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The Ẓāhirī Madhhab (3rd/9th-10th/16th Century) A Textualist Theory of Islamic Law

THE ZAHIRI MADHHAB – Book Sample

Contents – THE ZAHIRI MADHHAB

• Acknowledgements vii
• Introduction 1
• PART 1
• The History of the Ẓāhirī Madhhab

• Dāwūd al-Ẓāhirī and the Beginnings of the Ẓāhirī Madhhab 11
  • Life and Doctrines 11
  • Teachers and Students 22
  • Muḥammad, Son and Student 35
  • Conclusion 45
• The Spread and Retreat of the Ẓāhirī Madhhab 48
• Third/Ninth- and Fourth/Tenth-Century Ẓāhirīs 49
• Fifth/Eleventh-Century Ẓāhirīs 60
• Sixth/Twelfth- and Seventh/Thirteenth-Century Ẓāhirīs 65
• Ẓāhirīs after the Seventh/Thirteenth Century 73
• Ibn Ḥazm al-Andalusī (456/1064) 77
  • Life and Doctrines 77
  • The Ibn Ḥazm Influence: A Mixed Blessing? 83
• Part 2
• Ẓāhirism: A Critical Review
• 3 Jurisprudence in Third/Ninth-Century Baghdad 91

• The Ahl al-Raʾy and the Ahl al-Ḥadīth 91
  • Medieval and Modern Literature 92
• The Ahl al-Raʾy and the Ahl al-Ḥadīth Revisited 105
• Dāwūd between the Ahl al-Raʾy and the Ahl al-Ḥadīth 117
• Ẓāhirism between the Ahl al-Raʾy and the Ahl al-Ḥadīth 124
• Ẓāhir in the Muslim Tradition 125
  • Arabic Lexica 125
  • The Qurʾān 127
•  vi contents

• Al-Shāfiʿī’s Risālah 131
• Al-Ṭabarī’s Tafsīr 138
• Ẓāhirism between the Ahl al-Raʾy and the Ahl al-Ḥadīth
• Revisited 148

• Ẓāhirism and the Ahl al-Raʾy 148
• Ẓāhirism and the Ahl al-Ḥadīth 161
• Conclusion 165
• Ẓāhirism, Literalism and Textualism 171
  • Textualism 172
    • Textualism and Ẓāhirism 173
    • Case Studies 189
    • Conclusion 195
  • Literalism 200
    • Literalism in Religion and Law 200
    • Literalism in Linguistics 205
  • Ẓāhirism between Literalism and (Con)Textualism 212
• Case Studies 225
• Long Case Studies 226
  • “Touching” Women and Men’s Ritual Purity 226
  • Breastfeeding and Foster Relationships 244
• Short Case Studies 256
  • The Status of Imraʾat al-Mafqūd 256
  • Ṭalāq al-Sakrān 258
  • Al-Luqaṭah 259
• Conclusion 261
• Conclusions 263
• Bibliography 283
• Index 296

Dāwūd al-Ẓāhirī and the Beginnings of the Ẓāhirī Madhhab

As a first step toward studying the trajectory of the Ẓāhirī madhhab, the pur-pose of this chapter is to discuss what medieval sources—which sources include biographical dictionaries and works of legal theory (uṣūl al-fiqh) and jurisprudence ( fiqh)—report about the life and doctrines of Dāwūd al-Ẓāhirī.

Life and Doctrines

Biographies of Abū Sulaymān Dāwūd ibn ʿAlī ibn Khalaf al-Iṣbahānī al-Ẓāhirī pose a special historiographical difficulty: statements made about his vast knowledge and prominence do not seem to be consistent with the few pieces of information that his biographers report about his life.

 For example, al-Khaṭīb al-Baghdādī (d. 463/1071) mentions that Dāwūd lived most of his life in Baghdad,1 but he does not mention where he was born. Abū Isḥāq al-Shīrāzī  (d. 476/1083) mentions that Dāwūd was born in Kufa and grew up in Baghdad.2 Al-Samʿānī (d. 562/1166) reports that he was from Qāshān (a village near Isfahan), but resided in Baghdad.3

 We will see below that the majority of Dāwūd’s teachers were either Basran by birth or residents of Basra. It is there-fore possible that Dāwūd was born in Kufa, traveled to Basra at an early age, and then possibly to the east where he may have met with Isḥāq ibn Rāhawayh and other traditionists of the time, to finally settle in Baghdad until the end of his life.

