The Epistle on Legal Theory: A Translation of Al-Shāfiʿī’s Risālah

385 Pages·2015·2.23 MB·English

by  Muhammad ibn Idrīs al-Shāfiʿī

The Epistle on
Legal Theory
Library of Arabic Literature
Editorial Board
General Editor
Philip F. Kennedy, New York University
Executive Editors
James E. Montgomery, University of Cambridge
Shawkat M. Toorawa, Cornell University
Editors
Julia Bray, University of Oxford
Michael Cooperson, University of California, Los Angeles
Joseph E. Lowry, University of Pennsylvania
Tahera Qutbuddin, University of Chicago
Devin J. Stewart, Emory University
Managing Editor
Chip Rossetti
Digital Production Manager
Stuart Brown
Assistant Editor
Gemma Juan-Simó
Letter from the General Editor
The Library of Arabic Literature series offers
Arabic editions and English translations of
significant works of Arabic literature, with an
emphasis on the seventh to nineteenth cen-
turies. The Library of Arabic Literature thus
includes texts from the pre-Islamic era to the
cusp of the modern period, and encompasses a wide range of genres,
including poetry, poetics, fiction, religion, philosophy, law, science, history,
and historiography.
Books in the series are edited and translated by internationally rec-
ognized scholars and are published in parallel-text format with Arabic
and English on facing pages, and are also made available as English-only
paperbacks.
The Library encourages scholars to produce authoritative, though not
necessarily critical, Arabic editions, accompanied by modern, lucid English
translations. Its ultimate goal is to introduce the rich, largely untapped
Arabic literary heritage to both a general audience of readers as well as to
scholars and students.
The Library of Arabic Literature is supported by a grant from the New
York University Abu Dhabi Institute and is published by NYU Press.
Philip F. Kennedy
General Editor, Library of Arabic Literature
About this Paperback
This paperback edition differs in a few respects from its dual-language hard-
cover predecessor. Because of the compact trim size the pagination has
changed, but paragraph numbering has been retained to facilitate cross-
referencing with the hardcover. Material that referred to the Arabic edition
has been updated to reflect the English-only format, and other material has
been corrected and updated where appropriate. For information about the
Arabic edition on which this English translation is based and about how
the LAL Arabic text was established, readers are referred to the hardcover.
The Epistle on
Legal Theory
A Translation of al-Shāfiʿī’s Risālah
by
Muḥammad ibn Idrīs al-Shāfiʿī

