CHAPTER FOUR
Sh#fi$" Qawaid Fiqhiyya: ‘al-Ada Muhakkama’ (Fourth/Tenth to Tenth/Sixteenth Century)
4.1: General Background to the Sh!fi$" madhhab and its Approaches to Adjudication
Muhammad ibn Idr"s al-Sh!fi$" (d. 204/820)257 was one of the most
influential theoreticians of Islamic law during his time and remains so to the
present day258. As a student, then critic, of the two leading legal minds of his time, namely, Mu)ammad al-Shayb!n" and M!lik ibn Anas, al-Sh!fi$"
presented a middle path between their thought. He neither accepted !anaf"
ra$y completely nor embraced the concept "amal ahl al-mad"na259 as
sufficiently rigorous sources of law. According to Al-Sh!fi$", each of these
approaches introduced too much arbitrariness, or ta'akkum, into the
comprehension of the law and that neither gave sufficient consideration to the
257 Please see above, p. 67, n. 105 for his biographical information.
258 During the past decade, a debate has raged in the field of Islamic Studies regarding al- Sh!fi$"’s true role in the development of usul al-fiqh during the late second/eighth century. One the one hand, he is known as the father of usul al-fiqh on account of his well-known epistle on u,%l, the Ris!la, which attempted to systematize the sources of and methods for Islamic legal practice. Recently, however, Wael Hallaq has argued quite persuasively that al- Sh!fi$" was not as influential during his time as later scholars’ writings of him would have us believe. In his “Was al-Sh!fi$" the Architect of Islamic Law?”, Hall!q argues that the Ris!la was not widely accepted as authoritative and did not receive scholarly attention for well over a century after its completion.
259 "Amal ahl ul-Mad"na is the practice of the people of Mad"na. M!lik"s consider this to be the living tradition of the Prophet Mu)ammad, which they inherited directly because he had lived there. Consequently, the M!lik"s consider "amal to be one of the main sources of legal knowledge, or proofs, upon which judgments can be made. See “al-Sh!fi""” in EI2 (9:181a- 185a), especially 182-3.
- 117 - main sources of law: the Qur$!n and the sunna. As a result, Al-Sh!fi$" contribution to legal thought was to define and the sunna and to systematize the use of analogical reasoning.
Although he may not have wanted or intended to do so, al-Sh!fi$"’s innovative thought prompted a following of scholars which would later culminate in the formation of the Sh!fi$" madhhab. Although the seeds of the
madhhab were sown during his lifetime, it flourished fully after the
fourth/tenth century AH260.
4.2: Background to Sh!fi$" Qaw!"id Fiqhiyya
Although !anaf" fuqah!$ and u&(liyy(n were the first to articulate the
foundations of al-qaw!"id al-fiqhiyya as a distinct field of law, it was the
unmatched contributions of Sh!fi$" scholars that would shape and define the
direction of al-taq""d al-fiqh", from the as early as the fifth/eleventh to the
tenth/sixteenth centuries. Early Sh!fi$ scholars such as al-Q!&" !usayn al-
Marwarr%dh" (d.462/1070)261, al-Juwayn" (d. 478/)262, Mu)ammad al-J!jarm"
260 Al-Muzan" (d. 264/877), was one of al-Sh!fi$"’s earliest and most important followers. His Mukhtasar, or abridgement, of al-Ris!la became one of the most influential early works of Sh!fi$" law and helped spread his thought throughout the Muslim world. EI2 “al-Sh!fi""”, (IX:187a).
261 He is also known as al-Marwaz", although al-Marwarrudh" more precisely reflects his place of origin (Marw al-Rudh or the Marw near the river rather than Marw). “Marw al-R%dh” A town on the Murgh#b river in medieval Khuras#n, five or six stages up river from the city of Marw al-Sh#hij#n where the river leaves the mountainous region of Gharjist#n and enters the steppe lands of what is now the southern part of the Qara Q%m. The name means Marw on the River, or little Marw, served to distinguish it from the larger center of Marw al- Sh#hij#n. (EI2 6, 617b-618a). See also, Ka))#l#, Mu"j!m (1957), 4:45.
262 See Nadw", al-Qaw!"id, 141-144 and also Saflo’s Al-Juwayni's Thought and Methodology: with a translation and commentary on Luma$ ul-adilla.
- 118 - (d. 613/1216)263 and al-Nawaw" (613/1216-17)264 authored works on Sh!fi$" principles of jurisprudence which were of groundbreaking significance within the madhhab265.
Later scholars such as al-Zanj!n" (d. 656/1258)266 and $Izz al-Din ibn
Abd ul-Salam (d. 660/1262)267, whose works we will explore below268 developed the ideas of their predecessors and presented new perspectives on legal organization and structure of al-qaw!"id al-fiqhiyya.
It was not until the eighth/fourteenth century that the field of qaw!"id embarked upon its ‘golden age’ a period which is dominated by Sh!fi$"
263 This is Mu$"n al-D"n Ab% !#mid Mu)ammad b. Ibr#h"m b. Ab" ‘l-Fa&l al-Sahl" al-J#j#rm" al-Sh#fi$", a jurist from Nishap%r where he studied and died (613/1216). Among his books are al-Kif!y!, 2,!' al-waj%z li ‘l-Ghaz!l%, and al-Qaw!"id. His Qaw#$id is one of the earliest works in the field of jurisprudential principles. However, it has not survived although it was an important text to students of fiqh. See Ka))#l#, Mu"jam (1957), 7:212.
264 For al-Nawaw", please see p. 131, n. 288 below.
265 My use of the relational terms ‘early’ or ‘earlier’ and ‘late’ or ‘later’ separates events occurring before and after the beginning of the seventh/thirteenth centuries.
266 This is Ab% ‘l-Man#fi$ Mu)ammad b. A)mad b. Ma)m%d b. Bakhti#r al-Zanj#n" al-Sh#fi$", a jurist, u&(l%, Qur(#n commentator, 'ad%th scholar, and linguist. He lived in Baghd#d where he was Q#&" ‘l-Qud#t but was later removed from the position. He taught at the Niz#miyya and the Mustan,iriyya. He was martyred upon Hulagu’s sack of Baghd#d in 656/1258. His most important works are Tafs%r al-Qur$!n and Kit!b Takhr%j al-fur(" "al! ‘l-u&(l. Please see Ka))#l#, Mu"jam (1957), 12:148-9.
