In the previous post I mentioned the vibrant commentary tradition on AbuÌ„ ShujaÌ„Ê¿â€™s compendium of ShaÌ„fiÊ¿iÌ„ law, which indicates that Muslim scholars deemed it necessary to comment on the past, making it relevant to their present and incorporating whatever changes have occurred or were deemed desirable. It also allows us to gain insight into the development of legal doctrine and the functions of commentaries, namely to adduce scriptural evidence or proof texts for the statements made in the matn, to explain and elaborate on it, and to display alternative positions, thus, implicitly questioning the authority of the doctrine the matn laid down.
By furnishing the underlying base text with scriptural evidence, commentators, one may say, practice takhriÌ„j and tahÌ£qiÌ„q. As mentioned, AbuÌ„ ShujaÌ„Ê¿ is rather terse in his portrayal of the schoolâ€™s doctrines, usually simply stating a ruling for a legal instance without further comment. In the following, I take as example AbuÌ„ ShujaÌ„Ê¿â€™s chapter on judgeship and witnessing, KitaÌ„b al-AqdÌ£iya wa-l-shahaÌ„daÌ„t, comparing the statements made on the qualifications needed for judgeship with four commentaries written on the text. In this short chapter of less than three pages, AbuÌ„ ShujaÌ„Ê¿ mentions 15 qualities required from a judge, among them the prerequisite that a judge needs â€œknowledge of the rulings of the Book and the Sunna.â€ This statement is taken by the commentators as a starting point for justifying the validity of this requirement and elaborating on what it means in practice. Writing about two centuries after AbuÌ„ ShujaÌ„Ê¿, Ibn DaqiÌ„q al-Ê¿IÌ„d (d. 702/1302) declares in his TuhÌ£fat al-labiÌ„b that the 15 characteristics listed by AbuÌ„ ShujaÌ„Ê¿ are based on QurÊ¾aÌ„n, Sunna, and Consensus. When commenting on the qualification that a judge ought to know the rulings of the Book and the Sunna, Ibn DaqiÌ„q al-Ê¿IÌ„d supplies as evidence the prophetic hÌ£adiÌ„th that there are three types of judges: one who knows the truth (al-hÌ£aqq) and judges accordingly â€“ he goes to paradise â€“ one who knows it but judges otherwise, and one who is ignorant and judges according to his ignorance â€“ the latter two will reside in hell. Furthermore, Ibn DaqiÌ„q al-Ê¿IÌ„d declares that â€œwe agreedâ€ â€“ a reference to Consensus â€“ that a muqallid cannot give legal opinions (fatwÄs), and, thus, even less so be a judge â€“ i.e., a straightforward a fortiori argument. In his commentary, Ibn DaqiÌ„q al-Ê¿IÌ„d thus adduces evidence from the sources of Islamic law in support of the validity of AbuÌ„ ShujaÌ„Ê¿â€™s statement that knowledge of the QurÊ¾Änic and Sunnaic rulings is a prerequisite for a judge.
Writing in the early 9th/15th century, al-HÌ£isÌ£niÌ„ (d. 829/1426) feels the need to further elaborate not only on the matn but also clarify Ibn DaqiÌ„q al-Ê¿IÌ„dâ€™s statement about the muqallid, using it to delve into a discussion of ijtihaÌ„d. The topic of ijtihaÌ„d was not neglected by AbuÌ„ ShujaÌ„Ê¿, yet he understands it as the eponymous founder al-ShaÌ„fiÊ¿iÌ„ did and equates it with qiyaÌ„s, analogical reasoning, listing knowledge of the methods of ijtihaÌ„d (tÌ£uruq al-ijtihaÌ„d) as a requirement for the jurist after the rulings of QurÊ¾aÌ„n, Sunna, and Consensus. Throughout the commentaries, we see that jurists after AbuÌ„ ShujaÌ„Ê¿ differentiate between ijtihaÌ„d and analogy (qiyaÌ„s), treating the former as a topic in its own right, one that is given more prominence in the commentaries over its place in the matn.
