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Author(s): KEMĀL A. FARŪKI
Source: Islamic Studies, Vol. 10, No. 2 (JUNE 1971), pp. 129-136
Published by: Islamic Research Institute, International Islamic University, Islamabad
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Accessed: 24-08-2018 13:18 UTC

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Ab? 'abd Allah Muhammad b. Idr?s Al-Shafi'i was born in the

year 150/767 in southern Palestine, one hundred and ten years after the
end of the orthodox caliphate or eighteen years after the end of the
Umayyad dynasty in the time of the 'Abbasid caliph Mans r.

At the time of his birth Islamic law was at the beginning of the
fourth phase in its formative period. The first phase was the time of the
Prophet himself. The second was that of the orthodox Caliphate based
on Medina where the environment was such that theory and practice, legis
lation and administration, government and governed, were all working in
close harmony. The practice of the Prophet was well-known and his
influence was close and direct and circumstances had not changed to any
appreciable degree from what they had been in his time; the two divergen
cies that were to manifest themselves later had not appeared, namely the
divergency which takes place, even when circumstances remain virtually
unchanged, when a custom or practice is handed down from person to
person and generation to generation and the other divergency which takes
place when circumstances change and the existing practice is found to be
inapplicable or inappropriate to the changed circumstances.

The third phase in the formative period starts with the violent
change of the Umayyads shifting the capital to Damascus and the absorp
tion of large areas into the expanding Muslim state and the growth of new
centres of activity outside the Hij?z, notable in 'Iraq and to a much lesser
extent in Syria and later in Egypt. This third phase lasts for about three
quarters of a century or to the beginning of the second century. On the
basis of the available records it appears that in Hij?z the main centre was
Medina with Mekka being secondary, while in 'Iraq it was centred around
Kufa with Basra being secondary. Groups of jurists, in the rudimentary
sense of term, arose both in Hij?z and 'Iraq who answered questions
concerning Islam put to them and dealt with practical disputes on ques
tions of law. Although our knowledge of Medina and Kufa in this
activity is more detailed than that of Mekka an d Basra, even so the earliest

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of the Medinese and Kufan jurists are vague shadowy figures known only
by references to them in later times rather than directly. In Kufa the tra
dition of deciding actual questions of law was established at an early
date when the second Caliph 'Umar b. al-KhattSb appointed a companion
'Abd Allah b. Mas'?d (d. 32) as a teacher and a judge there and one of his
successors Ibrahim al-Nakh'? (d. circa 95) was considered a great jurist
in his day. But it is of his immediate disciple Hamm?d b. AM Sulaym?n
(d. 120) that clear historical knowledge is available in the field of law for the
first time.

In Medina on the other hand, there are the 'seven lawyers of Medina'
who all died between the years 90 and 106 A.H. but it is with Zuhr? (d. 124)
that a definite historically known figure emerges.

What seems clear is that in both regions these early figures were
concerned with asserting the Islamic norm as against the secular adminis
trative practices which were dominating the capital Damascus. It also
seems true that both centres, Medina and 'Iraq, were concerned with assert
ing the sunna, which at this stage meant the practice of the Community
in which the practice of the Prophet and the Companions were impercep
tibly merged and at the same time both centres used m'y or their considered
'opinion' when this seemed appropriate or necessary. But circumstances
tended to make one centre emphasize the sunna more and the other centre
emphasize r?'y. The milieu of Medina was the direct heir to that of the
Prophet and his Companions and the early Caliphate and the established
sunna continued with relatively minor disturbances or new factors from
generation to generation. In 'Iraq, on the other hand, large elements from
the conquered Sassanid and Byzantine regions had entered the garrison
city of Kufa bringing with them from their pre-Islamic cultures developed
legal systems and customs which had now to be absorbed within the frame
work of Islamic norms. For this the sunna of Medina would have
proved insufficient. The new situations called for a far wider exercise of
r?'y rather than the assertion of a sunna from a distant and differing place.