267 $Izz al-D"n b. $Abd al-Sal#m b. Ab" ‘l-Q#sim b. al-!asan b. M. b. al-Muhadhdhib al- Sulam" al-DImashq" al-Sh#fi$", known as Ibn $Abd al-Sal#m, was a Sh#fi$" jurist, u&(l% and linguist. $Izz al-D"n was born in Dimashq in 577 or 578/1181 where he learned fiqh from Ibn $As#kir and later taught and issued fatw!s. He is said to have reached the level of ijtih!d. He died in al-Q#hira in 660/1262. Among his best works are al-Qaw!"id al-kubr! f% u&(l al-fiqh, al-Ish!ra il! ‘l-%j!z f% ba", anw!" al-maj!z, and al-Gh!ya f% ‘ikhti&!r al-Nih!ya. See Ka))#l#, Mu"jam (1957), 5:249. Please also see below, p. 144, n. 316.
268 See “Early Sh!fi$" Contributions to the Field of al-Qaw!"id Generally and ‘al-"#da Mu'akkama’ In Particular”, p. 127 below.
- 119 - accomplishment and scholarship on the topic269. Sh!fi$" fuqah!$ of this period introduced some of the most constructive and enduring organizational structures and methods of discussing the qaw!"id, which served as a foundation for nearly all future exploration of the field, regardless of madhhab affiliation.
For this purpose, our discussion of eighth/fourteenth to tenth/sixteenth century Sh!fi$" contributions to the field will be much longer than in the previous chapter. We will present - to varying degrees of depth - the works of numerous Shafi$" fuqah!$ of the highest esteem who lived during this time and some of whose works represent major turning points in the historical development of the principles of jurisprudence of this time.
Some of these important Sh#fi$" turning points include: Ibn al-Wakil’s use of ‘ashbah wa nazair’ and al-Subk"’s division of the qaw#$id into major and minor ones are the two most important developments in the field from its inception to the present.
4.3: Sh!fi$" Positions on "#d! and "Urf As a Source of Law in Adjudication
As we have seen in the previous chapter, it is tasking to discern a
consistent and broad position on the use of custom as a source of legal
evidence. However, the Sh!fi$" case presents one of the most interesting
developments in Islamic legal history: al-Sh!fi$" himself changed his fiqh from
269 On the important developments in the field during the eighth/fourteenth century, see al- Nadw"’s al-Qaw!"id al-fiqhiyya, 138.
- 120 - old, $Ir!q" teachings to new Egyptian teachings—a change which has often
been attributed to the vastly different needs, norms and customs of the people
of these two regions.
4.4: Early Sh!fi$" Contributions to the Field of al-Qaw!"id Generally and ‘al-"#da Mu$akkama’ In Particular
Despite the relatively few extant texts on the principles of
jurisprudence from the fifth/eleventh to seventh/thirteenth centuries, scholars
made great intellectual contributions to that burgeoning field. Like the
!anaf"s before them, Sh!fi$"s expended considerable efforts to treat this subject laying the foundations for their future domination of al-qaw!"id al- fiqhiyya.
Six early Sh!fi$" scholars were of particular importance in the formation of Sh!fi$" qaw!"id studies during this time. These were al-Q!&"
!usayn al-Marwarr%dh" (d. 426/1070), al-Juwayn" (d. 478/1085), al-J!jarm"
(d. 613/1216), al-Nawaw" (d. 613/1216-17), al-Zanj!n" (d. 656/1258), and $Izz
al-D"n ibn $Abd al-Sal!m (d/ 660/1262)270. We will examine these as the
structural foundations of Sh!fi$" qaw!"id fiqhiyya in general by focusing our
discussion on the q!"ida “al-"!da mu'akkama”.
4.4.1: al-Q#&" !usayn al-Marwarrudh"
270 The works of two of these scholars, namely al-Q!&" !usayn and al-J!jarm" have been lost. However, we will mention their contributions to the extent possible while delving more deeply into the works of the other four early Sh!fi$" scholars who pioneered the field of qaw!"id in their madhhab.
- 121 -
Al-Q!&" !usayn al-Marwarr%dh"271, one of the most esteemed Sh!fi$" scholars of u&(l and fur(" during the fifth/eleventh centuries, encapsulated
Sh!fi$" fiqh into four major principles. Mu)ammad al-J!jarm"272 was likewise
an eminent scholar who displayed the highest abilities in various branches of
science. His celebrated work, al-Qaw!"id (of Sh!fi$" jurisprudence), was of
immense benefit to students and became a standard class book. Yet despite its
importance and popularity as a school text, it has not survived. Although the
works of both scholars are referred to with deep respect and homage by later
Sh!fi$" scholars of qaw!"id, little is in fact know of the contents of these works or the methods they used to treat their subject matter.
4.4.2: Im#m al-!aramayn al-Juwayn"
Im!m al-!aramayn al-Juwayn"273, who stands out as one of the most
brilliant Sh!fi$" scholars of all time, also took a particular interest in the
271 al-!usayn b. Mu)ammad b. A)mad al-Marwarr%dh" (also known as al-Marwaz" and known as “al-Q!&"”) was a Shafii scholar of high authority in fiqh and u&(l. al-Q!&" !usayn also authored a well-respected treatise on law, al-Ta"l"qa, He learned jurisprudence from al- Qaff!l al-Marwaz" (d. ?). He continued until his death to act as a judge, professor, and muft". He died in Marw al-R%dh, on 23 Mu)arram, 462/1070. Among his works are: Talkh"s al- tahdh"b li 'l-Baghaw" f" fur(" al-fiqh al-Sh!fi"", which he entitled Lub!b al-tahdh"b, Shar' fur(" Ibn -add!d f" 'l-fiqh, Asr!r al-fiqh, al-Ta"l"q ul-Kab"r, and al-Fat!w". See $Umar Rid! Ka))!la, Mu"jam al-mu$allif"n: tar!jummmu&annif" al- kutub al-"arabiyya, (Dimashq: al- Maktaba al-$Arabiyya, 1957-1961), 4:45-6, Subk", Tabaq!t (1992), 4: 356-8
272 Ab% !!mid Mu)ammad b. Ibr!h"m b. Ab" 'l-fa&l al-Sahl" al-J!jarm" al-Sh!fi$" (Mu$"n ul- D"n) was a Sh!fi$" faq"h who lived, studied and died in Nay,!b%r. Among his works are al- Kif!ya, I,!' al-waj"z l"’l-Ghaz!l", and al-Qaw!"id, all of which is on Sh!fi$" fur(". His nisba refers to J!jarm, a small town between Jurj!n and Nay,!b%r. See Ka))!la, Mu"jam al- mu$allif"n, 7:212, de Slane, Ibn Khallik!n Biographical Dictionary, (Beirut: Librairie du Liban, 1970), 2:659-60.
