Maqqar\ (d. 758 / 1357), al-Ashb[h wal-Na&[>ir by Taj al-D\n al-Subk\ (d.
771 / 1370), al-Ashb[h wal-Na&[>ir by al-Isnaw\ (d. 772 / 1370), al-Qaw[ir by al-Suy]%\ (d. 911 /
1505), /#[+ al-Mas[lik by al-Wanshar\s\ (d. 914 / 1508) and al-Ashb[h wal-
Na&[>ir by ibn Nujaym (d. 970 / 1563).
These figures belong to the four Sunn\ schools of law. This indicates that all of the schools contributed to the development of the genre of qaw[Mu~%af[ al-Zarq[ (d. 1420 / 1999), and endorsed by Mohammad Hashim
Kamali, thought that the |anaf\s were the most influential contributors in this field, followed by the Sh[fi<\s, then the Hanbal\s, and following them the M[lik\s. 12 However, based on a historical overview, the M[lik\s were more active than the |anbal\s. While the former group have participated in the compilation of qaw[12 Mu~%af[ al-Zarq[, al-Madkhal al-Fiqh\, First Edition, (Damascus: D[r al-Qalam, 1998), 2:974. 15
Accordingly, the |anaf\s were the first who compiled qaw[Ashb[h wal-Na&[>ir of ibn Nujaym al-Mi~r\ (d. 970 / 1563) was the focus of around forty books and treatises, most of their authors were |anaf\s.
However, TaNa&[>ir by ibn Nujaym are perhaps the most important contributions of the
|anaf\ school of law on qaw[(comparative law), comparing between schools through examining the qaw[ir , it came into existence after a long period of inactivity in the |anaf\ school of law in this area, and was written in a systematic and disciplined way and methodology, attempting to produce a work similar to al-Ashb[h wal-Na&a>ir of al-Subk\ al-Sh[fi<\, as ibn Nujaym declared in the introduction of his book. An elaborated presentation will be presented on the two works in sections 2.3.1 and
2.3.2.4. 13
The contribution of the Sh[fi<\s to qaw[13 Ibn Nujaym al-Mi~r\, al-Ashb[h wal-Na&[>ir , Fourth Edition, (Damascus: D[r al-Fikr, 2005), 10. 16 produced very good works. For example, some researchers recorded twelve books as the most important works in the eighth / fourteenth century; five amongst which were by Sh[fi<\ scholars. 14 On the other hand, they were the first to use the term al-ashb[h wal-na&[>ir for the title of their works, to include, besides qaw[As such, ibn al-Wak\l, al-Subk\, ibn al-Mulaqqin (d. 804 / 1401) and al-
Suy]%\, who lived in different times, all wrote books bearing the title of al-
Ashb[h wal-Na&[>ir . A detailed presentation of these particular works
(based on my own observation) representing the real contribution of Sh[fi<\ scholars in the development of the discipline of al-qaw[As for the M[lik\s, they have a strong presence in all stages, and their works were distinctive in terms of the various methodologies they adopted in their authorship on qaw[758 / 1357), to smaller treatises, as in the case of U~]l al-Fity[ of al-
Khushan\ (d. 361 / 972), to versified treatises, as Man&]mat al-Manhaj al-
Muntakhab by Ab] al-|asan al-Zaqq[q (d. 912 / 1506). Presentations of famous M[lik\ works (including U~]l al-Fity[ of al-Khushan\, al-Qaw[The |anbal\ contribution to qaw[14 Al-B[+usay, al-Qaw[Qaw[Qaw[id is heavily biased towards the qaw[1957) wrote a number of works (elaborated in section 2.3.3.5 below), which are of remarkable value in this field.
