The Epistle on Legal Theory

The Epistle on Legal Theory

Edited and translated by Joseph E. Lowry
Copyright Date: 2013
Published by: NYU Press,
Pages: 544
https://www.jstor.org/stable/j.ctt9qfzc7
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  • Book Info
    The Epistle on Legal Theory
    Book Description:

    The Epistle on Legal Theoryis the oldest surviving Arabic work on Islamic legal theory and the foundational document of Islamic jurisprudence. Its author, Muhammad ibn Idris al-Shafi'i (d. 204 H/820 AD), was the eponym of the Shafi'i school of legal thought, one of the four rites in Sunni Islam. This fascinating work offers the first systematic treatment in Arabic of key issues in Islamic legal thought. These include a survey of the importance of Arabic as the language of revelation, principles of textual interpretation to be applied to the Qur'an and prophetic Traditions, techniques for harmonizing apparently contradictory precedents, legal epistemology, rules of inference, and discussions of when legal interpretation is required. The author illustrates his theoretical claims with numerous examples drawn from nearly all areas of Islamic law, including ritual law, commercial law, tort law, and criminal law. The text thus provides an important window into both Islamic law and legal thought in particular and early Islamic intellectual history in general . The Arabic text has been established on the basis of the two most important critical editions and includes variants in the notes, while the English text is a new translation by a leading scholar of Shafi'i and his thought.The Epistle on Legal Theoryrepresents one of the earliest complete works on Islamic law, one that is centrally important for the formation of Islamic legal thought and the Islamic legal tradition.

    eISBN: 978-0-8147-2931-1
    Subjects: Language & Literature

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xi)
  3. Acknowledgments
    (pp. xii-xiv)
  4. Introduction
    (pp. xv-xx)

    Two of my favorite medieval quotations about al-Shāfiʿī assign to him a foundational role in the emergence of Islamic legal theory. The great theologian and jurist Ibn ʿAqīl (d. 513/1119) affectionately called al-Shāfiʿī “the father of this science, and its mother.”¹ Fakhr al-Dīn al-Rāzī (d. 606/1209), a towering figure of Sunni religious thought, proclaimed that al-Shāfiʿī’s “relationship to the science of legal theory is like that of the philosopher Aristotle to logic.”² While a more nuanced narrative of the history of Islamic legal thought might wish to qualify the portrayal of Muḥammad ibn Idrīs al-Shāfiʿī as its “master architect,”³ there...

  5. A Note on the Text
    (pp. xxi-xxxvii)
  6. Notes to the Introduction
    (pp. xxxviii-xli)
  7. Epistle on Legal Theory
    • [Introduction]
      (pp. 3-14)

      «Praise be to God, Who has created the heavens and the earth and made darkness and light. Yet those who do not believe ascribe equals to their Lord.»¹ And praise be to God for Whose acts of grace no one can be thankful save through another act of His grace, which, through its bestowal on one giving thanks for past acts of grace, constitutes a new act of grace for which He must be thanked. Those who seek to describe Him do not capture the magnitude of His greatness, He Who is as He has described Himself and is above...

    • Chapter on the Modalities of Legislative Statements
      (pp. 15-19)

      Al-Shāfiʿī said: “Legislative statement” is a term comprising several convergent basic meanings which, however, diverge in their details. The lowest common denominator among those convergent and yet divergent meanings is that such a statement is directed to whoever is addressed by it among those in whose language the Qurʾan was revealed. Those meanings are very close in import for such persons, even though some legislative statements exhibit a stronger emphasis than others. They are quite disparate, however, for those ignorant of the Arabs’ language.

      Al-Shāfiʿī said: The sum total of legislative statements that God has provided for His creation in...

    • Chapter on the First Kind of Legislative Statement
      (pp. 19-22)

      God (blessed and exalted) said, concerning one who makes both pilgrimages at the same time: «Whoever combines the Minor Pilgrimage with the Major Pilgrimage shall give whatever offerings are convenient. Those who do not find any—a fast of three days during the Major Pilgrimage and seven when you have returned; that is ten complete days in all. That is for those whose families are not present at the Sacred Mosque.»⁴¹ It is clear to those addressed by this verse that the fast is the three days during the Pilgrimage and the seven during the return, making ten complete days....

    • Chapter on the Second Kind of Legislative Statement
      (pp. 23-25)

      God (blessed and exalted) said: «When you rise to pray, wash your faces and your hands up to the elbows, and wipe your heads and wash your feet up to the ankles. If you are polluted, purify yourselves »⁴⁵ and «Nor when you are polluted, save when you are traveling.»⁴⁶

      The Book of God provided a legislative statement concerning ablutions—separately from the topic of cleansing oneself using stones—and also concerning the major washing for substantive ritual impurity.⁴⁷ In accordance with that, the least number of times that one could wash the face and limbs would be once each,...

