The Introduction to Ibn Rushd's "Bidāyat Al-Mujtahid" Author(S): Yasin Dutton Source: Islamic Law and Society, Vol

The Introduction to Ibn Rushd's "Bidāyat al-Mujtahid" Author(s): Yasin Dutton Source: Islamic Law and Society, Vol. 1, No. 2 (1994), pp. 188-205 Published by: BRILL Stable URL: http://www.jstor.org/stable/3399333 . Accessed: 30/03/2011 21:00

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http://www.jstor.org THE INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID*

YASIN DUTTON (Oxford,UK)

Abstract Ibn Rushd's Biddyat al-mujtahid is a book on legal differences (ikhtildf)1in which he not only details the main points of difference between the various Sunni legal schools (madhahib, sing. madhhab) but also aims to explain the juristic principles (usul) that lie behind these differences in the details (furu') of the law. Presented here is a new annotated translation of the Introduction to this book, which is of interest both as a masterly summary of these basic juristic principles from a classical Muslim point of view, and for what it tells us about Ibn Rushd the jurist. The translationis prefaced by an introductorysection giving brief details of Ibn Rushd the man and the nature and significance of his Biddya.

Introduction

DESPITE CONSIDERABLEand continuinginterest in the West in Ibn Rushd the philosopher,very little has been written on Ibn Rushd the scholar of law. Brunschvig's "Averro&sJuriste," published in 1962,2 remainsthe best general, albeit limited, survey of the specifically legal aspect of his thought. In 1978, Abdel Magid Turki published a short essay on the place of Ibn Rushd'sjuridical thought in the history of the Miliki school in al-Andalus.3More recently,Dominique Urvoy's * I wish to express my gratitude to the Executive Editors of Islamic Law and Society and to Jamil Qureshi, who read through earlier drafts of this paper, highlighted many problem areas, and offered many suggestions for improvement. Any shortcomings that remain are, needless to say, my own. In many instances the generic sense of the masdar (verbal noun) or the ism al-jins (generic noun) of Arabic is best renderedby a plural in English; hence the frequent use in what follows of a plural in English to translate what is grammatically a singular in Arabic. 2 R. Brunschvig, "Averrots Juriste," in Etudes d'orientalisme dediees a la memoire de Levi-Provengal (Paris: G.-P. Maisonneuve et Larose, 1962), vol. 1, 35-68; reprinted in Brunschvig, Etudes d'islamologie, ed. Abdel Magid Turki (Paris:G.-P. Maisonneuve et Larose,1976), vol. 2, 167-200. 3 A.M. Turki, "La Place d'Averro6sjuriste dans 1'histoiredu milikisme et de 1'Espagnemusulmane," in Multiples Averross: Actes du Colloque Internationale organisde l'occasion du 850e anniversaire de la naissance d'Averroes,Paris 20-23 septembre 1976, ed. J. Jolivet (Paris: Les Belles Lettres, 1978), 33-43; reprintedin

? E.J. Brill, Leiden, 1994 Islamic Law and Society 1,2 INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 189 monograph on Ibn Rushd, published in 1991,4 contains some useful reference to Ibn Rushd as jurist, as well as including a good Bibliographical Guide. 1991 also saw the completion of Asadullah Yate's doctoral thesis on "Ibn Rushd as Jurist," as yet unpublished.5 Other than these works, research on this important aspect of Ibn Rushd's life and thought has been sparse indeed. This article seeks to extend further our understanding and aware- ness of Ibn Rushd the jurist. It consists of a brief introductory outline of Ibn Rushd the man and his book the Biddya, followed by a new translation of his Introduction to the book.6 This Introduction is of interest not only because of its intrinsic value as a concise summary of the principles of jurisprudence (usul al-fiqh) in Islamic law, but also for what it tells us about Ibn Rushd's attitude to, and mastery of, the subject

Ibn Rushd the man

Ibn Rushd "the grandson" (al-hafid), as he is commonly known, was born in Cordoba in the year 520/1126, a few months7 before the death of his grandfather, the famous qa.ddand Milikifaqih, Ibn Rushd "the grandfather" (al-jadd).8 He died in exile in Marrakesh in the year

A.M. Turki, Thdologiens et juristes de l'Espagne musulmane: aspects poldmiques (Paris:G.-P. Maisonneuve et Larose,1982), 283-93. 4 D. Urvoy,Ibn Rushd (Averroes) (London and New York:Routledge, 1991). 5 A. Yate, "Ibn Rushd as Jurist"(unpublished Ph.D thesis, Cambridge University,1991). I wouldlike to thankDr. Yatefor kindlyallowing me access to substantialportions of his thesisbefore it becamepublicly available. 6 Earliertranslations of the Introductionto Ibn Rushd'sBiddya include those of AhmedLaim6che (in French),published in his Du Mariageet de sa Dissolution (Algiers: Minerva,Imprimerie "La Typo-Litho,"1926), 2-6; L6on Bercher(in French), published in the Revue Tunisienne du Droit, 3 (1955), 28-37; and AsadullahYate (in English),in his "IbnRushd as Jurist,"68-77. All three are useful but, in my opinion, contain several misleadingand/or erroneous inter- pretations;hence the needfor a new translation. 7 This follows Ibn al-Abbar's Takmila (see Ibn al-Abbar,Kitdb al-Takmila li- kitib al-Sila [= Bibliotheca Arabico-Hispana V and VI] (Madrid: Matba' Rfikhas [= Rojas?],1886-87), vol. 1, 270). IbnFarhuin's Dibdj reads "one month" (see Ibn Farhun, al-Dibtj al-mudhhabfi ma'rifat a'ydn 'ulamd' al-madhhab, ed. Muham- madal-Ahmadi Abf al-Nur[Cairo: Dar al-Turath, n.d.], vol. 2, 259). 8 For the biographyof Ibn Rushd"the grandson," see Ibn al-Abbar,Takmila, vol. 1, 269-70; Ibn Farhun,Dibdj, vol. 2, 257-59; C. Brockelmann,Geschichte der arabischenLiteratur (2nd ed., includingSupplement, Leiden: E.J. Brill, 1937- 49) [hereinafterGAL2], vol. 1, 604-06,Supplement, vol. 1, 833-36;Encyclopaedia of Islam (2nd ed., Leiden/London:E.J. Brill/Luzacand Co., 1960-) [hereinafter El2], vol. 3, 909-10;Urvoy, Ibn Rushd, 31-36 (and 137-38,where the mainArabic biographicalsources are convenientlylisted). For that of Ibn Rushd"the grandfather"(450-520/1058-1126), see Ibn Bashkuwil,Kitdb al-$ila f akhbdra'immat 190 YASIN DUTTON