It is worth mentioning here that many scholars who wrote on qaw[[nic exegesis), etc . The phrase k[na mush[rikan f\ kath\rin min al-^abaq[t al-Sh[fi|anbali wrote al-Taw+\d in theology, Dhayl ^abaq[t al-|an[bilah in history and biographies and J[mi< al-Mashriq in travel literature, Raw#at al-{s al-<{%irah bil-Anf[s in
15 Wolfhart Heinrichs, “Qaw[ir’, in: Majallat J[miat al-Dujunnah in theology. 18 Perhaps, however, the most well-known figure who wrote in various disciplines is Al-Suy]%\, as according to A+mad al-Kh[zind[r and Muhammad al-Shayban\ (in their research on the works of al-Suy]%\, entitled: Dal\l Makh%]%[t al-Suy]%\ wa-
Am[kin Taw[judih[ ), he authored 981 works in various arts and sciences, ranging from short treatises to long encyclopedias. For example, he wrote al-Itq[n f\ [n and Lub[b al-Nuq]l in Qur<[nic sciences, al-
Ashb[h wal-Na&[>ir and Jam< al-Jaw[mi< in grammar, Na&m al-Durar f\
Khulaf[> in history, Tu+fat al-Maj[lis in literature, al-Durr al-Manth]r and Tafs\r al-Jal[layn in tafs\r and al-Kawkab al-S[%%i< in u~]l al-fiqh .19
In the modern times (from the mid-nineteenth century onward), much concern and attention has been paid to al-qaw[Unlike works in the past whose main concern was confined to the collection of qaw[First, it is in this stage that works on qaw[18 See: http://www.almasalik.com/locationPassage.do?locationId=30903&languageId=ar&passageId=8954 19 See: A+mad al-Kh[zind[r & Muhammad al-Shayban\, Dal\l Makh%]%[t al-Suy]%\ wa- Am[kin Taw[judih[ , First Edition, (Kuwait: D[r Ibn Taymiyah, 1983). See also: Muallaf[t al-Suy]%\ at: ( http://www.ahlalhdeeth.com/vb/showthread.php?t=28154 ). 19 principles. The introductory section of Majallat al-A+k[m al-(written in Ottomani Turkish in the year 1869 AC, and is the first codification of Islamic commercial law, includes 1851 articles.) comprising
99 qaw[Second, discussing the theoretical aspects of qaw[atuh[, Ta%awwuruh[, Dir[sat
Mu>allaf[tih[, Adillatuh[, Muhimmatuh[, Ta%b\q[tuh[ by (1998). 2. Na&ariyyat al-Taq<\d al-Fiqh\ wa-Atharuh[ f\-Ikhtil[f al-Fuqah[> by Muhammad al-R]g\ (1994). 3. al-Qaw[, al-
Muqawwim[t, al-Ma~[dir, al-Dal\liyyah, al-Ta%awwur by YaB[+usayn (1998).
Third, studying specific qaw[(are specific) in their proposals for degrees. The following are some of the
20 Majallat al-A+k[m al-20 books, which adopted this method. 1. Al-Niyyah Wa->atharuh[ F\-l-A+k\m al-SharIhm[lih ” (1987) by Ma+m]d Mu~%af[ Harm]sh, which is a study on this important q[~\liyyah Ta%b\qiyyah (2002) by YaFourth, collecting qaw[Fiqhiyyah (2003) by Muhammad @idq\ al-B]rn] consists of twelve volumes, where qaw[4192 covering almost all the chapters of fiqh . Maws]$aw[bi% al-Fiqhiyyah al-|[kimah lil-Mu<[mal[t al-M[liyyah f\-l-Fiqh al-
Isl[m\ (1999) by Ali al-Nadw\. Unlike the encyclopedia of al-B]rn], al-
Nadw\ collects 3107 qaw[(transactions) and arranges them alphabetically.
Fifth, studying qaw[Fiqhiyyah li-l-Ta+k\m f\-l-Shar\21
|[mid discusses qaw[Qaw[ wa-l-Daw[> (1996) by Sa<]d al-Thubayt\ discusses qaw[In the more recent past (starting from the mid-twentieth century) the genre of qaw[Sadl[n, Muhammad al-R]g\, al-@[diq al-Ghiry[n\ and Muhammad Shubayr are the most popular in the curricula of many modern Islamic universities, as in the cases of al-Azhar University in Cairo, Imam Muhammad ibn Saud
University in Riyadh, the Islamic University in Medina, and the
Department of Arabic and Islamic Studies in the Faculty of Literature at
Tripoli University.
Moreover, the academic orientation towards editing the legacy of
Islamic scholarship in the recent past played a crucial role in developing the genre of qaw[22 See: Khaleel, the Islamic Law Maxims , 191. 22
Given they are comprehensive works on the theoretical aspects of qaw[Nadw\, al-R]g\ and al-B[+usayn. As for al-Nadw\’s book ( al-Qaw[Fiqhiyyah: Mafh]muh[, Nash>atuh[, Ta%awwuruh[, Dir[sat
Mu>allaf[tih[, Adillatuh[, Muhimmatuh[, Ta%b\q[tuh[), it is originally a
Masters thesis submitted to Umm al-Qur[ University in Makkah in 1984, and republished several times with some changes to its title. It is a pioneering work in this regard, being the first work, which discussed the theoretical aspects of qaw[Al-Ba+usayn (who is now a member of the supreme council of scholars in Saudi Arabia) wrote his work ( al-Qaw[Mab[di>, al-Muqawwim[t, al-Ma~[dir, al-Dal\liyyah, al-Ta%awwur ) after twelve years of teaching this discipline to postgraduate students in Imam
University in Riyadh. The book is introduced in seven chapters as follows.
