Table Of ContentIslamic Legal Thought
Studies in Islamic Law Islamic Legal Thought
and Society
A Compendium of Muslim Jurists
Founding Editor
Edited by
Bernard Weiss
Oussama Arabi, David S. Powers and
Edited by
Susan A. Spectorsky
Ruud Peters and A. Kevin Reinhart
VOLUME36
BRILL
LEIDEN • BOSTON
Library of Congress Cataloging-in-Publication Data
Islamic legal thought: a compendium of Muslim jurists I edited by Oussama Arabi, David S. Powers
and Susan A. Spectorsky.
pages cm. - (Studies in Islamic law and society ; volume 36)
Includes bibliographical references and index. CONTENTS
ISBN 978-90-04-25452-7 (hardback: alk. paper) - ISBN 978-90-04-25588-3 (e-book) 1. Islamic
law-Biography. 2. Muslim scholars-Biography. I. Arabi, Oussama, 1954-editor of compilation.
II. Powers, David Stephan. editor of compilation. III. Spectorsky, Susan A. (Susan Arm) editor of Preface
compilation. List of c~·~~~b~~~·~~······················································· .. ··································· ix
························································································· xi
KBP253.I85 2013
340.5' 90922-dc23 Introduction ......................................................................................................
1
Oussama Arabi, David S. Powers, Susan A. Spectorsky
PART ONE
FORMATIVE PERIOD (150-261/767-874)
1. Ab ii l:Ianifa (d . 150 /767) ......................................... .. ··············
~················· 11
Hiroyuki Yanagihashi
2. Malik b. Anas ( d. 179/795) ······································································· 27
This publication has been typeset in the multilingual "Brill" typeface. With over 5,100 characters YossefR apoport
covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the
humanities. For more information, please see www.brill.com/brill-typeface.
3. al-Shafi'i ( d. 204/820) ················································································
43
Joseph E. Lowry
ISSN 1384-1130
ISBN 978-90-04-25452-7 (hardback)
ISBN 978-90-04-25588-3 (e -book)
4. Sal:miin b. Sa'id (d. 240/854) ··································································· 65
Jonathan E. Brockopp
Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing,
IDC Publishers and Martinus Nijhoff Publishers. 5. Al;tmad b. l:Ianbal ( d. 243/855) ······························································· 85
Susan A. Spectorsky
All rights reserved. No part of this publication may be reproduced, translated, stored in
a retrieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without prior written permission from the publisher. 6. al-Kha~~af (d. 261/874) ·············································································· 107
Peter C. Hennigan
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV
provided that the appropriate fees are paid directly to The Copyright Clearance Center,
222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA.
Fees are subject to change. PART TWO
This book is printed on acid-free paper. CLASSICAL PERIOD (300-1213/912-1798)
7. AbiiJa'far al-Tal;tawi (d. 321/933) ·························································· 123
MIX Nurit Tsa.frir
Paper from
responsible sources
vi CONTENTS CONTENTS vii
8. al-Jai?i?iil? (d. 370/981) ................................................................................ 147 PART THREE
Murteza Bedir MODERN PERIOD (1798-PRESENT)
.......................................................
9. al-Sharif al-Murta<;la (d. 436/1044) 20. al-Mahdi al-Wazzani (d. 1342/1923) 435
Devin J Stewart Etty Terem
211
10. Ibn .ijazm al-Qurtubi (d. 456/1064) ···················································· 21. Mul}.ammad Rashid Ri<;la (d. 1935) ...................................................... 457
Samir Kaddouri Mahmoud 0. Haddad
11. al-Sarakhsi ( d. 483/1090) ········································································ 239 22. 'Abd al-Razzaq al-Sanhiiri Pasha ( d. 1971) 491