The tendencies were there, therefore, for the legal approaches of

Medina and 'Iraq to diverge with the passage of time and this became more
marked when the first systematizers for each region appeared, who were
later regarded as the founders of the two schools which go by their names,
i.e. Al-Nu'mSn b. Tidbit b. Zuta Ab? ^anifa (81-150) in 'Iraq or more
particularly in Kufa and Ab? 'Abd Allah Malik b. Anas (92-179) in Medina.
The period of literary activity had begun and while no direct legal work

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of Ab? Han?fa has survived except to the extent that they are reproduced
in the writings of his disciples Ab? Y?suf and ShaybSn?, there has come
down to us from MSlik his Muwatt?\

This was the position at the time of Al-Sh?fi'?s birth in the year
Ab? Han?fa died. After spending some time at an early age with bedouins
from where he acquired his command of Arabic poetry and indeed of
the Arabic language he moved to Mekka and came to Medina at about the
age of 20 where he studied under MSlik until the latter's death in 179.
Soon thereafter he was in Yemen in government service from where he
was recalled to 'Iraq by the Caliph H?r?n al-Rash?d. a victim of local
jealousies and interests.

Up to this point al-Sh?fi'I considered himself one of the ahi al-Hij?z

school and a follower of Malik in controversy with the jurists of the
ahi al-'Iraq school whose main authority by then was one of Ab? Han?fa's
two disciples, Muhammad al-Hasan al-Shayb?n?, who more than the other
disciple, Ab? Y?suf, systematized the legal doctrines of Ab? Han?fa.
It appears that al-Sh?fi'? also studied under Shayb?n? during this period and
in any event the influence of this contact with 'Iraqian legal thought on his
own thinking was profound, short though the period was. He left 'Iraq
via Harran and Syria for Mekka and lectured there where one of his stu
dents and disciples was Ahmad b. Hanbal. It was apparent that his views
were no longer strictly M?lik?. Six years later, in 194, he returned to
Baghdad where as a teacher he had by now developed an independent line
of thought, still perhaps basically M?lik? but modified by Hanaf? thought
and method. After two years he went to Egypt at the invitation of the son
of the new governor 'AbbSs b. M?sa and after a brief return to Mekka
came back to Egypt where he spent the last four years of his life, casting
in final form his ideas and doctrines before his death in 204.

It must be remembered that throughout the period of al-Shafi'I's

life the views of both the Medinese and the 'Iraqians were in a state of
growth as indeed were the views of al-Shlfi'? himself. Words which were
later to acquire a clear and precise legal technical meaning were used
in far looser a fashion and vaguer in significance, and while systematiza
tion had proceeded to a considerable extent it was by no means in final
form. Indeed it was only after al-ShSfi'i and his activity that final preci
sion and systematization were achieved in the classical system. The
effect of his activity and the points of final agreement and disagreements
are perhaps best understood by examining the principles of fiqh seriatim
and also the other terms and arrested principles of fiqh.

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A. The Qur'?n
A great deal of al-ShSfi'?'s writings on the Qur'Sn put in systematic
form what was already generally felt if not expressed or systematized and
no question of agreement or disagreement with the Medinese or 'Iraqians
was involved. This included his treatment of Qur'Snic rules as being
classifiable into those of 'general' and those of 'particular' application
and those of 'explicit' and those of 'implicit' significance.

On the question of abrogation, however, he was in disagreement

with the Hanaf?s regarding the relationship of the Qur'an and sunna.
In line with his view of the overriding authority of a formal tradition from
the Prophet himself he held that a sunna cannot be abrogated by the Qur'?n
and could only explain the Qur'Sn; the Qur'?n had to be understood in
the light of sunna. But at the same time he was in disagreement with the
MSlik?s in making a clear distinction between the sunna of the Prophet
and the sunna of the Companions and the sunna of Medina.

While he held that a Qur'Snic rule can be abrogated by another

Qur'Snic rule and one sunna from the Prophet by another, he maintained
that in the event of an apparent conflict between the ahk?m of the Qur'Sn
and those of the sunna the two must be harmonized and that in the last
analysis a sunna formally and clearly ascertained must be held to have
properly understood the Qur'Snic hukm or shar?'a value. In contrast
the Traqians in such a situation tended to reject traditions where they
were in apparent conflict with the Qur'?n; while the Medinese in such a
situation tended to choose amongst traditions and included for this pur
pose traditions from the Companions and indeed gave these latter im
portance consistently.

