By Junaid Quadri*
In 663/1265, Sultan al-Ẓāhir Baybars appointed a chief judge from each of the four Sunnī madhhabs. For scholars of Islamic law, this decision has served as a signal moment in the story told about the normative pluralism found within Sunnī Islam. I say that this was a signal moment, but it was not a singular one. The pattern of a quadruple judiciary was soon replicated in other centers of Mamlūk rule like Damascus, Aleppo, Tripoli, and Jerusalem. Neither was Baybars’ decision without its own precedents. The Ayyubid period saw the establishment of the Ṣāliḥiyya madrasa which hosted professorships in law for each of the four schools.[1] And there is, already in the Fatimid era, evidence of a quadruple judiciary that cut across Sunnī-Shīʿī lines.[2] Though Baybars’ decision was part of a larger pattern, it has attracted the lion’s share of attention and occasioned a sizable literature, with scholars advancing a number of interpretations of the motivations behind the move. These include viewing the decision as a response to demographic changes propelled by the influx of refugees from the Mongol invasions; as a political decision undertaken by the ruling elite to install a judicial authority from their own Ḥanafī madhhab, to contain the Shāfiʿī establishment, or to buttress their claims of being the guardians of Sunnī orthodoxy and as an attempt to provide the legal system with a measure of stability while still permitting a degree of flexibility.[3]
In this essay, I neither take a position on this debate, nor deny the relevance of a social, institutional or political element figuring into Baybars’ calculus to institute the quadruple judiciary. Instead, I inquire into the discursive resources available that might have made such a move conceptually possible, or even desirable. I consider the principle, found repeatedly in Mamlūk-era collections of legal maxims (qawāʿid), that al-khurūj min al-khilāf, “evading disagreement,” ought to be granted preference whenever possible. This idea would eventually appear in a pithy stand-alone form in Jalāl al-Dīn al-Suyūṭī’s (d. 911/1505) al-Ashbāh wa-l-Naẓāʾir as al-khurūj min al-khilāf mustaḥabb (“evading disagreement is recommended”).[4] In this short, preliminary foray, I do not attempt a comprehensive history of the maxim. Instead, I look at some key Shāfiʿī texts to demonstrate its prominence during the Mamlūk period, then gesture toward the precedents that Mamlūk-era jurists might have drawn upon when invoking it as a guiding principle of interpretation. I go on to show that the governing logic of these maxims differs from the appeals to social logic, institutional stability, or political expediency that scholars have made to explain the Baybars decision. In the qawāʿid literature, the normative pluralism envisioned by the maxim is premised instead on a different desideratum: intellectual and practical caution.[5]
Legal maxims have been called “the third major genre of Islamic law” after jurisprudence (uṣūl al-fiqh) and substantive law (furūʿ al-fiqh).[6] Arising from the needs of judicial practice, these maxims initially emerged as “uncodified but instructive principles of law,”[7] before developing in an increasingly systematic direction until they came to form a distinct literature, usually called qawāʿid. The seventh and eighth centuries marked a period of flourishing of qawāʿid works across the legal schools.[8] In the Shāfiʿī school, which is the focus of our interest in this essay, our maxim appears relatively early in the Mamlūk period in al-Uṣūl wa-l-Ḍawābiṭ of Yaḥyā b. Sharaf al-Nawawī (d. 676/1277) and al-Qawāʿid al-Kubrā of ʿIzz al-Dīn b. ʿAbd al-Salām (d. 660/1262).[9] In both treatises, the principle is invoked in the course of a discussion of the legal dispensation (rukhṣa), a prime example of which is the traveler’s prayer (ṣalāt al-musāfir). According to the Shāfiʿīs, the traveler may both shorten (qaṣr) and combine (jamʿ) certain prayers while travelling.[10] In contrast, Abu Ḥanīfa did not permit the latter, but mandated the former. For al-Nawawī, this means that it is preferable (afḍal) to pray each prayer at its normally designated time, and to pray the shortened versions of all eligible prayers, so as to abide by the determinations of the Ḥanafī school.[11]
In Ibn ʿAbd al-Salām’s work, our attention is directed to a conceptually prior question: what is the definition of “travel”? In other words, how far from home must one be journeying to be eligible for the dispensation of qaṣr in the first place? For Shāfiʿīs, a journey of two days was considered the minimum required distance; for Ḥanafīs, the journey had to be three days long. Keeping this discrepancy in mind, Ibn ʿAbd al-Salām holds that, though it is preferable to take the dispensation and shorten one’s prayers when traveling on a journey that takes three days or more, one should, out of respect for the Ḥanafī position, offer the full unabridged prayer when travelling a distance of only two days. He goes on to attribute the underlying principle to prominent early Shāfiʿīs (akābir aṣḥāb al-Shāfiʿī), who claimed it is better to evade disagreement than to become embroiled (tawarruṭ) in the dispute.[12] Whereas the idea is invoked by al-Nawawī in a rather matter-of-fact fashion in the course of his discussion, we have in Ibn ʿAbd al-Salām a self-conscious statement of something that may justifiably be called a maxim.