- 122 - potential role of qaw!"id to structure the law. Ghiy!th al-um!m f" iltiy!th al-
)ulam274 is a singular accomplishment which anticipates and designates a
course of action in the event of two particular lapses in the authoritative
leadership of the Muslim community275. The first discussion assesses the
problems of and offers guidelines for the ummah, or community of believers,
in the absence of an Imam (or caliph, the political leader of the wider
community of Muslims)276. The second discussion anticipates the existence of a time devoid of legal or religious scholars and practitioners277. It is the latter portion of the text that is of interest to us in the context of qaw!"id fiqhiyya.
Although Ghiy!th al-umam is not at all a qaw!"id work278, al-Juwayn"
devotes a considerable amount of his thought to them279. Anticipating a time devoid of transmitters, practitioners, and authorities of the shar""a, the author astutely highlights the indispensability of clearly understanding the legal
274 Im!m al-!aramayn Ab" ‘l-Ma$!l" al-Juwayn", Ghiy!th al-umam f" iltiy!th il-)ulam. Eds. Fu$!d $Abd al-Mun$im and Mu,'af! !ilm". (Alexandria: Dar ul-Da$wa, 1979). His father was also known for having written a book on al-Qaw!"id al-fiqhiyya.
275 Al-Juwayn"’s book begins with a comprehensive discussion of the institution of the Im!ma which comprises nearly sixy percent of the text. That discussion is followed by one on the absence of the imam and another on the absence of transmitters of legal knowledge.
276 See Ghiy!th, 224, ‘al-Qawl f" Khuluww al-zam!n "an il-a$imma’. See also 376 where he confirms once again his reasons for having written this work and particularly this section. He says, “F! inn" lam ujammi" hadh! ‘l-kal!m …”.
277 See Ghiy!th, 284, ‘Taqd"r inqir!d hamalatu ‘l-shar""a’.
278 The author’s father wrote a work entitled al-Fur(q, which deals more directly with qaw!"id. This work has not been published. See al-Zu)ayl"’s al-Qaw!"id al-fiqhiyya "al! al- madhhab al--anaf% wa ‘l-Sh!fi$".
279 See Ghiy!th, 284-380, passim. Also, see 316 for example, where al-Juwayn" refers to certain qaw!"id as $qaw!"id kulliyya’, a distinction not made by other scholars until al-Subk".
- 123 - system as a whole and of the jurisprudential principles in particular280.
Proceeding in fiqh" order and discussing the most important chapters of fiqh
(such as al-'ah!ra and al-,al!h), al-Juwayn" presents the implications and
applications of as certain qaw!"id, such as al-yaq"n la yaz(lu b" ‘l-shakk281,
m! l! yu"lam f"h" ta'r"m yajr" "al! 'ukm ul-'ill, and raf" ul-'ijr wa ‘l-'araj, or
the lifting of undue hardship282.
4.4.3: Al-Nawaw"’s 283 al-U&(l wa ‘l-*aw!bi+284
280 See Ghiy!th, 284: “Ma,m(n hadh! al-rukn yastad"" nakhlu ‘l-shar""a min ma+la"ih! il! maq+a"ih! w! tatabbu" ma&!dirih! w! maw!ridih! w! ‘khti&!& ma"!qidih! w! qaw!"idih! w! in"!m ul-na)ar f" u&(lih! w! fu&(lih! wa ma"rifati fur("ih! wa yanb("ih!, w! ‘l-i'tiw!$ "al! mad!rikih! w! mas!likih!, w! ‘istib!nat kulliyy!tih! w! juz$iyy!tih!, w! ‘l-i++il!" "al! ma"alimih! w! mana)imih!, wa ‘l-i'!+a b" mabda$ih! w! mansha$ih!, w! +uruq tash""bih! w! tart"biha w! mas!qih! wa madh!qiha w! sabab ittif!q al-"ulam!$ w! a+b!quh! w! "illat ikhtil!fuh! w! iftir!quh!. W! law ,aman+( h!dha ‘l-majm(" m! ashart( ilayh" w! na&a&t( "alayhi lim! yaq&ur "an asf!rin thumma l! ya'wa (ya'w") muntah! ‘l-aw+!r”.
281 Although al-Juwayn" does not use this phrasing, the meaning and essence is one. See for example, his Ghiy!th, 317 where he says, “One of the established shar"" principles, or al- qaw!"id al-shar"iyya (by which he means al-qaw!"id al-fiqhiyya) is the presumption of certainty in the tah!ra, or ritual purity, of things until a certainty of its impurity is verified.
282 See Ghiy!th, 316-380.
283 This is Ab% Zakariyya Ya)ya b. Sharaf b. Mar"y b. !asan b. !usayn b. Mu)ammad b. Jum$a b. !iz#m al-!iz#m" al-Nawaw". His nisba is to Naw#, a small town in the area of !ur#n in Syria. Ab% Zakariyya al-Nawaw" was born in Mu)arram, 631 ah to a merchant in whose store al-Nawaw" worked from the age of 10 years. However, he was not skilled in buying and selling and did not enjoy this work. Instead he spent his time reading Qur(#n even in place of playing with other children. Al-Zarkash", another great Sh#f"$" scholar of the time, recalls seeing kids taunting and nearly forcing him to play with them while he tearfully evaded them. When he reached 19 years of age, his father took him to Damascus to continue his studies where he excelled in all fields. It is reported that he spent six years in intense study where he wasted virtually no time without learning, memorizing, or reading. His character was one of simplicity and zuhd. For example, he is said to have spent those years without ever sleeping in a fully reclined position, neither night nor day. When asked how he rested, he said he would simply lean on his book and take a nap and continue where he was before. Al- Nawaw" ate one meal after $isha( prayer and drank once in the early dawn hours of the day. He wrote extensively in fiqh, )ad"th, and other fields and emerged as one of the Sh#fi$"
- 124 - In his very brief epistle on u&(l and ,aw!bi+, al-Nawaw" seeks only to
highlight and comment upon the most essential aspects of legal practice rather
than treat exhaustively the field of al-qaw!"id al-fiqhiyya285. Al-Nawaw"’s
target audience is the student of *h#fi$" law and his overall goal is to provide a
handbook of indispensable knowledge, which is reminiscent of other scholars
before him286.
