Source: Al-Qarāfī, Shihāb al-Dīn. Kitāb al-furūq aw Anwār al-burūq fī anwāʾ al-furūq. 3rd ed. Edited by Muḥammad Sarrāj and ʿAlī Jumuʿa. 2 vols. Cairo: Dār al-Salām, 2010.
General Description:
This analysis discusses Shihāb al-Dīn al-Qarāfī’s theory of the purpose of legal maxims and distinctions (qawāʿid and furūq) as presented in his collection of Mālikī distinctions, al-Furūq. In discussing the distinction between the maxims of ‘Those permitted to issue legal opinions’ and ‘Those not permitted to issue legal opinions,’ Qarāfī presents rare insights concerning the role of maxims in consolidating legal doctrine, amending existing doctrine, and extending the law to new cases. He also discusses the relationship of maxims to legal theory (uṣūl al-fiqh) and how a jurist working within a school tradition (taqlīd) relates to the work of his imām.
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Our knowledge of Islamic legal maxims and their role in the development and application of Islamic law remains at a nascent stage. While legal historians have noted the sudden eruption of maxim treatises in the Mamlūk period (13th – 15th century), the question of what maxims were developed for and how they were deployed in legal reasoning remains an open question. Similarly, sources from this period rarely comment explicitly on the functions of maxims and how they relate to the two primary literatures of Islamic law: substantive law (furūʿ al-fiqh) and legal theory (uṣūl al-fiqh). In his collection of legal maxims and distinctions al-Furūq, the prominent Mālikī jurist Shihāb al-Dīn al-Qarāfī (626-84/1228-85) expounds a rare theorization of the purpose of maxims and their relationship to legal theory. In delineating the distinction between three levels of jurisprudential expertise, Qarāfī emphasizes the salient role of maxims in mastering jurisprudence, revising legal doctrine, issuing legal opinions (fatwā), and resolving unprecedented cases.
Qarāfī and Legal Distinctions
Born in 626/1228, Qarāfī was a leading Mālikī jurist in late Ayyubid and early Mamlūk Cairo.[1] Though he studied with a number of leading Mālikī jurists, the teacher who had the greatest influence on Qarāfī’s thought was the Shāfiʿi jurist ʿIzz al-Dīn b. ʿAbd al-Salām (d. 660/1262). Qarāfī authored a number of multi-volume legal works and shorter treatises, one of the most important of which was Anwār al-burūq fī anwāʾ al-furūq, commonly referred to as al-Furūq. One of his last works, 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 shared a resemblance making them appear identical when they are in fact distinct.[2] Qarāfī’s collection of distinctions was widely recognized as the most important and influential collection of legal maxims and distinctions in the Mālikī legal school.
In his collection, Qarāfī compiled a total of 274 legal distinctions and explained each in light of its application and exceptions across legal topics.[3] The development of distinctions literature overlapped in important ways with that of legal maxims; simply put, distinctions frame a discussion of maxims in a comparative mode that contrasts two maxims or two cases that are often mistaken or conflated. In practice, distinctions were usually considered synonymous with maxims and intermixed with them, and they effectively represented the same analytical method of reasoning about the law.
Distinction #78: [Distinguishing] Between the Maxims of ‘Those permitted to issue legal opinions’ and ‘Those not permitted to issue legal opinions’
In his seventy-eighth distinction, Qarāfī distinguishes between three levels of jurists or students of jurisprudence and discusses what type of legal opinion each is qualified to issue.[4] While Qarāfī describes each group without any specific designation, for ease of analysis I refer to the three categories as the novice student, the advanced student, and the master jurist.
