The Epistle on Legal Theory

Notes to the Introduction

xxxviii Notes to the Introduction 1 Ibn ʿAqīl, Wāḍiḥ, 1:103. When two dates are given separated by a backslash, the first date is according to the Muslim calendar. 2 Al-Rāzi, Irshād, 142. 3 Coulson referred to al-Shāfiʿī that way in the title to chapter 4 of his History of Islamic Law (“Master Architect: Muḥammad Ibn-Idrīs ash-Shāfiʿī”). A critical reassessment is offered by Hallaq, “Was al-Shafiʿi the Master Architect...?,” and doubts have also been expressed by Zysow, “Economy of Certainty,” 3; Reinhart, Before Revelation, 14; and El Shamsy, “From Tradition to Law,” 5–8. 4 See, e.g., Kamali, Principles, 19–20 (about 640 verses); Nyazee, Islamic Jurisprudence, 161 (600 verses); Coulson, History of Islamic Law, 12 (600 verses, of which 80 are strictly legal). 5 Ibn Hishām, Sīrah, 1:501–4; trans. Guillaume, Life, 231–33. From its placement in Ibn Hishām’s Sīrah, it likely dates to ca. 1/622 or shortly thereafter and in any event to before the Battle of Badr in 2/624. It has been proposed, however, that the so-called constitution consists of several documents with different dates. For a recent assessment, see Lecker, “Constitution of Medina”. 6 On early Meccan jurisprudence, see generally Motzki, Origins of Islamic Jurisprudence. 7 Hallaq, in his Origins and Evolution, emphasizes the importance of the judiciary for early Islamic law. 8 Hadith-reports, often referred to as “traditions” in Western scholarship, generally consist of a chain of transmitters reaching back to Muḥammad or one of his contemporaries, followed by a short narrative that involves Muḥammad somehow. A good example that appears early can be found at para. 69. 9 On al-Shāfiʿī’s life, see the recent authoritative biography by Kecia Ali, Imam Shafiʿi. 10 On this jurist and his family, see Brockopp, Early Mālikī Law. 11 On these two trends, respectively, see Melchert, Formation of the Sunni Schools, chapter 1; Melchert, Ahmad ibn Hanbal; and El Shamsy, “From Tradition to Law,” chapter 1. xxxix Notes to the Introduction 12 For the significance of this characterization, see Hallaq, History of Islamic Legal Theories, 31, and Melchert, Formation of the Sunni Schools, 70–71. 13 On these institutions, see generally Melchert, Formation of the Sunni Schools, and on the early Shāfiʿī school, see El Shamsy, “From Tradition to Law.” 14 Al-Zarkashī, Al-Baḥr al-muḥīṭ, 1:7. 15 On these two authors’ criticisms of al-Shāfiʿī, respectively, see Lowry, “Some Preliminary Observations,” 514–19, and Jackson, “Setting the Record Straight.” 16 I use “Prophetic Practice” (“Practice” in upper case) for the idea of Prophetic Practice as a whole, but “Prophetic practice” (“practice” in lower case) for individual such practices . 17 As opposed to primary rules of obligation. See generally Hart, Concept of Law. 18 Hallaq is a strong proponent of this view, Sharīʿa, 72–78. 19 For a sampling of the various possible approaches to Islamic legal theory, see, in addition to the works by Hallaq: Makdisi, Rise of Colleges; Reinhart, Before Revelation; and Zysow, “Economy of Certainty,” all of which emphasize, though in different ways, the importance of theological debate in shaping the genre. 20 For a brief summary of some of these differences, see Lowry, Early Islamic Legal Theory, 359–68. 21 The summary offered in the following paragraphs is also designed as an introduction to the main concepts and technical terms used in the Epistle and how they are usually rendered into English. 22 Especially Schacht in his Origins of Muhammadan Jurisprudence. 23 El Shamsy, “From Tradition to Law,” 10. 24 The term “mission-topos” was first coined by Cook. See Early Muslim Dogma, 7. 25 The first discussion of the legislative statement (paras. 17–28) uses this four-part division , but the more detailed discussion (paras. 20–49) uses a five-part division achieved by dividing the second kind of legislative statement—that produced jointly from the Qurʾan and accounts of Prophetic Practice—into two subtypes, one in which Prophetic Practice merely echoes Qurʾanic pronouncements and one in which it clarifies such pronouncements . 26 See Lowry, Early Islamic Legal Theory, 319–57. 27 The term “subjective reasoning” captures the pejorative sense that the Arabic word istiḥsān has for al-Shāfiʿī, but it does not really do justice to the positive connotations that the term has for Ḥanafī and other jurists. For...