Al-Qarāfī’s collection of legal distinctions

By Mariam Sheibani

Source: Al-Qarāfī, Shihāb al-Dīn. Kitāb al-furūq aw Anwār al-burūq fī anwāʿ al-furūq. 3rd ed. Edited by Muḥammad Sarrāj and ʿAlī Jumuʿa. 2 vols. Cairo: Dār al-Salām, 2010.

General Description:

This excerpt comprises the seventy eighth ‘legal distinction’ in Qarāfī’s collection of legal distinctions (furūq). Legal distinctions are a subset of legal maxims, which compare and distinguish two or more legal maxims that share a resemblance making them appear identical when they are in fact distinct. Qarāfī’s collection of distinctions was widely recognized as the most important and influential. This excerpt represents Distinction #78: Between the Maxim of ‘Those permitted to issue legal opinions’ and ‘Those not permitted to issue legal opinions.’ In the passage, Qarāfī discusses the qualifications required to issue legal opinions (fatwā) and distinguishes between three levels of jurists. In the discussion, he provides illuminating insights about the crucial role of maxims in extending and extrapolating the law to new cases and in revising existing school doctrine.

Al-Qarāfī and Legal Distinctions:

Born in Cairo in 626/1228, Shihāb al-Dīn al-Qarāfī (626-84/1228-85) was a leading Mālikī jurist in early Mamlūk Cairo.[1] Qarāfī’s most important teacher was the Shāfiʿī jurist, ʿIzz al- Dīn b. ʿAbd al-Salām (d. 660/1262), and he studied with a number of other leading Mālikī and Shāfiʿī jurists and theologians. Qarāfī authored a number of multi-volume legal works and shorter treatises, one of the most important of which was Anwār al-burūq fī anwāʿ al-furūq, commonly referred to as al-Furūq. One of his last works, this collection compiled a total of 274 distinctions, and explained each in light of its application and exceptions across legal topics.[2] The Furūq is a collection of legal distinctions (furūq), which in effect compared two or more legal maxims (or sub-maxims, principles, or cases) that share a resemblance making them appear identical when they are in fact distinct.[3] The development of furūq literature overlapped in important ways with the development of legal maxims, and distinctions are in a sense a sub-division of maxims concerned specifically with, or framed as, a comparison between two maxims or two cases. In practice, distinctions were usually considered synonymous with maxims and intermixed with them, and they effectively represented the same analytical method of reasoning and analyzing the law.

Distinction #78: Distinguishing Between the Maxims of ‘Those permitted to issue legal opinions’ and ‘Those not permitted to issue legal opinions’

In this section, Qarāfī distinguishes between three levels of jurists or students of law and discusses what type of legal opinion each is qualified to issue. Qarāfī brings in interesting theoretical insights about the functions of legal maxims in consolidating legal doctrine, resolving unprecedented cases, and issuing legal opinions (fatwā). He also integrates invaluable insights about the relationship of maxims to legal theory (uṣūl al- fiqh) as well as how the jurist working within a school tradition (taqlīd) relates to the work of his imām (ijtihād).

At the first level of Qarāfī’s hierarchy we meet the novice student who has studied and memorized a basic legal compendium (mukhtaṣar). The novice student, for him, is generally not permitted to issue a legal opinion based on the content of a compendium, even if he has accurately memorized it and deeply understood. This is because, as Qarāfī explains, the legal compendium is full of general statements that in reality have numerous qualifications, details, and exceptions discussed in more advanced works. The only circumstance in which the student is permitted to issue a legal opinion is if he is asked about a scenario that is (1) exactly as described in the compendium “letter for letter,” and not merely similar or analogous to it; and, (2) the student is certain that its exposition in the compendium is exhaustive and comprehends all its possible qualifications and details. Only if these conditions are met can the beginner student issue a legal opinion based on his knowledge of the compendium.

The second level in Qarāfī’s hierarchy is occupied by the advanced student who is acquainted with the extended commentaries and voluminous legal works of his school in which the qualifications, details, and exceptions are discussed at length. Most of Qarāfī’s discussion and critique is directed towards this group; while he addresses the first and third categories in no more than a few lines, he spends almost four pages addressing this group and distinguishing them from the master jurists at the third level of his hierarchy. On the one hand, Qarāfī authorizes the advanced student to issue legal opinions about matters that he has studied and memorized, for which he would be simply transmitting normative school doctrine. However, if he is faced with a new issue that he has not encountered previously, Qarāfī is adamant that he not extrapolate from his knowledge a verdict for this new case (takhrīj); that is, unless he meets certain conditions discussed below. Only the master jurist at the third level of the hierarchy is permitted to deduce answers for these unprecedented cases.

What distinguishes the advanced student from the master student? Most of Qarāfī’s discussion is aimed at precisely rendering this distinction. According to Qarāfī, the differentiating characteristic of the master jurist is his deep comprehension of the logic and reasoning of the eponymous imām or founder of his school. Qarāfī describes this in various ways, but they revolve around the master’s deep comprehension of legal maxims and the conditions governing their applications, as well his deep knowledge of legal theory, which includes intricate knowledge of things like legal analogies and the details of their underlying rationales (ʿilal), the purposes and benefits that rulings are intended to achieve and how to prioritize between these, and what evidence counts as countervailing evidence and what does not. Furthermore, Qarāfī instructs the master jurist to revise his school’s legal to ensure that its rulings and legal opinions did not contradicts consensus, maxims, texts, and obvious analogies free of opposing arguments. Qarāfī insisted that such views existed in all schools to varying degrees and that they should not be transmitted or relied upon in issuing legal opinions.

In this passage, Qarāfī distinguishes between legal theory and legal maxims, though both are required knowledge for the jurist determining new legal opinions. He notes that legal maxims are not encompassed by legal theory and are not discussed in books of legal theory, but are instead found and deployed in works of positive law and are therefore known by competent jurists and muftis. He remarks that he was prompted to author this work in order to collect these maxims and to determine them more precisely.[4]

Interestingly, Qarāfī analogizes the relationship between the master jurist’s insights into this deeper dimension of his imām’s reasoning to his imām’s relationship with the logic of revelation. In other words, just as the imām seeks to represent derive rulings from revelatory sources in ways consistent with God’s purposes, the master jurist seeks to maintain fidelity to the imām’s logic and purposes when extrapolating new rulings from his existing statements. He gives a number of examples in which the callow jurist would fall short in this regard. The callow jurist would, for instance, remark that his imām had depended in deriving a ruling on a particular beneficial purpose that was at the level of a necessity (ḍarūrī), and he would try to analogize the same but for a beneficial purpose that is only at the level of a need or a complement; which would be an invalid analogy because of the distinction. In sum, Qarāfī’s contention here, which echoes statements he made in his introduction, is that memorizing lots a lot of legal doctrines and detailed rulings alone does not qualify a jurist to then extrapolate new rulings, just as memorizing a plethora of texts from the Qur’ān, Sunna, and the precedents of the early jurists does not qualify a school founder to derive and extrapolate rulings from them. The key is the deep knowledge of maxims and legal theory, as Qarāfī explicated in this passage.


[1] On Qarāfī’s life and thought, see Jackson, Islamic Law and the State; Fadel, Translation of The Criterion.

[2] Qarāfī, al-Furūq, 1:70-71.

[3] On legal distinctions, see al-Amiri, Legal Maxims, 107-120; Saba, “What’s the Difference? Distinctions, Furūq, and Development in Postformative Islamic Law”; Heinrichs, “Structuring the Law: Remarks on the Furūq Literature,” 332-344.

[4] Qarāfī, al-Furūq, 2:546.

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