595/1198.In theWest he is bestknown, under the nameAverroes, for his interestin philosophy,but, althoughhe was probablythe greatest authorityon philosophyin his time,it shouldbe remembered,firstly, thathe was a highlyqualified and respected physician and, secondly, that he was, like his father and grandfatherbefore him, a highly qualifiedand respectedqddi for the greaterpart of his life. He was appointedqddi of Sevillein 565/1169,and then, two yearslater, qddi of Cordoba.In 575/1179he was again,according to Urvoy,appointed qdidof Seville.9Finally, in 578/1182,he was appointedto the officeof Chief Q.di of Cordoba- a positionthat both his fatherand grand- fatherhad held beforehim - by the Almohadcaliph Abfi Ya'qfib Yfsuf.10 Thus, whateverhis otherinterests, he spent much of his workinglife in exercisinga knowledgeoffiqh andits sources(usul) in orderto dispensejustice according to thedictates of thesharia. Accordingto the biographicalnotice about him in Ibn al-Abbir's Takmila,Ibn Rushd'steachers included his father,Abfi al-Qasim,"l fromwhom he learntthe Muwatta',Abi al-Qasimb. Bashkuwil,12 Abfi Marwinb. Masarra,13Abi Bakrb. Samh.in4and Abu Ja'far b. 'Abd al-'Azizl5 - with all of whom he studied fiqh - and Abu al-Andalus [= Bibliotheca Arabico-Hispana I and Ii] (Madrid: Matba' Rikhas [= Rojas?], 1882-83), vol. 2, 518-19; Ibn Farhun, Dibaj, vol. 2, 248-50; GAL2, vol. 1, 479-80, Supplement, vol. 1, 662; Urvoy, Ibn Rushd, 29-31. 9 See Urvoy, Ibn Rushd, 34. I have not found this piece of information in any other source. 10 For Ibn Rushd "the grandson" being qddi of Seville, and qddl and Chief Qadi of Cordoba, see Urvoy, Ibn Rushd, 34; E12, vol. 3, 910, and the sources cited therein. For his father (487-563/1094-1168), also known as Ibn Rushd, being Chief Qadi of Cordoba, see Ibn al-Abbar, al-Mu'jamfi ashdb al-Qadl al-lmnm Abi 'All al-Sadafi [= Bibliotheca Arabico-Hispana IV] (Madrid: Matba' Rikhas [= Rojas?], 1885), 44. For Ibn Rushd "the grandfather"being Chief Qadi of Cordoba, see Ibn Bashkuwil, Sila, vol. 2, 518. We may note here that, according to Ibn Abi Usaybi'a, a number of the sons of Ibn Rushd "the grandson"were also qddis (see E. Renan, Averroes et l'Averroisme [2nd ed., Paris: Michel L6vy Freres, 1861], 453), one of whom, Ahmad (d. 622/1225), is specifically mentioned by Ibn Farhfn (Dibdj, vol. 1, 221). 11 For Abi al-Qasim, the father of Ibn Rushd, see Ibn al-Abbar, Mu'jam, 44- 46; and n. 10 above. 12 For the well-known scholar and historian Ibn Bashkuwal (d. 578/1183), see Ibn al-Abbar, Takmila, vol. 1, 54-58; ibid., Mu'jam, 82-85; GAL Supplement, vol. 1, 580. 13 For Ibn Masarra (d. 552/1157), a onetime Chief Qiadiof Cordoba, see Ibn al-Abbar, Mu'jam, 253. 14 Although he is mentioned elsewhere by Ibn al-Abbar (e.g. as one of those who transmitted from Ibn Bashkuwil but died before him; see Ibn al-Abbar, Takmila, vol. 1, 57), I have not been able to identify this Abu Bakr b. Samhun. 15 This is presumably the Abu Ja'far b. 'Abd al-'Aziz listed both by Ibn al- Abbar (Mu'jam, 17-18) and al-Dabbi (K. Bughyat al-multamisft tdrlkh rijail ahl INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 191

Marwan b. Jurrayul,16 with whom he studied medicine.17 However, despite receiving a traditional education, his inclination was always, as Ibn al-Abbir puts it, towards "dirdya" rather than "riwdya," that is, towards understanding this knowledge and how it was structured rather than simply transmitting it in an unquestioning way; hence his many works not only on philosophy (e.g. his numerous translations and paraphrases of Aristotle and Plato), but also about medicine (e.g. his Kitdb al-Kulliyyct), the relation of natural science and philosophy to the sharfa (e.g. his Kitab Fasl al-maqdl), and the sharla itself, both its theoretical bases (e.g. his Mukhtasar of al-Ghazfili's Musta.sf) and its application in practice (e.g. his Biddyat al-mujtahid). It is with this last work that we are here concerned.

Ibn Rushd's Biddya

Ibn Rushd probably began work on the Biddya when in his forties, but, due to various circumstances, did not finish it until some twenty years later in 584/1188, as he himself tells us at the end of the section on hajj.18 The full title - Biddyat al-mujtahid wa-nihdyat al-muqtasid (lit. "The beginning for the one who would exercise ijtihdd (independent reasoning)19 and the end for the one who would limit himself [to a basic knowledge of the sharra]") - indicates part of his intent: it is for those who want to understand the basics of the sharra so that they will then be in a position to think for themselves and exercise ijtihdd on new matters that may arise about which there is no clear ruling. Contrary to the practice in many other works that come under the genre of ikhtilif literature (i.e. that which deals with the differences al-Andalus [Bibliotheca Arabico-HispanaIll] (Madrid:Matba' Rikhas [= Rojas?], 1884), 155), although his death date (533/1138-39) would mean that Ibn Rushd was very young at the time. This faqih, and the famous Imam al-Mazari (d. 536/1141; see GAL Supplement, vol. 1, 663), are both said to have given the young Ibn Rushd ijazas - that is, indirect permission - to transmit their teachings (see Ibn al-Abbar, Takmila,vol. 1, 269). 16 For Abf Marwan b. Jurrayfl (d. ?), see Ibn al-Abbar, Takmila, vol. 2, 614. 17 See Ibn al-Abbar, Takmila, vol. 1, 269-70. According to Ibn Abi Usaybi'a, Ibn Rushd also studiedfiqh under thefaqih Abu Muhammadb. Rizq (see Renan, Averroes, 448, 459), whom I have not been able to identify. 18 See Ibn Rushd, Biddyat al-mujtahid wa-nihdyat al-muqtasid (7th ed., Beirut: Dir al-Ma'rifa, 1405/1985), vol. 1, 380; also Brunschvig, "Averroes Juriste,"37. 19 The verb ijtahada is derived from the root jahada, meaning to "strive," "exert oneself," "make an effort." Here the meaning is that the mujtahid makes every intellectual effort to arrive at a clear ruling on a matter on which there has been no previous ruling. 192 YASIN DUTTON

