In the previous post I mentioned the vibrant commentary tradition on Abū Shujāʿ’s compendium of Shāfiʿī 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 takhrīj and taḥqīq. As mentioned, Abū Shujāʿ is rather terse in his portrayal of the school’s doctrines, usually simply stating a ruling for a legal instance without further comment. In the following, I take as example Abū Shujāʿ’s chapter on judgeship and witnessing, Kitāb al-Aqḍiya wa-l-shahādāt, 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, Abū Shujāʿ mentions 15 qualities required from a judge, among them the prerequisite that a judge needs “knowledge of the rulings of the Book and the Sunna.” 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 Abū Shujāʿ, Ibn Daqīq al-ʿĪd (d. 702/1302) declares in his Tuḥfat al-labīb that the 15 characteristics listed by Abū Shujāʿ are based on Qurʾān, Sunna, and Consensus. When commenting on the qualification that a judge ought to know the rulings of the Book and the Sunna, Ibn Daqīq al-ʿĪd supplies as evidence the prophetic ḥadīth that there are three types of judges: one who knows the truth (al-ḥaqq) and judges accordingly – he goes to paradise – one who knows it but judges otherwise, and one who is ignorant and judges according to his ignorance – the latter two will reside in hell. Furthermore, Ibn Daqīq al-ʿĪd declares that “we agreed” – a reference to Consensus – that a muqallid cannot give legal opinions (fatwās), and, thus, even less so be a judge – i.e., a straightforward a fortiori argument. In his commentary, Ibn Daqīq al-ʿĪd thus adduces evidence from the sources of Islamic law in support of the validity of Abū Shujāʿ’s statement that knowledge of the Qurʾānic and Sunnaic rulings is a prerequisite for a judge.
Writing in the early 9th/15th century, al-Ḥiṣnī (d. 829/1426) feels the need to further elaborate not only on the matn but also clarify Ibn Daqīq al-ʿĪd’s statement about the muqallid, using it to delve into a discussion of ijtihād. The topic of ijtihād was not neglected by Abū Shujāʿ, yet he understands it as the eponymous founder al-Shāfiʿī did and equates it with qiyās, analogical reasoning, listing knowledge of the methods of ijtihād (ṭuruq al-ijtihād) as a requirement for the jurist after the rulings of Qurʾān, Sunna, and Consensus. Throughout the commentaries, we see that jurists after Abū Shujāʿ differentiate between ijtihād and analogy (qiyās), 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-Ḥiṣnī says, needs to be competent in ijtihād, clarifying explicitly that a muqallid is not appointable. As evidence he cites a Qurʾānic verse (Q 17:36) and the same ḥadīth about the three types of judges adduced by Ibn Daqīq al-ʿĪd. Al-Ḥiṣnī 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 muftī whose fatwā is non-binding, a judge’s decision is binding. The latter point strengthens the demand of competence in ijtihād for a judge because the consequences of his decisions are more serious than those of a muftī. It also emphasizes the different roles held by judges and muftīs in society. After setting the stage that a judge has to be a mujtahid, al-Ḥiṣnī elaborates on how to reach that competence: first, by knowing the roughly 500 Qurʾānic verses and 500 prophetic ḥadīths 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 (munqaṭiʿ) or uninterrupted (muttaṣil), and the rules of impugning and accrediting ḥadīth transmitters (jarḥ wa-taʿdīl). In addition to the sciences of Qurʾān and Sunna, the judge has to have knowledge of “Consensus and disagreement” – a formulation taken from Matn Abī Shujāʿ – which al-Ḥiṣnī defines as the authoritative statements (qawl) of the ʿulamāʾ 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-Ḥiṣnī next lists as criterion for ijtihād knowledge of analogical reasoning (qiyās), by which he means “the perspicuous and hidden, and the sound and corrupt analogy.” After knowledge of the four sources of law, al-Ḥiṣnī lists as fifth criterion for reaching competence to practice ijtihād to know Arabic, namely inflection, imperative and negation, and so on. Al-Ḥiṣnī maintains that his fellow Shāfiʿīs 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-Ḥiṣnī’s insistence that the judge be capable of ijtihād, he requires him not to be a mujtahid of the highest order (mujtahid muṭlaq or mustaqill), but rather of a caliber that is not too difficult to achieve in practice.
