Monthly Lectures on Islamic Legal Genres: “Genre as a Tool for Understanding Islamic Law” by Prof. Ahmed al-Shamsy

By Omar Khaled Abdel-Ghaffar

This is a summary of the lecture by Prof. Ahmed El Shamsy entitled “What Kind of Gloss is a Ḥashiya?,” delivered on April 28, 2021 at 12 noon (EST), 6 pm (Münster) 7 pm (Istanbul) via Zoom.

Professor El Shamsy’s lecture described the history, impact, and receptions of legal ḥāshiya literature, with a particular focus on Shāfiʿī law. El Shamsy opened his lecture by describing German Orientalist Eduard Sachau’s (d. 1930) description of Shāfiʿī ḥāshiyas and their dominance in nineteenth century East African legal writing. This dominance is a feature El Shamsy attributes to a certain idea of authority within post-classical Islamic legal discussions. El Shamsy argues that in order to understand the rise and fall of the ḥāshiya, we must first understand the way in which ḥāshiya literature developed vis-a-vis extra-legal genres, and the new problems the twentieth century posed to Muslim jurists, causing them to turn their backs on the genre.

According to the Egyptian theologian Ibrāhīm al-Bājūrī (d. 1860), all valid ijtihād after the year 300 AH (912/913 CE) should abide by the boundaries of a specific madhhab. However, Bājrūrī did not envision authority in the later period as a binary divided between mujtahids and non-mujtahids. Rather, he divided contemporary jurists into four groups: (1) absolute mujtahids, (2) a jurist who uses the principles of the absolute mujtahid to deduce new legal opinions, (3) a jurist who evaluates the already existing opinions of jurists and finally (4) the muqallid. As a result, many Shāfiʿī scholars did not engage directly with Shāfiʿī’s texts except through Nawawī and Rāfi’ī, and even those typically by means of al-Ramlī. Rāfiʿī and Nawawī were, according to El Shamsy, part of a Mamlūk-era encyclopedic drive to sift through all previous legal knowledge. This process coincided with the influx of Transoxianian scholars to Mamlūk lands from realms conquered by the Mongols. As a result, Nawawī‘s and Rāfiʿī’s engagements with al-Shāfiʿīs opinions were systematic and wide-ranging. The erudition of Nawawī’s generation meant that later jurists came to see pre-Nawawī Shāfiʿī scholarship as nearly irrelevant. Sachau reports that during his own time in East Africa, not a single text by Shāfiʿī himself had been published. The reason for neglecting the work of Shāfiʿī himself involves according to El Shamsy a presumption among later jurists that Nawawī had engaged all of al-Shāfiʿīs opinions and that as a result the former’s opinions were simply a systematization of the former’s. Therefore, eighteenth century Shāfiʿī scholarship was effectively a collection of ḥawāshī on Ramlī and ibn Ḥajar. 

Reading and writing these ḥawāshī require according to El Shamsy “a specific kind of erudition” because they contain information on everything from grammar to logic. The authors of ḥawāshī indulge in tangents that involve other sciences and even unfounded spiritual ideas (like, as El Shamsy mentioned, the idea that the Prophet loved rice). These tangents result in what El Shamsy calls “the degeneration of legal doctrine brought about by logical analysis.” Although staccato in their form–ḥawāshī are short comments oftentimes using elaborate abbreviation techniques–they oftentimes cause complex legal issues through implicating logical arguments into otherwise streamlined legal questions. El Shamsy gives the example of istiḥdār tafṣīlī, where a person is expected to evoke all 18 integrals of prayer at its start, in order to be considered to have actually commenced praying. The standard Shāfiʿī position is that the person praying must evoke the prayer–the logical deduction in the post-classical period being that in order to do so he must evoke all essential aspects of the prayer. This idea of istiḥdār tafṣīlī does not exist in ibn Ḥajar or al-Nawawī’s work, but is a product of the ḥawāshī tradition. As a result, the ḥawāshī have become a model portrayal of the decadence of the post-classical period, and rejecting them was an important part of the modernization processes of the early twentieth century. 

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