- ikhtilf(&t)- between the differentmadhhabs, or legal schools), he mentionsnot only the differencesbetween the variousSunni madhhabs,20but also explainsin detailthe reasonsfor these differences. This he does by systematicallyconsidering all the main points of differenceunder the varioussubject headings familiar to thefuqahd', and then giving what he considersto be the principlesbehind these differencesfrom an usulf'spoint of view. Occasionallyhe discusses these principles,or usul, at some lengthwithin the mainbody of the text,21but his main treatmentof this subjectcomes in the book's Introduction,which, in less than five pages of printedtext, neatly summarizesthe whole subjectof usul al-fiqhand, at the same time, allowsus interestinginsights into Ibn Rushd's attitude to thescience of usuland the usulisof his day. This concise, but thorough,summary of the science of usIl demonstrates,firstly, Ibn Rushd's complete mastery of the subject. Secondly,it shows his penchantfor applyinghis intellectto the potentiallyconfusing mass of detail that the disciplineof fiqh had acquired,and, by so doing,to imposesome sortof rationalstructure on it. Indeed,it is as if in the genreof ikhtildfliterature Ibn Rushd had foundan idealmode of expression,since it providedhim, as Dr. Yate notes,with "theideal instrumentfor dissectingthe body of the Law andrevealing its innermechanisms."22 Thirdly,it demonstrateshis overtlystated conviction that difference of opinion is inevitable when dealing with the interpretationof language,23as is evidentfrom the multitudeof madhhabsand varying juristicopinion illustrated. However, at the sametime, his approach, as we havejust noted,indicates an emphasison, andpreference for, the basicprinciples (usul) of the law ratherthan its details(fur),24 a preferencewhich, as Dr. Yate also pointsout, "representsa returnto the sourcesrather than a relianceon immediatejudicial precedent."25

20 For examples of occasional reference to non-Sunni opinions, see Brun- schvig, "Averroes Juriste," 36, n. 2. We should also mention here that the madhhabs cited by Ibn Rushd include not only the five well known madhhabs of his day, i.e. Maliki, Hanafi, Shifi'i and Hanbali, plus the Zahiris, but also the "madhhabs,"i.e. opinions, of many earlier authorities. 21 One such example is Ibn Rushd's discussion of Madinan 'amal ("practice") in the context of joining prayersbecause of rain (see Bidaya, vol. 1, 173-74). 22 "Ibn Rushd as Jurist," 33. 23 In the preamble to his Introduction, Ibn Rushd speaks of "the various reasons which make differences of opinion inevitable" (see below, p. 197). 24 I have preferred to translatefuru' (lit. "branches")as "details" rather than the more usual "positive law," which, in the context of the sharra, is misleading. 25 "Ibn Rushd as Jurist,"45. INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 193

Fourthly,it shows us some of his frustrationwith certainof the 'ulamd'of his time, whom he consideredto have given insufficient thoughtto theirsubject or even,in certaininstances, to be insufficiently qualifiedto do so. This is shownin particularin his discussionof qiyasand its relationto specificexpressions by whicha moregeneral meaning is intended(al-lafz al-khdssyurddu bihi al-'dmm),which, he notes, is a subjectwhich is "veryoften a cause of confusionfor the fuqahd'."26This attitudeis even more apparentelsewhere in the Biddya, such as where he criticizesthe fuqahd' for too strongan attachmentto the opinionsof theirpredecessors (shiddat al-taqlld),27 andcastigates them for measuringknowledge by quantityrather than qualityand thus being like shoe-sellerswho, althoughthey have plenty of shoes for sale, are not able to actuallymake a shoe themselves whenthe need arises.28 Fifthly,and by extensionfrom the abovepoint, it shows how for him consciousthought (nazar) about a subject,i.e. the mentalprocess behindqiyds, is necessarynot onlyfor a completeunderstanding of it butalso for its practicalapplication. His medicaltraining in particular gave supportto his convictionthat independent intellectual activity is a necessarypart of knowledge,for knowledgeof medicineis the result of experienceand experiment (tajriba), after which the intellectmust then be used to derive and understandthe more generalprinciples illustratedby theseexperiments. One particularlyinteresting example of this occursin IbnRushd's discussionof how to determinethe beginningof Ramadanif the new crescentmoon is sightedduring the dayrather than at the normaltime of after sunset. He gives the variousviews of the fuqahd' on the subject,including their distinction between whether the moonis seen beforeor aftermidday, and then cites the reportsthey use to support theirviews. However,he thenpoints out thatone knowsfrom reason anddirect experience (al-qiyds wa'l-tajriba) that the moonis only ever visible at the same time as the sun, i.e. duringthe day, when it is a long way awayfrom the sun andmuch larger than the crescentmoon that indicates the beginningof the month.Furthermore, he says, althoughthe new crescentmoon does varyin size, it is neverthelessa remote possibility - "and Allah knows best" - for it to be big enoughto be seen whenthe sunhas not yet set. Nor is there,he says,

