Disagreements of the Jurists

A Manual of Islamic Legal Theory

Devin Stewart

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479892358
• Topic: Literatura
• Subtopic: Colecciones literarias de Oriente Medio

A masterful overview of Islamic law and its diversity

Al-Qadi al-Nu'man was the chief legal theorist and ideologue of the North AfricanFatimid dynasty in the tenth century. This translation makes available for thefirst time in English his major work on Islamic legal theory ( usul al-fiqh ),which presents a legal model insupport of the Fatimid claim to legitimate rule.

Composed as part of a grand project to establish the theoreticalbases of the official Fatimid legal school, Disagreements of the Jurists expounds a distinctly Shi'i system of hermeneutics. The work begins with adiscussion of the historical causes of jurisprudential divergence in the firstIslamic centuries and goes on to engage, point by point, with the specificinterpretive methods of Sunni legal theory. The text thus preserves importantpassages from several Islamic legal theoretical works no longer extant, and inthe process throws light on a critical stage in the development of Islamiclegal theory that would otherwise be lost to history.

DISAGREEMENTS OF THE JURISTS

THE PROVENANCE OF THIS BOOK

1 I praise God for the gifts He has showered upon us, as a worshiper who is grateful for His grace and pleads for more of His bounty. God bless Muḥammad, the Seal of His prophets, who will intercede for his nation on the day of the Meeting with God, and may He bless ʿAlī, his trustee, and the Imams among his descendants, God’s Chosen Ones.

2 The Chief Justice ʿAbd al-ʿAzīz ibn Muḥammad ibn al-Nuʿmān¹ said: I transmit this book, The Islamic Legal Schools’ Conflicting Principles of Interpretation, and Refutation of Those Who Contradict the True Doctrine Therein, from my father, the Judge Muḥammad ibn al-Nuʿmān,² may God be pleased with him and grant him contentment. My father transmitted this book from his father, the Judge al-Nuʿmān ibn Muḥammad ibn Manṣūr ibn Aḥmad ibn Ḥayyūn of the Tamīm tribe, may God be pleased with him and grant him contentment, and make his final destination and resting place one of honor, the author of this book. This, after he had presented this book to our Master and Ruler, the Imam al-Muʿizz li-Dīn Allāh,³ the Commander of the Faithful, God’s blessings upon him, upon his pure forefathers, and upon the Imams among his noble progeny, and after the Imam had permitted him to transmit it. My grandfather’s composition of the book and transmission of it to his son, and the son’s transmission of it to his son after him, took place after each transmitter among them had presented the work to the Imam of his time and obtained permission from him to transmit it on the Imam’s authority, and after his Highness al-ʿAzīz bi-llāh,⁴ the Commander of the Faithful, God’s blessings upon him, had granted a second permission to my father, his Chief Justice Muḥammad ibn al-Nuʿmān, God be pleased with him. I presented the book to our Highness, the Imam al-Ḥākim bi-Amr Allāh,⁵ the Imam of the present age, and he granted me permission to transmit it on his authority and to dictate it without restriction to the Imam’s servants, inscribing on the back of the volume a venerable affidavit in his exalted hand: “We have permitted the audition and dictation of this book to Our Judge, ʿAbd al-ʿAzīz ibn Muḥammad ibn al-Nuʿmān, praise be to God, Lord of all the generations!”

PROLOGUE

In the Name of God, the Merciful and Beneficent:

3 Praise be to God, Who revealed the Book to his servant, Muḥammad, the bearer of glad tidings and warner, and rendered it as He describes it in His Scripture: «a cure for what is in the breasts of mankind, guidance, and mercy for the faithful,»⁶ and «an explanation of all things, guidance, mercy, and glad tidings for the Muslims.»⁷ God bless Muḥammad, the Seal of the Prophets and Foremost of the Messengers, and the Imams among his pure and virtuous progeny.

4 Now, to the heart of the matter: I noticed that all those who pray toward Mecca,⁸ after agreeing on the explicit text of the Qurʾan and accepting the Messenger as truthful, differ in their legal rulings on many individual points of the law, some fundamental principles, and many matters of interpretation. Concerning these issues they have adopted sundry views, dispersed into diverse groups, and formed various disputing parties, and this despite being aware of God’s word: «that you remain steadfast in religion, and make no divisions therein»;⁹ «Nor did those to whom the Scripture was given make schisms until after there came to them clear evidence»;¹⁰ «Those to whom the Scripture was given differed concerning it only after clear proofs had come unto them»;¹¹ «Religion before God is Islam. Nor did the People of the Book dissent therefrom except after knowledge had come to them, through malevolence toward each other»;¹² «Do they then earnestly consider the Qurʾan, or are their hearts locked up?»;¹³ and «Do they not earnestly consider the Qurʾan? Had it been from other than God, they would surely have found therein much incongruity.»¹⁴ For in these verses, God censured division and disagreement and encouraged unity and solidarity, commanding and promoting the latter. He made it desirable to uphold the faith and prohibited the formation of schisms therein.

