Al-Risala

393 Pages·10.313 MB·English

by  ash-Shafi’i

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