The five major objectives of al-U&(l wa ‘l-,aw!bi+ are clearly put
forward at the onset with the goal of keeping students of Sh#fi$" law from
going astray in their learning and practice. These five objectives are to
establish unifying principles and various limiters287, group similar cases
together288, provide examples of particular cases which are derived from u&(l
or which are based upon them289, contain or consolidate many scattered legal determinations290, and clarify many conditions of well known u&(l291.
madhhab’s most formidable legal minds. See al-Nawaw"’s al-U&(l wa ‘l-*aw!b%+, 11-16. See also, Ka))#l#, Mu"jam al-Mu$allif%n, (1957), 13:202.
284 Ab% Zakariyya Ya)y# al-Nawaw", al-U&(l wa ‘l-*aw!bi+, ed. Mu)ammad !asan H"t%. Beirut: D#r al-Bash#(ir al-Isl#miyya, 1986/1406.
285 See the editor’s comments, al-U&(l, 6 and al-Nawaw"’s statement, 21, in which he says, “These are qaw!"id, ,aw!bi+, important u&(l, and required goals that which [are important and very much] needed by the students of Sh#fi$" law- and students of all fields. They are indispensable to fiqh scholars...” 21-22.
286 Namely, al-Karkh" and especially al-Dab%s". Please see Chapter Three, above.
287 See al-Nawaw", al-U&(l, 22: “al-maq&(du bih! [i.e. al-ris!la, or the epistle] bay!n al- qaw!"id il-j!mi"a wa ‘l-,aw!bi+ il-mu,+arad!t…”.
288 al-Nawaw", al-U&(li, 22: “jam"u l-mas!$il al-mutash!bih!t”.
289 al-Nawaw", al-U&(l, 22: “…al-tamth%lu bi fur("in mustakhrajatin min a&lin aw mabniyyatin "alayh…”
- 125 - The author centers his discussion on nine issues, or mas!$il which highlight his five objectives. These are as follows:
Mas+ala# Title in Arabic Translation 1 Madhhab ahl al-sunna wa Predestination According to the ‘l-jam!"a fi ‘l-qadar Sunn"s 2 Aqs!m "uq(d al-mu"!malat Categories Of Transaction min al-luzum wa ‘l-jaw!z Contracts With Regard To Their Validity And Bindingness 3 Idha in"aqada ‘l-bay"u lam Once A Sale Has Been Completed yat+ariq ilayhi ‘l-faskhu illa It Can Only Be Voided cancelled bi a'adi sab"atu asb!bin In One Of Seven Circumstances (Asb!b al-faskh fi al- (Causes For Cancellation Of Sale) buy("292) 4 M! yaq(mu fihi ‘l-wat$u Cases In Which Intercourse Takes maq!mu ‘l-laf) The Place Of Declarations 5 -ukmu ‘l-"aqdi ‘l-f!sidi The Legal Status Of An Invalid 'ukmu ‘l-"aqdi ‘l-&a'%' f% al- Contract Is The Same As That Of ,am!n A Valid Contract In Guarantees 6 *ab+u jumalin min Setting Required Amounts/ Limits/ muqaddar!t al-shar%"a Measurements By Way Of Legally Determined Amounts 7 Bay!ni aqs!mu al-rukhas Categories Of [Legal] Licence 8 Rukha&u ‘l-safari tham!nin There Are 8 Estabished Licenses For Travel 9 Idh! ta"!ra,a a&lun wa If An Existing Situation And An )!hirun aw a&layni… Apparent One Are At Odds With Each Other…
Although Al-U&(l wa ‘l-,aw!bi+ is quite incomplete in its treatment of the subject, it is an essential benchmark in the historical development of qaw!"id, ,aw!bit, and ashb!h wa-na)!$ir. al-U&(l wa ‘l-,aw!bi+ reiterates a familiar theme— the problem of students who lack sufficient knowledge of
290 ibid. “…'a&ru naf!$isa min al-a'kam al-mutafarriq!t…”
291 ibid. “…bay!n shur(+I kath%rin min al-u&(li ‘l-mashh(r!t…” 292 What is between parentheses is the editor’s abbreviation of al-Nawaw"’s section title. I felt it was important to bring out the author’s own words in order to demonstrate that it is, as stated, a ,!bi+.
- 126 - their own school’s fur(" needed to treat new cases293— and seeks to remedy
this phenomenon which threatens the legal educational system and the
practice of law by q!,%s and muft%s.
However, what sets it apart from other early texts is that it places the
fur(", not the u&(l, squarely in the center of the discussion and proposes new
ways of grouping and classifying cases, including the limited introduction of
technical terms294. The first observation reinforces a reality while the second one is a departure from early !anaf" scholars whose writings were heavily influenced by qaw!"id u&(liyya295.
The content and structure of the text are new and different from previous writers in a few important ways. First, the text begins on an unconventional note: by stating the Sh#fi$" dogmatic belief in the theological principles of predestination, or al-qadar296. Once this is established, the author presents areas of the law which are a priority to people’s proper
293 We have seen this as the primary motivation for the works of both al-Karhh", al-Nasaf", al- Dab%s" and others. It is clear that the reason al-qaw!"id al-fiqhiyya and related fields emerged when they did in the format they did was to tackle this considerable obstacle to the continuation of Islamic legal practice within the context of dominant and well-formed legal schools operating mostly under the rubric of taql%d. 294 In this text al-Nawaw" uses the term ‘u&(l’ to refer to qaw!"id and ,aw!bi+ in a way that is new and betrays their emergence as new technical terms with set meanings and ranges within a new field of inquiry, namely al-qaw!"id al-fiqhiyya. See al-U&(l throughout.
295 See note 298 above with al-Karkh" and al-Dab%si.
296 See al-Nawaw"’s al-U&(l wa ‘l-,aw!bi+, 23-25, where the issue is treated in a very simple fashion. He poses the question of whether God accepts and loves a sinner or not? His answer, and that of the Ash$arite Sh#fi$"s is a resounding ‘no’ citing the Qur(#nic verse, “L! yar,a bi "ib!dihi ‘l-kufr” Surat al-Zumar, v 6. Their theological opponents, the Mu$tazila, would reply in the affirmative. The heart of this debate is the notion that every thing, act, person, or situation acts according to the will of God. Actions are deemed good or evil by God’s attribution of those characteristics to them, not by human reason.
