Various sources are employed in Islāmic jurisprudence to elucidate the Sharī`ah, the name which has emerged for the body of “Islāmic law.” Derived from the root shara`a, the Encyclopaedia of Islām, Second Edition, explains that Sharī`ah is the “prophetic religion in its totality.” The primary sources of Sharī`ah “accepted universally by all Muslims,” however, are the Qur’ān and Sunnah, the lifestyle and related narrations attributed to Muḥammad.[1]
Within Muslim discourse, sharī`a designates the rules and regulations governing the lives of Muslims, derived in principle from the Ḳur’ān and ḥadīth. In this sense, the word is closely associated with fiḳh, which signifies academic discussion of divine law.[2]
Regarding the meaning and origins of Sharī`ah, Muslim tradition maintains that Muḥammad was the model for his Sahābah (companions) and followers, who thus conformed to, and carefully passed down record of his Sunnah, or “way” of life. Accordingly, these āḥadīth relating to the Sunnah gave “rise to discussion, [and] debate” from generation to generation, and “finally to formal juristic thinking or fiḳh.”[3] The academic discipline, whereby the Sharī`ah is deduced and articulated, is called fiqh.[4]
What is historically certain about the discipline of uṣūl al-fiqh (the fundamentals of law), is that the earliest large-scale and systematic expression of Sharī`ah is found in a “bundle of texts attributed to scholars of the late second Hijrah (eighth CE) and early third (ninth CE) centuries.” These include the schools which came to dominate the Sunnī community,[5] including those of: Mālik ibn Anas (d. 179/795); al-Shāfi`ī`i (d. 204/820); and two pupils of Abū Ḥanīfa (d. 150/767), al-Shaybāni (d.189/805) and Abū Yūsuf (d. 182/798).[6]
The founders of these schools, or maẓāhib, the account goes, preserved the tradition “by virtue of their piety” just as it was practiced during the life of Muḥammad. They derived from these carefully preserved accounts of āḥadīth – which traced “actual” and “historical” accounts “back to the Prophet through the decisive intervention of great jurists” – the “rules” and “structures” of Sharī`ah. These developed an “ongoing tradition of commitment and loyalty,” preserved in an intact lineage today.[7]
Sources of Sharī`ah are comprised of two genres, the furū al-fiqh (branches of fiqh), a literature of rules, and uṣūl al-fiqh (roots of fiqh), literature identifying the sources of law and the methodology for deriving legal rulings.[8]
The genre of furū is continuous from the third Hijrah (ninth) century to the thirteenth Hijrah (nineteenth) century. All the major works of the genre have the same basic structure of roughly grouped regulations. The traditional importance of major topics is signaled by their placement at the beginning of a work of furū. Purity, prayer, alms, fasting and pilgrimage are thus followed by secondary matters of an interpersonal nature.[9]
The works of uṣūl usually contain four general areas of discussion, which the Encyclopaedia of Islām lists as: the categories of the law; the sources of the law; the hermeneutical rules that permit extrapolation of norms from sources; and an elaboration of the theory of ijtihād. The sources always include Qur’ān, ḥadīth and ijma`,[10] however, as we will see, there are variant Sunnī and Shī`ah approaches which limitedly include forms reason. For the Sunnīs, this is restricted to a “presumption of continuities” (istiṣḥāb al-ḥāl),” the law of earlier prophets, the opinions of the Companions, juristic preference (istiḥsān) and public welfare (maṣlaḥa).[11]
Apart from this sanctified account, critical examinations of the origins of Sharī`ah has led to conclusions often unfavorable to the tradition. Linguistically, the term sharī`ah occurs only once in the Qur’ān, in Sūratu-l-Jāthiyyah (45.18): “We have set you on a sharī`ah of command, so follow it.”