    • Chapter on the Third Kind of Legislative Statement
      (pp. 25-26)

      God (blessed and exalted) said: «Prayer is a prescription at fixed times for the believers.»⁵¹ He also said: «Perform prayer and pay alms»⁵² and «Perform the Major Pilgrimage and the Minor Pilgrimage for God.»⁵³ Then, using the words of His Emissary, He clarified the number of prayers that He obligated them to perform, their times, their specific practices; the amounts of alms and when they are to be paid; and how to perform the Major Pilgrimage and the Minor Pilgrimage, when they are vitiated, when affirmed, when the performance of them varies, and when it is consistent. There are many...

    • Chapter on the Fourth Kind of Legislative Statement
      (pp. 27-28)

      Al-Shāfiʿī said: Every practice established by God’s Emissary concerning something for which there is no relevant scriptural passage—as well as what we have written in this book of ours about God’s having bestowed on His servants the opportunity to study the Book and wisdom—indicates that “wisdom” is the Practice of God’s Emissary.⁵⁴ This, together with what we have mentioned concerning God’s obliging of His creatures to be obedient to His Emissary, and God’s clarification of the station in which He put His Emissary in His religion, indicates that the legislative statement of textually explicit obligations is always one...

    • Chapter on the Fifth Kind of Legislative Statement
      (pp. 29-45)

      God (blessed and exalted) said: «From wherever you approach, turn your face toward the Sacred Mosque; and wherever you may be, turn your faces toward it.»⁵⁶ He imposed on them the obligation, wherever they might be, to turn their faces toward it. “Toward” in the language of the Arabs refers to its direction. If you say, “I am headingtowardsomething,” it is understood that you are saying “I am heading right for that particular thing,” that is, “for that very thing itself.” Similarly, it means “facing it,” “in its direction,” that is, “I turned to face it,” or “in...

    • Chapter Explaining What Is Revealed in the Book as Unrestricted, and Intended as Unrestricted, but Also Partly Restricted
      (pp. 45-47)

      God (blessed and exalted) said: «God is the Creator of everything. He is the Guardian over everything.»⁸⁰ He also said that He « created the heavens and the earth.»⁸¹ And He said: « There is no beast on the earth but its sustenance depends on God.»⁸² This is unrestricted; there is nothing restricted in it.

      Al-Shāfiʿī said: Everything—heavens, earth, ensouled beings, trees, and whatever else—God created. For every animal, God is responsible for its provisioning, and He knows «its lair and its habitation.»⁸³

      God also said: «It is not for the people of Medina and the Bedouin Arabs...

    • Chapter Explaining What Is Revealed in the Book, the Apparent Meaning of Which Is Unrestricted but Which Combines the Unrestricted and the Restricted
      (pp. 47-49)

      God (blessed and exalted) said: «We have created you male and female and made you races and tribes that you may know one another. The noblest of you in the sight of God is the most God-fearing of you.»⁸⁷ He also (blessed and exalted) said: «Fasting is prescribed for you, as it was prescribed for those who were before you, so that you may be God-fearing, for a fixed number of days. Those of you who are sick or on a journey, a number of other days. »⁸⁸ And He said: «Prayer is a prescription at fixed times for the...

    • Chapter Explaining What Is Revealed in the Book, the Apparent Meaning of Which Is Unrestricted but Which Is Intended in Its Entirety as Restricted
      (pp. 49-53)

      God said: «Those to whom the people said, “The people have gathered against you. Fear them.” This increased them in their faith and they said, “God is sufficient for us. How excellent a guardian He is.”»⁹⁰ Al-Shāfiʿī said: Since those who were with God’s Emissary were “people” other than those “people” who gathered against them, and those who informed them were “people” other than those who gathered against them, and other than those who were with him against whom—along with him—the others had gathered, and those who gathered were also “people,” the indication is an obvious case of...

    • Chapter on the Category of Statements in Which Context Indicates the Meaning
      (pp. 53-55)

      God (blessed and exalted) said: «Ask them about the town that was by the sea, when they transgressed against the Sabbath, when their fish came to them on the day of their Sabbath, moving from the deep water, and did not come to them on the day when they did not keep the Sabbath. In this way We were trying them because they were profligates.»⁹⁵ He began (sublime His praise) by mentioning the command to ask them about the town by the sea. When He said “when they transgressed against the Sabbath,” He indicated that He intended only the “people”...

    • The Category in Which the Wording Indicates the True Meaning Rather Than the Apparent Meaning
      (pp. 55-56)

      God (blessed and exalted) said, while relating what Joseph’s brothers said to their father: «We testify only to that which we know. We could not guard against the Invisible. Ask the town in which we were and the caravan in which we came. We are really speaking the truth.»⁹⁷ This verse is, in its import, like the preceding verses and so does not differ at all for scholars of Arabic. They tell their father to ask the “people” of the town and the “people” of the caravan, since the town and the caravan themselves cannot inform him about the brothers’...