Osman Tll§tan Oussama Arabi
12. Abii .ijamid al-Ghazali ( d. 505/nn) .................................................... .
23 . .ijasan al-Turabi (1932-)
Ebrahim Moosa Aharon Layish
13. Ibn Rushd al-Jadd (d. 520/1126) ............................................................ 295
References .......................................................................................................... 533
Delfina Serrano Ruano Index of Qur'anic verses ................................................................................ 563
Index of Arabic terms ..................................................................................... 564
14. Qa<;li 'Iya<;l ( d. 544/1149) .......................................................................... 323 General Index .................................................................................................... 570
Camilo Gomez-Rivas
15. Sayf al-Din al-Amidi ( d. 631/1233) ........................................................ 339
Bernard G. Weiss
16. Abii Isl:iaq al-Sha.ti.bi ( d. 790/1388) ······················································ 353
Muhammad Khalid Masud
17. Al:imad al-Wansharisi (d. 914/1509) .................................................... 375
David S. Powers
18. Ebu's-su'ud (d. 982/1574) ....................................................................... 401
Colin Imber
19. Mul}.ammad Baqir al-Bihbihiini (d. 1205/1791) ................................. 415
Robert Gleave
PREFACE
Several years ago we conceived the idea of a volume that would focus
on the work of significant individual jurists. We drew up a list of promi
nent jurists and planned a book in which a chapter for each jurist would
include a scholarly biography along with a translated sample of his work.
We have contributed our own chapters, and twenty colleagues have joined
us by contributing a chapter on a jurist they are engaged in studying. Each
chapter offers new biographical material on a particular jurist, along with
a new translation of selections of his work. Otherwise we did not ask the
contributors to follow any particular format. Although practical consider
ations made it impossible to include all major jurists from each century,
and to represent all schools, we hope that the combination of biography
and translation in these twenty-three studies will offer a new way oflook
ing at the development of Islamic legal thought.
All references to the Encyclopedia of Islam are to the second edition
unless otherwise noted. In general, we use the EI system of translitera
tion, except that we use j instead of dj and q instead offs.. We have not
standardized translations of passages from the Qur'iin. Each contributor
has used the translation he or she thinks best. Otherwise, we shortened
references in the notes and provided a complete bibliography at the end
of the volume.
We would like to thank everyone who contributed a chapter to the
volume and, at Brill, we are grateful to Ingrid Heijckers-Velt and Nicolette
van der Hoek, who guided the book to completion.
Oussama Arabi
David S. Powers
Susan A Spectorsky
LIST OF CONTRIBUTORS
OUSSAMA ARABI (Ph.D. Sorbonne/Paris I 1989 [Philosophy]) is an inde
pendent scholar who works on Islamic Law and Arab Modernity. His writ
ings include numerous articles in scholarly journals in three languages and
the following books: Wittgenstein, langage et ontologie (Paris 1982); Karl
Popper, Madkhal ilii al-'Aqliiniyya al-Naqdiyya (Beirut 1994); and Studies
in Modem Islamic Law andj urisprudence (Kluwer 2001). He is adjunct pro
fessor at the Department of Inter-Cultural Studies, Haigazian University,
Beirut, Lebanon.
MURTEZA BEDIR (Ph.D. Manchester 1999) is Professor oflslamic Law at
Istanbul University. His Ph.D. dissertation was on the early development
of I:Ianafi legal theory. He is the author of Ftkth, Mezhep ve Silnnet: Hane.ft
Ftkth Teorisinde Peygamber'in Otoritesi (Fiqh, Madhhab and Sunnah: The
Authority oft he Prophet in Hana.ft Legal Theory) (2004); and Buhara Hukuk
Okulu: 10.-13. Yilzytllar Orta Asya Vakif Hukuku Baglammda Bir jnceleme
(The Bukharan Legal School: An Analysis in the Context of Central Asian
WaqfLaw from the 10th to the 13th Centuries) (2010). His research focuses
on the classical I:Ianafi legal tradition and its modern reception.
JONATHAN E. BROCKOPP (Ph.D. Yale 1995) is Associate Professor of
Religious Studies and History at Pennsylvania State University. He is the
author of Early Miiliki Law: Ibn 'Abd al-Ifakam and his Major Compen
dium of Jurisprudence (2000 ); co-author of]udaism and Islam in Practice:
A Sourcebook (2000 ); editor of two books on comparative religious ethics;
and editor of The Cambridge Companion to Muhammad (2010 ). He is com
pleting a new book on the early history of Muslim scholars.
