ISLAMIC JURISPRUDENCE SH&FlI'f"S RISALA al-Imam Muhammad ibn Idris a]-SHAFITS al-Rl SALA F! USOL AL-FIQH Treatise on the Foundations of Islamic Jurisprudence T RANSLATED WITH AN INTRODUCTION, NOTES, AND APPENDICES by §4/(ajid rKhadduri SECOND EDITION THE ISLAMIC TEXTS SOCIETY i>reface THE PART OF THE' worlt in- which Islam grew up isr.e nowned for possessing the oldest legal systems known in recorded history, and Islamic law, more than a millenium old, is relatively new in comparison with other systems. In Islamic legal theory the law preceded society and is considered to be as eternal as God. Tradition has it thatr God revealed himself through a divine law; communicated to men by His Prophets, either written by God's own finger on tablets made of stone, or sent down to the nearest Heaven to be available for revelation by Angel Gabriel. Originating from so high a source, law always held a para- mount place in the eyes of peoples who lived under divine guidance. It is no wonder that the prestige of the divine law among peoples in that world is without parallel in history. For the law was not only founded on religion and sanctioned by God, but in it the whole spirit of the faith may be said to be epitomized. Islamic law has preserved its basic character since its forma- tive period. In modern times the greatest challenge has come from the West, and Islamic law is bound to feel the impact. Many a Muslim country has adopted legal concepts from abroad without regard to their suitability for the social milieu. Muslim and. Western legal systems have. often. operated side by side and conflicts between them have been inevitable. But the new law has not been able tocommand the respect of the public nor has the old law met the necessities of modern life. However, the advocates of the traditional system have had v Vi ISLAMIC JURISPRUDENCE little to offer in the way of a constructive legal reform which might adapt Islamic law to modern conditions of life. In the second and third decades of the twentieth century critics of the two systems keenly felt that the widening gulf between them should be bridged. Following World War II a revival in the study of Islamic law set in, stemming partly from the rise of several Islamic countries to statehood. Some of the new states stressed the Islamic creed, and the older states declared Islamic law to be a source of legislation. The most constructive approach to modernizing Islamic law is reflected in the new civil codes, notably in the law of contract and property, which Dr. 'Abd al-Razziq al-Sanhfiri has drafted for Egypt, Syria, 'Iriq, and Libya. As a result, a growing interest 'in'the study of Islamic jurisprudence has become noticeable in the Muslim world, in an effort to gain a deeper understanding of the nature of legal reform. 'The Muslim world today is facing a problem of legislation not unlike that which faced it in the first two centuries of its existence. During that time Islam expanded rapidly and absorbed new elements of culture and tradition. As a result, the Muslim world abounded in legal doctrines, the advocates of each vying for'supremacy over the others. It was Shfifi' who provided in the ninth century of the Christian era a systematic legal method by which to synthesize the various legal doctrines into a coherent system. A thorough study of that system will explain how legal problems. were resolved in the formative period as well as the approach and the method of reasoning employed in their solution. It is impossible to understand the implications and the trends in modern Islamic legal reforms without an appreciation of the nature and development of classical Islamic jurisprudence. I have been assisted by important suggestions and com- ments made on the work as a whole or in part. I should like to thank in particular Shaykh Muhammad Abfi Zahra and Dr. 'Abd al-Halim al-Najjfr for their valuable assistance, and Dr. 'Abd al-Razziq al-Sanhfiri and Dr. Chafik Chehata for PREFACE vii helpful suggestions. Comments on- one part of the work or another have been gratefully received from Sir Hamilton Gibb, Emil Lang, Nabia Abbott, Leo Strauss, and Marshall G. D. Hodgson. Above all I should like to thank Edwin E. Calverley and Harold Glidden for their invaluable assistance and sug- gestions. Finally, I wish to acknowledge the aid given by the School of Advanced International Studies of The Johns Hopkins University, and the grant extended by the Rocke- feller Foundation, which enabled me in 1958 to work in Cairo and Damascus on manuscripts and other works connected with this study. None of these persons and institutions, how- ever, is responsible for any errors which may be found in the volume or for the views expressed in it. May, 1961 MAJID KHADDURI Contents Preface............. TRANSLATOR'S INTRODUCTION The Historical Background of the Risdla 3 Islamic Jurisprudence before Shifii'. ....... 