Legal authority in premodern Islam : Yahya b. Sharaf al-nawawi in the Shafi’i school of law
LEGAL AUTHORITY IN PREMODERN ISLAM – Book Sample
Legal Authority in Premodern Islam
Offering a detailed analysis of the structure of authority in Islamic law, this book focuses on the ﬁgure of Yaḥyā b. Sharaf al-Nawawī, who is regarded as the chief contributor to the legal tradition known as the Shāﬁʿī madhhab in traditional Muslim sources, named after Muḥammad b. Idrīs al-Shāﬁʿī (d. 204/820), the supposed founder of the school of law.
Al-Nawawī’s legal authority is situated in a context where Muslims demanded the stabilization of legal disposition that was consistent with the authority of the madhhab, since in premodern Islamic society, the ruling powers did not produce or promulgate law, as was the case in other, monarchic civilizations.
Al-Nawawī’s place in the long-term formation of the madhhab is signiﬁcant for many reasons but for one in particular: his efforts in reconciling the two major interpretive communities among the Shāﬁʿites, that is, the ṭarīqas of the Iraqians and Khurasanians. This book revisits the history of the Shāﬁʿī school in the pre-Nawawic era and explores its later development in the post-Nawawic period.
Presenting a comprehensive picture of the structure of authority in Islamic law, speciﬁcally within the Shāﬁʿite legal tradition, this book is an essential resource for students and scholars of Islamic Studies, History and Law. Fachrizal A. Halimteaches at the Department of Religion and Culture, University of Saskatchewan, Canada. He received his PhD in Islamic Studies from McGill University. Prior to joining the University of Saskatchewan, he taught
Contents – LEGAL AUTHORITY IN PREMODERN ISLAM
- List of figures
- General statement of the problem
- Situating al-Nawawī in the chronology of the Shāfiʿī
- school of law
- Existing studies on al-Nawawī
- Method of approach and plan of this study
- 1 The man and his biography
- Early life
- His teachers and chains of transmission
- His ascetic life
- Career and written works
- Final days
- 2 The reception and routinization of his legacy
- The reception and veneration of al-Nawawī
- Al-Nawawī’s authority to later Shāfiʿite jurists
- Legal change and the limits of al-Nawawī’s authority
- Final remarks
- 3 Two communities of interpretation: Ṭarīqa of the
- Iraqians and the Khurasanians
- The origins and meaning of the ṭarīqas
- The transmitters of the ṭarīqas
- The conflicting doctrines of the ṭarīqas
- Al-Nawawī’s reconciliation of the ṭarīqas
- Final remarks
- 4 The canonization of the school’s doctrines
- Canonization and the problem of indeterminacy
- The measure of certainty: tarjīḥ and taṣḥīḥ
- Al-Nawawī’s justification of tarjīḥ
- Al-Nawawī’s theory of tarjīḥ
- Reference to ḥadīth criticism
- Public interest and necessity
- Empirical experience
- Customary practices (ʿurf)
- The canonical doctrines of the school
- Final remarks
- 5 Al-Nawawī’s definition and vindication of the
- The madhhab’s evolution to al-Nawawī’s lifetime
- Al-Nawawī’s definition of the madhhab
- Vindication of the school’s principles and doctrines
- Final remarks
- List of figures
Introduction – General statement of the problem
The present book focuses on the ﬁgure of Yaḥyā b. Sharaf al-Nawawī (d. 676/1277), who in traditional Muslim sources is regarded as an inﬂuential Shāﬁʿite scholar and author of numerous and lengthy works ranging in topic from ḥadīth, to theology, biography, and jurisprudence. His literary achievement in the latter discipline was particularly signiﬁcant, and led to his being recognized as the chief contributor to the later development of the Shāﬁʿī school’s doctrines.
For example, in al-Dhahabī’s Tadhkirat al-Ifuffāẓ, al-Nawawī was considered as having been conferred the leadership of the madhhab.1 In other biographical dictionaries, he was also regarded as the one who had completely reﬁned, regulated and organized the doctrines of the madhhab.2 Furthermore, among later Shāﬁʿite jurists who lived during and after the medieval period, al-Nawawī was considered as the common reference, as the one who had, as it were, the ﬁnal say on which legal doctrine was authoritative in the madhhab.
Given the juristic authority of al-Nawawī, the community of later Shāﬁʿite jurists felt as though they were no longer required to scrutinize the earlier literature of the school, since the authoritative doctrine of al-Nawawī was considered suﬃcient to their needs. Hence, for them, al-Nawawī’s works represented the canonical doctrines of the Shāﬁʿī school of law.