    • Chapter on What Is Revealed as Unrestricted and Which Prophetic Practice in Particular Indicated Is Intended as Restricted
      (pp. 57-62)

      God (sublime His praise) said: «To each of his parents one-sixth of what he leaves, if he has a child; but if he does not have a child and his heir is his father, his mother gets a third; but if he has brothers, his mother gets a sixth.»⁹⁸ He also said: «To you is half of what your wives leave, if they have no child; but if they have a child, you get a quarter of what they leave, after any bequest they may have made or any debt. They get a quarter of what you leave, if you...

    • Explanation of God’s Imposition in His Book of the Obligation to Follow the Practice of His Prophet
      (pp. 63-66)

      Al-Shāfiʿī said: God put His Emissary in a position relative to His religion, His obligations, and His Book in a way that clarified that He had made him a signpost of His religion. He did this by imposing the obligation to obey him and making disobedience to him unlawful. God also provided a clear statement about his excellence by pairing together faith in His Emissary with faith in Him. He said (blessed and exalted): «So believe in God and His emissaries and do not say, “the Trinity.” Desist. That is better for you. God is one god. His glory is...

    • The Obligation from God to Obey the Prophet, Paired with Obedience to God and Mentioned Separately
      (pp. 67-69)

      God said: «When God and His Emissary have decided a matter, it is not for any believing man or woman to have any choice in the affair. Whoever disobeys God and His Emissary has gone astray in manifest error»¹²⁰ and «O you who believe, obey God and obey the Emissary and those of you who have authority. If you quarrel with one another about anything, refer it to God and the Emissary, if you believe in God and the Last Day. That is better and fairer as a course. »¹²¹

      A certain scholar said, “‘Those who have authority’ are the...

    • Chapter on God’s Command to Obey God’s Emissary
      (pp. 69-72)

      God said (sublime His praise): «Those who swear allegiance to you are swearing allegiance to God. The hand of God is above their hands. Whoever breaks his oath breaks it against himself; but whoever fulfills the covenant he has made with God, He will give him a mighty wage»¹²⁴ and «Those who obey the Emissary obey God.»¹²⁵ He apprised them that their allegiance to His Emissary was allegiance to Him and thus He apprised them that obedience to His Emissary was obedience to Him, and He likewise said: «No, by your Lord, they will not believe until they make you...

    • Chapter on God’s Statement to His Creation Concerning Having Obliged His Emissary to Follow What Was Revealed to Him; The Evidence He Gave Concerning His Emissary’s Following What He Was Commanded to Do, His Emissary’s Being Guided, and His Emissary’s Guidance of Those Who Follow Him
      (pp. 73-81)

      Al-Shāfiʿī said: God (sublime His praise) said: «O Prophet, fear God and do not obey the unbelievers and the hypocrites. God is Knowing and Wise. And follow what is revealed to you from your Lord. God is informed of what you do.»¹²⁹ He also said: «Follow what has been revealed to you from your Lord— there is no god but Him—and turn away from those who associate others with God»¹³⁰ and «Then We set you on a clear way that comes from Our affair. So follow it, and do not follow the whims of those who do not know.»¹³¹...

    • The Beginning of Abrogation
      (pp. 81-88)

      Al-Shāfiʿī said: God created creation according to His foreknowledge of what He intended by creating it and of what He intended for it. «None repels His judgment, He is swift to reckoning.»¹⁴⁰ He revealed the Book to them «as an explanation of everything»¹⁴¹ and as guidance and mercy. He imposed obligations in it that He confirmed and others that He abrogated. This was a mercy to His creatures, lightening their burden and granting them respite, in addition to the graces that He had already shown them. For complying with what He had affirmed for them, He rewarded them with Paradise...

    • Abrogation Indicated Partly by the Book and Partly by Prophetic Practice
      (pp. 89-92)

      Al-Shāfiʿī said: One of the things transmitted by a scholar with whom I studied is that God revealed an obligation concerning prayer prior to the imposition of the five prayers. He said: «You who are wrapped up in a robe, stay up during the night, except for a little—half of it or a little less or a little more—and be distinct when reciting the Qurʾan.»¹⁵¹ Then He abrogated this in the same sura: «Your Lord knows that you stay up close to two-thirds of the night or a half or a third, as do a party of those...

    • Chapter on the Obligation to Pray That the Book and Then Prophetic Practice Indicate to Be Obviated by Reason of an Excuse; and Concerning Him Whose Prayer Is Not Counted as Disobedience
      (pp. 93-105)

      God (blessed and exalted) said: «They ask you about menstruation. Say, “It is a vexation. Withdraw from women during menstruation and do not draw near to them until they are ritually pure. When they are ritually pure, approach them as God has commanded you.” God loves those who repent, and He loves those who keep themselves clean.»¹⁵⁵

      Al-Shāfiʿī said: God obliged those who pray to attain ritual purity through ablutions and to perform the major cleansing from impurity. The prayer of someone who has not achieved ritual purity does not count. Since God mentioned menstruation, ordering that women set themselves...