3 Shfifi,'s Life . .... ... ......... 8 Shfii's Personality and Character .... . 16 The Composition and Structure of the Risdla . 19 Composition of the Risila. ....... 19 The Old and the New Ristila . .. • .21 The Order and Sources of the Risila . 25 Substance and Argument of the Risla ..... 28 The Vocabulary of the Ristila . . . . . .. 28 Fundamental Ideas of the Risd1a ...... 32 Significance of the RisdIla. .. ........ .".40 Shifii as the Founder of the Science of Islamic Juris- prudence...... ... .... . 40 The Islamization and Idealization of Law 42 45 Shfii's Influence . ......... 48 The Text of the Risla . ....... Manuscripts .... ....... .. 48 Editions ...... ...... . . 51 Translation ... .......... .. 52 Postscript . . .. . .. .. . 54 X CONTENTS TRANSLATION OF SHXFVI'S Risdla I. [Introduction] . ........ ... 57 II. [On al-Bayin (Perspicuous Declaration)] 67 What is al-Bayn?. . .... ..... 67 al-Baydn I .... ........... 71 al-Baydn II ........ . . . . 73 al-Baydn III .... ......... 74 al-Baydn IV .. ......... . 75 al-Baydn V .. ....... .... 77 II. [On Legal Knowledge] . ...... .. 81 IV. [On the Book of God] . .... ... . 88 [Arabic Character of the Qur'dn] . . . . 88 General Declaration of the Book Intended to be General in Which the Particular Is In- cluded . ......... ..... 96 The Explicit General Declaration of the Book in Which the General and the Particular Are Included ......... 97 The Explicit General Declaration of the Book Intended To Be All Particular . 99 Category [of Declaration] the Meaning of Which Is Clarified by the Contcxt . . . 102 Category [of Declaration] the Wording of Which Indicates the Implicit, not the Explicit [Meaning] .......... 103 General [Declaration] Which the Sunna Specifi- cally Indicates Is Meant To Be Particular . 103 V. [On the Obligation of Man to Accept the Au- thority of the Prophet] . ...... 109 A Declaration Concerning the Duty Imposed by God, as Laid Down in His Book, [Ordering Men] To Follow the Prophet's Sunna . 109 God's Command Ordering Obedience to the Apostle Is Both Associated with Obedience to Him and Ordered Independently . . . 112 CONTENTS xi God's Command Ordering Obedience to His Apostle ......... 114 The Obligation Made Clear by God to His Creatures that He Imposed upon His Apos- tle To Follow What He Revealed to Him, and What He Testified to of His Obeying His Commands, His Guidance, and that He Is the Guide of Any Who Follow Him . 116 VI. [On the Abrogation of Divine Legislation] 123 The Abrogating and Abrogated [Communi- cations] .... ........... 123 The Abrogating and the Abrogated, of Which the Book [of God] Indicates Some and the Sunna Others ... ......... 128 The Duty of Prayer [the Performance of Which] the Book of God and the Sunna Indicate to Whom it Might Not Apply Owing to [a Valid] Excuse, and Against Him Whose Prayer Is Not Accredited Because of [Some Act of] Disobedience ....... 131 The Abrogating and Abrogated [Communica- tions] Which Are Indicated by the Sunna and Consensus ......... 141 VII. [On Duties] ..... ...... 146 The Duties Laid Down in the Text [of the Qur'in] . ... . . . ..... 146 [Quranic] Duties for Which the Apostle Pro- vided Sunna ... ......... 151 [Quranic] Duties Which the Sunna specified are Intendr ct To Be Particular . ... 154 General Duties: [Prayer] .. ....... 158 The Zakdt (Legal Alms) 163 [Pilgrimage] ..... 166 [The'Idda or Waiting Period] 168 [Forbidden Women] . . 169 [Forbidden Food] . . . 170 ["Women's Abstention during the 'Idda of Their Husbands' Death] 172 xii CONTENTS VIII. [On the Nature of God's Orders of Prohibition and the Prophet's Orders of Prohibition]. 173 IX.. [On Tradi,.'ons] ...... .... 179 Defects in the Traditions ...... 179 [Categories of] Abrogating and Abrogated Tra- ditions. ......... . .. 195 [Contradictory Traditions] ...... 202 Another Kind of Contradictory [Traditions] 206 Contradictory Transmission of Traditions Dif- ferent From Other Kinds... ... . 210 Traditions Regarded' as Contradictory [by Others], But Not by Us ...... 212 [A General] Order of Prohibition in One Tra- dition Made Particular in Another . . . 224 Orders of Prohibition [in Some Traditions] More Clearly Stated Than in Previous [Tra- ditions] .. ..... .. .... .. 227 [Orders of] Prohibition Consistent with Previous Orders in Certain Matters and Inconsistent with Others .... .... . . 229 X. [On Single-Individual Traditions] . . . 239 Authentication of the Single-Individual Tradi- tion ...... .......... 252 XI. [On Consensus (Ijmd') ] .. .......... 285 XII. [On Analogy (Qiyds) ] ... ...... 288 XIII. [On Personal Reasoning (Ijtihdd)] . . . 295 XIV. [On Juristic Preference (Istihsdn) . . .. 304 XV. [On Disagreement (Ikhtildf) ] ........ 333 TRANSMITTERS OF TRADITIONS .. ...... 353 363 GLOSSARY ....... SELECT BIBLIOGRAPHY .. . ...... 367 INDEX .... ....... 373 ISLAMIC JURISPRUDENCE SHAFI-I'S RISALA