The degree of later Shāﬁʿite jurists’s reliance on al-Nawawī’s juristic authority is best characterized in Zayn al- Dīn al-Malībārī’s popular didactic work, Fatḥ al-Muʿīn bi-Sharḥ Qurrat al-ʿAyn, in which al-Nawawī’s legal authority was described as representing the voice of the madhhab. “The established opinion in the Shāﬁʿī madhhab for adjudication and fatwā,” according to al-Malībārī, “is whatever is agreed upon by the two teachers [i.e. al- Nawawī and al-Rāﬁʿī], then priority is given to al-Nawawī’s opinion.”3
Here al-Nawawī’s works were assumed to have been considered the choice of the community of Shāﬁʿite jurists for day-to-day legal practice and that judges and muftīs, especially those whose legal knowledge is limited to weighing opinions in the school’s corpus juris, should not fail to consult al-Nawawī’s works. In this case, al-Nawawī’s authority was also understood to have effectively functioned as the measure of certainty amid numerous legal opinions, often contradictory, in the entire school’s tradition. His writings in jurisprudence were synthetic in nature.
He reviewed the school’s earlier literature and reﬁned and reconciled any opinions that he considered to have departed from the madhhab. He then progressively formulated the school’s canonical doctrine and ﬁnally vindicated and defended the school’s hermeneutic principles. Hence, unless a jurist or muftī is capable of deriving law independently from the scriptures, or being a mujtahid himself, he was advised to follow legal opinions that are deemed preponderant by al-Nawawī.
This book shall decipher how al-Nawawī came to acquire such an important status in the history of the Shāﬁʿī school of law. It also aims to understand why or upon what justiﬁcation later Shāﬁʿite jurists obeyed al-Nawawī’s legal authority.
The answer to these questions leads us beyond an analysis of al-Nawawī’s juristic career and his status in the history of the madhhab. It would demand revisiting the history of the Shāﬁʿī school in the pre-Nawawic era and analyzing the development of the madhhab in the entire post-Nawawic period. üne would have to treat themes familiar to specialists in the ﬁeld such as the formation and evolution of the Islamic schools of law, the rationalization of authority construction, and the perennial debate over the issue of ijtihād and taqlīd.
Hence, even though this book appears to focus on intellectual history of al-Nawawī, it must inevitably account for Islamic legal history from the early formative period up to al-Nawawī’s era. Al-Nawawī’s place in the long-term formation of the madhhab is signiﬁcant for many reasons but for one in particular: his effort in reconciling the two major interpretive communities among the Shāﬁʿites, that is, the ṭarīqas of the Iraqians and Khurasanians.
Besides examining al-Nawawī’s place in the wider history of the Shāﬁʿī school, a great deal of this book shall concentrate on al-Nawawī’s own intellectual formation, from his early career as a scholar and author-jurist to the period of the reception of his works and the routinization or stabilization of his legacy. This procedure reﬂects what Biblical scholar James Sanders has characterized as the “period of intense canonical process” in his study of authoritative texts in the believing communities.4
During the course of this period of reception, al-Nawawī’s image as an ordinary jurist and ḥadīth scholar evolved into that of an authority representing nothing less than the doctrine of the Shāﬁʿī madhhab. He did not enjoy this reputation during his lifetime, but his writings did earn him a certain early measure of respect within the school. This, as I will show, was essential to the growth of his image and legacy. His intellectual capacity as a jurist and ḥadīth scholar, with which he scrupulously evaluated and rearranged the school’s doctrine in his own works, later made him popular among Shāﬁʿite jurists.
In other words, al-Nawawī became subject to a project of authority construction in the later development of the Shāﬁʿī school of law. The reason behind this construction was practical, that is, structuring legal disposition, since Muslims continued to rely on the authority of the madhhab. The signiﬁcant of al-Nawawī in this case is that he was the one who effectively connected later jurists to the authority of the eponym of the school and formulated the doctrinal legacy of madhhab to be more applicable to the changing condition of Muslim community.
Situating al-Nawawī in the chronology of the Shāﬁʿī school of law
Understanding the phenomenon of the madhhab in the Islamic legal tradition requires a clear assessment of the chronology of events in its evolution—a pattern that is consistent for each of the madhhabs.5 Just as a thing considered as law is not ﬁxed from God, but one that must be discovered and elaborated from the Qur’ān and the ḥadīth of the Prophet, the madhhab which literally means a “way” to reach that supposed law of God, is also not something ready-made.