26 See below, p. 202. 27 See Bidaya,vol. 2, 402; also Brunschvig,"Averroes Juriste," 56. 28 See Bidaya,vol. 2, 195; also Brunschvig,"Averrofs Juriste," 56. 194 YASIN DUTTON any point in distinguishingbetween a sighting before or after midday, since one knows from experience that the only point of relevance in this context is whetherthe new moon is seen before or after sunset. In otherwords, considerationsof observationand experience- what we could call "scientific"considerations - rule that the whole discussion is, in a profoundly technical sense, absurd, and that the only real concern is whether the new moon is seen before or after sunset, not before or after midday. In short, he says, this is a case where the fuqaha' have abandoneddirect experience in a matter that can and should be correctly ascertainedby direct experience (tark i'tibdr al- tajribafi-md sablluhu al-tajriba) and resortedinstead to those textual reportsthat exist on the matter(wa'l-ruju' ild al-akhbdrfidhilika).29 What is important,of course, from Ibn Rushd's point of view is that rulings based on reason and experiment- al-qiyCs wa'l-tajriba - should be given their rightful place in the sharr'a and not be consideredeither contradictory to it or contradictedby it. Indeed,in his Fasl al-maqal he makes it quite clear that for him the shari'a and reason can never be at loggerheads: We will say definitively(naqta'u qat'an) that whenever a conclusion arrivedat by clear logical proof (md addd ilayhial-burhan)30 is contradictedby theovert import (zahir) of the sharra, thisovert import is susceptibleof anotherinterpretation (ta'wll) according to the rulesof interpretationof Arabic.This is somethingabout which no Muslim has anydoubt and no believerany qualms... Indeed,we will say that thereis nothingstated in the sharfa whose overtimport seems to go againsta conclusionarrived at by clearlogical prooffor which one does not find, when one considersthe sharra properlyin all its aspects, otherelements whose overt importdirectly supportsthat interpretation,or verynearly does so.31 One final point may be noted here. Although Ibn Rushd grew up within the M&likitradition (throughout the Biddya he refers by default to the Maliki madhhab as "the madhhab"and also, at the end of the section on qadhf [i.e. slanderous allegations of zind, or sexual impropriety],announces his intention to write a book specifically on Mliki furi' because that is "the madhhab that is acted upon in this peninsula,namely, the peninsulaof al-Andalus"),32and lived at a time

29 See Bidcya, vol. 1, 284-85. 30 Arnaldez(El2, vol. 3, 912) translatesburhan as "demonstrativesyllogism." 31 Ibn Rushd,Fasl al-maq&lwa-taqrir md bayna al-sharia wa'l-hikmamin al-ittisal,ed. AlbayrNasri Nadir (3rd ed., Beirut:Dar al-Mashriq, 1973), 36. 32 See Biddya,vol. 2, 443; also Brunschvig,"Averrobs Juriste," 40. INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 195 when, through the efforts of men such as Ibn Hazm (d. 456/1064) and his own contemporary Ibn Mada' (d. 592/1195), the Zahiri school had a certain influence in al-Andalus, he is nevertheless very much his own man. Thus, for example, he argues against a point about dowry endorsed by Malik,33 prefers the ruling of Abfi HIanifato that of Malik on a particular point about usury,34 and expresses doubts about the Malikis' arguments for Madinan 'amal, although arguing that as a concept it is stronger than the Hanafi idea of 'umum al-balwd (lit. "general affliction," i.e. those matters that one must assume to have been addressed in the early period because of their frequency of occurrence).35 Similarly, he clearly disagrees with the Zahiris' position on qiyds, and, although allowing that their argument for rejecting it has some basis, accuses them, along with the rest of the fuqaha', of mistaking a purely linguistic technique for qiyas.36 Having said this, it nevertheless seems reasonable to assume that, for the most part and on

33 See Biddya,vol. 2, 19-20. 34 See Biddya,vol. 2, 137. 35 See Biddya,vol. 1, 176. We shouldnote here that Ibn Rushd's appreciation of Madinan'amal in the Biddya, despite its overwhelmingimportance in the Malikimadhhab, seems somewhatambivalent. On severaloccasions he pointsout that such-and-sucha ruling is endorsedby Malik because it was the 'amal in Madina,e.g. the rulingsthat it is permissibleto do the prayerwhen the sun is at its zenith (Bidaya, vol. 1, 102), that one does not recite the Fdtiha duringthe funeralprayer (Biddya, vol. 1, 235), and thatit is not permissibleto do the prayer at someone'sgrave if one has missedthe funeralprayer (Biddya, vol. 1, 238). But whereasin these instanceshe allows that 'amal is the sole justificationfor the rulingeven thoughit goes againsta seeminglyclear hadith, on otheroccasions he sees the 'amalonly as bolsteringa particularhadith position when for Milik the 'amalis justificationin itself, e.g. his discussionof the call to prayer(see Biddya, vol. 1, 105-06;Malik, al-Muwatta' (Cairo: Matba'at Mustafa al-Babi al-Halabi, 1370/1951) [hereinafterMuw.], vol. 1, 69-70; Sahnin,al-Mudawwana al-KubrC (Cairo:Matba'at al-Sa'ada, 1323-24 [1905-06])[hereinafter Mud.], vol. 1, 57-58; also Y. Dutton, "Sunna, Hadith and Madinan 'Amal,"Journal of Islamic Studies, iv (1993), 16-17, 19 n. 68), or the rulingthat one raises one's handsonly at the beginningof the prayer(see Biddya,vol. 1, 133-34;Mud., vol. 1, 68; also Dutton, "Sunna,Hadith and Madinan'Amal," 20-21, which includesa critiqueof Isabel Fierro'srecent articles on this point), or that only the two night prayerscan be joined becauseof rainwhen not on a journey(see Biddya,vol. 1, 173-74;Muw., vol. 1, 122-24; Mud., vol. 1, 115). Furthermore,there are occasions when, althoughhe is speakingabout a ruling that is effectively based on 'amal, he makesno mentionof that'amal, e.g. his discussionof the iqdma(see Biddya,vol. 1, 110; Muw., vol. 1, 69-70), or not recitingthe basmala when beginning the recitationin the prayer(see Biddya, vol. 1, 124;Muw., vol. 1, 78; Mud., vol. 1, 64, 67), or holdingone's armsby one's sides (i.e. sadl al-yadayn)when doingthe prayer(see Biddya, vol. 1, 137; Mud., vol. 1, 74; also Dutton,"Sunna, Hadith and Madinan'Amal," 20-21). Does one sense here a philosopher'sreluctance to accept the apparently speculative and amorphous- because non-textual- authorityof Madinan'amal? 36 See below, pp. 197 and 202. 196 YASIN DUTON a practicalday-to-day level, he gavefatwds andhanded down judg- mentsaccording to the traditionalmadhhab of the Andalusians,i.e. that of Malik, as indicatedby his greaterfamiliarity with it in the Biddyaand the commentreferred to aboveabout his intentionto write a book on the detailsof Malikilaw becausethat was the madhhabof his country and people,37to which one could perhapsadd the respect shownin theBiddya for his grandfather'sjudgments.38

