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).
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Notes
- 1.
We must also allow that certain elements of dialectical practice in the era of full-system jadal-theory treatises were not discussed in our lens-texts. A ready example is the use of the a-lā tarā formula by all of our lens-text authors at various points, often while defending particular positions of jadal-theory itself. We do not find, however, any systematic treatment regarding where and to what purpose the a-lā tarā formula is to be used.
- 2.
Many of the findings of this current project are fully consonant with a seminal study by Zafar Ishaq Ansari: his “Islamic Juristic Terminology Before al-Shāfiʿī.” Ansari sheds light on early (second/eighth century) usages of the terms ḥadīth, sunna, ijmāʿ, ra’y, qiyās, etc. Moreover, he reaches a number of important, general conclusions (pp. 299–300). Among them are the following: (1) “there was a marked lag between the conceptual and terminological aspects of the development of fiqh,” and “some of the fundamental concepts… are anterior to the period when they acquired standard technical terms for their expression;” (2) “if there is positive evidence about the existence of a concept as embodied by the term in use, we can confidently make an affirmative statement,” but “if, on the contrary, positive terminological evidence is lacking in regard to some concept, this does not necessarily signify the non-existence of that concept;” (3) overall, there was a “trend towards an increasingly precise definition of terms… a more vivid uṣūl-consciousness reflected in the growing recognition of distinctions between the various sources of positive doctrines, and its corollary, an increasing formalism and finesse in technical legal thought;” and (4) “even though there was a semantic lag, yet the formulation of technical terms with accurate connotations was well on its way [by al-Shāfiʿī’s time] and considerable progress seems to have been made in that respect.”
- 3.
Such muṭālabāt as appear in quotes are not actual categories in the lens-texts. See the discussion below on question types which appear unique to proto-system jadal.
- 4.
Corresponding iʿtirāḍāt and muʿāraḍāt will be treated below in detail.
- 5.
SH’s iʿtirāḍ matches al-Bājī exactly, and al-Bājī uses this very mas’ala for his example (al-Bājī, Minhāj, Turkī ed., 59f., §114). The implications of this will be discussed in the following chapter.
- 6.
See Sect. 7.3, below.
- 7.
The normative materials of the Qur’ān are impressive in size and scope—not only by way of direct application to ritual and transaction, but as a source for uṣūl for extension, and for general principles. Its overall substantive corpus, however, is dwarfed by that of the sunan. This difference in substantive contribution may also have bearing on the relative infrequency of Qur’ān-oriented istidlālāt and iʿtirāḍāt in our subject-text.
- 8.
Early Islamic Legal Theory, pp. 23ff. and passim.
- 9.
This is not to say, of course, that such did not occur in the abbreviated presentations of our subject-text, or elsewhere in the Umm.
- 10.
I will discuss incidences where elements of his theory arise in the course of objection in the following chapter.
- 11.
Properly speaking, this is istidlāl bi’l-qiyās, not istidlāl bi’l-ijmāʿ; I have included ijmāʿ as the aṣl of qiyās in this domain simply to underscore that ijmāʿ appears to have been employed by our jurists as an aṣl with some frequency.
- 12.
Again, these instances properly belong to another domain—as components of a “naqḍ dilemma” (that unique argument strategy of al-Shāfiʿī’s we will return to shortly). I have included it here, however, as the ijmāʿ which the opponent will appear to violate is also the ijmāʿ forming the basis of the questioner’s istidlāl.
- 13.
This may indicate nothing more than that such demands were unnecessary for the limited masā’il of ikhtilāf with which our treatise is concerned.
- 14.
- 15.
Note that our lens-texts do not treat the deeds (afʿāl) of Ṣaḥāba as a category for istidlāl.
- 16.
There are further occurrences of each of these latter in other presentation categories, see the “additional elements” section below.
- 17.
Of note, too, is that al-Shāfiʿī further supported his argument with tafsīr-explanation via dalāla-indication from other verses: Q.2:189, 22:28, 2:233.
- 18.
Note the similarity between the anonymous opponent’s usage of khaṣla/khiṣāl and al-Shīrāzī’s usage of khaṣīṣa.
- 19.
“Treatise,” p. 200.
- 20.
ʿIlla in fact does occur in §1045, but in the sense of “sickness” (maraḍihim wa ʿillatihim). Note, however, that it is not entirely absent from the Umm in a technical, legal-theoretical sense; see Appendix II.§1417 in part 2 of my dissertation.
- 21.
See Y. Linant de Bellefonds in the EI 2 (s.v. “Istiṣḥāb”), who observes: “The s hāfiʿīs gave istiṣḥāb a much weightier significance than did the Ḥanafīs, which explains why this method of juridical reasoning has been generally, though erroneously, associated with s hāfiʿī teaching. The word istiṣḥāb does not even appear in the Umm of the Imām al-s hāfiʿī and he had recourse to the concept on one occasion only, without naming it (Schacht, Origins, 126).” Following this reference to Schacht’s Origins, we read: “Shāfiʿī applies this principle in Umm, iv. 170 without, however, using the term istiṣḥāb; he obviously regards it as part of qiyās and ‘reason’ (maʿqūl).” After pursuing this reference in the Būlāq edition of the Umm, I find it difficult to reconcile Schacht’s note with the material therein. Al-Shāfiʿī’s istidlāl throughout the cited passage is from Sunna and Qur’ān—qiyās and maʿqūl are not mentioned, and I am uncertain where this unnamed istiṣḥāb is thought to have occurred. On the other hand, recall that al-Bājī’s discussion of Istiṣḥāb al-Ḥāl included a short section on related but erroneous modes of istidlāl. The third of these was attributed to al-Shāfiʿī himself: “istidlāl—by way of the absence of a dalīl-indicant for a thing—for the negation of that thing.” Al-Bājī concludes that what al-Shāfiʿī is doing in such cases is actually presumption of continuity of a status quo ante for absolution from obligation (istiṣḥāb al-ḥāl fī barā’at al-dhimma).