The madhhab is the product of the arduous efforts of the generations of jurists who have navigated Muslim society to be as close as possible to God’s ordinance. This juristic endeavor was elusive and has been developed through a long process extending for a period of no less than four centuries. Due to the intricate nature of the aspects of the madhhab, exerting the chronology of its development is essential to the understanding of the operation of madhhab in the Islamic legal tradition.
Most scholars agree that the conﬂict between the traditionalists and the rationalists has had a profound impact on the development of Islamic legal theory, a synthesis of which eventually led to the establishment of the four schools of law in Sunni Islam. However, scholars differ as to the basic chronology and the details of the conceptual categories in explaining the reality of madhhab.
In this case, Joseph Schacht’s basic chronology—according to which local variations of a common ancient doctrine evolved, ﬁrst into distinctive regional schools and then into eponymous madhhab which bore the names of prominent scholars in particular regional centers—has become paradigmatic in examining the subject.
We ﬁnd, for example, George Makdisi in his Rise of Colleges aﬃrming the Schachtian chronology of madhhab formation from regional to personal schools of law.6 However, Makdisi’s concern was on the proliferation of traditionalism in Islamic institutions of learning and did not examine the process of the personalization of regional legal schools.
Later, Christopher Melchert reaﬃrmed Schacht’s chronology and elaborated on the shift by focusing on the “literary activity” of prominent individual Muslims who resided in such places as Kufa, Basra, or the Hijaz.7 From this activity, the commentary of prominent individuals whose names became associated with their legal doctrine began to emerge at the hands of persons such as Ibn Surayj of the Shāﬁʿites, al-Karkhī of the I:Ianaﬁtes, and Abū Bakr al-Khallāl of the I:Ianbalites.8
It was these scholars who elevated the founding fathers and used their names as eponyms for speciﬁc schools of law. Melchert also noted that the personalization occurred in response to the challenge of traditionalism which was marked by al- Shāﬁʿī’s preference for the Prophetic ḥadīth rather than the reports of the Companions. The name of the eponym meant a guarantee of orthodoxy and authority.9
üther scholars, however, did not subscribe to the famous shift “from regional to personal schools of law.” Nurit Tsafrir who focused on the biographical materials of the I:Ianaﬁtes discovered that the reality of madhhab was more complex than the issue of geographical personalization. She conﬁrmed the transmission of legal material on the authority of prominent individuals such as Abū Yūsuf, Muḥammad al-Shaybānī, and Zufar.
However, this regional transmission was not the exclusive domain of those who were later identiﬁed as Hanaﬁtes. The semi-hanaﬁtes, that is those who were known in the sources as traditionalists, also contributed to the personalization of the authority of legal schools.1O In a more skeptical tone, Nimrod Hurvitz proposed that the shift from regional to personal schools may not have happened because “there is little that substantiates the existence of regional madhāhib in the ﬁrst place.”11
For Hurvitz, the so-called regional schools did not have the unifying factors that could identify them as madhhab. The major factor in the establishment of madhhab as personal school, on the contrary, was the circle of master and his disciples from which the intellectual activity of Muslims to elaborate juristic concepts and authority took place.12
Wael Hallaq, who studied the same issue, goes even further in his denial of the existence of regional and personal schools. For him, the notion of personal school did not exist because the leading jurist did not always command total loyalty from his followers.13
If one insists on using the term, it should be meant only as the middle stage between the formation of the scholarly circle and the ﬁnal emergence of a doctrinal school. He also added that the notion of a doctrinal school is more convincing than a personal school because madhhab after all is about collective doctrines, not just an opinion of a single jurist. Therefore, if one is to speak about loyalty, such is given to juristic traditions that encapsulated a doctrinal school, rather than to personal ﬁgures.14
In his recent publication The Canonization of Islamic Law (2O13), Ahmed El Shamsy suggested that the Shāﬁʿī school of law was established much earlier in the third/ninth century and that it had both personal and doctrinal characteristics as suggested by Schacht and Hallaq respectively.