ROBERT GLEAVE (Ph.D. Manchester 1996) is Professor of Arabic Studies
at the Institute of Arab and Islamic Studies, University of Exeter, UK with
research interests in wpll alji,qh and Shi'i law. He is author of Inevitable
Doubt: Two Theories ofShl'i]urisprudence (2000); Scripturalist Islam: The
History and Doctrines of the Akhbiiri Shi'i School (2006) and Islam and Lit
eralism: Literal Meaning and Interpretation in Islamic Legal Theory (2012).
CAMILO GOMEZ-RIVA S (Ph.D. Yale 2009) is Assistant Professor of Middle
Em;tem Historv at the American Universitv in Cairo. He is revising his
xii LIST OF CONTRIBUTORS LIST OF CONTRIBUTORS xiii
dissertation, "The Fatwas of Ibn Rushd al-Jadd to the Far Maghrib: Urban AHARON LATISH (Ph.D. Hebrew University 1973) is Professor Emeritus
Transformation and the Development of Islamic Legal Institutions under of Islamic and Middle Eastern Studies at the Hebrew University. He has
the Almoravids," for publication as a monograph. He is also beginning published extensively on Islamic, tribal customary and Druze law and
a book-length project on the reception of populations displaced across institutions, including (with Gabriel R. Warburg), The Reinstatement of
the Muslim-Christian frontier in the western Mediterranean between the Islamic Law in Sudan under Numayrl: An Evaluation of a Legal Experi
ment in the Light ofI ts Historical Context, Methodology, and Repercussions
eleventh and seventeenth centuries.
(2002); Sharta and Custom in Libyan Tribal Society: An Annotated Transla
MAHMOUD 0. HADDAD (Ph.D. Columbia 1989) is Professor of History tion ofD ecisions from the Sharta Courts ofA jdiibiya andKufra (2005); Legal
at the University of Balamand, Lebanon. He is the author of "Beirut: The Documents from The judean Desert: The Impact of the Sharta on Bedouin
Commercial and Political Rivalries among Syrian Seaports in the late Customary Law (2011). He served as Executive Editor of Islamic Law and
Nineteenth and Early Twentieth Century," in The Syrian Land: Processes Society (1994-2011) and President of the Israel Oriental Society (2004-6).
ofI ntegration and Fragmentation, ed. Thomas Philipp and Birgit Schabler
JOSEPH E. LOWRY (Ph.D. University of Pennsylvania 1999) is Associate
(1998); "Arab Religious Nationalism in the Era of Colonialism: Rereading
Professor of Arabic and Islamic studies at the University of Pennsylvania.
Rashid Rida's Ideas on the Caliphate," journal of the American Oriental
Society 117:2 (1997); "The Rise of Arab Nationalism Reconsidered," Interna His books include Early Islamic Legal Theory: The Risala ofM ul.iammad ibn
Idrls al-Shiifi'l (2007) and a new translation of the Risiila of al-Shafi'!, The
tional journal of Middle East Studies 26 (1994); "Iraq Before World War I:
A Case of Anti-European Arab Ottomanism," in The Origins ofA rab Nation Epistle on Legal Theory (2013). His research and publications focus on the
Qur'an, Islamic law, and Arabic literature. Before becoming an academic
alism, ed. Rashid Khalidi et al. (1991); and co-editor of Towards a Cultural
he was an attorney in private practice in Washington, D.C.
History ofB ilad al-Sham in the Mamluk Era: Prosperity or Decline, Tolerance
or Persecution? (2010 ).
MUHAMMAD KHALID MASUD (Ph.D. McGill 1973) is Director General
of the Islamic Research Institute, Islamabad, and editor of the journal
PETER C. HENNIGAN (Ph.D. Cornell 1999) is the author of The Birth of a
Legal Institution: The Formation of the Waqf in Third-century A.H. Ifa nafi Islamic Studies. He is the author of Shatibi's Philosophy of Islamic Law
(1995); Iqbal's Reconstruction of Ijtihad (1995); Travelers in Faith: Studies
Legal Discourse (2004). He is an independent scholar and lawyer.