Here the term designates a divinely appointed “path.” The cognate shir`a is found once, in Sūratu-l-Mā’idah (5.48), a parallel to minhāj, meaning custom, from the Hebrew minhag: “to each We have appointed a shir`a and a minhāj.”[12]
In the ḥadīth literature, sharī`a appears in the singular, with an apparent meaning of “path,” only once in the Musnad of Ibn Ḥanbal: “the community shall remain on the shari`a as long as there does not occur in it three things…”[13]
The word shar` does not occur with the connotation of religion or law, and the verbal form shara`a occurs only once with these connotations, in a set of variations of the same ḥadīth.[14] The Encylopaedia of Islām comments that “the noun shar`, the verb shara`a and derivatives occur frequently with secular meanings” in the earlier sources.[15]
The Beginning of Critical Scholarship on Sharī`ah
The cardinal problem associated with āḥadīth has undoubtedly been ascertaining their authenticity. Since the early classical period, this issue has occupied Western scholars and continues. Ignác (Yitzhaq) Yehudah Goldziher’s (1850 – 1921) inaugurated the modern analysis of the ḥadīth literature. His Introduction to Islāmic Theology and Law marks the beginning of historical-critical scholarship on the origins of Sharī`ah.
The work was part of a series of six lectures for the Society for Lectures on the History of Religion, at eight universities; a tour that never came to fruition due to health concerns and a “botched” English translation. Instead the lectures were published as a book, untranslated, in German.[16] Goldziher writes therein, “Submission is the dominant principle inherent in all manifestations of Islām…”
His lectures, however, do not “require a description of the details of the religious system.” Instead they stress “the factors that contributed to its historical evolution.”
Goldziher surmises that Islām as we know it “is the product of various influence that had affected its development as an ethical world view and as a system of law and dogma before it reached its definitive, orthodox form.”[17]
He concludes that the great majority of the Prophetic ḥadīth constitute evidence,” internal to the literature, that they are “not of Muḥammad’s lifetime,” in spite of their claims to the contrary. Instead, they bear the imprint of “the legal and doctrinal controversies of the two centuries after his death,” that do not reflect Muḥammad’s own era.[18]
Goldziher explains both internal and external influences which shaped the evolution of ḥadīth as they relate to Sharī`ah. From the inside, he cites “impulses that spring from the nature of the institution and whose driving force propels it along its historical course.” Externally there are those “dogmatic development[s] of Islām,” which “took place under foreign influences.” Foremost of the latter, he cites Hellenism and the unmistakable impression which the Roman legal system left on the codified Sharī`ah.[19]
Goldziher tells us that this transpired during the ‘Abbāsid caliphate showing the “adaptation of Persian political ideas.” Goldziher tells us that this “receptive character,” of Islām was not something alien, even if the ideas it later digested were. This pluralistic nature was “stamped at birth” on the movement, by Muḥammad himself. The historical figure behind the later construction “did not proclaim new ideas,”[20] but “was to reaffirm (muṣaddiq) what God had made known in previous revelations.”[21]
In Mecca, he announced ideas, sermons and orations which “did not yet establish a new religion; though they created a religions mood,” nourishing a “world view that was devout but not amenable to precise definition, and whose forms and doctrines showed as yet no fixed outline.”[22]
There were a variety of expressions of piety but “there was as yet no body of rules to determine the form, time, and extent of these activities.”[23]
Far from discounting Muḥammad or Islām, Goldziher is quick to point out that “none of this diminishes… the relative value of his religious achievement. When the historian of civilization appraises the effect of an historical phenomenon, the question of originality does not claim his principal attention.”[24]
Goldziher looked upon Islām favorably, believing that the unfortunate aspects associated with the faith were outgrowths of the culture in which Muḥammad presented his message.[25]
It is with his background and approach unique from many others he is often lumped together with, that we must understand his contribution.