5 I have therefore decided to write a detailed exposition of this matter in the present book, and in doing so I seek assistance from God, place my trust in Him, and depend on the support, direction, and guidance of His ward the Imam, adopting him as a beacon to guide my way and a stock of provisions against my time of need, and drawing and scooping up water from his overflowing sea. I begin by setting forth the causes of their disagreement, what led and compelled them to differ, and what paved their way to discord. I will follow this by presenting their doctrine in general and the principles they have adopted for themselves, demonstrating the invalidity of these principles as support for their views. I will pair all that with an exposition of the doctrine of the people of truth¹⁵ concerning that over which these others have differed, clarifying and explaining it, and adducing quotations and evidence in support of it. After that I will present the doctrine of each group, the arguments they have adduced in support of those doctrines, refutation of the positions they have taken in which they have strayed from the Truth, and the doctrine of the people of truth regarding these positions, according to what we have learned on the authority of our Imams, peace be upon them. I seek thereby nothing but the reward for serving this goal and for undertaking to provide the means to reach it. However, proof belongs to the wards of God, who alone are able to provide it and open the doors that lead thereto.

CHAPTER ONE

THE CAUSE OF DISAGREEMENT

6 In this book, I have chosen to follow the path of concision, omitting the chains of authority from oral reports as well as repetition, so that readers and examiners of this work might find it easy to follow, and citing only such oral reports as are well known, widely accepted, and transmitted reliably. To this category belong the following: the reliably transmitted report from ʿAlī, God’s blessings upon him, that he said, upon witnessing the people’s disagreement after the passing of the Messenger of God: “Were the mat for dispensing justice folded for me, and were I to sit before the people, I would judge among the people of the Qurʾan by the Qurʾan, among the people of the Torah by the Torah, and among the people of the Gospel by the Gospel. No two of you would disagree over a single ruling of the religion”;¹⁶ the reliably transmitted report from the Messenger of God: “The best judge among you is ʿAlī”;¹⁷ and the report that when the Prophet Muḥammad sent ʿAlī to Yemen, the latter remonstrated, “O Messenger of God, you have sent me to people who are experienced elders, yet I am young and have no knowledge of judgeship!” The Prophet struck ʿAlī’s chest with his hand, blessing him, “O God, make him learned in the religion and lead him to the manifest truth.” ʿAlī, God’s blessings upon him, remarked, “After that, no case between two parties was difficult for me to judge.”¹⁸

7 In the ability to judge is combined all knowledge that people require regarding God’s lawful and unlawful things, the obligations He has imposed, and His rulings. Concerning these things, the people must submit to the one whose knowledge was attested to and prayed for by the Messenger. During the entire extent of ʿAlī’s life after the passing of the Messenger of God, those who had followed the Messenger before him found themselves needing to consult him concerning the religious law, while ʿAlī had no need to consult or ask anyone at all about such matters. This is one of the things that engendered anger toward ʿAlī on the part of those who had been regularly consulted and to whom people referred concerning matters about which they disagreed. An example of this is the reliably transmitted report attributed to ʿAlī according to which he often used to command, “Ask me before you lose me.”¹⁹ He also stated, “My eyelids never shut, nor did sleep ever enter my head even one day during the days of my life with the Messenger of God until I had learned the permitted and forbidden things that Gabriel, peace be upon him, had brought down that day, whether a report from the Prophet or a citation from the Scripture. So ask me, for you will not find anyone more knowledgeable about what is between the Scripture’s two covers than I. There is no verse in the Qurʾan but that I learned when it was revealed and about what it was revealed.”²⁰ To present all the reports of this type would cause us to go beyond the scope of this book.

8 Abū ʿAbd Allāh Jaʿfar ibn Muḥammad,²¹ God’s blessings on him, was asked about the cause of disagreement among the Muslims after the Messenger of God and the circumstances that led to it. He asked the questioner, “Did they disagree during the life of the Messenger of God?” “How could they disagree,” the questioner replied, “when the Messenger of God was with them, explaining to them the matter over which they disagreed, so that they might adopt his ruling?” The Imam responded, “You have spoken the truth. In like fashion, if the one who assumed authority after the Messenger had been apprised of the matters regarding which he was consulted, he would have answered them whenever they posed questions regarding their disagreement. However, the one who assumed authority did not know the answers to all the questions that were referred to him, so he asked the people about many things that he did not know, and they gave him conflicting answers on those topics. Disagreement occurred as a consequence. If they had submitted to the true authority and accepted his word, then no two of them would have disagreed over the religion of God, just as they did not disagree during the life of the Messenger of God.”