Translationof the Introductionto Ibn Rushd's Biddyatal-mujtahid

"WhenAllah wishes good for someone,He giveshim understanding in religion'39

In the name of Allah, the Compassionateand Merciful

Praise be to Allah in all the ways that He can be praised,and blessingsand peace be uponMuhammad, His Messenger,and on his familyand Companions. My intentionin this bookis to affirm(uthbita) for myself,by way of reminder,those points of the law (masa'ilal-ahkdm)40 about which thereis agreementand those aboutwhich thereis dispute,together withtheir proofs (adilla), and to pointout the differences between them in a way thatwill highlightthe basicprinciples and rules to be applied to those cases (masd'il)on which the sharla is silent which might confronta mujtahid.41These points (masd'il) are mostlythose which are overtly mentioned(mantuq bihd) in the sharla or are closely

37 See above, 194. 38 p. For examples of his grandfather'sjudgments, see Biddya, vol. 2, 243, 402, 460. 39 For this hadith, see, for example, Muw., vol. 2, 208; al-Bukhari, $ahih al- Bukhdri (in Arabic, with an English translation by Muhammad Muhsin Khan, Lahore: Kazi Publications, 1979), vol. 1, 61. 40 The word hukm (pl. ahkdm) presents certain problems in English. Except in this instance, where the meaning of the word masd'il ("points," "cases," "specific details of the law") predominates,I have chosen to translate it as "ruling":"judg- ment," in the sense in which it is used in the Authorized and Revised Versions of the Bible to translate the Hebrew mishpat(im) (e.g. Exod. 21.1, 24.3, Deut. 4.1, 5.1, 6.1, and many other instances), would be a good alternative, were it not for the restriction in meaning that it seems to have acquired in contemporary usage. Other translations that have been suggested include "determination"and "assess- ment" (see, for example, A.K. Reinhart, "Islamic Law as Islamic Ethics," Journal Ethics, xi of Religious41 (1983), 186-203). For the word mujtahid, see above, p. 191, n. 19. INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 197

related to those which are overtly mentioned, these being the points about which there is either agreement or on which well-known differences of opinion have existed among Muslim jurists (al-fuqahd' al- Islamiyy!n)42 from the time of the Companions, may Allah be pleased with them, up to the time when unquestioning following (taqlld)43 became widespread. Before doing this, though, we shall mention, in as brief a manner as possible, the various ways (turuq)44 by which the rulings of the shari'a may be derived, the various categories of ruling (asndf al- ahkdm) in the sharfa, and the various reasons which make differences of opinion (ikhtilaf) inevitable.

[Ways of deriving rulings]45 In general terms (bi'l-jins), there are three ways (turuq) by which rulings may be derived from the Prophet, may Allah bless him and grant him peace, namely, through his words (lafz), or his actions (fi'l), or his tacit approvals (iqrdr). With regard to those points on which the sharrfa (lit. al-shari', "the Lawgiver") is silent, most people (al- jumhur) say that the way to arrive at knowledge of them is by analogical reasoning (qiyds). The Zahiris, however, hold that analogical reasoning is invalid as far as the sharia is concerned and that if the sharl'a is silent about something there is no ruling on it. The intellect (dalll al-'aql), however, testifies to the validity of qiyas, since the situations that may arise between people are infinite in number, whereas the texts, actions and tacit approvals of the Prophet are finite in number, and it is impossible (muhal) for what is infinite to be exactly matched (yuqdbala) by what is finite.

42 As Dr. Yate has suggested,this phrasemay indicatea consciousawareness of similarconsiderations among non-Muslim jurists (see "IbnRushd as Jurist," 69, n. 282). 43 Lane gives the followingdefinition of taqlld:"A man's followinganother in that which he says or does firmly believing him to be right therein,without regardor considerationof the proof,or evidence"(see E.W.Lane, Arabic-English Lexicon Williamsand 1863-77],s.v. qallada). 44 [London/Edinburgh: Norgate, It becomes apparentfrom the use of the word tarlq ("way,""method," "technique")in the rest of the Introductionthat Ibn Rushdoften accordsto the word some of the functionsof the word asl ("source").In otherwords, what is beingindicated is not so muchthe techniqueof derivingthe rulingas the pathway along which that ruling comes, and therefore,effectively, its source. I have retainedthe moreliteral translation "way" rather than "method" or "technique"in order(a) to retainsome of this ambiguityand (b) to distinguishit fromwhen he uses theword asl, whichI have translatedas "source." 45 This and all subsequentheadings and subdivisionshave been suppliedby the translatorand are necessarily interpretative. 198 YASINDUTTON

[A. Words] There are four types of expression(asnafal-alfdz) by which rulings may be derived from language (sam', lit. "what is heard").There is agreementabout three of these but disagreementabout the fourth.The three about which there is agreementare: (i) a general expression that is understoodin a general sense (lafz 'dmmyuhmalu 'ala 'umdmihi)46 or a specific expression that is understoodin a specific sense (khdss yuhmalu 'ala khuussihi);47(ii) a general expression by which a more specific meaning is intended (lafz 'amm yurddu bihi al-khusus); and (iii) a specific expressionby which a more generalmeaning is intended (lafz khdss yurddu bihi al-'umum). This category also includes reasoning from the greater to the lesser (al-tanbih bi'l-a'ld 'aid al- adnd, i.e. 'afortiori reasoning'), from the lesser to the greater (bi'l- adnd 'ald al-a'ld), and from one equal situation to another (bi'l- musdwi 'ali al-musdwi). An example of the first [type] is where Allah says, "Forbiddenfor you are carrion, blood and the flesh of the pig .. .,"48 since all Muslims are agreed that the word "pig"(khinzir) includes all types of pig, as long as it does not refer to something that is only called "pig" because it shares certain characteristicswith pigs (bi'l-ishtirdk),like the [term]"water-pig" (khinzir al-md').49

