The Epistle on Legal Theory

A Translation of Al-Shafi'i's Risalah

Muhammad ibn Idris al-Shafi'i, Joseph E. Lowry

• Éditeur: NYU Press
• Année: 2015
• ISBN:
  9781479809028
• Sujet: Literature
• Sous-sujet: Middle Eastern Literary Collections

The Epistle on Legal Theory is 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. This new translation by a leading scholar of Shafi'i and his thought makes available in lucid, modern English 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.

THE EPISTLE ON
LEGAL THEORY

CHAPTER ON THE MODALITIES OF LEGISLATIVE STATEMENTS

17

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.

18

Al-Shāfiʿī said: The sum total of legislative statements that God has provided for His creation in His Book—concerning those obligations to which He has subjected them, according to what He has foreordained—are several:

19

One type includes what God has stated in the form of an explicit text, like His general obligations, to wit: that they must perform prayers, give alms, perform the Pilgrimage, and fast; and that He has forbidden sexual indecencies, whether committed openly or in secret.³⁰ He has also provided explicit texts concerning unlawful sexual intercourse, wine-drinking, and the eating of carrion, blood, and swine flesh. And He has clarified for them how to perform the obligation of ablutions, along with other matters that He has explained in the form of explicit texts.³¹

20

Another type of legislative statement includes those matters the obligation of which He has affirmed in His Book and then explained how they are to be performed through the words of His Prophet, like the number of prayers, alms and the times when they fall due, and other obligations that He has revealed in His Book.

21

Another type of statement includes those things for which God’s Emissary has established a practice and in respect of which God has provided no explicit text of a rule. In His Book, God has imposed the obligation to obey His Emissary and to abide by his rulings. Thus, whoever accepts something from God’s Emissary accepts it by reason of God’s obliging him to do so.

22

Yet another type of legislative statement includes those things in respect of which God has imposed on His creatures the obligation to engage in legal interpretation in order to arrive at an answer. He tests their obedience in regard to legal interpretation just as He tests their obedience in regard to the other things that He has imposed on them. For God (blessed and exalted) says: «We shall try you until We know those of you who strive hard and are steadfast, and until We test your tidings.»³² He also says «So that God might test what is in your breasts and prove what is in your hearts»³³ and «Perhaps your Lord will destroy your enemy and make you successors in the land and see how you act.»³⁴

23

Al-Shāfiʿī said: He made them face the prayer-direction, toward the Sacred Mosque, and said to His Prophet: «We see you turning your face about in the sky, and so We make you turn to a prayer-direction that will please you. Turn your face toward the Sacred Mosque. Wherever you may be, turn your faces toward it»³⁵ and «From wherever you approach, turn your face toward the Sacred Mosque; and wherever you may be turn your faces toward it, so that the people may not have any argument against you.»³⁶

24

Thus, He indicated to them (sublime His praise) that if they were distant from the Sacred Mosque itself, a correct result would be arrived at through interpretation, an obligation which He imposed on them in conjunction with the intellects that He placed in them, which can distinguish between things and their opposites, and those signs that He set up for them apart from the Sacred Mosque itself, toward which He had commanded them to face. So He said: «He placed the stars for you, for you to be guided by them in the darknesses of land and sea»³⁷ and «And signs. And men can guide themselves by the stars.»³⁸

25

These signs consisted of mountains, night, and day; winds of well-known names even though their directions might differ; and the risings of the sun, moon, and stars, risings whose locations within the heavens were well known. God obligated them to use interpretation in order to face toward the Sacred Mosque, indicating its direction for them as I have just described. And so as long as they engaged in such interpretation, they did not abandon God’s command (sublime His praise). He did not allow them to pray in whatever direction they wished when the Sacred Mosque itself lay distant from them.

26

Thus did He inform them of His decree: «Does Man think he will be left without guidance?»³⁹ “Without guidance” means to be neither commanded to do something nor prohibited from doing something.

27

This all indicates that no one other than God’s Emissary may pronounce on the law except by means of inference, as I have just described, or on what makes someone just such that they may be appointed a witness, or on the legal equivalent of game wrongly killed. Neither may anyone express opinions based on subjective interpretation, since to do so is to pronounce according to mere preference, something that is simply invented and not based on a prior example.

28

Included in the foregoing category are rulings in regard to which God (blessed and exalted) indicated for His creatures the way to determine a correct result based on appearances only. Thus, He made them face in the direction of the Sacred Mosque for prayer, and set out signs that they could use to guide themselves in facing toward it. He also commanded them to appoint two just persons as witnesses. A just person is one who practices obedience to God. They had ways to know when a person was just and when not.⁴⁰ This has all been discussed in its proper place, and I have only mentioned it here in a general way, hopeful that it will indicate the underlying point for this and similar issues.

CHAPTER ON THE FIRST KIND OF LEGISLATIVE STATEMENT

29

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. God said: “That is ten complete days in all.” This phrase could be an additional clarification, or it could be that He informed them that three, when added to seven, makes ten complete days in all.

30

God also said: «And when We made an appointment of thirty nights for Moses and rounded them off with ten more; and the full period of his Lord was forty nights.»⁴² It is quite clear to those addressed by this verse that thirty and ten makes forty nights. His saying “forty nights” could have either of the meanings that the preceding verse had: that if thirty are added to ten they make forty, or that the additional information could be for clarification.

31

In addition, God 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»⁴³ and «The month of Ramadan, in which the Recitation was sent down as a guidance to the people and as clear proofs of the guidance and of the salvation. Let those of you who witness the month fast during it. Those of you who are sick or on a journey, a number of other days.»⁴⁴ He obligated them to fast, then clarified that it was for a month—a month for them was the period of time between two crescent moons, which might be thirty or twenty-nine days. So the indication in this verse is like the indication in the other two verses, but in the two previous verses there was an additional clarification of the sum of the numbers.

32

Most likely, the point of the additional clarification is to indicate the sum of the numbers, seven and three and thirty and ten, respectively. It is considered an additional clarification because they already know what those two numbers and their sum are, just as they already know what the month of Ramadan is.

CHAPTER ON THE SECOND KIND OF LEGISLATIVE STATEMENT

33

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

34

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, though it would also be possible to do it more. Then, God’s Emissary explained that ablutions are to be performed once, though he himself performed them three times, thus indicating that the least that one could wash the limbs sufficed, and that the least permissible number of such washings was once. Accordingly, if once suffices, then thrice is optional.

35

Prophetic Practice indicates that three stones suffice for cleansing, and the Prophet also indicated of what ablutions and the major washing consist. He indicated that the ankles and elbows are to be washed, since the verse could mean either that they are the two limits up to which one should wash or that they should be included in the washing. When God’s Emissary said, “Woe to the heels lest they suffer Hellfire!” he indicated that they were to be washed, not merely wiped.

36

God 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.»⁴⁸ 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 have no child; but if you do have a child they receive one-eighth of what you leave after any bequest you may have made or any debt. If a man, or a woman, has no direct heir, but has a brother or sister, each of the two gets a sixth. If there are more than that, they share in a third after any bequest he may have made or any debt that is not prejudicial. This is a charge from God. God is Knowing and Prudent.»⁴⁹

37

God made do solely with Revelation in regard to this issue, and dispensed with other reports. Additionally, however, God has imposed a condition in regard to this, namely that distribution of the estate be subject to bequests and debts, and then another report indicated that bequests were not to exceed one-third of the estate.⁵⁰

CHAPTER ON THE THIRD KIND OF LEGISLATIVE STATEMENT

38

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 Hi...