17 in his Lumaʿ, and 190 in the Uṣūl of al-Sarakhsī; intriguingly, it is entirely absent from al-Juwaynī’s Burhān). At the same time, this formula receives no independent treatment in our jadal-theory texts; at the very least, we might expect to find it as a distinct question-category, or fully treated in connection to certain objection types. This reminds us of the possibility that certain elements of proto-system jadal may indeed have continued in practice in subsequent eras, and yet found no place for discussion in the theory-texts.
- 99.
As noted earlier, naqḍ—though absent from the Risāla—occurs plentifully in the Umm; however, it appears—so far as I have seen—only in substantive contexts (relating mostly to the termination of contractual agreements). In other words, “naqḍ” in any relation to a dialectical move does not occur.
- 100.
In particular, one might begin by scouring the arguments of works attributed to Muḥammad b. al-Ḥasan, and any arguments attributed to him in later sources. How similar was al-Shaybānī’s dialectical method to al-Shāfiʿī’s?
- 101.
This is not to suggest, of course, that al-Shāfiʿī did not pursue the “good” dialectical ethic. As we have seen, there is plentiful evidence that he did, not the least of which is the very existence of an Old and New Doctrine. Rather, I am merely pointing out—as with so many other elements of proto-system dialectic—certain strategies may have fallen away due to more stringent (not to mention systematized) standards of later generations.
- 102.
Kāfiya, Maḥmūd ed., pp. 77 ff., §§190 ff.
- 103.
See, for example, ibid., pp. 3 ff., §§10 ff. Other examples of dialectical sequences may be found throughout.
- 104.
Minhāj, Turkī ed., passim.
- 105.
More typically, he simply illustrates them with examples. Plainly, he is attempting to ensure that the dialectician-in-training is prepared to face modes of justification and critique which he himself does not advocate.
- 106.
Maʿūna, al-ʿUmayrīnī ed., pp. 121–2: “And among our [Shāfiʿī] companions are those who say: [the ḥadīth] is not preponderated [in terms of numbers of transmitters], like testimony (shahāda). But the first [opinion, which allows this] is more valid.” In other words, al-Shīrāzī sanctions a tarjīḥ-method which we find al-Shāfiʿī employing in §248 nearly 300 years earlier.
- 107.
Top. I.10, 104a34ff. (trans. Forster).
- 108.
Geometry was one of Aristotle’s favourite examples of a demonstrative science. See the Cambridge Companion to Aristotle, pp. 25 f., 47.
- 109.
And, as we have seen, even such condensed collections of abstracted substantive rulings as al-Muzanī’s Mukhtaṣar may yield the occasional dialectical sequence for analysis.
- 110.
Minhāj, Turkī ed., p. 221, §504.
- 111.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 114 f.; al-Bājī, Minhāj, Turkī ed., pp. 181 f., §§402ff.—especially at §405. Cf. Ibn ʿAqīl, K. al-Jadal, p. 64, §303.
- 112.
al-Bājī, Minhāj, Turkī ed., p. 182, §405.
- 113.
Nor are these the only indicants of continuity and analysis of past jadal. All instances in which al-Shāfiʿī makes his opponent’s method the object of critique, show that method-oriented dialectic in practice precedes any distinction between fiqh-oriented and uṣūl al-fiqh-oriented juridical dialectic. Such examples illustrating the sub-projects of proto-system jadal are what allows us to seek the roots of “Ḥanafī vs. Shāfiʿī” ṭarīqas long before the full systematization of uṣūl al-fiqh. These projects are the continuity of, and elaboration upon, older tendencies, and both derived many a principle from proto-system jadal practice.
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Young, W.E. (2017). Uṣūl al-Fiqh and Jadal-Theory in the Dialectical Forge. In: The Dialectical Forge. Logic, Argumentation & Reasoning, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-25522-4_8
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