At the lowest level of Qarāfī’s hierarchy is the novice student who has studied and memorized a basic legal compendium (mukhtaṣar).[5] 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 and understood its contents. This is because, as Qarāfī explains, legal compendia set forth general statements that in reality have numerous qualifications, distinctions (of the type he elaborates in the book), and exceptions that are expounded 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 novice issue a legal opinion based on his knowledge of the compendium that he had mastered.[6]
The second level in Qarāfī’s hierarchy is occupied by the advanced student who is acquainted with the extended commentaries and voluminous tomes of his legal school in which jurisprudential qualifications, details, and exceptions are explicated at length.[7] The majority of Qarāfī’s critical discussion is aimed this group; while he addresses the first and third factions in no more than a few lines each, he spends nearly four pages distinguishing the advanced student from the master jurist and directing the advanced student not to overstep his bounds. 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, similar to the novice student – though his more extensive knowledge would enable him to answer a broader range of questions. However, when faced with a new issue that he has not previously encountered, Qarāfī is adamant that the advanced student not extrapolate from his knowledge a verdict for this new case (a process known as takhrīj). Qarāfī emphasizes that though the advanced student may have extensively memorized legal doctrine, he has not yet encompassed and acquired mastery the legal reasoning and evidence of his imām but has only “heard it generally described as depicted by [other advanced] students and scholars.”[8] He asserts that his ignorance of his imām’s legal theory and legal maxims would lead him to mistakenly analogize a new case to an existing case when in fact a number of distinctions exist between the cases.[9] Qarāfī recurrently laments the egregious mistakes made by students who issue unauthorized legal opinions on weighty matters without compunction.[10]
It is only the master jurist at the third level of the hierarchy who, according to Qarāfī, is permitted to deduce answers for these unprecedented cases. What distinguishes the advanced student from the master jurist at the topmost level of the legal hierarchy? 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 reasoning and principles of the imām of his legal school. Qarāfī describes this in various ways, but they revolve around the master jurist’s profound familiarity with legal maxims and the conditions governing their application, as well his deep knowledge of legal theory (uṣūl al-fiqh), which includes intricate knowledge of the methodology of legal analogy (qiyās) 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 forms of evidence count as countervailing evidence and which do not.[11] Not only does Qarāfī authorize the master jurist to resolve new questions, he also instructs him to revise his school’s doctrine to ensure that its rulings and legal opinions do not contradict consensus, maxims, texts, and obvious analogies free of opposing arguments. Qarāfī insists that such views existed in all schools to varying degrees and that they should not be transmitted or relied upon in issuing legal opinions.[12]
In order to clarify his conception of the master jurist’s proficiency, Qarāfī draws an analogy between how the master jurist relates to his imām’s opinions and reasoning, and how the imām himself relates to the texts of revelation and their logic. In other words, just as the imām seeks to derive rulings from revelatory sources in ways consistent with God’s intent, the master jurist seeks to maintain fidelity to the imām’s purposes when extrapolating new rulings from his existing statements. He gives a number of examples in which the callow jurist, predictably an assuming advanced student, would fall short in this regard. He would, for instance, remark that his imām had relied on a particular beneficial purpose that was at the level of a necessity (ḍarūrī) to derive a ruling, and he would try to mimic him in another ruling that comprises 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 in this distinction, which echoes statements he made in the introduction to the Furūq,[13] is that memorizing a great number of legal doctrines and detailed rulings alone does not qualify a jurist to extrapolate new rulings, just as memorizing a plethora of texts from the Qur’an, Sunna, and the precedents of the early jurists does not qualify the imām to derive and extrapolate rulings from them. The crucial competency, in Qarāfī’s explication, is deep knowledge of both the intricacies of legal theory and the maxims of jurisprudence.
Notes:
[1] On Qarāfī’s life and thought, see Jackson, Islamic Law and the State; Fadel, Translation of The Criterion.
[2] 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.
[3] Qarāfī explains his methodology in the introduction to the work. See al-Furūq, 1:70-71.
[4] Qarāfī, al-Furūq, 2:543-47.
[5] On the mukhtaṣar, see Arazi and Ben-Shammay, “Mukhtaṣar,” in EI2.
[6] Qarāfī, al-Furūq, 2:543.
[7] Qarāfī, al-Furūq, 2:543-44.
[8] Qarāfī, al-Furūq, 2:543.
[9] On legal maxims generally and the difference between legal theory and legal maxims, see Heinrichs, “Ḳawāʿid Fiḳhiyya”; “Qawāʿid as a Genre of Legal Literature”; Rabb, Doubt in Islamic Law, Appendix 3.
[10] Qarāfī, al-Furūq, 2:544-45.
[11] Qarāfī, al-Furūq, 2:543-44.
[12] Qarāfī, al-Furūq, 2:546.
[13] Qarāfī, al-Furūq, 1:70-72.