The Origins of Sharī`ah
Joseph Schacht (1902-1969) is regarded as having been the leading Western scholar on the subject of Sharī`ah. Schacht offered, in his magisterial work The Origins of Muḥammadan Jurisprudence, a “coherent account of the early Muslim jurisprudence,” built upon the works of Goldziher. The Encyclopaedia of Islam asserts that his conclusions remain “irrefutable insofar as key sections of his theories are materially, historically and textually substantiated.”[26]
Schact states that the text is “concerned with the origins of Muḥammadan jurisprudence,” an “all-embracing body of religious duties rather than a legal system proper.” For the earliest Ummah, “law lay to a great extent outside the sphere of religion,” and was “incompletely assimilated” into what became considered “religious duties.”[27]
Schact insisted that insofar as legal ḥadīth are concerned, they must be approached with the assumption of fabrication until proven otherwise. Like Goldziher, he informs us that the “great majority of traditions” attributed to Muḥammad, are in fact “documents not of the time to which they claim to belong, but of the successive stages of development of doctrines during the first centuries of Islām.”
Though this reality “became the corner-stone of all serious investigation of early Muḥammadan law and jurisprudence,” some later authors accepted Goldziher’s method “in principle,” yet “in their natural desire for positive results were inclined to minimize it in practice.”[28]
Schact asserts as the foundation of his presentation, that “the essentials” of Sharī`ah originate with Shāfi`ī, and that the “starting-point of Muḥammadan jurisprudence lies in the practice of the late Umaiyad period.”[29]
The evidence of legal traditions carries us back to about the year 100 A.H. only; at that time Islāmic legal thought started from late Umaiyad administrative and popular practice, which is still reflected in a number of traditions.[30]
As such, Schact explains that Shāfi`ī was the first to define the Sunnah as “the model behavior of the Prophet.” This was in contrast to his predecessors “for whom it was not necessarily connected” with Muḥammad.
Schact notes Shāfi`ī’s insistence, “time after time” that there is nothing which “can override the authority of the Prophet.” This “continual insistence” he reasons, “shows that it could not yet have been” the standard belief in Shāfi`ī’s day.[31] Instead, for Shāfi`ī, it “represented the traditional, albeit ideal, usage of the community, forming their ‘living tradition’ on an equal footing with customary or generally agreed practice.”[32]
Schact thus grapples in Origin with the evolution and fabrication of the ḥadīth literature and subsequently with the emergence of fiqh. For Schact, Shāfi`ī is thus, the “master architect of Islāmic Law.”[33] Though he did not intend to found a distinct school,[34] his discourses and sometimes bitter critiques of Muslim practices of diverse regions led to the centrality of his methodology, as the maẓāhib crystallized.
Nevertheless, Schact reasons “the real distinguishing feature between the ancient schools,” is not “the personal allegiance to a master,” nor is it “any essential difference of doctrine,” but simply their “geographical distribution,” which already had markedly sectarians differences by Shāfi`ī’s lifetime.[35]
He proposed that the earliest works were reflections of the “living tradition” which had grown up locally in diverse cities (Kūfah, Baṣra, Damascus, Mecca, Medīnah). It was their “their free exercise of personal opinion,” the absence “of strict rules such as were elaborated only by Shāfi`ī” which led to such “wide divergences in doctrine.”[36]
The systematic structures that emerged reflected local (and Imperial, Umayyad) practice, as well as the ongoing thought and debate of local scholars. They were not dependent on ḥadīth emanating from Muḥammad, nor even necessarily “on the legal aspects of the Ḳur’ān.”[37]
As such, Schact holds that Shāfi`ī created a system where āḥadīth became effectively superior to the Qur’ān in that, as Shāfi`ī states, “the Koran does not contradict the traditions, but the traditions from the Prophet explain the Koran.”[38]
Thus, Schact begins, at least to “balance the Koran and Sunna evenly.” In reality though, he elaborates that this “makes the sunna as expressed in tradition from the Prophet prevail over the Koran.”