9 This is just part of what has been related about early disagreements. Later, control over people’s affairs was assumed by the Umayyads and the Abbasids, who had no knowledge of God’s permitted and forbidden things and no ambition or desire to uphold the sacred law, but whose only desire and ambition, instead, was to seek the trappings of this world. When they obtained power, they became engrossed in the mundane and turned away from all else. They handed over control of the religion to commoners who claimed to be learned in the law. The rulers did this in order to appease the jurists and to attract thereby their support in attaining their own desires, despite their ignorance. The jurists took free rein and vied unhampered for leadership among themselves. They multiplied, and with increased numbers, their various inclinations caused them to split into factions, and their distinct views on legal questions led them to oppose one another. This occurred because the rulers had left them to their own devices, violating the fundamental principle of the Sacred Law and the obligations that God imposed on those who would uphold it, including the duty to maintain the religion, protect its sanctity, and combat those who go against it.

10 The first of the Umayyads who championed this approach and rose up to preach it, after the people had denounced ʿUthmān for his heretical innovations, was Muʿāwiyah ibn Abī Sufyān.²² He stood up to preach when he was first sworn in as Caliph. He thanked God and praised Him, extolled the Prophet and His family with the dignities that God had bestowed on them, and praised Abū Bakr, ʿUmar, and ʿUthmān. Then he said: “Hear me! I have assumed this position after them, following the dissension which you have seen. I have leaned toward the world and it has leaned toward me, putting me in possession of itself, and I have knelt upon it with my full weight like a camel stallion kneeling down. I am her son, and she is my mother. You will find me better than those who come after me, just as I am worse than those who have gone before me. I will show clemency for your ignorance, forgive you for your slips, and leave you to choose matters of your faith as you please. May God have mercy on the man for whom I alone am sufficient and who is sufficient for me. If he asks me for some matter directly and without subterfuge, then I will help him to get it and treat him justly.” Then he complained of a pain in his leg, and asked them for permission to sit, so they granted him permission. He sat and preached to them, and he was the first to innovate giving a sermon while sitting. As he testifed against himself, he was among the worst of people, and, as he also mentioned, those of the Umayyads who came after him were yet worse than he.

11 Then rule passed to the Abbasid caliphs, who all followed the path of the Umayyad dynasty before them, leaving the people to dispute over matters of the religion during their era and focusing their attention on mundane matters. The first and best among them²³ was addressed concerning this, and he replied as his advisors suggested: “Let the people alone to adopt whatever they will concerning their religion, and they will let you alone to pursue worldly wealth and power.” These usurpers, though God had imposed on all those who occupied their position the duty to uphold the religion, became engrossed with the pursuit of wealth and power and left matters of religion to those who pledged allegiance to them, accepted their rule, became their devoted supporters, and called themselves their scholars and jurists. These scholars and jurists vied with one another over rank, increased in number, and claimed authority over the common people. Since they were incapable of proper knowledge of the Book and the Practice, they disagreed and derived legal rulings for the Muslim nation on their own. For they were loath to refer the questions over which they disagreed to those whom God had ordered them to consult, out of a desire to maintain their superior position and so that those over whom they claimed authority would not view them as incompetent and consequently turn away from them.

12 This is a summary statement of the cause of their disagreement up until the advent of al-Mahdī, the Divinely Guided One²⁴ of the nation, a member of the Family of the Prophet, the stock of the House of Mercy. Reports from the Messenger of God that convey the glad tidings of his uprising and relate what would occur—the establishment of the faith of God at his hands and during his days—are so numerous that to present them would take too long and exceed the scope of this book. Among them is the Prophet’s statement: “The Divinely Guided One will be from among my descendants. He will revive my practice, fulfill my command, and demand revenge for the people of my House. He will fill the earth with justice and equity, just as it is now filled with tyranny and injustice.”²⁵ The Divinely Guided One, the Mahdī, arose, and he revived the practices of old, put an end to innovations, and silenced the concoctors of lies who were in disagreement over the religion. He erected the light tower of the faith and raised its standard. He instituted its laws and made its rulings straight, compelling the nation to its path and eradicating innovations and heresies from it as well as disagreement and dispute concerning it.²⁶

13 A certain miscreant surreptitiously slipped al-Mahdī a petition, as if to advise him without revealing himself, on which was written, “If the Commander of the Faithful had only treated the common people according to the doctrine of Zayd,²⁷ which most of them adopt concerning inheritance, then from this he could pay into the treasury a tremendous sum.” When al-Mahdī read his statement, he became quite furious and ordered that the man be sought out and tracked down, so that he might make an example of his punishment. The man could not be found, and his identity remained a mystery, for he had not shown himself but had delivered his petition by stealth. Al-Mahdī, God’s blessings be upon him, observed: “This sinner wanted the people to witness us violating God’s ruling on account of worldly greed. We, however, obey God by upholding His faith and by ruling according to what is right among his worshipers. God did not cause us to rise up ...