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 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=bap. 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BRILL is collaborating with JSTOR to digitize, preserve and extend access to Islamic Law and Society. 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 grand- father"(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.