This is of course because the Qur’ān is “to be interpreted in light of the traditions.” He concludes that the shrugging off of contradictions here, by the traditionalist, “breaks down” when confronting the obvious discrepancy between the proscribed punishment for adultery in the Qur’ān versus the “Sunnah.”[39] A portion of his work is devoted to tracing the “transmission of legal doctrine from its start down to the beginnings of the literary period.”[40]
Schact is concerned that criticism in the Muslim world is “almost invariably restricted to a purely formal criticism of isnāds”; whether they are attributed to trustworthy narrators or are uninterrupted in their attested transmissions. For the modern scholar this traditional approach to criticism is plagued with a host of problems that concern Schact.[41]
In spite of the early diversity of thought on Islāmic law, eventually, Schact explains, “all the schools succumbed” to Shāfi`ī’s contention and “developed a common hermeneutical approach to the law.” They thus recast Sharī`ah as derived, by a systematic act of interpretation, from Qur’ān and ḥadīth. “Polemical encounters” in the early Abbāsid period, increasingly led to a quest to justify of the law. This took the form of appealing to Sunnah, expressed in the form of ḥadīth.
Schacht argues that the demand for prophetic ḥadīth, “even before al-Shāfi`ī, and certainly after him,” would ensure their abundant supply, whether factual or fabricated.[42]
Schact’s research so thoroughly documented these origins of Sharī`ah, that the Encyclopaedia of Islam maintains all subsequent Sharī`ah scholarship has been a response to Schact, whether attempting to refute, qualify, or confirm and further his research.[43] The traditionalist response to Schact would initiate from Fazlul Rahman (1919-1988), but would fail to refute the arguments of the former.[44]
Sunnī Uṣūl al-Fiqh
Author Wael B. Hallaq (born 1955) finds a place in this sub-genre of response. In his A History of Islāmic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh, Hallaq attempts revise the dominant scholarly conceptualization of the origins of Sharī`ah. It serves as a general introduction to uṣūl al-fiqh. The “central aim,” he writes, is to demonstrate that uṣūl al-fiqh as a critical in house method of “theoretical and philosophical foundation of Islāmic law.”[45]
To that end he describes the effort as “somewhat revisionist” in outlook, attempting to correct the Western scholarship on Sharī`ah, stemming from Schact. Hallaq controversially places the formative years of Sharī`ah during the life of Muḥammad, albeit not in their final developed form. The book accordingly follows the evolution of Sharī`ah from its earliest form, to a more or less cemented version between the eleventh and fourteenth centuries. Hallaq seeks to gain scholastic recognition for the traditional Islāmic methods ordering aḥadīth on a spectrum ranging from sahīh (authentic), da‘īf (weak).
While perhaps under appreciated by some Orientalists, the aim of this methodology is nothing new to one who has experienced the Muslim world from the inside. Such heavyweights as Goldziher and Schact were not unaware of the approach, and even describe their concerns. The first chapter of A History of Islāmic Legal Theories, on “The Formative Period,” imagines an orthodox account of Muḥammad and the Jahilīyah era that would please any traditionalist. This chapter discusses the evolving principles of jurisprudence, from their rudimentary beginnings down to the end of the third Hijrah century (ninth century CE), when uṣūl al-fiqh came into existence as an integral legal methodology. Of the first three centuries Hallaq addresses, the second Hijrah century receives a treatment, in this chapter more or less in agreement with the Schact’s conclusions.
Regarding the first and third centuries, however, Hallaq does not fully subscribe to the traditional view of Sharī`ah as a maturely developed system during or immediately following Muḥammad. Neither does he hold Schact’s view that places only the rudiments of Sharī`ah as forming loosely towards the end of the first Hijrah century. He argues against Schact’s prevailing conclusion that Shāfi`ī was the architect of Sharī`ah theory in the third Hijrah century.