46 The terms'dmm/'umum and khdss/khusus pose problemsin English.What is intendedby the term'umnm is the assumptionof inclusion,i.e. the inclusionof all items coming underthe class indicatedby the word; thus one might equally well use "inclusive"instead of the moreusual "general" for 'dmm.Similarly, the wordkhdss implies the restrictionof meaningto the particularword or wordsused; thus one mightuse the word "restricted"instead of the moreusual "specific"or "particular." 47 I have assumed,unlike Laimeche, Bercher and Yate, that these two phrases come underthe same category,since in both instancesthe "face-value"of the expressionis retainedunchanged, i.e. what is general is understoodas being general and what is specific is understoodas being specific. Furthermore,this systematizationagrees (a) with the fact that Ibn Rushd says he is going to mentionthree categoriesabout which thereis agreement,not four; (b) with the threecategories exemplified in the threeexamples he goes on to give; and(c) with the fact thatin the Arabictext theword lafz is not repeatedfor the secondelement of category(i) whereasit is for the other categories.This systematizationalso accordswith his summaryof these categoriesin the sectionon "Thereasons for differenceof opinion"(see below,pp. 204-05). 48 Qur'an[hereinafter Q] 5:3. 49 This is presumably the same as the lexicographers' khinzir al-bahr, i.e. porpoise or (small) dolphin, as in al-Damiri's Kitdb Hayat al-hayawdn al-kubrC (Cairo: al-Matba'aal-Amiriyya, 1274 [1857-58]),vol. 1, 456-57, 503 (see also al-Munjid, Mu'jam madrasi li'l-lugha al-'arabiyya, ed. al-Ab Luwis Ma'liif al- Yasi'i (Beirut: al-Matba'aal-Kathfilikiyya, 1913), s.v. khinzir al-bahr;al- Mawrid, A Modern English-Arabic Dictionary, ed. Munir al-Ba'albakki (Beirut: INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 199

An example of a general expression by which a more specific meaning is intended is where Allah says, "Take alms (sadaqa, i.e. zakat) from their wealth to purify them and increase them in purity thereby .. .,"50since all Muslims are agreed that zakdt is not obligatory on all types of wealth. An example of a specific expression by which a more general meaning is intended is where Allah says, "And do not say 'Uff' to them"51[i.e. one's parents],which is an example of afortiori reasoning, since one understandsfrom this that hitting them, cursing them and anythingworse than that is also forbidden.

[Commandsand Prohibitions] In all of these [types of expression] an action that is being commanded may be expressed either in the form of a command or in the form of a statementby which a command is intended. Similarly, an actionwhich is being prohibitedmay be expressedeither in the form of a prohibitionor in the form of a statementby which a prohibitionis intended. Furthermore,when such expressions (alfdz) occur in such forms (siyagh), should the action that is being commandedbe understoodas obligatory (wajib), or [merely] recommended(mandab) - according to the differentopinions that will be mentionedregarding the definition of "obligatory"and "recommended"- or should one assume neither of these unless there is evidence that indicates one rather than the other? There is dispute on this point between the jurists, as is mentionedin the books on usal al-fiqh. Similarly, do the forms used to express prohibitions indicate disapproval (kardhiya), or total prohibition(tahrim), or do they not necessarily indicate either of these? There is the same dispute on this point as with commands.

Dar al-'ilm li'l-malayin, 1972), s.v. "porpoise"; al-Mandr, An English-Arabic Dictionary, ed. Hasan S. Karmi (Beirut: Longman/Librairiedu Liban, 1970), s.v. "porpoise," "dolphin"), and not the "hippopotamus" suggested by Bercher and Yate, for whichfaras al-bahr, or some similar expression, is more commonly used (see al-Damiri, K. Hayat al-hayawan, vol. 2, 311-12; al-Mawrid, s.v. "hippopotamus"; al-Mandr, s.v. "hippopotamus."Al-Munjid, however, states thatfaras al-bahr is "a large fish"). Dozy's capivert - i.e. the capybara of South America - for khinzir al-mdi'is not suitable in the Old World context of Ibn Rushd's day (see R. Dozy, Supplement aux Dictionnaires Arabes (Leiden: E.J. Brill, 1881), s.v. khinzir). 50 Q. 9:103. 51 Q. 17:23. 200 YASIN DUT'ON

[Lexicalambiguity] [Furthermore],the items (a'yan) referredto in a rulingmay be indicatedby a word or expression(lafz) which carries only one meaning,in which case it is knownin the science(sind'a) of usul al- fiqh as a nass (lit. "text,"i.e. an unambiguoustext), and thereis no disputeabout the obligationof actingupon such a text;or theword or expressionmay carrymore than one meaning,which can be in one of two ways: eitherall the meaningsare equally possible, in which case the expressionis knownin [theterminology of] usulal-fiqh as mujmal (lit. "collectedtogether," i.e. whena numberof differentmeanings are collectedtogether in one word),and all are agreedthat such [a text] does not makea rulingobligatory; or one or moreof thesemeanings is moreusual than the others,in whichcase the moreusual meaning is referredto as zdhir("overt," "literal," "probable") and the less usual meaningis referredto as muhtamal("conceivable," "possible"). When a wordoccurs in an unqualifiedway (mutlaqan),it is assumedto bear its zdhirmeaning unless there is evidenceto indicatethat it shouldbe takenin its less usual,muhtamal, sense. Differencesof opinion(khildf) thus arise among thefuqahd' with regard to the actual wording of the sharfa (lit. al-shcri', "the Lawgiver"),but they are the resultof threedifferent considerations (ma'dnin,lit. "meanings"): i) ambiguity(ishtirdk) in thewords describing the items referred to in a ruling; ii) ambiguityregarding whether a definitearticle used generi- callywith a particularitem should be understoodin a general or a specificsense; iii) ambiguity in the expressions used for commands and prohibitions. [Implication] The fourthway (tariq)[of derivinga rulingby linguisticmeans]52 is when one understandsthat because a ruling is obligatorywith regardto a particularthing, it is not obligatorywith regardto other things,or [conversely,when one understands]that because a rulingis not obligatorywith regardto a particularthing, it is obligatorywith

52 This fourth"way" refers to the fourth,and disputed, "type of expressionby which rulingsmay be derivedfrom language,"as mentionedat the beginningof the sectionon "Words"(see above,p. 198).In otherwords, it is the fourthof those techniquesby whichrulings may be derivedby purelylinguistic means. INTRODUCTIONTO IBN RUSHD'S BIDA YATAL-MUJTAHID 201

regardto otherthings. This is the techniqueknown as dalil al-khitdb (lit. "theimplications of whatis said").53There is, however,dispute aboutthis source(asl). An exampleis wherethe Prophet,may Allah bless him andgrant him peace,said, "There is zakdton free-ranging livestock,"from which somepeople have understood that there is no zakdton livestockthat is notfree-ranging.