B. Sunna

Whereas the Medinese held that the sunna of the Prophet was best
understood by the sunna of the Companions and that this in turn was best
understood by the sunna of Medina, the Kufans would not accept a sunna
(of whatever kind) which made their doctrine inconsistent and where
'everyone has abandoned it' treating such a case as one of repeal. Like
the Medinese, the 'Iraqians used sunna in an omnibus sense including much
besides formal traditions from the Prophet but in their case the 'living
tradition' was that of their school in 'Iraq.

Al-Shlfi'?, in contrast to both the Medinese and the 'Iraqians suc

cessfully maintained that sunna could only be understood by form?l tradi

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tions going back directly to the Prophet (and not by practice or consensus)
and that when once this was ascertained he further attempted to maintain
that this possessed decisive authority only capable of repeal by another
such tradition.

C. Ijtih?d, Qiy?s and R?'y.

To a large extent these terms were synonymous in the early period

with m'y being used possibly the most. The 'Iraqians used the term r?'y
even when employing analogical deduction (qiylsi while al-Shafii dis
tinguished between r?'y as a virtually arbitrary opinion and the systematic
use of qiy?s, rejecting the first and accepting the second. The effect of
his assault on r?'y as arbitrary opinion forced the Kufans to systematize
their methodology even more either through a form of r?'y? that was
in effect qiy?s or through what would now be called ijtih?d in invoking
the authority of traditions from the Prophet or defending their use of
a sunna from the orthodox caliphs or the Companions or by more con
sistent reasoning.

Al-Sh?fi'? also accused the Medinese of using arbitrary r?'y but

it appears that he often meant by this their use of the opinions of the
Companions or the consensus of Medina. Certain instances of the use
of a form of analogical deduction are to be found amongst the Medinese
but in general it is outweighed by the preference for sunna in its wider
sense and for the consensus of Medina.

D. lstifrs?n, Istisl?h and Istish?b

In al-Sh?fi'?'s time it appears that the setting aside of the rule reached
in favour of one based on general equitable considerations was normally
described as istihs?n although in later times this was considered to be
specifically IJanafi as distinguished from the MSlik? istisl?h (also called
al-mas?lih aUmursald). The meaning of istihs?n is the preferring as better
a ruling on general equitable considerations as compared to the normal
conclusion which results from strict ijtih?d; ijtih?d being used here in
its finished classical sense. This equitable preference is essentially arbi
trary, even extra-ghari'a and is a result of what appeals to the jurist as more
desirable or just. Istisl?lt is a similar setting aside of a conclusion reached
by strict ijtih?d but this time in favour of one which appears to the jurist
as more conducive to the public welfare. Thus istisl?h is slightly more
restrictive than istihs?n but both were opposed by al-Shafi'? as being arbi
trary forms of r?'y.

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Against them, al-Shafi'i elaborated ijtih?d as a disciplined exertion

according to systematic rules to understand the shari'a hukm or rule
(in the absence of a bay?n or clear declaration in the Qur'Sn or the ascer
tained sunna of the Prophet). Thus ijtih?d to al-Shafi'i meant the same
as strict analogy and indeed he held that the two terms? ijtih?d and r?'y
were synonymous.

But in forcing the abandonment of istihs?n and istisl?h, al-Shafi'i

was obliged to widen the meaning of qiy?s by widening the a or effective
cause which linked two analogous situations through the principle of
istish?b which is the presumption that a state of affairs known to exist
in the past continues to exist until the contrary is established. This
however is not an equitable principle like the other two but more a rule of
strict law.

E. Ijm?*
The Medinese restricted ijm?' ('consensus') to that of Medina and
to the scholars of Medina in more precise terms. This of course was a
logical sequel to the importance they attached to the continuous general
sunna from the time of the Prophet through the companions and Succes
sors down to the living sunna of Medina. In cosmopolitan Kufa on the
other hand the 'Iraqian school extended consensus in theory to all countries
but also restricted it to the scholars. They used it to justify their use of
r?y' and the rejection of weak or isolated tradition, thereby fore-shadowing
the later importance of ijm?* in the final classical theory.