- 127 - practice of the tenets of the faith and of conducting one’s life in accordance
with its teachings297. So for example, three of the nine u&(l clarify the
differences between various kinds of contracts, their validity, bindingness, and
ways of cancellation298. Al-Nawaw" is keenly aware of the centrality of all kinds of contracts to peoples’ daily lives and strives to raise the awareness of future q!,%s’ of the stipulations and conditions which govern these transactions.
The third and fifth mas!$il are example of ,aw!bi+ which can inform decisions of a q!,% within a limited section of law: in these cases, it is the chapters on sale and guarantees. What is interesting is that these two mas!$il are stated in the syntactical form of a legal maxim. It is short, informative, and easy to recall when needed. This is a clear departure from the clumsy difficult u&(l presented by al-Karkh" and al-Dab%si.
Other mas!$il demonstrate how al-Nawaw" began to introduce new
ways of organizing and structuring various particular cases of law for easier
reference and use. These are mas$ala number two, four, six, seven and eight.
The second mas$ala informs student of the four major kinds of contracts in a
structure that is easy to learn and remember. So any kind of contract fits one
of the four following categories. It is either: 1. valid for both parties (like
297 Although "urf is not explicitly (and hardly implicitly) mentioned in al-U&(l, the subject matter itself appears in some of the cases used.
298 These are mas(ala #2, 3, and 5. See al-U,%l, 26-28 and 31-32.
- 128 - sharika299 and wik!la300) 2. binding on both parties (like al-salam and ij!ra),
3. valid for one party and binding on the other (like rahn and kit!ba) and 4. binding on one but there is a difference of opinion (either valid or binding) on the other, like marriage. Once this legal structure for organizing the various kinds of contract is clear in the mind of the student, he can apply the rule to new kinds of cases to determine which rules are applicable to it.
Although this work does not discuss "urf or "ada to any significant extent301, the seventh and eighth mas!$il discuss certain aspects of legal license and leniency, or al-rukha&, which would emerge later as one of the five major principles: al-mashaqqa tajlib al-tays%r302. The seventh mas$ala establishes clearly the categories of legal leniency while the eighth talks specifically about the license permitted to one who is traveling. It is clear from his focus on such worldly, practical, and very pressing issues that al-
Nawaw" worked to insure the functional practice of law in the hands of well- informed students. His contribution to the field of qaw!"id is significant and although it is not explicit, his work takes people’s practice, or custom, as the touchstone for the discussion.
299 Limited partnership.
300 Proxy
301 There is one reference to customary practice in the eighth mas$ala regarding the minimum distance required to qualify as travel, upon which certain legal licenses apply. He states any opinions but settles on 48 Hashemite miles, which is customarily understood to mean 46 since the first and last mile are not usually counted. See al-U&(l, 42.
302 See al-Nawaw", al-U&(l, 37-44.
- 129 - 4.4.4: Al-Zanjani’s Takhr"j al-fur(" "al! al-u&(l: Part One
Al-Im#m Abu ‘l Man#fi$ Shah#b al-D"n Ma)m%d ibn A)mad al-
Zanj#n" was born in 573 AH in Zanj#n, a town on the border of Azerbaijan.
Zanj#n was a large town in the heart of the mountain region near the river of
Qazv"n303. He led a life of knowledge and contributed to many fields of
Islamic and Arabic studies. He was appointed professor at the Niz#miyya
school, followed by the Mustansiriyya School and then became q!,%i 'l-qud!h of Baghdad. He was martyred in 656 during the sack of Baghdad at the sword of the Tatars. It is presumed that the vast majority of his works perished, as did an overwhelming number of treasures during this time304. But
biographical entries of him attest to his knowledge and erudition in such fields
as lughah, 'ilm al-khilaf, u&(l, and tafs%r.
The impetus which prompted al-Zanj#n" to write this book was a
concern about the ability of legal practitioners to issue a'k!m on new cases in
a manner consistent with the foundations of their own mahdhab doctrine as
opposed to the doctrines of other schools. Al-Zanj#n", like al-Dab%s" before
him, was concerned that legal scholars had become distant from the founding
principles of their madhhab as well as the us(l% points of contention and
contrast between them which helped to solidify the differences between, say,
the Shafi$" and the !anaf" madhh!hib.
304 Mu"jam al-Buld!n by Y!q%t al-Hamawi, 3, p. 152. Al-Zanj#n" was one of the leading Sh#fi$" scholars of his time. Also, please see p. 127, n. 265 above for more information about the author.
- 130 - Al-Zanj#n" begins by clarifying the relationship between us(l and fur(". The adilla from which laws are derived are known as u&(l al-fiqh. He continues:
“It is well known that fur(" are built upon u&(l. Therefore, one who does not comprehend the methods of derivation nor is aware of the relationship between the fur(" and their adilla, which are the u&(l, that person will not be capable of going further in the field nor will he be able to perform tafr%" (or deriving fur(" cases from u&(l) by any means.
Therefore he envisions the task of this book to be a contribution to the field in a very new and much needed way. In a very real sense al-Zanj#n" hopes to create a 'guide book' to provide a step-by-step progression through the often daunting task of reaching the most appropriate legal solution to a conflict or question while remaining legally on target within the framework of madhhab argumentation and historical decisions.
Al-Zanj#n" argues that no other scholar to his day had undertaken a similar work, rendering Kit!b takhr%j al-fur(" "ala ‘l-u&(l a new contribution to the field of fiqh. Consequently, and as a matter of sound scholarship, he takes great pains to establish his methodology. First, the author begins with the u&(l% matter (al-mas$ala ‘l-u&(liyya) to which the fur(" are traced back within each qa'ida. Then, within that context, he mentions the usuli argument
('ujja) from different points of view. Then he traces back, or attributes the fur(" that originate from it back to it.
According to al-Zanj#n", three kinds of legal writing are clearly interacting with eachother and are negotiating their role vis-a-vis each other.
These are u&(l al-fiqh, fur(" al-fiqh and al-qaw!"id al-fiqhiyya. Al-Zanj#n"'s
- 131 - goal is to establish clearly once and for all the relationship between these and how one is a necessary part of, or prerequisite for reaching the other but only in a particular order. Al-Zanj#n" begins with the presupposition that at least within the Sh#fi$" and !anaf" madh!hib, fur(" are grouped together under the rubric of a unifying q!"ida only if each far" can be traced back to a common u&(l% 'ujja. This is, then, a refresher course in the defining u,%l of these two schools as a point of departure for understanding key differences in formulation of judgements within each school as well as between them.
