Monthly Lectures on Islamic Legal Genres: “Form, Function, and Historical Development of Ikhtilāf al-Fuqahāʾ as a Genre” by Professor Anas Sarmini

By Omar Khaled Abdel-Ghaffar

This is a summary of the lecture by Professor Anas Sarmini entitled “Form, Function, and Historical Development of Ikhtilāf al-Fuqahāʾ as a Genre” delivered on September 29, 2021 at 12 noon (EST), 6 pm (Münster) 7 pm (Istanbul) via Zoom.

Professor Sarmini offered September’s installation of the Islamic Legal Genres Workshop. His talk described the historical development of ikhtilāf literature over three phases, and the influence of two intellectual currents in forging this genre of Islamic law. Ikhtilāf, or legal controversy, was an important way of articulating differences within a single legal school, between legal schools, and finally, the current waning of the madhhab systems among many practitioners of Islamic law. 

The term ikhtilāf itself appears in some of the earliest legal texts, including, perhaps most famously Abū Yūsuf’s (d. 182/798) Ikhtilāf Abū Ḥanīfa wa-Ibn Abī Laylā. As a genre, the term encompasses texts that present controversies in the realm of furūʿ al-fiqh, outlining the various opinions that arise between scholars. These differences are the result of what Professor Sarmini considers to be an organic part of the interpretive process across time and space; what he calls “intellectual schools” (madāris fikriyya). He depicts the first of these schools as the “generalist” (kullī) school, privileging in interpretation the perceived purpose of revelation, even if such a process involves deviation from the apparent or prima facie (ẓāhir) meaning of the text. The other school he calls the “specific” or “detailed” (juzʾī) school, which focuses on the specific provisions within or details of the text at the cost of purpose or convenience. This division began in the earliest years of Islamic legal history with the rise of ahl al-ḥadīth and ahl al-raʾy in the second/eighth century, and continued to manifest itself in different forms across Islamic legal history. 

Ikhtilāf literature itself contains a major division: between what scholars call ʿālī, kabīr, or khārijī ikhtilāf (major or external differences of opinion), and nāzil, ṣaghīr, or dākhilī ikhtilāf (minor or internal differences of opinions). Whereas the former describes controversies across madhhabs, so-called inter-school debates, the latter refers to controversies within a single school, that is, intra-school debates. Because ikhtilāf literature preceded the formation of the formal legal schools of Sunnī Islam, the earliest forms of that literature pertained to the major differences of opinion (ʿālī) category. Scholars writing on the genre have described these early works of ikhtilāf as “rudūd” (sing. radd) or refutations. These texts were penned by expert jurists (mujtahids) and tended to follow a question-and-answer structure. This first phase of supra- or inter-madhhab refutation literature ended in the third/ninth century. Thereafter, scholars in the Islamic east [Iraq, Iran, and surrounding lands] grew increasingly interested in the individual schools that had by then started to emerge, and subsequent scholars accordingly wrote works of ikhtilāf that focused more on an individual madhhab, that is, the minor or intra-school debates. In the Islamic west [Morocco, Spain, and surrounding lands], however, the dialogical tradition of refutation continued because of the hegemonic position of Māliki law—which was partial to the refutation tradition—in that part of the Muslim world.

As the fourth/tenth century progressed, works of minor and intra-school debates (ikhtilāf nāzil) gained popularity, particularly with the establishment of Ḥanbali approaches to interpretation as an independent legal school . By this point, anyone writing a work of ikhtilāf was himself a member of a formalized legal school (madhhab), and had reached the rank of a jurist who could choose between two authentic opinions within his or her school (murajjiḥ). The minor or intra-school debates (ikhtilāf nāzil) typically did not feature the dialogical nature of the major or inter-school debates (ikhtilāf ʿālī); and the former was usually a description of positions within a school rather than an answer to questions. Works of minor or intra-school debates (ikhtilāf nāzil), however, contributed to the systematization of Islamic law by providing a hierarchy of positions within a single legal school. 

A modern iteration of the ikhtilāf genre, according to Professor Sarmini, is the field of comparative Islamic law (fiqh). That field takes ikhtilāf literature back to its earliest phases, because comparativists do not write to privilege one madhhab over the other. Rather, they seek to place all legal schools in conversation with one another to tackle questions that modernity poses. Modern comparative fiqh therefore tends to reject the traditional legal school (madhhab) as the only form of Islamic law that is authentic or worth defending; many modern authors advocate combining opinions from various schools of law (talfīq). Yet comparativist approaches have failed thus far to provide an alternative system of jurisprudence. According to Professor Sarmini, only time will tell if a literature of comparative debates and differences in Islamic legal literature of fiqh works will produce its own genre of jurisprudence (uṣūl al-fiqh) separate from the existing models manifested in the ikhtilāf genre historically. 

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