In al-Manthūr fī al-Qawāʿid, Badr al-Dīn al-Zarkashī (d. 794/1392) replicates the bulk of ʿIzz’s discussion, though he abstracts it away from the particular case of the travel prayer in which it had been embedded. In al-Zarkashī, discussions related to khilāf are given their own extensive section; they do not emerge organically as part of a larger discussion on the dispensation or the particular case of the travel prayer. In line with the trend toward formalizing the discussions, al-Zarkashī prefaces ʿIzz’s quotation by tying it into the uṣūlī debate of taṣwīb and takhṭīʾa (fallibilism and infallibilism), arguing that the principle of evading disagreement holds no matter which side of the debate one falls on.[13] Tāj al-Dīn al-Subkī (d. 771/1370) claims that al-khurūj min al-khilāf is superior and preferable (awlā wa afḍal) in a stand-alone qāʿida he considers to be “widespread in the discourse of the imams” and a virtual point of consensus.[14] Al-Suyūṭī largely follows al-Subkī’s discussion, though he also lists a subset of the “innumerable” cases to which the principle applies.[15]
Taken together, these five works show quite clearly that the maxim recurs throughout the Mamlūk period. In each of them, however, we also find evidence of a pre-Mamlūk history to the principle. We have already encountered the suggestion in al-Subkī’s claim of the prevalence – indeed virtual unanimity – of the maxim among the imams, and in Ibn ʿAbd al-Salām’s reference to prominent early Shāfiʿīs who propounded the idea. We can also infer the point from the impulse found in almost all of these texts to qualify and condition the universal import (iṭlāq) of the principle, a preoccupation that suggests the maxim took on an early undertheorized form that was in need of refinement. More concretely, we can trace both al-Nawawī’s and Ibn ʿAbd al-Salām’s specific positions to earlier authorities. For his part, al-Nawawī cites Abū Ḥāmid al-Ghazālī (d. 505/1111) directly. In al-Basīṭ, al-Ghazālī writes that it is a “virtuous course of action” to evade the disagreement with the Ḥanafīs by shortening prayers but not combining them.[16] Meanwhile, in Abū Isḥāq al-Shīrāzī’s (d. 476/1083) al-Muhadhdhab, the argumentation of Ibn ʿAbd al-Salām with respect to the definition of a qaṣr-eligible journey is attributed to al-Shāfiʿī himself. Al-Shīrāzī quotes al-Shāfiʿī saying, “I prefer not to shorten [in the case of a journey of] less than three days,” before going on to explain that al-Shāfiʿī “only preferred that [position] to evade the disagreement, because Abū Ḥanīfa, God have mercy on him, only permitted qaṣr for a journey of [at least] three days.”[17]
The drive to accommodate inter-maddhab difference, therefore, has a long history within the Shāfiʿī school, perhaps reaching all the way back to al-Shāfiʿī himself. Early references to al-khurūj min al-khilāf can be found in works of furūʿ, the idea being invoked in the course of argumentation closely linked to particular cases. The formalization of the principle in later qawāʿid works, however, provided jurists an opportunity for theorization, and it is here that we are given a clear view onto the logic that undergirds the principle. Al-Subkī conceptualizes the principle as deriving from the sharīʿa’s demand for iḥtiyāṭ (caution). Caution, in the form of taking care to ensure one’s blamelessness in matters of religion (istibrāʾ li-dīnihi), is for him an unequivocal desideratum of the law (huwa maṭlūb sharʿan muṭlaqan). To underscore his point, he gives the example of someone who avoids playing chess despite believing it to be permissible, out of fear of falling into what some consider prohibited. Such a person has “done well and exercised pious caution (aḥsana wa tawarraʿa).”[18] This is a form of practical caution, care to ensure one’s conduct does not transgress into the prohibited. In Ibn ʿAbd al-Salām this carefulness in the realm of action is conjoined to an intellectual humility. For him, when one evades disagreement, she does so out of a wariness that the opposing position is the correct one (ḥidhran min kawn al-ṣawāb maʿa al-khaṣm), for “the shariʿa is precautious in the performance of the obligatory and the recommended, just as it exercises caution in the avoidance of the forbidden and reprehensible. (al-sharʿ yaḥtāṭu li-fiʿl al-wājibāt wa-l-mandūbāt kamā yaḥtāṭu li-tark al-muḥarramāt wa-l-makrūhāt).”[19] Here, the demand for practical caution is premised on intellectual caution, a healthy respect for an opponent’s argumentation and one’s own limitations.