The second, equally important goal of the book is to mitigate conflict between the Sh#fi$" and !anaf" madh!hib by returning to the a&l fiqh", or hermeneutical principle, upon which conflict was based.
It is difficult to categorize Kit!b takhr%j al-fur(" "ala 'l-u&(l squarely within the genre of either u&(l or fur(" or even qaw!"id. However, this problem of which category a work belongs in embodies one of the most important changes facing legal scholars of the seventh to eleventh centuries
AH. It is at this time that new subfields of legal inquiry and thought were beginning to emerge which corresponded to the changing legal situation, which I would argue becomes dominated by a regime of organization specialization and categorization of the existing case law and the attempted formulation of u&(l, or qaw!"id. It is precisely these new realms which were being explored and elaborated through works such as this. For this reason, categorization of these early works is difficult, it at all possible…Their task
- 132 - was in fact to take these subjects as a whole and locate the differences
between them as well as they ways in which they overlap.
Al-Zanj#n"’s methodology was to include not only &aw#bi' in matters
of u,%l, but also legal and linguistic principles, or qaw!"id fiqhiyya w!
qaw!"id al-"arabiyya. It is interesting to note that al-Zanj#n" sometimes
supported opinions which were NOT the most widely accepted within the
madhhab305. Also, despite being Sh#fi$", he only upholds or defends the
Sh#fi$" position in a few u&(l% matters306. Furthermore, when conveying the
!anaf" position on a few matters, al-Zanj#n" selects a viewpoint other than the dominant one, which, in his estimation, is a more accurate representation of the madhhab's position than the dominant view307.
The editor discusses the only other book which preceded Takhr%j and
which aspired to do a similar task. This is Dabusi's Ta$s%s al-na)ar with
which we are familliar from the previous chapter. These two works are
compared and the differences between them highlighted. The most
noteworthy points of convergence between these two works are that each
aspires to link fur(" back to the u&(l from which they were derived. However,
they do this in different ways308. Finally, the editor notes that after al-
Zanj#n"'s book, writing on this topic followed one of two methodological
305 See al-Zanj#n", Takhr%j, 20 for editor’s comments. 306 Al-Zanj#n", Takhr%j, These are enumerated on p. 21.
307 ibid. 21.
308 ibid., 21-24.
- 133 - approaches. The first was organizing fur(" in terms of legal maxims as was
the case in works of qaw!"id fiqhiyya, ashb!h wa-naz!'ir, and fur(q beginning
with Ibn $Abd al-Sal#m (d. 660) and ending with Ma)m%d !amz#, muft% of
Damascus (d. 1305). The second approach was to elaborate upon matters of
u&(l only such as Asn#w" (d.772) in his Tamhid through al-Timurt#sh"
(d.1004) in his al-Wu&(l il! qaw!"id al-u&(l309.
Al-Zanj!n"’s Takhr"j al-fur)" "al! al-u()l: al-$#da mu,akkama
Al- Zanj#ni’s Takhr%j is loosely structured according to the chapters of
fiqh, beginning with al-tah!ra310 and ending with al-sayr311. Within each chapter, the author only treats certain issues, or mas!$il, in which !anaf"s and
Sh#fi$"s are divided along u&(l% lines. In this way, al-Zanj#n" demonstrates
how the u&(l% difference, or khil!f, between the two schools dictates different
ahk!m in all cases which are derived from that a&l.
Customary practice is discussed several matters throughout the text.
However, we will examine one issue in particular from the legal chapter on
gha&b, or usurpation, in which al-Zanj#n" gives us his legal perspective on "urf
in tashr%"312. In this matter, it is al-Sh#fi$"’s opinion that the use of a thing is
309 ibid., 24-25. 310 This is usually the first chapter of any fiqh work and focuses on matters pertaining to ritual purity. See al-Zanj#n", Takhr%j, 47.
311 See al-Zanj#n", Takhr%j, 305.
312 See al-Zanj#n", Takhr%j, 198-201
- 134 - equivalent to the components which are essential to it and which are
constructed with that particular purpose in mind. The example given is that of
a house:
Whose ceilings are meant to protect against heat and cold, whose walls protect its occupants against theft or usurpation from without, and whose land protects it from plunging downwards313.
Al-Zanj#n" explains that each part has a form, shape or purpose which
differentiates it from others and which is used to derive a set purpose from it.
Each of these, say the walls, or ceilings of a house, come and go as does any
property or asset which was meant to be of service to people. Therefore, use
of the term ‘m!l’ on these [individually] is more proper than on the whole, or
the house. Ab% !an"fa held the opposite view, which was that the existence
of the usufruct was itself the property or value (m!l) based on the component
parts. Al-Zanj#n" refutes the !anaf" position by rendering it based on
definitions and debate, or al-'aq!$iq wa ‘l-na)ar, which is not what legal
decisions are based upon. He says:
That is accepted if we take definitions and reason into [legal] consideration. However, legal determinations are not based upon definitions and logical reasoning. Instead they are based on customary beliefs. The thing which no longer exists, or al-ma"d(m, which they [!anaf"s] refer to is customarily and legally understood as property. Furthermore, the customary and legal determinations are predominant in legal cases.314
313 ibid, 198.
314 See al-Zanj#n", Takhr%j, 199 which says, “h!dha musallam idha na)arna ila ‘l-'aq!$iq wa salakn! +ar%q ul-na)ar. Wa l!kin al-a'k!m al-shar"iyyata ghayru mabniyyatun "al! ‘l-'aq!$iq al-"aqliyya bal "ala ‘l-i"tiq!d!t al-"urfiyya. Wa ‘l-ma"d(m alladhi dhakaruh m!lun "urfan wa shar"an. Wa 'ukmu ‘l-shar"i wa ‘l-"urfi ghalibun fi ‘l-a'k!m.”
- 135 - He goes on to explain that custom dictates that whoever can prove
possession of and residence within a dwelling is deriving its usufruct. As a
result, the Sh#fi$" legal determination is that the usufruct of the usurped thing
is to be compensated (or guaranteed) by the usurper upon its depletion. The
!anaf" position in that legal matter is that it is not to be compensated and the usurper does not owe anything for as long as he is usurping it315.