[Qiyas(reasoning by analogy)] Qiyds,in the sense in whichit is used in the sharia, is the application(ilhaq) of a rulingthat something is obligatoryby thesharia to somethingelse which the sharfa is silent about,either because of some similarity(shabah) between the latterand the thingwhich the sharrfahas declaredobligatory, or becauseof somecommon rationale ('illajami'a) underlyingthe two. This is why thereare two types of qiyds, namely, qiyds shabah and qiyds 'illa. The difference between qiyds in the sense in which it is used in the sharl'a and a specific expressionby which a moregeneral meaning is intended(al-lafz al- khdss yurddu bihi al-'dmm) is that qiyds applies when there is a specificexpression by whicha specificmeaning is intended,the ruling for which is then appliedto somethingelse. That is, what is not mentioned(al-maskuit 'anhu) [in the shar'a] is equatedwith what is mentioned(al-mantiuq bihi) becauseof some similaritybetween the two, ratherthan by some deductionof meaningfrom the words themselves(daldlat al-lafz). [This is so] becauseto equatea situation for whichthe ruling is notknown with a situationfor which the ruling is knownby virtueof the implications(tanbfh) of a wordor wordsis not qiydsbut, rather, comes under the categoryof deductionof meaning fromthe words themselves (daldlat al-lafz). Both these techniques are very similarto each othersince they both involve derivingthe

53 This techniqueis also known as mafham al-mukhdlafa, i.e. what is understoodby contrast,or "argumenta contrario"(Brunschvig, "Averro,s Juriste," 51), meaning,as Ibn Rushdillustrates it here, thatif you say X aboutY, it only appliesto Y and not to anythingother than Y. A clearexample is Malik'sruling thata free manmay marrya slave-girlonly if (a) he cannotafford to marrya free woman and (b) he fears that he will fall into illicit sexual activity, because Q. 4:25 says, "Andthose amongyou who do not have the means (tawl) to marry believingfree women (muhsandt) [may marry] from among those of yourbelieving slave-girlswhom your righthands possess ... Thatis for those amongyou who fear illicit sexual activity('anat)." Thus, if these two conditionsare not met, so the argumenta contrariogoes, this permissiondoes not apply.Similarly, because the permissionis restrictedto "believing"(understood as "Muslim")slave-girls, the implication, by this same technique,is that non-Muslimslave-girls are not acceptable(see Biddya,vol. 2, 42-43, 44; also Muw.,vol. 2, 9, 11). 202 YASIN DUTTON rulingfor an unknownsituation from a knownone, andthey are very often a cause of confusion for thefuqahd'. Examples of qiyds are that a drinkerof wine is given the same hadd-punishmentas a slanderer (qddhif),54or that the minimumamount for a dowry is consideredthe same as the minimum amountfor which the hand may be cut off [as punishmentfor stealing].55Considering ribawi substances,56however, to refer to either staple foodstuffs, or to those which can be measured, or simply to foodstuffs in general, comes under the category of a specific expression by which a more general meaning is intended(al- khdss urlda bihi al-'Cmm).57Consider this well, because there is a great deal of confusion (ghumu.d)about it. It is the first category [i.e. qiyds in general] that the Zahirishave a right to argue about, whereas they have no right to argue about the second since it is a natural phenomenon of language (min bdb al-sam') and whoever rejects it is rejectinga methodof expressionof the Arabs.58

[B. Actions] Most people (al-akthar) agree that actions are one of the ways (turuq)59by which the rulings of the sharra may be derived, although some people say that one cannot derive rulings from actions since actions have no fixed, linguistic form (sigha). Those who hold that

54 For this example of qiyds, see Biddya, vol. 2, 444, where Ibn Rushd gives a shorter version of the report in which 'Umar once asked advice about the punish- ment for someone drinking wine and 'Ali b. Abi Tilib said to him, "We consider (nard) that you should flog him eighty lashes because if he drinks, he will get drunk, and if he gets drunk, he will speak uncontrollably, and if he speaks uncontrollably, he will slander (iftard)," after which 'Umar introduced the penalty of eighty lashes for drinking. (For the full version of this report, see Muw., vol. 2, 178). The penalty of eighty lashes for slanderous allegations of sexual impropriety (qadhf) is fixed Q. 24:4. 55 by For this ruling, see Biddya, vol. 2, 18-20; also Muw., vol. 2, 5, where Milik says, "I do not consider (la ard) that a woman should be married with [a dowry of] less than a quarterof a dindr, which is the least amount for which the hand may be cut off [as punishmentfor stealing]." 56 Ribawl substances are those foodstuffs which are subject to the rulings about usury (ribd). 57 For these rulings, see Bidaya, vol. 2, 129-33. 58 In other words, the Zihiris can justifiably argue against qiyds in that it involves applying a known ruling about one situation to another situation that may in fact be very different - although both must share some similarity (shabah) or underlying rationale ('illa) - whereas understanding a specific expression to have a more general meaning is, Ibn Rushd argues, "a natural phenomenon of language," and so cannot be ignored. 59 This is one instance where the meaning of "source"behind Ibn Rushd's use of the word tariq is obvious since actions are more a potential "source" of rulings than a "way" of deriving them. See above, p. 197, n. 44. INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 203 rulings can be derivedfrom actions differ, however, as to the natureof the rulings indicated by them. Some say that they indicate obligation (wujab) while others say that they indicate recommendation(nadb) [only]. The preferredview (mukhtdr)among the specialists (muhaq- qiqin) is that if they clarify a mujmalruling which is obligatory, they indicateobligation, and if they clarify a mujmalruling which is recommended,they indicaterecommendation; if they do not clarify a mujmal ruling and come under the general category of acts of devotion (qur- ba), they indicaterecommendation, and if they come underthe category of permittedactions (mubzhdt), they indicatepermissibility (ibdha).

[C. Tacit Approvals] Tacit approval[of an action] indicatespermissibility (jawdz).

These then are the ways (turuq)by which rulingsmay be derived or deduced.

[Ijmd'(consensus)] Ijmd' depends on (yastaniduild) one of the four above-mentioned ways (turuq),60except that if thereis ijmd'based on any of these on a ruling which is not definitive (qat'i), that ruling moves from the category of high probability(ghalabat al-zann) to certainty(qat').61 Ijmd'is not an independentsource (asl mustaqill)that does not depend on (min ghayr istindd ild) any of these four ways, because, if such were the case, it would necessitate affirming an additional shari'a after [that of] the Prophet,may Allah bless him and grant him peace, since it would not have its originin any of the sourcesof the sharfa.