    • Abrogation Indicated by Prophetic Practice and Consensus
      (pp. 105-112)

      God (blessed and exalted) said: «Prescribed for you when death comes to one of you, if he leaves goods, are bequests for parents and kinsmen according to what is recognized as proper, as a duty on those who are God-fearing»¹⁷⁴ and «And those of you who are about to be taken in death and who leave wives should make a bequest to your wives, a provision for the year following your death without turning them out of their homes; but if they leave, there is no sin for you in what they do concerning themselves in a way that is...

    • Chapter on Obligations That God Revealed in the Form of Explicit Texts
      (pp. 113-119)

      God (sublime His praise) said: «Those who accuse women who are safeguarded, and then do not bring four witnesses, scourge them eighty lashes, and never accept their testimony after that—they are sinners.»¹⁸¹

      Al-Shāfiʿī said: “women who are safeguarded” here means free women who have reached their majority. This indicates that “safeguarded” is a term that encompasses different meanings. He also said: «Those who accuse their wives and have no witnesses but themselves, let the testimony of one of them be to witness by God four times that he is one of the truthful, and then the fifth that the...

    • Obligations Established by Explicit Texts and in Regard to Which God’s Emissary Provided a Parallel Practice
      (pp. 119-123)

      God (blessed and exalted) said: «When you rise to pray, wash your faces and your hands up to the elbows, and wipe your heads and wash your feet up to the ankles. If you are polluted, purify yourselves»¹⁹⁰ and «save when you are traveling, until you have washed yourselves.»¹⁹¹ He stated that ritual cleansing from major impurity is achieved through washing rather than ablutions.

      God’s Emissary established practices concerning how to perform ablutions just as God revealed. He washed his face and his hands to the elbows, and wiped his head and washed his feet to the ankles.

      ʿAbd al-ʿAzīz...

    • Obligations Established by Explicit Texts in Regard to Which Prophetic Practice Indicates That He Intended Something Restrictive
      (pp. 123-129)

      God (blessed and exalted) said: «They ask you for a pronouncement. Say, “God pronounces for you concerning distant kin: If a man perishes and has no children, but he has a sister, she receives half of what he leaves. He inherits from her if she has no children.”»¹⁹³ He also said: «Men have a share of what parents and kinsmen leave, and so, too, do women, whether it is little or much—a share laid down»¹⁹⁴ and «To each of his parents one-sixth of what he leaves, if he has a child; but if he does not have a child...

    • Obligations Expressed in General Terms
      (pp. 129-137)

      God (blessed and exalted) said: «Prayer is a prescription at fixed times for the believers»¹⁹⁹ and «Perform the prayer and pay alms.»²⁰⁰ He also said to His Prophet: «Take alms from their possessions by which you might purify them and make them clean.»²⁰¹ And He said: «It is the people’s duty to God to make the Pilgrimage to the Sacred House—for those able to do so.»²⁰²

      Al-Shāfiʿī said: God confirmed the obligations to pray, give alms, and perform the Pilgrimage in His Book, and He clarified how to perform those obligations using the words of His Prophet. God’s Emissary...

    • Concerning Alms
      (pp. 137-142)

      God said: «Perform prayer and pay alms.»²¹² God also said: «Those performing prayer and paying alms»²¹³ and «Woe to the worshippers who are heedless of their prayers; who make a show, but withhold assistance.»²¹⁴ A certain scholar said that this refers to obligatory alms.

      God also said: «Take alms from their possessions, by which you might purify them and make them clean, and pray for them. Your prayers are a comfort for them. God is Hearing and Knowing.»²¹⁵

      This verse is expressed in unrestricted terms, applying to property in general. It is possible to interpret it as pertaining to interpret...

    • Concerning the Pilgrimage
      (pp. 143-145)

      God imposed the obligation to perform the Pilgrimage on those who are able. The Prophet is quoted as saying that being able includes having provisions and transportation. God’s Emissary also reported about the timing of the Pilgrimage, how one ritually announces one’s approach,²²¹ the applicable practices, what clothing and scents the pilgrim in a ritual state should avoid, and other parts of the Pilgrimage such as ʿArafah, al-Muzdalifah, casting stones,²²² shaving the head, circumambulation of the Kaaba, and other things. If the only instance of the practice of God’s Emissary functioning together with God’s Book that one knew about was...

    • Concerning Waiting Periods
      (pp. 145-146)

      God said: «Those of you who are taken in death and leave wives, the wives shall wait by themselves for four months and ten days»²²³ and «Divorced women shall wait by themselves for three menstrual cycles »²²⁴ and «With those of your women who have reached menopause, if you have doubts, their waiting period is three months; likewise the barren. For pregnant women, the period shall be until they give birth.»²²⁵ A certain scholar has said: “God has made it necessary for the widow to wait four months and ten days, and He mentioned that the term for the pregnant...

    • Concerning Women Unlawful to Marry
      (pp. 147-149)

      God said: «Forbidden to you are your mothers; your daughters; your sisters; your paternal aunts; your maternal aunts; brother’s daughters; sister’s daughters; those who have become your mothers by suckling you; your sisters by suckling; your wives’ mothers; your stepdaughters who are in your care, born to wives with whom you have consummated marriage, but if you have not consummated the marriage, it is no sin for you to marry the daughters; the wives of your sons who are from your own loins. It is also forbidden that you should have two sisters together, except for cases that have happened...