The historical-critical approach of Goldziher, Schacht, and those of a similar mind thus looms as a shadow from under which Hallaq is very clearly trying to escape. To that end, Hallaq can be regarded as crafting his work in response to the dominant perspective in the genre. Still, Hallaq concedes that Shāfi`ī’s “theory of ḥadīth… was by no means universally accepted at the time.”[46]
He similarly acknowledges what Shāfi`ī does not, that a definable change was occurring in legal perception. With the emergence of a powerful movement which aimed at anchoring all law in religious, authoritative text, the nature of legal thinking change.[47] The meanings of “ra`y and ijtihād… underwent a change” in structure.[48]
By the middle of the second century, he informs us, the term ra`y had indicated two types of reasoning. The first was “free human reasoning” founded on practical considerations and not basing itself on “authoritative text.” The second was a type of “free reasoning” based on a textual authority.[49]
These too, he acknowledges, became artificially elevated in the regard that they were held. The attribution of the authoritative texts constituting the bases of this kind of reasoning and ascribed to a class lower than that of the Prophet were gradually upgraded to the status of Prophetic Sunna.[50]
The transformation from the old ways of reasoning, included under ra`y, to the new methods of qiyās and ijtihād was thus admittedly gradual.[51] In articulating this legal theory, Hallaq offers an account of the central themes of uṣūl al-fiqh as developed by the end of the fifth Hijrah (eleventh) century. Giving a “synchronic view of the various doctrines,” he says, “in addition to the archetypal analogical inference, the term qiyās encompassed non-analogical arguments.”[52]
In his third chapter, Hallaq gives such an example of “clear premises” (nuṣūṣ) which engendered “necessary and immediate knowledge” without apparent need for reflection. He gives the example of the Qur’ānic prohibition of pork (laḥm al-khinzīr) (5.3) by which khinzīr is taken to cover all types of pork including wild boars. In spite of the Qur’ān’s immediate domestic relevance, what formal logicians consider as purely deductive arguments were for these theorists nothing but linguistic propositions that ay outside inferential reasoning.[53]
Thus commenting on the a fortiori argument, some jurists regard what he phrases a minore ad maius and a maiore ad minus, as the most compelling form of qiyās. That is a small matter being forbidding implicitly forbids a greater quantity of the same, and conversely, the a maiore ad minus argument holds that if something is prohibited in a greater amount, it is also permitted in a lesser amount or degree. But this latter position is more dubious. Hallaq gives the example of “permission to kill non-Muslims who engage in war against Muslims. From this permission it is inferred that acts short of killing, such as the confiscation of the unbelievers’ property, are also lawful.”[54]
Perhaps a defect in this reasoning, we might imagine the permissibility of torture, dismemberment, disfiguring or mutilation, as these are the loss of part of the body, but not all of it. To refute such a position, one would have to abandon the a maiore ad minus argument and resort to traditions.
Hallaq does give some surprisingly candid admissions, indicating an acceptance of the tradition as acceptable in spite of its lack of historical continuity. “No doubt this hermeneutic, which persistently defined the general character of Sunnī uṣūl al-fiqh, was a product of the sociological structure of classical and medieval Muslim societies.” As well, he suggests that “the combination of the Qur’an and Sunna, was textually and hermeneutically bound, ineluctably, with the sociological and, consequently, juridical realities of classical and medieval Muslim societies.”[55]
Uṣūl al-fiqh, functioned in the same manner in the “sphere both of rule-creation and rule-justification,” something which Hallaq calls “a rich and promising field of enquiry,” though he has not focused on this himself.[56]
Legal theories played another (rarely and vaguely articulated) role, involving the justification and re-enactment of time-honored and long-established legal rules and of the processes of reasoning that produced and continued to sustain them. With these points there can hardly be any dissent or refutation from even his opponents. Thus, there is promise in research such as this, that internal scholarship within the Muslim world might come to terms with the works of Goldziher, Schact (et al) understanding and appreciating Islāmic culture, law and religion in their own rights, as having evolved out of the teachings and orations of Muḥammad, rather than being the careful preservers and watchmen of an unbroken lineage.
All in all, the book fills a vacuum in modern scholarship, in systematically presenting the methodology of logic already extant within the Muslim tradition. Its approach, however, does little to effectively respond to the dominant scholarship on Sharī`ah, and certainly does not alleviate the concerns of the historical-critical scholar.