Following this thesis, al-Shāﬁʿī’s paradigm subsequently generated a distinctive framework for further legal elaboration; being the ﬁrst by his immediate students such as al-Buwayṭī (d. 231/846) and al-Muzanī (d. 264/877– 78), and then, by their successors who all shared loyalty to al-Shāﬁʿī’s hermeneutic model.15
Besides chronology, scholars also disagreed on the material of the institutionalization of madhhab. Makdisi, for example, looking at the Hanbalī school, insisted that legal knowledge was not the issue in the formation of madhhab. Rather, the traditionalist theological stance taken by Aḥmad b. I:Ianbal against the Muʿtazilite rationalism was main issue.16 This theory was slightly revised by Nimrod Hurvitz who proposed that I:Ianbalism grew not as the result of the Miḥna, but as the result of certain moral standards that were upheld by Ibn I:Ianbal.17
In the previous pages, we noted that Christopher Melchert underlined the “literary activity” of Muslims who focused on the transmission of the teaching of prominent jurists which eventually elevated them as the founding fathers of legal schools. Quite similar to Melchert, Daphna Ephrat found that the main factor that inﬂuenced the infrastructure of madhhab was traditional legal learning which focused on the renowned mudarris. Madrasa as a formally organized institution did not inﬂuence the madhhab, but only nourished and reasserted the relationship between teacher and student in an institutionalized manner.18
Wael Hallaq, however, played down the idea that the transmission of legal knowledge inﬂuenced the infrastructure of madhhab. For him, the main point was the building of doctrine and the construction of authority, which included the act of attribution and the disassociation of certain ﬁgures from their predecessors so as to make them the “founder” of schools. Hence, according to this thesis, Abū I:Ianīfa, Mālik, al-Shāﬁʿī, and Aḥmad b. I:Ianbal
were recognized in traditional Muslim sources as founders of the I:Ianaī, Mālikī, Shāﬁʿī, and I:Ianbalī schools not only because they were jurists of outstanding calibre, but also because they were constructed by their followers to be so.19
This attribution had a practical function in that it accommodated the need of the growing Muslim community to anchor law in certain authority, since in Islamic society, the ruling powers did not produce or promulgate law, as was the case in other, monarchic civilizations.2O Legal authority, therefore, had to be placed in individuals, such as those eponyms of the schools of law.
In this book, I aim to show that the same authority was extended to later jurists who lived during the post- formative period, such as al-Nawawī, and for the same reasons, that is, in order to structure and stabilize legal dispositions in the Muslim community. The active link between al-Nawawī’s authority and that of the eponym of the school depended on the instrumental nature of the former in perpetuating the juristic inﬂuence of the latter. Applying Bernard Weiss’s categorizations of “absolute authority” and “relative authority,” we may classify al- Nawawī’s authority as relative and mediated through the declaration of the absolute mujtahid—that is, the eponym of the school.
Absolute authority—or what the mujtahid is subject to—according to Weiss, resides in the scriptural texts. Relative authority, on the contrary, relies on the mujtahid’s interpretation of the texts, and hence, is decentered, multiple, and inconstant.21
Regardless of the difference, however, making explicit the doctrines of both types of authority was essential to providing stable and predictable rules for the madhhab. Therefore, it is neither the intrinsic teachings of remarkable individuals such as al- Nawawī, nor the intellectual achievements or moral standards of eponymous ﬁgures such as al-Shāﬁʿī that constitute the primary concern here, but rather the pragmatic considerations of later Shāﬁʿite jurists in establishing a sense of determinacy in law.
Al-Nawawī’s juristic legacy, his understanding of the school’s principles and his solutions to problems facing the nascent Muslim community suited the requirements of those faced with the task of structuring such legal dispositions.
Existing studies on al-Nawawī
In popular narratives of Muslim traditions and biographical dictionaries written by later Shāﬁʿite jurists, few are assigned such high esteem as al-Nawawī. Despite this common admiration, both Muslim and Western scholars have not fully explored al-Nawawī’s achievement as an author-jurist.22 Aḥmad ʿAbd al-ʿAzīz al-I:Iaddād, who wrote a thesis on al-Nawawī for Umm al-Qurā University in Mecca, discusses al-Nawawī’s intellectual achievement at length.
His focus, however, is limited to al-Nawawī’s inﬂuence in the ﬁeld of ḥadīth.23 Affaf Khogali-Wahbi and Abdullah al-Zouebi, two others who dedicated their doctoral dissertations to the study of al-Nawawī, likewise limit their work, respectively, to research on his contribution as a ḥadīth scholar and his terminology in his commentary on al-Shīrāzī’s al-Tanbīh.24
W. Heffening, in his entry on al-Nawawī in the Encyclopaedia of Islam, only refers to his importance as a jurist in one paragraph.25 Ignaz Goldziher makes clear the importance of al-Nawawī’s works in his study of the Zāhirī school of law. However, as the title of his book indicates, his purpose was to study the Zāhirīs’ doctrine and history, not those of al-Nawawī and the Shāﬁʿī school of law.26
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