on Tablighijama'at (2000 ); and Athhanvin sadi Isawi men barri saghir men
Islamifikr he rahnuma (2008). He is coeditor of Islamic Legal Interpreta
COLIN IMBER was, until his retirement in 2005, Reader in Turkish at
the University of Manchester. He is the author of The Ottoman Empire, tion: Muftis and their Fatwas (1996); coeditor of Dispensing justice in Islam:
Qadis and Their judgments (2006); coeditor of Islam and Modernity, an
1300-1481 (1990 ); Studies in Ottoman History and Law (1996); Ebu's-su'ud:
Introduction to key issues and debates (2009); and translator into Urdu of
the Islamic Legal Tradition (1997); The Ottoman Empire, 1300-1650: the
T. Izutsu's Ethical Terms in the Qur'an (2005).
Structure of Power (2002, 2nd ed. 2009); The Crusade of Varna, 1443-1445
(2006); and editor of Norman Calder, Islamic jurisprudence in the Classical
EBRAHIM MOOSA (Ph.D. University of Cape Town 1995) is Professor
Era (2010).
of Religion and Islamic Studies at Duke University. He is the author of
SAMIR KADDOURI is a Moroccan scholar who is currently preparing his Ghaziill and the Poetics ofI magination (2005); coeditor of Muslim Family
Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges
doctoral thesis on the Kitiib al-Fa$l of Ibn I:Iazm at Leiden University in
the Netherlands. His research focuses on Andalusian literature and on the (2010); and editor of Revival and Reform: A Study ofI slamic Fundamental
history of judaeo-Islamic and Christiano-Islamic polemics, about which ism (Fazlur Rahman's posthumous essays) (1999).
he has published twenty-nine articles in Spanish and Arabic.
xiv LIST OF CONTRIBUTORS
LIST OF CONTRIBUTORS xv
DAVIDS. POWERS (Ph.D. Princeton 1979) is Professor oflslamic Law and
OSMAN TA~TAN (Ph.D. Exeter 1993) is Professor in the Department of
History at Cornell University. He is the author of Studies in Qur'an and
Islamic Law in the Faculty of Divinity at Ankara University. He wrote his
Hadith: The Formation of the Islamic Law ofI nheritance (1986); Law, Soci
Ph.D. dissertation on the jurisprudence of al-Sarakhsi. His publications
ety, and Culture in the Maghrib, 1300-1500 (zoo2); Muf:tammad is Not the include a chapter on "Religion and Religious Minorities" in Turkey and
Father ofA ny ofY our Men: The Making oft he Last Prophet (2009); coeditor
articles on Islamic legal theory and history. His research also covers popu
of Islamic Legal Interpretation: Muftis and their Fatwas (1996); coeditor of lation policy and war and peace in Islamic Law.
Dispensing justice in Islam: Qadis and Their judgments (zoo6); and Editor
of the journal Islamic Law and Society.
ETTY TEREM (Ph.D. Harvard 2007) is Assistant Professor of Middle Eastern
History at Rhodes College. Her research has focused on the relationships
YOSSEF RAPOPORT (Ph.D. Princeton 2002) is a Senior Lecturer in Islamic
between Islamic law and society, and on Islamic thought in pre-colonial
history at Queen Mary University of London. He is the author of Mar
Morocco. She is the author of Islamic Tradition Traniformed: Revival and
riage, Money and Divorce in Medieval Islamic Society (zoos); co-editor, Reform in the Making ofM odem Morocco (forthcoming).
with Emilie Savage-Smith, of The Book of Curiosities: A critical edition
(www.bodley.ox.ac.uk/bookofcuriosities) (March 2007); and co-editor,
NURIT TSAFRIR (Ph.D. Princeton 1993) is Senior Lecturer at Tel Aviv
with Shahab Ahmed, of Ibn Taymiyya and His Times (zo10 ).
University, where she teaches in the Department of Middle Eastern and
African History and the Department of Arabic and Islamic Studies. She is
DELFINA SERRANO-RUANO (Ph.D. University of Seville 1996) is a Ten
the author of The History of an Islamic School ofL aw: The Early Spread of
ured Researcher at the National Council for Scientific Research (CSIC,
Hanafism (zoo4). Her current research focuses especially on J.:Ianafi law.
