The Commentary as Platform for Debate, Change, and Authority Construction

By Felicitas Opwis

As presented in the previous post, the discursive tradition of commentaries involves extensive intertextuality. This intertextuality is not only a dialogue between matn and sharḥ, but a discourse that engages previous commentaries on the same matn as well as the Shāfiʿī school’s intellectual output more generally. Sometimes, the arguments and positions referenced are taken from beyond the commentator’s own legal tradition; a way to highlight the commentator’s erudition but also to point out commonalities and differences among the schools of law.

Commentaries, however, also provide their authors with a platform to disagree with the doctrines of the underlying matn and commentaries. The commentators show that the rulings laid down in the matn, while providing the basis of the authoritative teachings of the school, are not sacrosanct but open to debate. The commentators may go to the point of outright rejection of the legal position enshrined in the matn. A better argument trumps a long-held position. This openness towards debate allows for doctrinal change and facilitates the continuous development of legal thought, as evident in the commentaries on Abū Shujāʿ’s chapter on judgeship.

While Abū Shujāʿ’s commentators do not disagree with him on requiring the judge to know the four sources of the law as they pertain to legal matters, they differ and offer alternative views regarding some of Abū Shujāʿ’s other criteria for judgeship. When commenting on the requirement that the judge has to be male,[1] Ibn Daqīq al-ʿĪd, for example, states that the Ḥanafīs permit female judges in those areas of the law in which women are able to serve as witness. He even mentions that al-Ṭabarī held the permissibility of female judges to be unrestricted, based on the argument that since it is feasible for a woman to render judgement and to treat the wronged and the wrongdoer with justice, it is permissible for her to hold the office of judge, just as it is for a man.[2] Although Ibn Daqīq al-ʿĪd does not endorse these views on women judges, he nevertheless presents them, indicating that there is no Consensus on this requirement, and that it is still open to debate. He specifically contrasts this stipulation with others listed by Abū Shujāʿ on which there is Consensus of the community (ijmāʿ al-umma), namely that a judge be Muslim, mature, intelligent, and free.[3] His reference to the founder of the Ḥanafī school and al-Ṭabarī also shows that Consensus for Ibn Daqīq al-ʿĪd is not (yet) limited to his own school of law but comprises, similar to al-Shāfiʿī’s conception, the whole of the Muslim community.

The commentaries on Abū Shujāʿ’s Matn also inform about inner-Shāfiʿī disagreements, as evident when looking at the question whether a judge needs to be able to know how to write. Abū Shujāʿ lists this qualification as prerequisite to being appointable to the office.[4] Writing in the late 7th/13th century, Ibn Daqīq al-ʿĪd is less categorical, mentioning that there are two positions (qawlān), one of which does not require it, without further comment.[5] A century later, al-Ḥiṣnī explicitly takes sides, saying that the soundest (al-aṣaḥḥ) view is that it is not stipulated for the judge to be able to write, because the intended meaning of the ruling can be known without it.[6] Similarly, Ibn Qāsim calls Abū Shujāʿ’s requirement a less preferred view (wajh marjūḥ), adding that the most correct is its opposite.[7] Writing in the 10th/16th century, al-Shirbīnī further expands on the debate, providing explanatory history about the two positions. As proponents for the position that a judge has to be able to write, he mentions the Shāfiʿī scholars al-Adhraʿī (d. 783/1381) and al-Zarkashī (d. 794/1392), who base their argument on the judge’s need for writing about legal decisions to someone else. In addition, these two Shāfiʿīs argued that the judge writing himself guards against any mistakes (taḥrīf) in conveying his decisions. Although this argument may sound convincing, al-Shirbīnī nevertheless sides with the opposite position, which he attributes to al-Nawawī (d. 670/1278) and others, who support their rejection of this stipulation for judgeship with the argument that the Prophet himself was illiterate (ummī), unable to read and write.[8] By reference to the example of the Prophet, Shirbīnī provides authoritative evidence for why Abū Shujāʿ’s position was incorrect. He thus fulfills the function of adducing proof texts to the commentaries of Ibn Daqīd al-ʿĪd, al-Ḥiṣnī, and Ibn Qāsim.

The discussion over requiring the judge to be able to write was, in practice, probably moot and purely theoretical. Given the many qualifications required from a judge, it is quite unrealistic that anyone who fulfills even the scaled-down requirements for ijtihād advocated in later times would have been unable to write. The commentaries’ discussion rather seems to be about adducing indisputable evidence for a widely held school doctrine that differs from the time of the author of the underlying matn and became dominant at a later point in time. The commentaries indicate that the matter was not yet settled during the life time of al-Zarkashī and that Abū Shujāʿ’s position was upheld by some jurists despite the lack of scriptural evidence.

Doctrinal disagreement with Abū Shujāʿ is displayed throughout the commentaries on the Matn Abī Shujāʿ, and provides us with evidence of refinement and changes in legal doctrine. We see this in the commentators’ discussions on crimes. Ibn Qāsim, writing around the turn to the 10th/16th century, informs us that Abū Shujāʿ’s definition of crimes (jināyāt) differs from that of the dominant school doctrine (al-rājiḥ) of his time. He calls Abū Shujāʿ’s formulation “weak.”[9] Instead of the four types of homicide listed in the underlying matn, he re-classifies them into three.[10] A few decades later, al-Shirbīni altogether rejects Abū Shujāʿ’s understanding of homicide (qatl), pointing out that homicide should be classified according to the five legal assessments of obligatory, forbidden, reprehensible, recommended, and indifferent. In his commentary, al-Shirbīnī exhibits a way of thinking about homicide that is markedly different from Abū Shujāʿ, re-defining, for example, unintentional homicide (qatl al-khaṭaʾ) as falling outside religious accountability (taklīf), likening the perpetrator to the insane or beast.[11]

Evidently, Abū Shujāʿ’s exposition of Shāfiʿī doctrine did not go unchallenged over the centuries. The commentaries on his work bear testimony to the evolution of legal thought, dispersing the notion of stagnation of the post-classical legal productivity. In addition, the debates also show that the lines of authority within the commentaries on Matn Abī Shujāʿ are not linear but constitute a complex web that defies simple description. By presenting and espousing views that diverge from the underlying matn the commentators engage in shaping the authoritative school doctrine. The commentaries inform their users, the next generation of jurists, whose positions are deemed authoritative and instruct about the correct form of legal practice, thereby actively engaging in the construction of authority.

Notes:

[1] Abū Shujāʿ Aḥmad b. al-Ḥusayn b. Aḥmad al-Iṣfahānī al-ʿAbbādī, Matn Abī Shujāʿ (Maktabat al-Jumhūriyya al-ʿArabiyya: Egypt, n.d.), 45.

[2] Ibn Daqīq al-ʿĪd, Tuḥfat al-labīb, 466.

[3] Ibid.

[4] Abū Shujāʿ, Matn Abī Shujāʿ, 45.

[5] Ibn Daqīq al-ʿĪd, Tuḥfat al-labīb, 467.

[6] Al-Ḥiṣnī, Kitāb al-Akhyār, 490.

[7] Ibn Qāsim, Fatḥ al-qarīb, 326.

[8] Al-Shirbīnī, al-Iqnāʿ, vol. II, 607.

[9] Ibn Qāsim, Fatḥ al-qarīb, 267.

[10] Ibid.

[11] Al-Shirbīnī, al-Iqnāʿ, vol. II, 396.

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