The significance of this work for the historical development of "!da as a principle within all schools is noteworthy. This text demonstrates that at this point in Sh#fi$" legal thought, custom and divine law, or shar", are made equivalent to each other, at least in this case316. Later, a subordinate principle would emerge from this and other discussions, which is that what is known by
"urf is as what is known by shar", or al-ma"r(fu "urfan ka ‘l-mashr(+u shar"an.
4.4.5: $Izz al-D"n ibn $Abd al-Sal!m’s317 Qaw!"id al-a'k!m f" ma&!li' al- !n!m318
315 al-Zanj#n", Takhr%j, 199.
316 ibid, “wa 'ukm ul-shar"i wa ‘l-urfi gh!libun fi ‘l-a'k!m”.
317 He is $Izz al-D"n b. $Abd al-Sal#m b. Abi ‘l-Q#sim b. al-!asan al-Sulam" whose laqab was Sul'#n al-$Ulam#(. $Izz al-D"n was an esteemed scholar of the Sh#fi$" madhhab. He was born in Damascus on 577 and visited Baghd#d in 599, where he remained for one month. Upon his return to Damascus he was appointed as kha'"b and professor in al-Ghazal"’s corner, and later kha'"b of the Umayyad mosque. After criticizing the ruler for a political move and then neglecting to mention him in ritual supplications, $Izz al-D"n was imprisoned then moved to Egypt where he was appointed kha'"b of Masjid $Amr, or al-masjid al-$at"q. He later settled as professor at the *#li)iyya school where he remained until his death in 660. See Ab% Bakr b. Hid#yat Allah al-!usayni (d. 1014 ah), 3abaq!t al-Sh!fi"iyya. Ed. Adel Nuwayha&. (Beirut: D#r al-+f#q al-Jad"da, 3rd ed., 1982/1402), 222-223. See also, T#j al-D"n al-Subk", 3abaq!t
- 136 - Throughout our discussion of the early Sh#fi$" contributions to the
field, we have seen nearly as many approaches and structures as we have seen
scholars. The case of $Izz al-D"n Ibn $Abd al-Sal#m and his Qaw!"id al-
A'k!m f% Ma&!lih al-#n!m is no exception. This was a significant Sh#fi$"
work on qaw!"id fiqhiyya during the early seventh century due to several
factors.
First of all, Ibn $Abd al-Sal#m is the first scholar to present a
minimalist approach to the discussion of qaw!"id al-fiqh. In this book, he
argues that all of Islamic law emanates from one central concept: bringing
about benefit and preventing harm319. With that as his point of departure, his
book demonstrates how all acts of worship, or "ib!d!t, and all transactions, or
mu"!mal!t can be conceptualized and categorized within the framework of
bringing about good and preventing harm320. Ibn $Abd al-Sal#m discusses a wide range of legal matters including sale, divorce, and various punishment highlighting where there is the most benefit to people and how to avoid harm.
As a result of this work, we see that Ibn $Abd al-Sal#m considers ma&la'a, or the benefit and wellbeing of the people, to be the highest goal, or maq&ad, that the shar%"a aspires to achieve and, as such, the only legal maxim needed to
al-Sh!fi"iyya al-Kubr!. Ed. $Abd al-Fatt#) M. al-!ilw. 1964, 8:209-255. See also p. 127 n. 266 above.
318 $Izz al-D"n b. $Abd al-Sal#m. Qaw!"id al-a'k!m f% ma&!li' al-!n!m. 2 vols. (Bayr%t: Mu(assasat al-Rayy#n, 1998/1419).
319 These are “jalb al-ma&!li)” and “dar$ al-maf!sid”. See Ibn $Abd al-Sal#m, Qaw!$id al- a'k!m, 7 and passim.
- 137 - structure the law. In fact this would emerge as one of the five universal maxims of Islamic law, known as al-mashaqqa tajlubu ‘l-tays%r’, or hardhip brings about ease.
The second way in which Ibn $Abd al-Sal#m makes his mark in the history of al-qaw!"id al-fiqhiyya is that his is the first work to carry the technical term “qaw!"id” in its title, a turning point in the field’s development in its own right. The work is organized in terms of fu&(l, qaw!"id and faw!$id.
There is very little attention to the u&(l upon which fur(" are built except the a&l of ma&la'a. There is very little reference to al-Sh#fi$" or other eponyms and their rational for judging the way they did. Instead, the author is himself putting forth these arguments without feeling the need to attribute them to a more authoritative figure within the schools hierarchy of authority. This represents a shift to a new form of legal thinking: from relying upon the eponyms to couch and bolster one’s arguments to becoming empowered and emboldened to perform ijti'!d within the existing legal reality: i.e. the madhhab. So, Ibn $Abd al-Sal#m helps us visualize the legal space between ijtih!d mu+laq and taql%d—that is al-ijtih!d fi ‘l-madhhab. Later scholars would refer back to Ibn $Abd al-Sal#m as a crucial turning point in the formulation of al-qaw!"id al-fiqhiyya.
Third, Qaw!"id al-a'k!m f% ma&!li' al-!n!m is the first book of qaw!"id which discusses "urf extensively and begins to treat it as a principle which governs adjudication in many important ways. In this work, Ibn $Abd
- 138 - al-Sal#m establishes for the first time, a somewhat systematic approach to "urf
which within one century would be adopted as the standard, elaborated upon
and completed, then become formulated as one of the five major principles of
Islamic law—al "!da mu'akkama.
Throughout his book, $Izz al-D"n ibn $Abd al-Sal#m naturally
discusses people’s customary practice and the role it plays in adjudication in a
new, systematic and well-structured method. In his work which centers on
ma&la'a, or the best interest of the people, "urf factors prominently because it often entails bringing about benefit and warding off harm 321. The author
identifies three primary ways in which "urf and the legal adjudication come together and affect the legal outcome. These are treated within three topics, or fu&(l, under which he enumerate and groups as many examples from fur(" as possible. These topics are:
1. Rendering people’s situation and customs in the position of explicit statements in the matters of limiting the general and specifying the unqualified322,
2. Understanding statements or words according to the probable implications of customary practices should the need arise323, and
3. Actions are presumed to be based on the most commonly understood practice of the people324.
321 See Ibn $Abd al-Sal#m, Qaw!"id al-a'k!m, especially 79-80, and 83-93 but also throughout the text.
322 See Qaw!"id al-a'k!m, 280: “Fa&lun f% tanz%li dal!lat al-"!d!t wa qar!$in al-a'w!l manzilatu &ar%' al-aqw!l f% takh&i& ul-"um(mi wa taqy%d ul-mu+laq…” For his complete discussion of this topic, please see 280-287.