On consensus al-Sh5fi'i's views underwent continuous development.

He began with the consensus of scholars though not restricted to that
of Medina used by the M?lik?s nc?r that of one of each generation as
held by the Kufans and then developed his view to embrace a consensus
of all Muslims. But he seems to have done this more to show its imprac
ticability for all except the most general matters and thereby place ijm?*
on a lower value against the Qur'Sn and sunna.

- The concept of consensus however developed into a form substan

tially different from both the Medinese and 'Iraqian formulations and
also from al-Shftfi'?'s final view. Although as late as al-Ghazzlfi it was
held that ijm?* was of scholars on details and of the Community on broad
principles, the ultimate view became more the ijm?* of the scholars as ac
cepted by the Community. Thus while consensus was formulated on any
matter by the scholars or the 'competent' it was not complete until this
had been accepted by the Community and conversely a rejection by the

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Community of a consensus decision of the scholars (as in the case of coffee

drinking) invalidated the consensus of the scholars.

F. Summary
In summary, the effect of al-Shafi'? on the ancient schools of the
ahi al-Hij?z and ahi aVIraq was to reduce to precise terms of art the
words used in very general fashion, often overlapping and sometimes even
used in contradictory senses and to make them acutely aware of the need
for systematizing their doctrines into consistent pattern.

As against the Medinese he asserted the priority of the ascertained

sunna of the Prophet in formal traditions over the living unarticulated
sunna which had descended imperceptibly in time from the sunna
of the Prophet and his Medina through the Companions and Suc
cessors to the living generation in Medina in an uninterrupted and undi
fierentiated whole. Then as against the 'Iraqians he asserted the supremacy
of this ascertained sunna not merely against r?9y but even against sys
tematic reasoning or analogy (which he considered synonymous) and he
struck a new balance between the Qur'In and sunna whereby neither could
abrogate the other in a particular matter and whereby the sunna was
held necessarily to explain the Qur'Sn in the case of an apparent conflict.
A Qur'Inic hukm could only be abrogated by another Qur'anic hukm
and a sunna rule could only be abrogated by another sunna. He opposed
both istihs?n and istisl?h and the only concession he allowed was in is*
tishab which was generally accepted though to a lesser degree in the other
schools to the Sh?f'? use of it.

However, the final classical theory besides further developing the

doctrines of consensus also gave it far greater importance than that con
ceded by al-Sh?fi'?. Thus while to al-Sh?fi4?, ijm?' operated only in the
absence of clear stipulations in the Qur'an and sunna, in the finished classical
theory it was ijm?* which determined these clear stipulations as such be
sides validating the authenticity of formal traditions from the Prophet
and indeed validating the apparent departures from itadith and even from
the Qur'Sn which it had been a principal aim of al-ShSfi'i to eliminate.
On the other hand, the difference between the schools and the development
of legal theory and practice were, after his great work, able to take place
within a framework of unity in diversity and mutual orthodoxy. This
was largely due to his systematizing both his own doctrines and forcing
a corresponding systematization on those of his opponents and by his

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balancing and disciplining the currents of legal thought and practice as he

found them at a crucial and decisive phase in their period of growth.


1. al-Shsfi'?, Muhammad b. Idrls, al-Ris?lah fi 'Hm al-us?l.

2. al-Sh?fVi, Muhammad b. Idr?s, Kit?b al~Umm.
3. al-Shsfi% Muhammad b. Idr?s, Ikhtil?f al-hadith.
4. al-Jazir?, 'Abd al-Rahm?n, Kit?b al-Fiqh 'ala* l-madh?hib al-arba'a.
5. 'Abdur Rahlm, Muhammadan Jurisprudence.
6. Aghnides, N.P., Mohammaedan Theories of Finance.
7. Schacht, J. The Origins of Muhammadan Jurisprudence.
%. Various Articles in Encyclopaedia of Islam.

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