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.

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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.

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(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.

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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.

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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.

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 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.

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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".

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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 $isha( prayer and drank once in the early dawn hours of the day.
He wrote extensively in fiqh, )ad"th, and other fields and emerged as one of the Sh#fi$"

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 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…”

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 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+.

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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.

ffield
4.6: Later Contributions to the fi (Eighth/Fourteenth
eld of al-Qaw!!id (Eighth/F
/ ourteenth to
/F
Tenth/Sixteenth Centuries)

! ir: Ibn al-Wak"

!"
na!!"ir:
4.6.1: The Dawn of al-Ashb!h wa ‘l- na!!" k l’s334 Kit"b
al-Wak"l’s
k" K t"
Ki t b al-
335
Ashb"h wa ‘l-na#"`ir

Ibn al-Wak#
al-Wak#l’s
k l’s al-A
k# al-Ashb"h " ir was written in the early eighth
"$
- shb"h wa ‘l-na#"$
-A ‘l-na#"$ir

fforr bringing together the concepts of al-

century AH and is most noteworthy fo

al-fiqhiyya
qaw"!id al-f
-fi
-f
fiqhiy
iyy
iy " ir fo
"$
‘l-na#"$ir
yya and al-ashb"h wa ‘l-na#"$ fforr the fi
ffirst
rst time.

Furthermore, it is considered the most infl

f uential book of the time in the fi
fl
influential ffield
eld

ffuture
to which many fu referred.
ture authors refe
f rred. Although Al-A
fe Al-Ashb"h " ir
"$
- shb"h wa ‘l-na#"$
-A ‘l-na#"$ir

poses several problems, it remains an important part of the historical process

which brought about the golden age in al-qaw"!id al-f

al-fiqhiyya.
-fi
-f
fiqhiy
iyy
iy
yya.

Furthermore, al-A
al-Ashb"h " ir attempts to present a Sh$fi
"$
- shb"h wa ‘l-naz"$
-A ‘l-naz"$ir f %#
Sh$fi%#
fi

‘theory’ of the use of !urf

r but fa
rf ffalls
lls short. However, his attempt, which occurs

mostly in two particular discussions, is worth examining to refl

reflect
f ect on his role
fl

334
He is &adr al-D#n Mu'ammadb. %Umar b. Makk# b. %Abd al-&amad b. %A(iyya, b. A'mad b.
%A(iyya al-Ma)r#, a Sh$fi%# scholar who is known as Ibn al-Mar'al and Ibn al-Wak#l. He was
born in *umy$( in 665/1267 and grew up in Dimashq, where he aquired knowledge in fiqh,
u%&l, grammar. He also taught there and became the shaykh of D$r al-+ad#th al-Ashrafiyya.
He debated Ibn Taymiya. He later moved to +alab, then to Mi)r, where he taught at al-
+usayn. He died there in 716/1317. He wrote al-Ashb"h wa ‘l-na#"$ir and Shar' al-a'k"m li
!Abd al-(aqq. See Ka''$l$, Mu!jam (1957), 11:94-5.
335
Ibn al-Wak#l, Mu'ammad b. %Umar, al-Ashb"h wa ‘l-na#"$ir. Ed. A'mad b. Mu'ammad
al-%Anqar#. Riyadh: Maktabat al-Rushd li ‘l-nashri wa ‘l-tawz#%, (2nd edition) 1997/1417. 2
volumes.

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