[The differentcategories of ruling] As far as their applicationto those subjectto the law (mukallafin)is concerned, the commonly used categories [of ruling] that result from these linguistic ways (turuq lafziyya) [of deriving rulings] are, in

60 Herethe four"ways" must refer to the threecategories of words,actions and tacit approvalsmentioned at the beginningof the sectionon "Waysof deriving rulings"(see above, p. 197), plus qiyds, ratherthan the four ways of deriving rulingsby purelylinguistic means (cf. above,p. 200, n. 52), since all the firstfour categories(except, in the case of the Zihiris, qiyds) can be a sourceof ijmd', whereasthe disputeabout the fourthlinguistic technique of mafhfmal-mukhalafa (or dalil al-khitdb)precludes its beinga sourceof ijmc'. 61 In otherwords, where before therewas only a high degreeof probability that a ruling be obligatory or prohibited,etc, after ijma' it is considered definitivelyso. 204 YASINDUTTON generalterms, either: (i) thata thingis commanded;or (ii) thatit is forbidden;or (iii) thatthere is choice(takhyir) about it. If one understands that a commandis of a definitivenature (jazm) and that thereis a punishmentfor notdoing it, it is calledwajib ("obligatory"), whereas if one understandsfrom it thatthere is a reward(thawdb) for doingit but no punishmentfor not doingit, it is calledmandab ("recommended"). Similarly,if one understandsthat a prohibitionis of a definitivenature and thatthere is a punishmentfor doingit, it is calledmuharram or mahzur ("forbidden"or "prohibited"),whereas if one understands fromit thatthere is encouragementnot to do it butno punishmentfor doing it, it is calledmakruh ("disapproved of'). Thereare thus five categoriesof ruling(asndfal-a.hkdm) in the sharfa thatcan be derived from these ways (turuq) [of derivingrulings]: obligatory (wajib), recommended (mandab), prohibited(mahzur), disapprovedof (makrah),and optional(mukhayyarfihi), that is, permissible(mubcah).

[Thereasons for differencesof opinion] In generalterms there are six reasonsfor differencesof opinion [among thefuqahd']: i) thefact thatwords and expressions may be expressedin anyone of the above-mentionedfour ways (turuq), that is, they may be: (a) generalexpressions by whicha morespecific meaning is intended; or (b) specific expressionsby which a more general meaning is intended;or (c) generalexpressions by whicha generalmeaning is in- tendedor specificexpressions by whicha specificmeaning is intended; or (d) theymay be expressionsfrom which one can,or cannot,make a deductionby dalil al-khitdb. ii) the ambiguity(ishtirdk) that exists in language.This may be eitherin individualwords, such as the wordqar', whichcan be used to mean both "periodof puritybetween menses"and "menstrual period,"62or [theconsideration of] whethercommands should be taken to indicateobligation or merelyrecommendation, and prohibitions be takento indicateprohibition or merelydisapproval; or it may be in a compoundexpression, such as whereAllah says, "exceptthose who

62 This refers to the ambiguityin the word qura' (sing. qar' or qur') in Q. 2:228: wa'l-mutallaqatu yatarabbasna bi-anfusihinna thaldthata quri' ("and divorceesshould wait for threecourses," i.e. beforetheir 'idda is up andthey are fully divorcedfrom their husbands). For furtherdetails on this ruling,see Biddya, vol. 2, 89-91; also, for example, Muw., vol. 2, 29-30; Malik, al-Muwatta', riwayat al-Shaybanl,ed. 'Abd al-Wahhab'Abd al-Latif(Beirut: Dar al-Qalam, n.d.), 205-06. INTRODUCTIONTO IBN RUSHD'S BIDAYATAL-MUJTAHID 205

repent...,"63 which may refer only to the "wrong-doers"(fcsiqin) [mentionedin the precedingverse] or to boththe "wrong-doers"and those whose testimonymust never be accepted[mentioned in the precedingverse], in whichcase, if a slandererrepents, not only is he no longerafdsiq but his testimonyis also acceptable.64 iii) differenceswith regard to inflection(i'rdb). iv) the fact thatwords may be usedin a literalsense (haqiqa) or in one of a number of figurative senses (naw' min anwd' al-majdz), namely,that words may be understoodalthough they are not in the text (hadhf), or may be superfluousalthough they are in the text (ziydda),or theirnormal order may have been changed(taqdim and ta'khir),or theymay bear both a literaland a metaphoricalsense. v) the fact that words may be unqualified(mutlaq) in one instance and qualified (muqayyad) in another,such as the word raqaba ("slave"),which is sometimesqualified by theword mu'mina ("believing")and sometimes not.65 vi) the contradictions(ta'drud) that may arise when any one of the above types of expression (asndf al-alfdz) from which the rulings of the sharla maybe derivedis juxtaposedwith any other; similarly, the contradictionsthat may arise between actions, or betweentacit approvals; or the contradictionsbetween different analogies; or the contradictionsthat may arisefrom a combinationof thesethree categories, namely,a statementcontradicting an actionor a tacitapproval or an analogy;or an actioncontradicting a tacitapproval or an analogy;or a tacitapproval contradicting an analogy.66

63 This refers to the ruling on qadhf in Q. 24:4-5, without which the rest of the paragraph cannot be understood. The two verses in full read: "And those who accuse innocent women [of zind] and do not produce four witnesses, flog them eighty lashes and do not accept their testimony ever, and those are the wrong-doers (fdsiqln); except those who repent after that and act correctly, for Allah is Forgiving and Merciful." 6 For further details on this ruling, see Biddya, vol. 2, 462-63; also, for example, Muw., vol. 2, 108. 65 This refers to the occurrence in Q. 4:92 of the qualified (muqayyad) phrase fa-tahriru raqabatin mu'mina ("then the freeing of a believing slave") when speaking about the kaffCira("expiation") for accidental killing, as opposed to the unqualified (mutlaq) phrases aw tahrlru raqaba ("or the freeing of a slave") in Q. 5:89, referring to the kaffdra for breaking an oath, and fa-tahriru raqaba ("then the freeing of a slave") in Q. 58:3, referring to the kaffdra for zihdr. The point at issue is whether the unqualified expression should be understoodto be qualified by the same qualifying adjective as the qualified expression, i.e. should the slave to be freed be "believing," i.e. Muslim, in all three cases. For furtherdetails on these rulings, see Biddya, vol. 1, 419-20 (oaths), vol. 2, 111-12 (zihdr); also, for example, Muw., vol. 2, 141, 140. 66 Biddya, vol. 1, 2-6.