    • Concerning Unlawful Kinds of Food
      (pp. 149-152)

      God said to His Prophet: «Say, “I do not find in what is revealed to me anything that is unlawful for someone to eat, unless it is carrion or blood spilled out or the flesh of a pig— for that is an abomination— or something ungodly killed in the name of someone other than God.”»²²⁷ The verse could mean two different things. One is that the only foods that God prohibited are those that He made the subject of the above exception.

      That is the meaning that would first come to mind for anyone addressed by this verse: that only...

    • Concerning That from Which Widows Must Abstain during the Waiting Period
      (pp. 153-154)

      God said: «Those of you who are taken in death and leave wives, the wives shall wait by themselves for four months and ten days. When they have reached their term, there is no fault for you in what they do concerning themselves in the way that is recognized as proper. God is informed of what you do.»²²⁸ God stated that widows must undergo a waiting period and that if they complete it, then they may do whatever is proper concerning themselves. He did not state that a widow must avoid anything during the waiting period. The apparent meaning of...

    • Chapter on Problems Affecting Hadith-Reports
      (pp. 155-179)

      Al-Shāfiʿī said: Someone said to me: “We find some of the hadith-reports from God’s Emissary to have a textually explicit counterpart in the Qurʾan and others to have a counterpart in the Qurʾan which is like them only in a general way. Some are more expansive than what is in the Qurʾan, while in regard to others there is nothing in the Qurʾan at all. Still other hadith-reports are in accord with each other and others contradict each other because they contain abrogating and abrogated rulings. There are others, however, that contradict each other and yet that contain no indication...

    • Another Instance of Abrogation
      (pp. 179-182)

      Muḥammad ibn Ismāʿīl ibn Abī Fudayk reported to us from Ibn Abī Dhiʾb, from al-Maqburī, from ʿAbd al-Raḥman ibn Abī Saʿid, from Ab Saʿīd al-Khudri: “We were prevented from praying at the Battle of the Trench until after the sunset prayer, well into the night, when the fighting was finally averted from us, and that is referred to in God’s word «God averted fighting from the believers. God is Strong and Mighty.»²⁵⁷ God’s Emissary called for Bilal and ordered him to make the call to prayer, and he held the noon prayer, which he led, and it was fine, just...

    • Another Instance
      (pp. 183-187)

      God (blessed and exalted) said: «Those of your women who commit indecency—call four of you as witnesses against them. If the four give their testimony, confine the women in their houses until death takes them or God appoints a way for them. If two of you commit it, punish them both; and if they repent and make amends, turn from them. »²⁶¹ The penal sanction for those who engaged in unlawful sexual intercourse was, according to this verse, imprisonment and punishment, until God revealed to His Emissary the penal sanction for unlawful sexual intercourse and said, «The fornicator and...

    • Another Instance
      (pp. 187-198)

      Mālik reported to us from Ibn Shihab, from Anas ibn Malik: “The Prophet was riding a horse, and it threw him and gave him an abrasion on his right side. He led one of the prayers while sitting down, and we prayed behind him while sitting down. As he was leaving, he said, ‘The imam is there simply to be followed. If he prays standing, you should pray standing; if he bows down, you should bow down; and if he raises his head, you should raise yours. If he says, “God hears those who praise Him,” you should say, “Our...

    • Another Instance of Legal Disagreement
      (pp. 199-204)

      Al-Shāfiʿī said: Someone said to me: “There is a legal disagreement over the wording of the prayer-formula. 270 Ibn Masʿūd narrated from the Prophet that he used to teach people the prayer-formula, just the way he would teach them suras from the Qurʾan. He would say, ‘It begins with three words: “Salutations to God.”’ Which version of the prayer-formula have you adopted?”

      I said: Mālik reported to us from Ibn Shihāb, from ʿUrwah, from ʿAbd al-Ra.man ibn ʿAbd al-Qārī, that he heard ʿUmar ibn al-Kha..ab say while on the pulpit, teaching people the prayer-formula: “Say ‘Salutations, pious works, good words,...

    • Inconsistency in Narration in a Way That Differs from What Preceded
      (pp. 205-208)

      Mālik reported to us from Nāfiʿ, from Abu Saʿid al-Khudrī, that God’s Emissary said: “Do not sell gold for gold except in like amounts, and do not make the amounts unequal; and do not sell silver for silver except in like amounts, and do not make the amounts unequal. Do not make an exchange of any amount of either in which one side delays delivery.”

      Mālik reported to us from Mūsā ibn Abi Tamim, from Saʿid ibn Yasar, from Abu Hurayrah, that God’s Emissary said: “Exchange a dinar for a dinar, and a dirham for a dirham, without one exceeding...