That al-Ḥiṣnī 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-Ḥiṣnī refers to al-Ghazālī (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-Ḥiṣnī’s commentary by mentioning an inner-Shāfiʿī debate whether decisions of a judge who is ignorant (i.e., not a mujtahid) or sinful (fāsiq) are enforceable. Al-Ghazālī, al-Ḥiṣnī states, argues that such rulings are implemented so as not to impede people’s maṣlaḥa – a view he says is seconded by al-Rāfiʿī (d. 623/1226). The opinion of these two eminent Shāfiʿīs seems to have been eclipsed, however. Al-Ḥiṣnī relies on the more recent Shafiʿīs Ibn al-Ṣalāḥ (d. 643/1245) and Ibn Abī Dam (d. 642/1244), who maintain that only al-Ghazālī held such a view whereas both the Iraqi and Khurasanian branches of the Shāfiʿī school affirm that rulings by a sinful judge are not enforced. We see that al-Ḥiṣnī selectively uses al-Ghazālī in support of his own endorsement of a non-mujtahid judge, or a mujtahid of limited knowledge, but distances himself from the latter’s position on the enforceability of the sinful judge, thus advancing positions not held in this manner by al-Ghazālī, Abū Shujāʿ or Ibn Daqīq al-ʿĪd.
The expansion and reduction of a commentary tradition is evident in Ibn Qāsim’s (d. 918/1512) Fatḥ al-qarīb. His commentary, composed less than a century after al-Ḥiṣnī’s, is much less concerned with the intricacies of what one needs to know to be a competent judge. His comment on Abū Shujāʿ’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 Qurʾānic stories and exhortations.
Half a century later, al-Khaṭīb al-Shirbīnī (d. 977/1570) appears to have had available to him the commentaries of Ibn Daqīq al-ʿĪd, al-Ḥiṣnī, and Ibn Qāsim. His commentary reads like a collation of the three previous ones. When explaining that there are around 500 legal verses and 500 legal ḥadīth, he adds that the judge does not need to know the stories and exhortations, a remark previously found only in Ibn Qāsim. Al-Shirbīnī follows al-Ḥiṣnī when he elaborates and further specifies the knowledge required for the judge. Where Ibn Daqīq al-ʿĪd and al-Ḥiṣnī stated that the mujtahid needs only to know the general gist of the sciences of Arabic language, ḥadīth criticism, etc., al-Shirbīnī 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-Shirbīnī’s commentary on Matn Abī Shujāʿ, written in the 10th/16th century, ijtihād has transitioned from knowing, even if only in a general fashion, the legal rulings of Qurʾān and Sunna toward knowledge of Consensus, and, more precisely, the Consensus of one’s own school of law. Al-Shirbīnī 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 ijtihād, thus, goes hand in hand with elevating the demand to follow Consensus. As a source of law, Consensus justifies taqlīd. Narrowing the scope of ijtihād and Consensus achieves a similar effect in consolidating the legal doctrine of the school as Abū Shujāʿ’s compendium.
 Wisnovsky similarly found that the commentaries on Avicenna supply new proofs of propositions left unproven in the underlying matn. See Robert Wisnovsky, “Avicennism and Exegetical Practice in the Early Commentaries on the Ishārāt,” Oriens 41 (2013): 355.
 Abū Shujāʿ Aḥmad b. al-Ḥusayn b. Aḥmad al-Iṣfahānī al-ʿAbbādī, Matn Abī Shujāʿ (Maktabat al-Jumhūriyya al-ʿArabiyya: Egypt, n.d.), 45.
 Ibn Daqīq al-ʿĪd, Tuḥfat al-labīb, 465.
 Ibid., 466-67.
 Al-Ḥiṣnī, Kitāb al-Akhyār, 488-90.
 Abū Shujāʿ, Matn Abī Shujāʿ, 45.
 Al-Ḥiṣnī, Kitāb al-Akhyār, 488.
 Ibid., 488-489.
 Ibid., 489.
 Knowledge of the intricacies of the Arabic language was listed by Abū Shujāʿ as a separate qualification for the judge. Al-Ḥiṣnī subsumes it under the rubric of ijtihād.
 Al-Ḥiṣnī, Kitāb al-Akhyār, 489.
 For detailed analyses of the development of ijtihād see Norman Calder, “Al-Nawawī’s Typology of Muftīs and its Significance for a General Theory of Islamic Law,” Islamic Law and Society 3, no. 2 (1996): 137-64; Wael B. Hallaq “Was the Gate of Ijtihad Closed?,” International Journal of Middle East Studies 16 (1984): 3-41; Ahmed Fekry Ibrahim, “Rethinking the Taqlīd–Ijtihād Dichotomy: A Conceptual-Historical Approach,” Journal of the American Oriental Society 136, no. 2 (2016): 285-303; idem, “Rethinking the Taqlīd Hegemony: An Institutional, Longue-Durée Approach,” Journal of the American Oriental Society 136, no. 4 (2016): 801-16.
 Al-Ḥiṣnī, Kitāb al-Akhyār, 489.
 Ibid., 490.
 Ibn Qāsim, Fatḥ al-qarīb, 325.
 Al-Shirbīnī, al-Iqnāʿ, 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/)