In the first chapter, presentation is on the different definitions given to the term qaw[id , such as their functions, subjects, classifications, etc. The third
23 chapter is on the distinctions between qaw[The book was published for the first time in Riyadh in 1998 by Maktabat al-
Rushd.
Na&ariyyat al-Taq<\d al-Fiqh\ wa-Atharuh[ f\-Ikhtil[f al-Fuqah[> by
Muhammad al-R]g\ is originally a PhD thesis submitted to Muhammad V
University in Rabat, and published for the first time in Casablanca in 1994.
The book is introduced in two parts; each divided into a number of chapters.
The first part deals in detail with primary topics, such as definitions, features, sources, etc. It also discusses relationships between the formation of qaw[Muhammad V University.
Despite the importance of al-qaw[‘‘It is surprising that this whole complex of legal literature with its attendant terms and concepts, which has spawned a not inconsidered literary output throughout the centuries, has so far found little attention in the Western Islamicist discourse. But then the same was true, until recently, for the whole area of legal thought, u~]l al-fiqh "23 .
23 Wolfhart, “Qaw[Hashim Kamali also noted that except for a few cursory references in the works of Joseph Schacht and three other articles, there has not been any substantive coverage of legal maxims in the English language. 24
As such, the genre does not appear in the writings of any of the famous writers of Western scholarship on Islamic law, either in English or, based on my own investigations, in any of other western languages. To give examples, let us examine three well-known figures in this regard; namely:
Joseph Schacht, N. J. Coulson and Wael Hallaq.
Schacht, although he mentions qaw[25 works. In his Origins of Muhammadan Jurisprudence , he described them as terse, rhythmical, alliterative sayings that are the product of early systematic reasoning.26 However, his mention of qaw[+ad\th . According to him, a considered number of legal traditions, which appears in the classical collections, originated after M[lik and al-Sh[fi<\.
Accordingly, many legal maxims have been formulated in the pre-literary
24 Kamali, ‘‘Legal Maxims’’, 77. 25 Joseph Schacht, An Introduction to Islamic Law , (Oxford: Clarendon Press, 1964), 40. 26 Joseph Schacht, The Origins of Muhammadan Jurisprudence , (Oxford: Oxford University Press, 1959), 180-188. See also: Khaleel, ‘The Islamic Law Maxims’, p. 192. 25 period in the form of slogans, most of which became traditions from the
Prophet and from other authorities. 27 Khaleel Mohammed noted,
“This is part of his thesis that the element of personal discretion and individual opinion in Islamic law was prior to the growth of traditions, particularly of traditions from the Prophet, but because of the success of the mu+addith]n (traditionists), most of what had been originally discretionary decisions and the result of individual reasoning by the scholars was put into the mouth of the Prophet”. 28
N. J. Coulson , does not mention qaw[History of Islamic Law , although the book is designed to trace the history of
Islamic law. The book is introduced in three main parts, each of which discusses the development of fiqh in a major historical stage; namely: early stage, middle ages stage and contemporary stage respectively. In none of the fourteen chapters, which the book consists of, is there a discussion on qaw[Wael Hallaq in turn does not mention qaw[History of Islamic Legal Theory was completely intended to be an introduction to u~]l al-fiqh . The Origins and Evolution of Islamic Law traces the development of Islamic law with emphasis on the formative period, that is to say the first three or four centuries of its life. His third book in this series, Authority, Continuity and Change in Islamic Law , deals with the sources that were produced during and after the Sunni legal
27 Shacht, Origins , 180. 28 Khaleel, ‘The Islamic Law Maxims’, 195. 26 schools were consolidated and officially recognized around the middle of the fourth / tenth century.
Now, according to Wolfhart Heinrichs, the reason for the neglect of qaw[Western concern about fiqh is on its historical development and on sources from which it is derived. This explains why most works are either on history of Islamic law or on u~]l al-fiqh (the genre which discusses fiqh sources).
Khaleel Mohammed noted in this regard that Western Islamicists generally categorize Islamic law into u~]l al-fiqh and fiqh .30 Further, qaw[