At least in the case of Shāfiʿism, then, we find a robust discourse that provides a theoretical justification for legal pluralism that is internal to fiqh itself. This is not to say, certainly, that this is what Baybars had in mind when he set out to reform the judiciary; rather, it is to think about how else we can envision legal pluralism – where else can it be located? And in what conceptual grammar does it reside? When we reposition ourselves so as to consider legal pluralism from the perspective of the jurists and their self-conscious theorizations, a different kind of explanation emerges. By examining works of fiqh, we find that legal pluralism as an ideal may be driven not only by reasons of state, be they social, political, or institutional, but also by expectations of piety.
Notes:
* I am grateful to Muhammad al-Marakeby and Bilal Ibrahim for their comments on this post
[1] Joseph H. Escovitz, “The Establishment of Four Chief Judgeships in the Mamlūk Empire,” Journal of the American Oriental Society 102, no. 3 (1982): 529.
[2] Adel Allouche, “The Establishment of Four Chief Judgeships in Fāṭimid Egypt,” Journal of the American Oriental Society 105, no. 2 (1985): 317-20.
[3] Escovitz, “Four Chief Judgeships in Mamlūk Empire,” 530; Emile Tyan, Histoire de l’Organisation Judiciaire en Pays d’Islam (Leiden: E. J. Brill, 1960), 139-40; Jorgen S. Nielsen, “Sultan al-Ẓāhir Baybars and the Appointment of Four Chief Qāḍīs, 663/1265,” Studia Islamica, no. 60 (1984): 167-76; Sherman A. Jackson, “The Primacy of Domestic Politics: Ibn Bint al-Aʿazz and the Establishment of Four Chief Judgeships in Mamlûk Egypt,” Journal of the American Oriental Society 115, no. 1 (1995): 52-65; Ira Lapidus, “Ayyubid Religious Policy and the Development of the Schools of Law in Cairo,” in Colloque International sur l’Histoire du Caire, ed. André Raymond (Cairo: Wizārat al-Thaqāfa, 1974), 279-86; Riḍwān al-Sayyid, “Al-Fiqh wa-l-Fuqahāʾ wa-l-Dawla: Sirāʿ al-Fuqahāʿ ʿalā al-Sulṭa wa-l-Sulṭān fī al-ʿAṣr al-Mamlūkī,” Majallat al-Ijtihād 3 (1989): 135-76; Yossef Rapoport, “Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamluks,” Islamic Law and Society 10, no. 2 (2003): 210-28.
[4] Jalāl al-Dīn al-Suyūṭī, al-Ashbah wa-l-Naẓāʾir (Beirut: Dār al-Kutub al-ʿIlmiyya, 1983), 136-38. On al-Suyūṭī’s legal thought, see Rebecca Skreslet Hernandez, The Legal Thought of Jalāl al-Dīn al-Suyūṭī: Authority and Legacy (Oxford: Oxford University Press, 2017).
[5] For another work that reads legal pluralism through juristic texts, see Ahmed Fekry Ibrahim, “Legal Pluralism in Sunni Islamic Law: The Causes and Functions of Juristic Disagreement,” in Routledge Handbook of Islamic Law, eds. Khaled Abou El Fadl, Ahmad Atif Ahmad and Said Fares Hassan (New York: Routledge, 2019), 208-20. On legal pluralism in the judiciary beyond the Mamlūk example, see the various articles in the special issue of Bulletin d’Études Orientales 63 (2014), edited by Mathieu Tillier under the title “Le pluralism judiciaire dans l’Islam prémoderne.”