    • Another Instance Considered Contradictory, but Not by Us
      (pp. 209-215)

      Ibn ʿUyaynah reported to us from Muḥammad ibn al-ʿAjlan, from ʿĀṣim ibn ʿUmar ibn Qatadah, from Maḥmud ibn Labīd, from Rāfiʿ ibn Khadij, that God’s Emissary said: “Perform the dawn prayer at daybreak; that brings a greater reward,” or “that is greater for your rewards.”

      Sufyān reported to us from al-Zuhrī, from ʿUrwah, from ʿAʾishah, who said: “The women among the believers used to pray the dawn prayer with the Prophet and then leave while still wrapped up in their shawls; no one could recognize them in the early morning darkness.”

      Sahl ibn Saʿd, Zayd ibn Thābit, and others among...

    • Another Instance Considered a Case of Legal Disagreement
      (pp. 215-219)

      Sufyān reported to us from al-Zuhrī, from ʿAṭaʾ ibn Yazīd al-Laythī, from Abū Ayyūb al-Anṣārī, that the Prophet said: “Do not face the prayer-direction and do not turn your backs to it when defecating or urinating. Rather, face east or west.” Abu Ayyub added, “We proceeded to Syria and found latrines already made, so we turned sideways and asked God’s forgiveness.”

      Mālik reported to us from Yaḥyā ibn Sʿīad, from Muḥammad ibn Yaḥyā ibn Ḣabbān, from his uncle Wasiʿibn Ḣabban, from ʿAbdallah ibn ʿUmar, that he used to say: “Some people say: ‘When you sit to relieve yourselves, do not...

    • Another Instance of Legal Disagreement
      (pp. 219-223)

      Ibn ʿUyaynah reported to us from al-Zuhrī, from ʿUbaydallāh ibn ʿAbdallāh ibn ʿUtbah, from Ibn ʿAbbās, who said al-Ṣaʿb ibn Jaththāmah reported to me that he heard the Prophet being asked about pagan families who are attacked at night in their homes, and whose women and children become casualties. God’s Emissary said: “They are pagans, too.” ʿAmr ibn Dīnār added, as transmitted by al-Zuhrī: “They belong to the same family.”

      Ibn ʿUyaynah reported to us from al-Zuhrī, from Ibn Kaʿb, from Mālik, from his uncle, that when the Prophet sent people to Ibn Abī al-Ḥuqayq, he ordered that women and...

    • Concerning the Major Washing for Friday Prayer
      (pp. 223-227)

      He said, “Mention some other hadith-reports that people considered to be contradictory.”

      I said: Mālik reported to us from Ṣafwān ibn Sulaym, from ʿAṭāʾ ibn Yasār, from Abū Saʿīd al-Khudrī, that God’s Emissary said: “The major washing for Friday prayer is mandatory for every pubescent and postpubescent male.”

      Ibn ʿUyaynah reported to us from al-Zuhrī, from Sālim, from his father, that the Prophet said: “Whoever among you attends Friday prayer, let him perform the major washing.”

      Al-Shāfiʿī said: The saying of God’s Emissary that “the major washing for Friday prayer is mandatory” and his command could mean two different things....

    • Prohibition for a Reason Indicated by a Reason Given in Another Hadith-Report
      (pp. 227-232)

      Mālik reported to us from Abū l-Zinād and Muḥammad ibn Yaḥyā ibn Ḥabbān, from al-Aʿraj, from Abū Hurayrah, that God’s Emissary said: “Let none of you make a marriage proposal that interferes with the marriage proposal of his counterpart.”²⁷⁹

      Mālik reported to us from Nāfiʿ, from Ibn ʿUmar, from the Prophet, that he said: “Let none of you make a marriage proposal that interferes with the marriage proposal of his counterpart.”

      Al-Shāfiʿī said: If there had not been any indication from God’s Emissary that his prohibition against making a marriage proposal that interferes with the marriage proposal of a counterpart...

    • Prohibition for a Reason That Is Clearer Than That in the Preceding Discussion
      (pp. 233-235)

      Mālik reported to us from Nāfiʿ, from Ibn ʿUmar, that God’s Emissary said: “Each of the two parties to the sale has the option to rescind against the other party, as long as they have not separated, except in the case of a sale with a stipulated option.”

      Sufyān reported to us from al-Zuhrī, from Saʿīd ibn al-Musayyab, from Abū Hurayrah, that the Prophet said: “No one should make an offer to sell that interferes with the sale of his counterpart.”²⁸¹

      Al-Shāfiʿī said: This point clarifies that God’s Emissary’s statement “The two parties to the sale have the option to...

    • Prohibition for a Reason Resembling the Preceding Discussion in One Way, and Differing from It in Another
      (pp. 235-243)

      Mālik reported to us from Muḥammad ibn Yaḥyā ibn Ḥabbān, from al-Aʿraj, from Abū Hurayrah, that God’s Emissary prohibited prayer between late afternoon and sunset and between dawn and sunrise.²⁸³

      Mālik reported to us from Nāfiʿ, from Ibn ʿUmar, that God’s Emissary said: “Let none of you attempt to perform the prayer at the rising or the setting of the sun.”