translated by
Joseph E. Lowry
foreword by
Kecia Ali
volume editor
Devin J. Stewart
a
NEW YORK UNIVERSITY PRESS
New York and London
NEW YORK UNIVERSITY PRESS
New York and London
Copyright © 2015 by New York University
All rights reserved
Library of Congress Cataloging-in-Publication Data
Shafi’i, Muhammad ibn Idris, 767 or 768-820, author.
[Risalah fi usul al-fiqh. English]
The epistle on legal theory / by Muhammad ibn Idris al-Shafi’i ; translated by Joseph E.
Lowry, foreword by Kecia Ali.
p cm
Includes bibliographical references and index.
isbn 978-1-4798-5544-5 (pb : alk. paper) — isbn 978-1-4798-3536-2 (ebook) —
isbn 978-1-4798-0902-8 (ebook)
1. Islamic law—Interpretation and construction—Early works to 1800. 2. Shafiites—
Early works to 1800. I. Lowry, Joseph E. (Joseph Edmund), translator. II. Title.
kbp440.62.s53a3713 2015
340.5’601—dc23 2015023279
New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.
Series design and composition by Nicole Hayward
Typeset in Adobe Text
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2 1
Contents
Letter from the General Editor / iii
About this Paperback / iv
Foreword / xi
Acknowledgments / xv
Introduction / xvii
A Note on the Text / xxv
Notes to the Introduction / xliii
The Epistle on Legal Theory / 1
Chapter on the Modalities of Legislative Statements / 11
Chapter on the First Kind of Legislative Statement / 14
Chapter on the Second Kind of Legislative Statement / 15
Chapter on the Third Kind of Legislative Statement / 17
Chapter on the Fourth Kind of Legislative Statement / 17
Chapter on the Fifth Kind of Legislative Statement / 19
Chapter Explaining What Is Revealed in the Book as Unrestricted, and
Intended as Unrestricted, but Also Partly Restricted / 29
Chapter Explaining What Is Revealed in the Book, the Apparent Meaning
of Which Is Unrestricted but Which Combines the Unrestricted and
the Restricted / 30
Chapter Explaining What Is Revealed in the Book, the Apparent Meaning
of Which Is Unrestricted but Which Is Intended in Its Entirety as
Restricted / 31
Chapter on the Category of Statements in Which Context Indicates the
Meaning / 33
| vii
The Category in Which the Wording Indicates the True Meaning Rather
Than the Apparent Meaning / 34
Chapter on What Is Revealed as Unrestricted and Which Prophetic
Practice in Particular Indicated Is Intended as Restricted / 35
Explanation of God’s Imposition in His Book of the Obligation to Follow
the Practice of His Prophet / 39
The Obligation from God to Obey the Prophet, Paired with Obedience to
God and Mentioned Separately / 41
Chapter on God’s Command to Obey God’s Emissary / 43
Chapter on God’s Statement to His Creation Concerning Having Obliged
His Emissary to Follow What Was Revealed to Him; The Evidence He
Gave Concerning His Emissary’s Following What He Was Commanded
to Do, His Emissary’s Being Guided, and His Emissary’s Guidance of
Those Who Follow Him / 45
The Beginning of Abrogation / 50
Abrogation Indicated Partly by the Book and Partly by Prophetic
Practice / 54
Chapter on the Obligation to Pray That the Book and Then Prophetic
Practice Indicate to Be Obviated by Reason of an Excuse; and
Concerning Him Whose Prayer Is Not Counted as Disobedience / 56
Abrogation Indicated by Prophetic Practice and Consensus / 64
Chapter on Obligations That God Revealed in the Form of Explicit
Texts / 68
Obligations Established by Explicit Texts and in Regard to Which God’s
Emissary Provided a Parallel Practice / 72
Obligations Established by Explicit Texts in Regard to Which Prophetic
Practice Indicates That He Intended Something Restrictive / 74
Obligations Expressed in General Terms / 78
Concerning Alms / 82
Concerning the Pilgrimage / 85
Concerning Waiting Periods / 86
Concerning Women Unlawful to Marry / 87
Concerning Unlawful Kinds of Food / 89
Concerning That from Which Widows Must Abstain during the Waiting
Period / 90
viii |
Chapter on Problems Affecting Hadith-Reports / 91
Another Instance of Abrogation / 106
Another Instance / 108
Another Instance / 111
Another Instance of Legal Disagreement / 117
Inconsistency in Narration in a Way That Differs from What
Preceded / 120
Another Instance Considered Contradictory, but Not by Us / 122
Another Instance Considered a Case of Legal Disagreement / 126
Another Instance of Legal Disagreement / 128
Concerning the Major Washing for Friday Prayer / 131
Prohibition for a Reason Indicated by a Reason Given in Another
Hadith-Report / 133
Prohibition for a Reason That Is Clearer Than That in the Preceding
Discussion / 136
Prohibition for a Reason Resembling the Preceding Discussion in One
Way, and Differing from It in Another / 137
Another Chapter / 142
An Instance That Resembles the Preceding Point / 144
Description of God’s and His Emissary’s Prohibitions / 146
Chapter on Knowledge / 151
Chapter on the Uncorroborated Report / 156
Authority Confirming the Uncorroborated Report / 168
Chapter on Consensus / 197
Chapter on the Confirmation of Analogical Reasoning and Legal
Interpretation; When Analogizing Is Necessary and When Not; Who
May Perform Analogies / 199
Chapter on Legal Interpretation / 205
Chapter on Subjective Reasoning / 212
Chapter on Legal Disagreement / 239
Chapter on Inheritance Shares / 249
Chapter on the Disagreement over the Grandfather / 251
Opinions of the Companions / 254
The Status of Consensus and Analogy / 255
| ix