Shī`ī Uṣūl al-Fiqh
Hallaq notes, from the outset of his work, that it “falls entirely within the Sunnī tradition.” This is due, he asserts with “no apology,” to the fact that the Shī`ī approach are “appreciably different both in historical development and, consequently structure.” Indeed, the Shī`ah developed and independent tradition of their own, finding literary form only in the fourth Hijrah (tenth) century.[57] Thus, he comments that Shī`ī sources “demand an independent treatment.”
Like Hallaq’s work, Morteza Mutahhari attempts to present such a treatment; a counter-approach to the modern scholarly endeavor in the West, which approaches uṣūl al-fiqh with skepticism. In his Jurisprudence and its Principles, Mutahhari asserts, “the two studies of jurisprudence and its principles are interconnected… just as the two studies of logic and philosophy are interconnected.” The study of uṣūl al-fiqh is tantamount “to a preparation to the study of jurisprudence.”[58]
In discussing the fundamental differences between Sunnī and Shī`ī understandings of fiqh (and thus Sharī`ah), he directs us to the sources of uṣūl al-fiqh, instructing that “we must learn what those sources are, and how many they are, and whether all the sects and schools of Islām have the same views about each details of the sources or whether they hold opposing views. If there are differences, what are those differences?”[59]
His Principles then sets out to define just that. Mutahhari begins by explaining that the word, fiqh essentially means understanding, profound understanding,[60] and is “more or less synonymous” with the word ijtihād.[61]
Though translated as jurisprudence throughout the book, “in order to facilitate the reading of the text,” the translator Tawheedi explains that Mutahhari intends it as “precise and profound deducing of the Islāmic regulations of actions from the relevant sources.”[62] He extrapolates from this, “deep understanding” (mutafaqqeh), and “profound understanding” (tafaqqah).[63] However, since the second century of the Hijrah, the word has become a term for a “special area of understanding amongst Muslims” that can be said to be “jurisprudence in the commands of religion” or alternately “jurisprudence in the deducing of the commands of religion.”[64] For Mutahhari, this means essentially that Sharī`ah is deciphered “from the detailed resources and proofs.”[65]
The commands or regulations of Islām have not been explained by the Quran or by the Prophet and the Imams in such a way that each and every particularity has been expressly dealt with… instead, generalities and precepts have been laid before us in the form of a chain of principles.[66]
The Principles of Jurisprudence, Mutahhari explains, are Arabic syntax, conjugation, vocabulary, semantics, oratory and all related linguistic matters. This forms the foundation for Qur’ānic exegesis (tafsīr); logic (manṭiq); the study of ḥadīth literature; and the study of the transmitters thereof (rijāl).[67]
These principles of uṣūl al-fiqh are what “teaches us the correct and valid way of deducing from the relevant sources in jurisprudence.” He explains that in this way, Principles, like logic, is a study of instructions, and is more a skill than a branch of knowledge.”[68] The four sources or “proofs” (adillat ul-arba`ah) of jurisprudence in Uṣūlīyyah Shī`ism, are the Qur’ān, Sunnah, Ijma`, `Aql.