      Mālik reported to us from Zayd ibn Aslam, from ʿAṭāʾ ibn Yasār, from ʿAbdallāh al-Ṣunābiḥī, that God’s Emissary said: “The sun rises with Satan’s horn, but if it rises higher they separate. When it reaches its zenith, they are...

    • Another Chapter
      (pp. 243-246)

      Mālik reported to us from Nāfiʿ, from Ibn ʿUmar, that God’s Emissary prohibited themuzābanah-sale. Themuzābanah-sale is the exchange of fresh dates for dried dates by volume, and the sale of grapes for raisins by volume. Mālik reported to us from ʿAbdallāh ibn Yazīd, client of al-Aswad ibn Sufyān, that Zayd Abū ʿAyyāsh reported to him, from Saʿd ibn Abī Waqqāṣ, who heard the Prophet asked about buying fresh dates with dried dates. The Prophet asked: “Do the fresh dates weigh less when they are dried?” “Yes,” was the reply. So he prohibited that.

      Mālik reported to us from...

    • An Instance That Resembles the Preceding Point
      (pp. 247-250)

      Saʿīd ibn Sālim reported to us from Ibn Jurayj, from ʿAṭāʾ, from Ṣafwān ibn Mawhab, that someone reported to him from ʿAbdallāh ibn Muḥammad ibn Ṣayfī, from Ḥakīm ibn Ḥizām, who said: “God’s Emissary said to me, ‘Am I not informed’ or ‘Has it not reached me’ or whatever expression it was that God willed, ‘that you sell food?’”²⁹⁴ “Indeed, O Emissary of God,” replied Ḥakīm. “Do not ever sell food,” enjoined God’s Emissary, “unless you have yourself bought and paid for it in full.”

      Saʿīd reported to us from Ibn Jurayj, who said: ʿAṭāʾ reported that, too, from ʿAbdallāh...

    • Description of God’s and His Emissary’s Prohibitions
      (pp. 251-259)

      “Give me,” he requested, “a complete summary of God’s prohibition (He is mighty and sublime), and then of the Prophet’s prohibition, in general terms, and leave nothing out.” I said to him: God’s prohibition encompasses two senses. One is that the thing that He prohibits is unlawful in general, but might be lawful in some limited respect that God indicates in His Book or through the words of His Prophet. If God’s Emissary prohibits something of that kind, then his prohibition makes it forbidden. In that case, it can only be understood as an instance of forbidding something absolutely, unless...

    • Chapter on Knowledge
      (pp. 259-268)

      Al-Shāfiʿī said: Someone asked me: “What is knowledge? What knowledge is incumbent on people?” Knowledge is of two kinds, I replied: knowledge of the general public, which any person who has reached his majority and who is of sound mind may not ignore. “Like what?” he asked. Like the five prayers, I replied, and that God is owed the fast of Ramadan, the Pilgrimage to the Sacred House if one is able, and alms from their property, and that unlawful sexual intercourse, homicide, theft, and wine are outlawed. God’s servants are legally responsible for them, they must understand them, perform...

    • Chapter on the Uncorroborated Report
      (pp. 269-287)

      Someone said to me: “Define for me the least authoritative kind of text that binds scholars, who must then acknowledge that such a report—that lies within the competence of specialists—has become confirmed for them.” I said: It is the uncorroborated report of an individual from an individual that reaches all the way back to the Prophet, or back to someone just short of him.

      The authority of such a report is not, however, established until several things are in place: The person who transmits it must be trustworthy in his religion; known for veracity in his hadith-reports; able...

    • Authority Confirming the Uncorroborated Report
      (pp. 287-335)

      Al-Shāfiʿī said: If someone were to say, “Cite an authority that confirms the uncorroborated report, whether such authority is in the form of a textually explicit report, some indication in such a report, or consensus,” I would reply to him:

      Sufyān ibn ʿUyaynah reported to us from ʿAbd al-Malik ibn ʿUmayr, from ʿAbd al-Raḥmān ibn ʿAbdallāh ibn Masʿūd, from his father, that the Prophet said: “God will make radiant any servant who hears my words, remembers them, understands them and conveys them further. Many a bearer of religious knowledge is not himself knowledgeable, and many a bearer of such knowledge...

    • Chapter on Consensus
      (pp. 335-339)

      Al-Shāfiʿī said: Someone said to me: “I have understood your doctrine concerning God’s rulings and the rulings of His Emissary, and that whoever accepts something from God’s Emissary does so from God, since God imposed the obligation to obey His Emissary. Moreover, binding authority has been furnished, on the basis of what you have said, to the effect that it is not lawful for any Muslim who knows a scriptural prooftext or an account of a Prophetic practice to hold an opinion contrary to either, and I know that this is an obligation from God. What authority can you cite...