[6] Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (New York: Cambridge University Press, 2015), 349. For the burgeoning literature on legal maxims, see, in addition to the preceding, Intisar A. Rabb, “Interpreting Islamic Law through Legal Canons,” in Routledge Handbook of Islamic Law, eds. Khaled Abou El Fadl, Ahmad Atif Ahmad and Said Fares Hassan (New York: Routledge, 2019), 221-54; W. P. Heinrichs, “Ḳawāʿid Fiḳhiyya,” in EI2, vol. 12, Supplement (Leiden: Brill, 2004), 517-18; Wolfhart Heinrichs, “Qawāʿid as a Genre of Legal Literature,” in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill 2002), 365-84; Mohammad Hashim Kamali, “Legal Maxims and Other Genres of Literature in Islamic Jurisprudence,” Arab Law Quarterly 20, no. 1 (2006): 77-101; Khadiga Musa, “Legal Maxims as a Genre of Islamic Law: Origins, Development and Significance of Al-Qawāʿid al-Fiqhiyya,” Islamic Law and Society 21, no. 4 (2014), 325-65; Fawzy Shaban Elgariani, “Al-Qawāʿid al-Fiqhiyya (Islamic Legal Maxims): Concept, Functions, History, Classifications and Applications to Contemporary Medical Issues” (PhD diss., University of Exeter, 2012). An important study of the cognate discipline of legal distinctions is Elias G. Saba, Harmonizing Similarities: A History of Distinctions Literature in Islamic Law (Berlin; Boston: De Gruyter, 2019).
[7] Rabb, Doubt, 350.
[8] Rabb, Doubt, 349.
[9] On al-Nawawī’s place in the Shāfiʿī school, see Fachrizal A. Halim, Legal Authority in Premodern Islam: Yaḥyā b. Sharaf al-Nawawī in the Shāfiʿī School of Law (New York: Routledge, 2015). On ʿIzz b. ʿAbd al-Salām and his al-Qawāʿid al-Kubrā, see Mariam Sheibani, “Islamic Law in an Age of Crisis and Consolidation: ʿIzz al-Dīn ibn ʿAbd al-Salām (577-660/1187-1262) and the Ethical Turn in Medieval Islamic Law” (PhD diss., University of Chicago, 2018).
[10] “Shortening” refers to performing two cycles (rakʿas) of prayer instead of four during the ẓuhr, ʿaṣr, and ʿishāʾ prayers; “combining” means praying either ẓuhr and ʿaṣr, or maghrib and ʿishāʾ, together in quick succession.
[11] Yaḥyā b. Sharaf al-Nawawī, al-Uṣūl wa-l-Ḍawābiṭ, ed. Muḥammad Ḥasan Hītū (Beirut: Dār al-Bashāʾir al-Islāmiyya, 1986), 38-39.
[12] ʿIzz al-Dīn b. ʿAbd al-Salām, Qawāʿid al-Aḥkām fī Maṣāliḥ al-Anām, ed. Ṭāhā ʿAbd al-Raʾūf Saʿd (Cairo: Maktabat al-Kulliyyāt al-Azhariyya, 1991), 1:253.
[13] Badr al-Dīn al-Zarkashī, al-Manthūr fī al-Qawāʿid, ed. Muḥammad Ḥasan Muḥammad Ḥasan Ismāʿīl (Beirut: Dār al-Kutub al-ʿIlmiyya, 2000), 1:345-46.
[14] Tāj al-Dīn al-Subkī, al-Ashbāh wa-l-Naẓāʾir, eds. ʿĀdil Aḥmad ʿAbd al-Mawjūd and Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya, 1991), 1:111.
[15] Al-Suyūṭī, al-Ashbāh wa-l-Naẓāʾir, 136-38.
[16] Abu Ḥāmid al-Ghazālī, al-Basīṭ fī al-Madhhab: Kitāb al-Ṣalāh, ed. ʿAbd al-ʿAzīz b. Muḥammad b. ʿAbd Allāh al-Sulaymān (PhD diss., Islamic University of Madinah, 1435 AH), 354.
[17] Abū Isḥāq al-Shīrāzī, al-Muhadhdhab, ed. Muḥammad al-Zuḥaylī (Damascus: Dār al-Qalam, 1992) 1:335.
[18] Al-Subkī, al-Ashbāh wa-l-Naẓāʾir, 112.
[19] Ibn ʿAbd al-Salām, Qawāʿid, 1:254.
(Suggested Bluebook citation: Junaid Quadri, Intellectual and Practical Caution as Grounds for Legal Pluralism, Islamic Law Blog (Dec. 30, 2021), https://islamiclaw.blog/2021/12/30/intellectual-and-practical-caution-as-grounds-for-legal-pluralism/)
(Suggested Chicago citation: Junaid Quadri, “Intellectual and Practical Caution as Grounds for Legal Pluralism,” Islamic Law Blog, December 30, 2021, https://islamiclaw.blog/2021/12/30/intellectual-and-practical-caution-as-grounds-for-legal-pluralism/)