Here Sunnah means that of Muḥammad and the A’immah of the Ahlu-l-Bayt. There is also here a more specific meaning for ijma` as “the unanimous view of the Muslim `ulamā on a particular issue.” In the opinion of the Shī`ite `ulamā, “consensus is binding because if all the Muslims have one view, this is proof that the view has been received from the Holy Prophet.”[69] Mutahhari claims “it is impossible for all Muslims to share the same view on a matter if it came from themselves.”[70]
As for `Aql, which the Shī`ī work Uṣūl al-Kāfī regards as “the first of creation,” it is given more importance in Uṣūlī scholarship than that of the Akhbārīyyah who “in no way count reason as binding”[71] The irony however, is that the compiler of Al-Kāfī, Muḥammad Ya’qūb Kulaynī was a fervent opponent of taqlīd, which is so central to Uṣūlism. Perhaps for this very reason, the traditions he compiled seem to so highly value personal exercise of reason. Describing the various sectarian handling of reason as a proof of uṣūl al-fiqh, Mutahhari explains that amongst the Sunnī `ulamā, Mutahhari explains, Abu Ḥanifa regarded analogy (qiyās) as the fourth proof in fiqh.[72]
The Shī`ah, however, regard analogy as “strictly forbidden,” as “pure conjecture and surmissal.”[73] Mutahhari acknowledges that the concept of Sharī`ah is “generally recognized” as originating with Shāfi`ī, a matter he also cites as attested to by the historian and father of sociology, Ibn Khaldūn.[74]
However, on the authority of the late Seyyid Ḥasan Ṣadr, he claims that there “had previously been raised by Shī`ite `ulamā who had written a treatise.” Responding to “numerous problems,” he imagines that “perhaps” Shāfi`ī was simply the “first person to write one [complete] book about all the issues.” Others, he is certain, must have written less comprehensive works that apparently remain unknown.[75]
Mutahhari explains Seyyid Morteza `Alam al-Huda (d. 413/1044), author of Thariyah (The Medium), the brother of Seyyid Razī who complied Nahju-l-Balāghah was the first to “compile books” on fiqh. Shaykh Ṭūsī (d. 460/1067), the pupil of Morteza, “founded the scholastic centre of Najaf” is next in his examples.[76]
He then jumps to Wahīd Bahbahanī (1118-1208/1706-1792), who notably “combat[ed] against the previously mentioned Akhbārīyyin.” Showing the work as Uṣūlī polemic, he dismissively claims that this “corrupt system” was “accumulating an extraordinary influence.”[77]
The most important modern figure, however, is Shaykh Morteza Anṣārī (1214-1281/1781-1864), which Mutahhari informs us “those who have come after him have all followed his school of thought.”
His two books are Farā’iḍ al-Uṣūl and Mukassib, both hawza textbooks. Thus, we find this work as the most orthodox to its own system of thought, providing neither critique of Shī`ah ḥadīth origins, nor failing to endorse the dominant proponents of the more recent Uṣūlī paradigm.
Endnotes
[1] The Encylopedia of Islam on “Sharī`ah” Volume IX, 321
[2] Ibid
[3] Ibid 323
[4] The word describes a human activity, and is not ascribed to God or generally Muḥammad either. Ibid 322
[5] Ibid 323
[6] The last two are who together with Mālik, al-Shāfī`ī and, later, Aḥmad b. Ḥanbal (d. 241/855) gave his name to a broad tradition or school (madhhab) of juristic thinking. (323)
[7] Encylopedia of Islam, “Sharī`ah” 323
[8] Collections of these fatāwat and studies on the authority of muftis (those who give such rulings), may be recognized as independent genres, the first being somewhat connected to the furū, and the second to works of uṣūl. Ibid
[9] Ibid
[10] Ibid 324
[11] Ibid
[12] The verb shara`a occurs twice, once with God as subject (shara`a la-kum min al-dīn…) “or do they have companions who have laid down for them as religion that which God did not permit?” (7.163).
[13] The plural form occurs not more than a dozen times, mostly in locutions like shara`ī al-islām, sharā`ī’ al-īmān, once in a string of terms indicating rules; inna li-’l-īmān farā’iḍ wa-sharā`ī’ wa-ḥudūd wa-sunan.
[14] “God has laid down for his Prophet the rules of guidance (shara`a li-nabi-hi sunan al-hudā).