    • Chapter on the Confirmation of Analogical Reasoning and Legal Interpretation; When Analogizing Is Necessary and When Not; Who May Perform Analogies
      (pp. 339-349)

      Someone asked: “On what basis do you say that one may opine using analogies in regard to matters for which there is no explicit scriptural prooftext, no Prophetic practice, and no instance of consensus? Is an analogy tantamount to an explicit, binding textual report?” If, I replied, an analogy were an explicit scriptural text or a practice, then one would say, as for every explicit scriptural prooftext, “That is God’s ruling,” and for every explicitly delineated practice, “That is the ruling of God’s Emissary,” but we do not say that for an analogy.

      “Then what is analogical reasoning?” he asked....

    • Chapter on Legal Interpretation
      (pp. 349-361)

      “Can you find something,” he asked, “that makes what you say about legal interpretation permissible, along with what you explained, that you can cite?” Yes, I said, by inference from God’s saying «From wherever you approach, turn your face toward the Sacred Mosque; and wherever you may be, turn your faces toward it.»³⁶⁹ “What is ‘toward’ it?” he asked. Facing it, I replied. The poet said:

      The unbroken she-camel’s disease has so infected her,

      that she fills the eyes’ gazetoward her.³⁷⁰

      One knows with certainty that whoever turns to face the Sacred Mosque, among those whose dwellings are remote...

    • Chapter on Subjective Reasoning
      (pp. 361-405)

      I continued: If, however, it was not possible for them to know with certainty that they had faced the right direction, in the way someone who could actually see the Sacred House was able to do, then they had no right to say, “We face whatever direction we think best, without basing ourselves on any indication.” “This,” he said, “is as you say. Legal interpretation is only used to seek something, and that thing is an extant object sought by means of some indication that can be used to direct one to it, or by means of a comparison with...

    • Chapter on Legal Disagreement
      (pp. 405-422)

      “I find scholars now and in the past disagreeing about various matters. Are they allowed to do that?” he asked. Legal disagreement, I replied, is of two types. One is forbidden, but I do not say that about the other. “What is the forbidden kind of legal disagreement?” I said: It is unlawful, for those who know of it, to disagree about any text that God used to furnish binding authority in a clear and textually explicit manner, whether in His Book or through the words of His Prophet. When such things are susceptible to speculative interpretation, however, or arrived...

    • Chapter on Inheritance Shares
      (pp. 423-426)

      They also disagreed concerning inheritance shares. Zayd ibn Thābit and those who followed his view held that every Qurʾanic heir is awarded his or her specified share, and if something is left over and the deceased has no male agnates and no contractual heirs,⁴⁴⁴ then whatever is left over reverts to the Muslim community. It is narrated by others that any residual amount reverts to cognates and non-Qurʾanic female agnates. Thus, if a man were survived by a sister only, she would inherit half the estate from him as a Qurʾanic heir, and the residual amount would revert to her...

    • Chapter on the Disagreement over the Grandfather
      (pp. 427-431)

      They disagreed over the inheritance share of the grandfather. Zayd ibn Thābit held—and this has been narrated from ʿUmar, ʿUthmān, ʿAlī, and Ibn Masʿūd—that brothers of the deceased should inherit along with him.⁴⁴⁸ Abū Bakr al-Ṣiddīq and Ibn ʿAbbās held—and this has also been narrated from ʿĀʾishah, Ibn al-Zubayr, and ʿAbdallāh ibn ʿUtbah—that they put the grandfather in the position of the father and excluded the brothers if the grandfather survived the deceased.

      “How,” he asked, “did you come to confirm that both the brothers and the grandfather should inherit if they survive the deceased? Is...

    • Opinions of the Companions
      (pp. 431-433)

      Then he said, “I have heard your opinion concerning consensus and analogizing after your opinion about rulings of the Book of God and the Practice of His Emissary. What do you think about the opinions of the Companions of God’s Emissary when they disagree with each other?” In that case, I said, we adopt the opinion that agrees with the Book, Prophetic Practice, consensus, or what makes for the most valid analogy.

      “What do you think,” he continued, “about the case in which one of them utters an opinion and no one else is remembered to have agreed or disagreed...

    • The Status of Consensus and Analogy
      (pp. 433-436)

      “You have based rulings on the Book and Prophetic Practice,” he said. “How do you rule on the basis of consensus, and then analogies? Do you accord consensus and analogies the same status as a scriptural prooftext or a Prophetic practice?” Even if I do base rulings on them in the same way that I do using the Book and accounts of Prophetic Practice, I replied, the principle that underlies my rulings that I base on them differs.

      “Is it permissible,” he asked, “for such bases to have differing underpinnings and yet be used in issuing the same kinds of...

  8. Notes
    (pp. 437-460)
  9. Glossary of Names and Terms
    (pp. 461-478)
  10. Bibliography
    (pp. 479-484)
  11. Further Reading
    (pp. 485-486)
  12. Index of Qurʾan Passages
    (pp. 487-488)
  13. Index
    (pp. 489-501)
  14. About the NYU Abu Dhabi Institute
    (pp. 502-502)
  15. About the Typefaces
    (pp. 503-503)
  16. About the Editor-Translator
    (pp. 504-504)