A judge, al-HÌ£isÌ£niÌ„ says, needs to be competent in ijtihaÌ„d, clarifying explicitly that a muqallid is not appointable. As evidence he cites a QurÊ¾aÌ„nic verse (Q 17:36) and the same hÌ£adiÌ„th about the three types of judges adduced by Ibn DaqiÌ„q al-Ê¿IÌ„d. Al-HÌ£isÌ£niÌ„ then goes beyond the a fortiori argument that someone not suitable for issuing legal opinions is even less so for judgeship by adding that in contrast to a muftÄ« whose fatwÄ is non-binding, a judgeâ€™s decision is binding. The latter point strengthens the demand of competence in ijtihaÌ„d for a judge because the consequences of his decisions are more serious than those of a muftÄ«. It also emphasizes the different roles held by judges and muftÄ«s in society. After setting the stage that a judge has to be a mujtahid, al-HÌ£isÌ£niÌ„ elaborates on how to reach that competence: first, by knowing the roughly 500 QurÊ¾Änic verses and 500 prophetic hÌ£adiÌ„ths that pertain to legal matters. It is not required that the judge knows them by heart, but he needs to know the technicalities of their rulings regarding abrogation, general and specific, and the like, as well as whether a prophetic report is widely circulating or singular, discontinued (mursal) or supported (musnad), interrupted (munqatÌ£iÊ¿) or uninterrupted (muttasÌ£il), and the rules of impugning and accrediting hÌ£adiÌ„th transmitters (jarhÌ£ wa-taÊ¿diÌ„l). In addition to the sciences of QurÊ¾Än and Sunna, the judge has to have knowledge of â€œConsensus and disagreementâ€ â€“ a formulation taken from Matn AbiÌ„ ShujaÌ„Ê¿Â â€“Â which al-HÌ£isÌ£niÌ„ defines as the authoritative statements (qawl) of the Ê¿ulamaÌ„Ê¾ among the Companions and later generations, thus restricting Consensus to legal specialists, even for the early Islamic period. In the fashion of the commonly accepted order of sources of law, al-HÌ£isÌ£niÌ„ next lists as criterion for ijtihaÌ„d knowledge of analogical reasoning (qiyaÌ„s), by which he means â€œthe perspicuous and hidden, and the sound and corrupt analogy.â€ After knowledge of the four sources of law, al-HÌ£isÌ£niÌ„ lists as fifth criterion for reaching competence to practice ijtihaÌ„d to know Arabic, namely inflection, imperative and negation, and so on. Al-HÌ£isÌ£niÌ„ maintains that his fellow ShaÌ„fiÊ¿iÌ„s agree that a mujtahid does not have to know all these sciences in detail but a general grasp of them suffices. We see that despite al-HÌ£isÌ£niÌ„â€™s insistence that the judge be capable of ijtihaÌ„d, he requires him not to be a mujtahid of the highest order (mujtahid mutÌ£laq or mustaqill), but rather of a caliber that is not too difficult to achieve in practice.
That al-HÌ£isÌ£niÌ„ creatively draws in his commentary not only on the matn and previous commentaries but on a large body of the legal tradition of his school is displayed when he justifies his restricted qualifications for becoming a mujtahid. Here, al-HÌ£isÌ£niÌ„ refers to al-GhazaÌ„liÌ„ (d. 505/1111) who he says lamented that in his day and age there was a lack of independent mujtahids (mujtahid mustaqill). This last point is followed in al-HÌ£isÌ£niÌ„â€™s commentary by mentioning an inner-ShaÌ„fiÊ¿iÌ„ debate whether decisions of a judge who is ignorant (i.e., not a mujtahid) or sinful (faÌ„siq) are enforceable. Al-GhazaÌ„liÌ„, al-HÌ£isÌ£niÌ„ states, argues that such rulings are implemented so as not to impede peopleâ€™s masÌ£lahÌ£a â€“ a view he says is seconded by al-RaÌ„fiÊ¿iÌ„ (d. 623/1226). The opinion of these two eminent ShaÌ„fiÊ¿iÌ„s seems to have been eclipsed, however. Al-HÌ£isÌ£niÌ„ relies on the more recent ShafiÊ¿iÌ„s Ibn al-SÌ£alaÌ„hÌ£ (d. 643/1245) and Ibn AbiÌ„ Dam (d. 642/1244), who maintain that only al-GhazaÌ„liÌ„ held such a view whereas both the Iraqi and Khurasanian branches of the ShaÌ„fiÊ¿iÌ„ school affirm that rulings by a sinful judge are not enforced. We see that al-HÌ£isÌ£niÌ„ selectively uses al-GhazaÌ„liÌ„ in support of his own endorsement of a non-mujtahid judge, or a mujtahid of limited knowledge, but distances himself from the latterâ€™s position on the enforceability of the sinful judge, thus advancing positions not held in this manner by al-GhazaÌ„liÌ„, AbuÌ„ ShujaÌ„Ê¿ or Ibn DaqiÌ„q al-Ê¿IÌ„d.
The expansion and reduction of a commentary tradition is evident in Ibn QaÌ„simâ€™s (d. 918/1512) FathÌ£ al-qariÌ„b. His commentary, composed less than a century after al-HÌ£isÌ£niÌ„â€™s, is much less concerned with the intricacies of what one needs to know to be a competent judge. His comment on AbuÌ„ ShujaÌ„Ê¿â€™s requirement of knowledge of the rulings of the Book and the Sunna is that it is not stipulated to know the verses and reports pertaining to legal matters by heart, and that excluded from the stipulation is knowledge of the QurÊ¾Änic stories and exhortations.