323 ibid, 287: “Fa&lun f% 'amli ‘l-alf!) "ala )un(nin mustaf!datin min al-"!d!t li-mas%si ‘l- 'ajati ila dh!lik…” For his complete discussion of this topic please see 287-292.
324 ibid, 292: “Fa&lun f% ‘l-'aml% "ala ‘l-gh!libu wa ‘l-aghlab fi ‘l-"!d!t…” See 292-293.
- 139 -
In the first fa&l, Ibn $Abd al-Sal#m argues that people’s customary practice is legally equivalent to an explicit legal stipulation or statement. This is significant because, as we have seen, it places people’s established customs and habits on the same level of legal certainty as explicit legal statement or stipulation325.
This statement amounts to the establishment of a legal maxim which is
applicable to many individual kinds of cases. Ibn $Abd al-Sal#m lists and
discusses twenty-three areas of fur(" to demonstrate the ways in which the
q!"ida has been applied in Sh#fi$" law326. These fall along two main themes, which are that the legal weight of "urf is equivalent to that of the law, or al- shar$327, and that 2. what is known by "urf is the same as what is known through a legal stipulation, or shar+. I will illustrate these themes through a few examples that Ibn $Abd al-Sal#m records.
First, Sh#fi$" law places certain customarily established limitations on unlimited agency such that an agent must buy and sell for only the fair market value, using local currency328. Also, permission in marriage is technically
325 See Ibn $Abd al-Sal#m, Qaw!"id al-a'k!m, 280.
326 ibid, 280-287. For a more complete list of these 23 types of cases, please see appendix 2 (“Ibn $Abd al-Sal#m: Cases Where $Urf is Equivalent to Explicit Statement”).
327 ibid, 281, and passim.
328 Although this is the more rational understanding for unlimited agency, we saw that Ab% !an"fa, the head of the rationalist school, did not allow custom to limit such an arrangement, whereas both of his companions did. It is true that unconditional means unconditional and words should be understood in terms of their meanings, as he would argue. However, Ibn $Abd al-Sal#m’s central tenet is that harm should be avoided. And applying the letter of the law would prevent benefit and bring about harm. So, if an agent who has unlimited agency
- 140 - general but is customarily known to meet two conditions, kaf!$a and the
equivalent dowry. In contracts of isti&n!" (paying a craftsman ahead of
delivery for a good or service: carpenter, barber, porter) and isti$j!r (hire: for
cooking, construction, renting a beast of burden, etc), it is established that
their pay, the way in which they work, and the length of time it takes them to
deliver the good or service are all known through customary practice. If they
do not deliver the good or service in the customarily understood manner,
quality, in the known timeframe and at the price known as the appropriate
value, then one does not have to pay them a wage.
Another way in which custom is elevated to the level of legal fact, or
higher, is that a legal status is determined not through legal proof, but instead
through the probable meanings of certain actions or statements which have
legal significance according to custom329. For example, the customary
practice of delivering a woman to a man in a wedding procession, known as
izf!f, indicates that these two people are legally married330. The same principle applies in the case of mu"!+!h331 and other transations. In all of these cases custom is indeed the legal determinant (al-$#da mu)akkama) which indicates the 'ukm of these and similar kinds of disputes. Although Ibn $Abd
sold X’s car -valued at $9,000- for $100, X would suffer an unacceptable amount of harm. Therefore custom must limit the unconditional to protect the interests of the people. 329 Please see Ibn $Abd al-Sal#m, Qaw!"id, 287-292 for examples.
330 ibid, 287.
331 “Al-bay" bi ‘l-mu"!+!h” is simply exchanging a product for its value without offer and acceptance statements, which are the legal conditions for a valid sale. However, due to the preponderance of mu"!+!h sales in people’s customary practice, it was deemed legal in order to avoid undue hardship.
- 141 - al-Sal#m does not phrase his argument using those specific words, he does
draw the broad strokes which will allow the following generations of scholars
to deduce that principle from his work. This is therefore, a critical milestone
in the development of the q!"ida al-"!da mu'akkama and the first instance of it’s treatment in a comprehensive and multifaceted way.
Other significant contributions include a discussion of "urf shar"% or giving known Arabic terms a symbolic meaning according to the spiritual customary meaning they have inherited (such as sal!h, zak!h, 'ajj).
Furthermore, al-idhn al-"urf%, or permission which is granted according to
custom is discussed and examples are enumerated. The author also mentions
certain conditions which must be in place before custom can be invoked332, as
well as presents cases in which there is a difference of opinion on the use of
custom as an arbiter333. These are discussions which did not take place in
earlier works of qaw!"id. Qaw!"id al-a'k!m f% ma&!li' al-!n!m was the
crucial chapter after which books in the field of qaw!"id al-fiqhiyya came to
take new and unique form, content and structure. In many ways, this book
represents the true birth of the field.
4.5: Summary of Early Qaw!"id works
332 That it be tari$, or widespread, common, for instance.
333 See Ibn $Abd al-Sal#m, Qaw!"id al-a'k!m, 282.
- 142 - Within the Sh#fi$" madhhab, the earliest works of qaw!"id fiqhiyya yield several important observations regarding the development of the field up to the middle of the seventh century AH. First, the texts we have examined all shared a considerable concern for preserving the heritage and tradition upon which its case law was established lest it be lost on future generations of students and scholars. Furthermore, we see that the field of al-qaw!"id al- fiqhiyya emerged in a variety of froms representing explorations of different kinds. From al-Zanj#n"’s highly organized and structured work which clarified the roots of law so that all future cases can easily be built upon them to Izz al-Din’s dynamic restructuring of all law under the rubric of just one principle, namely ma&la'a, it is clear that fuqah!$ were charting new legal ground. Also, by the end of the seventh century AH, there are only the beginning elements of a solid, consistent technical terms for this field with most discussions using the terms u&(l, qaw!"id and ,aw!bi+. What we can deduce is that the meanings of these terms was clear enough for the scholars to work with. Furthremore, this period presents a vast range in the number of qaw#$id that emerge, ranging from one, to nine, to many more. However, overall, they are relatively little and exhaustive in breadth. Regarding the development of "urf, it is clear that with each generation of scholars, the range of the discussion of customary practice increased and became more and more comprehensive as the cases which were determined by it became increasingly synthesized under "urf.as a topic. It would be only a few short decades until
- 143 - !urf would be elevated to a high position within the hierarchy of legal
principles.
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