[15] Linguistically, by the time of Sa`adya Gaon (d. 933 CE), the term sharī`ah had become the “most common word” employed to express rules in Sa`adya’s Arabic version of the Tanakh. A “similar use” can be found in Christian writings of the time as well. The Encyclopaedia of Islām explains our uncertainty as to “when this cluster of Arabic terms emerged as part of the self-expression of Jews and Christians.”Encylopedia of Islam, “Sharī`ah, 324
[16] Ignaz Goldziher. Introduction to Islāmic Theology and Law. (Princeton: Princeton University Press, 1981). vii
[17] Ibid 4
[18] Ignaz Goldziher. Muslim Studies, vol 2 (London: George Allen and Irwin, 1971), 126.
[19] Goldziher, Introduction 4
[20] Ibid
[21] Ibid 10
[22] Ibid 8-9
[23] Ibid 9
[24] Goldziher 5
[25] While remaining a practicing Jew, his love for Islām led to occasion of make ṣalāh with the Muslim community in Cairo; which he described as the “most devout” period of his life. Indeed, Goldziher’s sympathetic, encyclopedic knowledge of the history of Islamic thought, was a result of his “deep understanding of Judaism,” according to his closest student, Bernát Heller (1871-1943). Quoted by Róbert Simon, Ignác Goldziher: His Life and Scholarship as Reflected in his Works and Correspondence (Budapest and Leiden: Library of the Hungarian Academy of Sciences and Brill, 1986), 20.
[26] Encylopedia of Islam, “Sharī`ah” 323
[27] Joseph Schacht. The Origins of Muḥammadan Jurisprudence. (Oxford, 1950) v
[28] Ibid 4
[29] Ibid 1
[30] Ibid 5
[31] Ibid 11
[32] Schact 2. For Shāfi`i, only that which traces to Muḥammad matters, though he “shows traces of the earlier doctrine” in conceding to āḥadīth from the Sahābah
[33] Encylopedia of Islam, “Sharī`ah” 323
[34] Schact 6
[35] Ibid 7
[36] Ibid 8
[37] Encylopedia of Islam, “Sharī`ah” 323
[38] Tr. IX, 5
[39] Schact 15
[40] Ibid 1
[41] Ibid 3
[42] Encylopedia of Islam, “Sharī`ah” 323
[43] Ibid
[44] Encylopedia of Islam, “Sharī`ah” 323
[45] Wael Hallaq. A History of Islāmic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh. (1997) vii
[46] Hallaq 18
[47] Hallaq 19
[48] Ibid
[49] Ibid
[50] Ibid
[51] Ibid
[52] Ibid 96
[53] Hallaq 96
[54] Ibid 97
[55] Ibid 259
[56] Hallaq ix
[57] Encylopedia of Islam, “Sharī`ah” 323
[58] Morteda Mutahhari. Jurisprudence and its Principles. (Elmhurst, 1983) 9
[59] Ibid 15
[60] Ibid
[61] Ibid 13
[62] Ibid 7-8
[63] Ibid 10
[64] Ibid 11
[65] Ibid
[66] Mutahhari 11
[67] Ibid 12
[68] Ibid 13
[69] Ibid 19
[70] Ibid
[71] Ibid 21
[72] He writes additionally that, “the Maliki and Hanbali Sunnīs, especially the Hanbalis, pay no heed whatever to analogy. The Shafi’i Muslims, following their leader… pay more attention to Traditions than the Hanafis and also more attention to analogy than the Maliki and Hanbali Muslims.” Mutahhari 21
[73] Ibid
[74] Ibid 23
[75] Ibid 23
[76] Ibid 25
[77] In reality, the Akhbārīyyah had been the standard Shī`ī interpretation for centuries until the rise of `Uṣūlism. Bibliography Goldziher, Ignaz. Introduction to Islāmic Theology and Law. Princeton: Princeton University Press, 1981. Hallaq, Wael. A History of Islāmic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh. 1997. Mutahhari, M. Jurisprudence and its Principles. Elmhurst, 1983. Schacht, Joseph. The Origins of Muḥammadan Jurisprudence. Oxford, 1950. Sharī`a. Vol. IX, in The Encylopedia of Islām, 321-328. Brill.