Half a century later, al-KhatÌ£iÌ„b al-ShirbiÌ„niÌ„ (d. 977/1570) appears to have had available to him the commentaries of Ibn DaqiÌ„q al-Ê¿IÌ„d, al-HÌ£isÌ£niÌ„, and Ibn QaÌ„sim. His commentary reads like a collation of the three previous ones. When explaining that there are around 500 legal verses and 500 legal hÌ£adiÌ„th, he adds that the judge does not need to know the stories and exhortations, a remark previously found only in Ibn QaÌ„sim. Al-ShirbiÌ„niÌ„ follows al-HÌ£isÌ£niÌ„ when he elaborates and further specifies the knowledge required for the judge. Where Ibn DaqiÌ„q al-Ê¿IÌ„d and al-HÌ£isÌ£niÌ„ stated that the mujtahid needs only to know the general gist of the sciences of Arabic language, hÌ£adiÌ„th criticism, etc., al-ShirbiÌ„niÌ„ is satisfied as long as the judge knows that he does not contradict the Consensus on the question by previous generations or that he deems it highly likely that the legal question only originated during his own time, i.e., that no Consensus has yet formed. In al-ShirbiÌ„niÌ„â€™s commentary on Matn AbiÌ„ ShujaÌ„Ê¿, written in the 10th/16th century, ijtihaÌ„d has transitioned from knowing, even if only in a general fashion, the legal rulings of QurÊ¾aÌ„n and Sunna toward knowledge of Consensus, and, more precisely, the Consensus of oneâ€™s own school of law. Al-ShirbiÌ„niÌ„ makes it clear that the judge is not a mujtahid in his own right. Rather, he classifies him into the ranks of the muqallid bi-l-madhhab, who as such has to follow the established school doctrine. Restricting ijtihaÌ„d, thus, goes hand in hand with elevating the demand to follow Consensus. As a source of law, Consensus justifies taqliÌ„d. Narrowing the scope of ijtihaÌ„d and Consensus achieves a similar effect in consolidating the legal doctrine of the school as AbuÌ„ ShujaÌ„Ê¿â€™s compendium.
 Wisnovsky similarly found that the commentaries on Avicenna supply new proofs of propositions left unproven in the underlying matn. See Robert Wisnovsky, â€œAvicennism and Exegetical Practice in the Early Commentaries on the IshaÌ„raÌ„t,â€ Oriens 41 (2013): 355.
 AbuÌ„ ShujaÌ„Ê¿ AhÌ£mad b. al-HÌ£usayn b. AhÌ£mad al-IsÌ£fahaÌ„niÌ„ al-Ê¿AbbaÌ„diÌ„, Matn AbiÌ„ ShujaÌ„Ê¿ (Maktabat al-JumhuÌ„riyya al-Ê¿Arabiyya: Egypt, n.d.), 45.
 Ibn DaqiÌ„q al-Ê¿IÌ„d, TuhÌ£fat al-labiÌ„b, 465.
 Ibid., 466-67.
 Al-HÌ£isÌ£niÌ„, KitaÌ„b al-AkhyaÌ„r, 488-90.
 AbuÌ„ ShujaÌ„Ê¿, Matn AbiÌ„ ShujaÌ„Ê¿, 45.
 Al-HÌ£isÌ£niÌ„, KitaÌ„b al-AkhyaÌ„r, 488.
 Ibid., 488-489.
 Ibid., 489.
 Knowledge of the intricacies of the Arabic language was listed by AbuÌ„ ShujaÌ„Ê¿ as a separate qualification for the judge. Al-HÌ£isÌ£niÌ„ subsumes it under the rubric of ijtihaÌ„d.
 Al-HÌ£isÌ£niÌ„, KitaÌ„b al-AkhyaÌ„r, 489.
 For detailed analyses of the development of ijtihaÌ„d see Norman Calder, â€œAl-NawawiÌ„â€™s Typology of MuftiÌ„s and its Significance for a General Theory of Islamic Law,â€ Islamic Law and Society 3, no. 2 (1996): 137-64; Wael B. Hallaq â€œWas the Gate of Ijtihad Closed?,â€ International Journal of Middle East Studies 16 (1984): 3-41; Ahmed Fekry Ibrahim, â€œRethinking the TaqlÄ«dâ€“IjtihÄd Dichotomy: A Conceptual-Historical Approach,â€ Journal of the American Oriental Society 136, no. 2 (2016): 285-303; idem, â€œRethinking the TaqlÄ«d Hegemony: An Institutional, Longue-DurÃ©e Approach,â€ Journal of the American Oriental Society 136, no. 4 (2016): 801-16.
 Al-HÌ£isÌ£niÌ„, KitaÌ„b al-AkhyaÌ„r, 489.
 Ibid., 490.
 Ibn QaÌ„sim, FathÌ£ al-qariÌ„b, 325.
 Al-ShirbiÌ„niÌ„, al-IqnaÌ„Ê¿, vol. II, 603-604.
 Ibid., 605.
 Ibid., 606.
(Suggested Bluebook citation: Felicitas Opwis, The Content of Commentaries, Islamic Law Blog (Sept. 15, 2022), https://islamiclaw.blog/2022/09/15/the-content-of-commentaries/)
(Suggested Chicago citation: Felicitas Opwis, “The Content of Commentaries,” Islamic Law Blog, September 15, 2022, https://islamiclaw.blog/2022/09/15/the-content-of-commentaries/)