Madrid, Spain). Her work focuses on Maliki legal doctrine and practice,
and on the relationship between Islamic law (jiqh) and discursive theology
BERNARD G. WEISS (Ph.D. Princeton 1966) is Professor Emeritus of Ara
(k alam ). She is the author of La actuaci6n de Los jueces en Los procesos judi
bic and Islamic Studies, University of Utah. He is the author of The Search
ciales (a Spanish translation and study of Muhammad b. 'Iya<;l's Madhahib
for God's Law: Islamic jurisprudence in the Writings ofSayfa l-Din al-Amidi
al-f:tukkamfinawazil al-af:tkam) (1998) and of numerous articles published
(1992); The Spirit of Islamic Law (1998), and many articles. He was co
in collective volumes and periodicals, including Al-Qantara, Islamic Law
editor (with Ruud Peters) of the series Studies in Islamic Law and Society,
and Society, Der Islam, Hawwa, andjoumal ofM edieval Iberian Studies.
and editor ofv olume 19 in that series, Studies in Islamic Legal Theory (zoo2).
SUSAN A. SPECTORSKY (Ph.D. Columbia 1974) is Associate Professor
HIROYUKI YANAGIHASHI (M.A. University of Tokyo) is Professor of
Emerita at Queens College, CUNY. Her research is on the formative period
Islamic Studies at the University of Tokyo. He is the author of A History
of Islamic law and she is the author of Chapters on Marriage and Divorce:
oft he Early Islamic Law ofP roperty: Reconstructing the Legal Development,
Responses ofI bn Hanbal and Ibn Rahwayh (1993) and Women in Classical
7th-9th centuries (zoo4); and editor of The Concept of Territory in Islamic
Islamic Law: A Survey of the Sources (2009). Law and Thought: A Comparative Study (2000).
DEVIN]. STEWART (Ph.D. University of Pennsylvania 1991) is Associate
Professor at Emory University. His research focuses on Shi'I Islam, the his
tory of Islamic jurisprudence and legal education, and relations between
Sunni and Shi'! communities. He is the author of Islamic Legal Orthodoxy:
Twelver Shiite Responses to the Sunni Legal System (1998), and editor, with
Joseph Lowry and Shawkat Toorawa, of Law and Education in Medieval
Islam (zoo4).
INTRODUCTION
Oussama Arabi, David S. Powers and Susan A. Spectorsky
The goal of the present volume is to show how the development of Islamic
law is the product of the contributions of individual jurists working in
particular times and places. Each of the twenty-three chapters that follow
is written by a different scholar and consists of a biography of one promi
nent jurist and a translated sample of his work. The biographies empha
size first, the scholarly milieu in which the particular jurist worked-his
teachers, colleagues and pupils, and his relations with the political author
ities; and second, his scholarly output and the kind of juridical thinking
for which he is well known. The translated selections of each jurist's work
have been chosen to highlight his contribution to the methods of Islamic
jurisprudence.
In a widely cited tradition, it is reported that when the Prophet sent the
Companion Mu'adh b. Jabal ( d. i8/639) to the Yemen as a qac;lI or judge,
he asked Mu'adh how he would resolve disputes. Mu'adh replied that he
would judge in accordance with the Book of God, and if he did not find
anything in the Book of God, then in accordance with the Sunna of the
Prophet. When the Prophet asked how he would judge if he found noth
ing in the Book of God or the Sunna of the Prophet, Mu'adh replied, "I will
be zealous in my effort to craft my own opinion (ajtahidu bi-ra'y"iwa-la
iilu)." At this point, the Prophet struck Mu'adh's chest and said, "Praise be
to Allah who granted the messenger of His Messenger what would gratify
His Messenger."1 The third alternative proposed by Mu'adh-the careful
crafting of his own opinion-points to a key question that would engage
subsequent generations of Muslim jurists: In the absence of specific guid
ance from the Qur'an and the Sunna of the Prophet, what is the correct
decision in any given instance? And, what is the correct way to go about
reaching that decision? So long as the Prophet was alive, he would have
been available to interpret the Qur'an and lead the community of Believ
ers, by word and deed, by his Sunna. After his death in n/632, however,
the legislative model he had provided for the early Muslim community
1 See Ibn Hanbal, Musnad, 5:230, 236, 242. For variants, see Wensinck, A Handbook of
Early Muhammadan Tradition, s.v. "Mu'adh b. Jabal."