- 22.
Among them, Hallaq, Origins; Hasan, Early Development; Lowry, Early Islamic Legal History; Vishanoff, Formation (with a single reference to istiṣḥāb, and only in a Ẓāhirī context).
- 23.
E.g., Schacht, Introduction (p. 21; saying only that it is “derived from Jewish law”); Coulson, History; Hallaq, History; Kamali, Principles.
- 24.
Athar al-Ikhtilāf, pp. 543–9.
- 25.
See my dissertation (“Dialectical Forge,” pt. 1, p. 430–1) for an account.
- 26.
Khinn, Athar al-Ikhtilāf, pp. 546f.; referencing Umm, Būlāq ed., vol. 4, p.4.
- 27.
See, among others, Coulson, History, pp. 92–3; and Kamali, Principles, p. 389. Kamali treats the mas’ala under the category of “continuity of attributes” (istiṣḥāb al-waṣf).
- 28.
Again, categories in quotation marks, though combined from terms in the jadal-theory texts, are my own invention.
- 29.
We have seen discussions of tanāquḍ and “an yanquḍa X” among the categories terminating the debate (aqsām al-inqiṭāʿ) of al-Khaṭīb al-Baghdādī, al-Juwaynī, and Ibn Ḥazm. But tanāquḍ is not elaborated in these texts; and it finds no place (or even mention) in the core treatises of our jadal-theory lens.
- 30.
The Shīrāzī and Bājī references in this and following categories are only for comparison. Equivalent chapters in the lens-texts do not exist.
- 31.
We have seen tanāquḍ mentioned by al-Juwaynī and Ibn Ḥazm, but only as a “sign of defeat;” to my knowledge, tanāquḍ and “qawl mutanāqiḍ” receive no theoretical treatment.
- 32.
NB: this is the logical axiom of non-contradiction extended into a question of legal status: status X and status ¬X cannot combine in a single individual. This constitute a “proof by contradiction” in legal argument.
- 33.
In addition to the ra’ā formulae and others reviewed in Chap. 6.
- 34.
Via the intermediary, that is, of later works of ikhtilāf and fiqh, with the arguments they attribute to our respective proto-system jurists.
- 35.
For parallel translations of the following material, see part 2 of my dissertation.
- 36.
NB: this Abū Bakr is one of the Fuqahā’ al-Madīna al-Sabʿa (d.94/712).
- 37.
Schacht (Origins, p. 89) references this as an example of consensus according to the ancient school usage. Note, however, that al-Shāfiʿī merely says “more than one of the Ahl al-ʿIlm.”
- 38.
Considered istiḥsān by al-Sarakhsī (Mabsūṭ, vol. 30, p. 150); al-Afghānī (p. 64, n. 1). Noted as istiḥsān by Schacht (Origins, p. 112).
- 39.
Mabsūṭ vol. 7, p. 164; vol. 30, p. 150. Noted by Schacht (Origins, p. 112, and p. 273, n. 4).
- 40.
Noted by Schacht (Origins, p. 112).
- 41.
Mabsūṭ vol. 28, p. 34. Noted by Schacht (Origins, p. 112).
- 42.
Mabsūṭ vol. 7, p. 207. Noted by Schacht (Origins, pp. 111–12).
- 43.
Mabsūṭ vol. 7, p. 207. Noted by Schacht (Origins, pp. 111–12).
- 44.
Schacht (Origins, p. 112) claims: “Abū Ḥanīfa is systematically consistent, but still makes a very slight concession….”
- 45.
Schacht (Origins, p. 112) claims: “he [IAL] makes an inconsistent exception on account of vis maior, out of regard for material justice.” After a comparison with SH’s ruling (based upon seafaring convention) in §875, I believe it is questionable to interpret IAL’s exception as istiḥsān.
- 46.
As claimed by Schacht (Origins, p. 112), from his interpretation of al-Ṭaḥāwī’s description of AH’s decision as ra’y, recorded in the Mabsūṭ (vol. 4, p. 138). Notably, however, the Mabsūṭ—replete with references to istiḥsān—does not appear to employ the term with reference to AH’s particular opinion on this mas’ala.
- 47.
§1241 is a terse presentation of a complex argument from another of al-Shāfiʿī’s books. See my translation of the referenced argument in the appendices of my dissertation (“Dialectical Forge,” pp. 371–3, Appendix II.§1241).
- 48.
Origins, p. 124 and n. 2: “A particular kind of qiyās is represented by conclusions a potiori…” A closer examination of SH in §796, however, shows something more like the Tarjīḥ al-Maʿānī of our jadal-theory texts.
- 49.
Schacht, Origins, p. 105: “an example of [Abū Yūsuf’s] explicit use of ra’y….”
- 50.
Schacht, Origins, p. 120 and n. 1: “Shāfiʿī expresses his own ra’y.” At the top of p. 120, Schacht reiterates that he considers our subject-treatise from al-Shāfiʿī’s “earliest period,” in which he uses ra’y “in the same loose way as the ancient schools.”
- 51.
This is not a complete listing, more will be discussed in the following chapter. Also, see the additional epistemological terms under “Arguments and Rulings Bearing upon the Epistemology of Evidentiary Procedure,” below.
- 52.
See the note attached to §909 in my dissertation (“Dialectical Forge,” pt. 2, p. 226, n. 6).
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Young, W.E. (2017). A Picture of Proto-System Jadal . In: The Dialectical Forge. Logic, Argumentation & Reasoning, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-25522-4_7
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