By Cem Tecimer
Abstract: Joseph Lowry on the Legal Hermeneutics of Two Early Islamic Scholars: In this article, Lowry responds to Calder’s assertion that Shāfi‘ī’s Risāla was written around the ninth century, juxtaposing its use of language to that of Ibn Qutayba’s Ta’wīl. Lowry, in refuting Calder’s claim, shows how the two texts have much more in common in terms of hermeneutics and that the remaining differences stem from the different objectives each written work pursued, Shāfi‘ī’s work being more complex as it purported to come up with a complete theory about revealed law.
Source: The Legal Hermeneutics of al-Shāfi‘ī and Ibn Qutayba: A Reconsideration 11 Islamic Law and Society 1-41 (2004)
This article responds to Norman Calder’s 1993 monograph entitled Studies in Early Muslim Jurisprudence, in which he argued that the Risāla by the eighth century leading scholar, Shāfi‘ī, came later then supposed. Calder had concluded that, when compared to the legal hermeneutics employed by Ibn Qutayba in his book Ta’wīl, Shāfiʿī’s work must post-date Ibn Qutayba’s work, and therefore that Shāfiʿīs work was written sometime around the ninth century.
Lowry challenges Calder’s assertions on two grounds: (1) Ibn Qutayba and Shāfi‘ī share much more commonalities in their hermeneutic techniques than Calder appreciated; and (2) the differences in such techniques largely flow not from the purported difference in time of writing, but from the different purposes of each works. Shāfi‘ī’s techniques were more nuanced and sophisticated, as his Risāla was “a systematic and complete theory of revealed law,” whereas Ibn Qutayba’s work was largely “a theological treatise in defense of the Prophetic hadīth” (p. 4).
In addition to correcting Calder’s speculation on dating, Lowry also aims to explore some of the specific jurisprudential methods that Shāfiʿī identified and deployed. Specifically, Lowry focuses on the ’āmm and khāṣṣ (general and specific) rubric, how Shāfi‘ī used it extensively, and how Ibn Qutayba too was aware of it and grounded some of his arguments in defending some ḥadīth on the doctrine of specific over general meaning.
In sum, Lowry reiterates the fact that both works were written for different purposes, making the comparison between them somewhat inappropriate. All things considered, Lowry finds Calder’s argument that Ibn Qutayba was unaware of the ’āmm and khāṣṣ rubric misinformed and his conclusion that Shāfi‘ī’s Risāla must have been written after Ibn Qutayba’s time largely unsupported.
- Islamic law: how Islamic law’s seemingly contradictory statements were reconciled by Shāfi‘ī in his usage of the ‘āmm:khāss rubric, by taking a general rule (for example, from the Qurʾān) and particularizing it by a specific rule (for example, a ḥadīth) that would otherwise contradict the general rule (harmonization) (p. 10); how in addition to harmonizing, Shāfi‘ī also used this rubric to narrow down the scope of general rules (p. 9); how Ibn Qutayba, too, unlike Calder’s suggestion, was aware of the rubric and used cognates of the word khāss to justify hadith (p. 11, 11-19 for examples); the notion of ta’wīl “denot[ing] precisely the overtly ad hoc, individualized interpretation of revealed texts” (pp. 28-29, see also 35); abrogation as an interpretive technique: intra- (e.g. Sunna-Sunna; Qurʾān-Qurʾān) vs. inter-source (Qurʾān-Sunna or Sunna-Qurʾān) abrogation and how Shāfi‘ī explicitly disavows inter-source abrogation (p. 31); how ijtihād was used as a defense by Ibn Qutayba (pp. 34-35); how Ibn Qutayba invoked language and figures of speech to defend otherwise inconsistent or repugnant hadiths (p. 36); jumla:nass rubric (general but undefined obligation in need of further elaboration by the ḥadīth : self-sufficient obligations without the need to be elaborated upon) used by Shāfi‘ī (p. 37);
- ḥadīth: how a ḥadīth restricting the type of parents who can inherent (e.g., they have to be Muslims, free etc.), which apparently contradicts Q 4:11-12 is reconciled with the Qurʾān by narrowing down its scope through the ḥadīth (p. 9, see 11-19 for other ḥadīths and how Ibn Qutayba defends them); ḥadīth criticism as a feature employed both by Ibn Qutayba and Shāfi‘ī (pp. 32-33); development of criteria such as tawātur (recurrent reports) and akhbār āhād (isolate reports) (p. 33), as well as describing the isnāds (lineage of reports of Prophetic hadiths): mursal or munqati‘ for incomplete reports and muttasil for complete ones (p. 34); Ibn Qutayba’s “tripartite hermeneutic typology” of ḥadīths: (1) those brought by the archangel; (2) those which God permitted the Prophet to institute; and (3) those instituted directly by the Prophet “for the sake of inculcating matters (ta’dīb) and urging supererogatory acts entailing reward (fadīla)” (p. 34)
- Sunnī: how Shāfi‘ī’s Risāla as well as Ibn Qutayba’s Ta’wīl both share “a common intellectual tradition from which Sunnism emerged” (p. 41)
- qiyās: how qiyās was embraced by Shāfi‘ī as an equivalent to ijtihād, whereas Ibn Qutayba considered it “highly suspect” (p. 38); how Shāfi‘ī speaks of 2 types of qiyās: (1) based on a shared policy reason (ma’nā) and (2) based on superficial similarity (shabah) (p. 38)
- Islamic criminal law: how ḥadīth stating that stoning is the requisite punishment against adultery “on the basis of God’s book” was rejected by some as being contrary to the Qurʾān, which makes no mention of stoning and how Ibn Qutayba nevertheless defended it, asserting that by “God’s book,” not only the Qurʾān but also the ḥadīth were meant (p. 20, see also p. 21 for another ḥadīth on adultery and its punishment); how a ḥadīth providing for de minimis exception to amputation as a punishment for theft seemingly contradicted the Qurʾān, whose text makes no mention of exceptions—resolved by Ibn Quatyba by arguing that God revealed his intentions step by step, first in the Qurʾān, later through ḥadīth, but resolved by Shāfi‘ī using the ‘āmm:khāss rubric (pp. 23-24); two contradictory ḥadīths: one allowing the killing of wives and children of enemy combatants and one prohibiting it (pp. 26-27)
- Islamic contracts: two contradictory ḥadīths on whether the purchaser of a good with a latent defect (‘ayb) should not only return the purchased good, but additionally return any profits made through using the good until it has been returned (p. 25)
- Islamic family law: how Q 4:23-4 lists certain women with whom marriage is prohibited, then, explicitly states that the rest can be married, whereas a ḥadīth adds to the list of prohibitions, seemingly contradicting the verse—a problem resolved by Ibn Qutayba by arguing that the ḥadīth abrogated Q 4:23-4 (p. 22)
- Islamic inheritance: how Q 4:11-12, in Ibn Qutayba’s view, abrogated Q 2:180 (p. 21)