Another uncertainty about Dāwūd’s basic biographical information is his date of birth. Some of his biographers mention that he was born in the year 200/815; others give the year 202/817.4 Disagreement over dates of birth of medieval scholars is not uncommon in biographical dictionaries, but informa-tion about Dāwūd’s death is also uncertain. His biographers were uncertain about when exactly he died in the year 270/884,5 and, more importantly, where he was buried in Baghdad.6 Nothing seems to have been remembered about his funeral.7

Other basic biographical information about Dāwūd is missing. For example, the only reference to his family is that his father was a scribe of a certain ʿAbd Allāh ibn Khālid al-Kūfī,8 and a follower of the Ḥanafī school of law.9

We do not know what DāwÅ«d himself did for a living. Only an isolated and ambiguous account suggests that he may have worked as a judge for some time.10 As for his relationship with the rulers of his time, one report mentions that Dāwūd was a mawlā (client) of the Caliph al-Mahdī (r. 158/774–169/785).11 What is remark-able here is that Dāwūd grew up during the last years of the miḥnat khalq al-Qurʾān (an inquisition over the createdness of the Qurʾān) and does not seem to have subscribed to the official state position on this issue.12 This silence on Dāwūd’s relationship with the rulers of his time may indicate that he was not a particularly notable scholar during his life.

Despite this lack of biographical data, Dāwūd’s biographers portray him as a scholar who possessed vast knowledge, excelled in reasoning and argumenta-tion, and had many followers. Al-Shīrāzī states that “mastership of knowledge in Baghdad culminated in Dāwūd.”13 Al-Khaṭīb al-Baghdādī reports that Dāwūd was imām ahl al-Ẓāhir.14

Later, Ibn Khallikān (d. 681/1282) mentions that Dāwūd was a scholar with an “independent madhhab” that was followed by a large group of people called al-Ẓāhiriyyah.15 Nevertheless, only a few accounts of Dāwūd can substantiate this image. For example, it is reported that his circle of knowledge in Baghdad was attended by some 400 people wearing green ṭaylasāns.16

Among the important people reported to have frequented his  circle is the famous Muḥammad ibn JarÄ«r al-ṬabarÄ« (d. 310/923).17 In his Fihrist, Ibn al-NadÄ«m attributes to DāwÅ«d a large number of works, among which  are Kitāb al-Masāʾil al-Iá¹£fahāniyyāt, Kitāb al-Masāʾil al-Baá¹£riyyāt, and Kitāb al-Masāʾil al-Khuwārizmiyyāt.18 In the absence of evidence that DāwÅ«d trav-eled to these places himself, these titles suggest that Muslims from various cit-ies used to send questions to him, pointing to reputation of a notable jurist.

As noted, this image of Dāwūd cannot be easily reconciled with other facts reported about him. We know for example that he did not distinguish himself as a Ḥadīth scholar, at a time when Ḥadīth was becoming more and more the “knowledge” (al-ʿilm) that any distinguished jurist must have. Dāwūd does not seem to have made any effort to distinguish himself in the transmission of Ḥadīth;19 indeed, he figures in only three isnāds, two of which are regarded as likely dubious.20 Ibn al-Jawzī (d. 597/1201) reports that Dāwūd contradicted many traditions.21 In what could be his earliest biography, Ibn Abī Ḥātim al-Rāzī (d. 327/938) mentions that Dāwūd used to ridicule and offend the Ahl al-Ḥadīth on account of their obsessive interest in searching for traditions far and wide.22

Furthermore, if references to Dāwūd’s engagement in argumenta-tion (see below) are read against the backdrop of what we know about his knowledge, they could also indicate that he was less interested in acquiring knowledge (al-mudhākarah) and more interested in engaging in debates (al-munāẓarah).23 That attendees of Dāwūd’s circle were relatively few, there-fore, is not surprising; in fact, it is not clear what the subject of his lectures was in the first place.

In light of all this, we have to regard al-Shīrāzī’s statement about Dāwūd’s mastership of knowledge in Baghdad as perhaps an innocent hyperbolic state-ment that only indicates that his knowledge (probably of legal matters) was more than that of the average scholar of his time. Al-Shīrāzī—who, notably, does not describe Dāwūd as Ẓāhirī and mentions nothing about his Ẓāhirism or his rejection of qiyās—seems to have been interested mainly in his admira-tion for Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820), a point that allowed later authors of Shāfiʿī biographical dictionaries to include Dāwūd among early Shāfiʿīs.

Dāwūd is also described as having been gifted in disputation and argumen-tation. The famous Ḥadīth scholar Abū Zurʿah al-Rāzī (d. 264/878) is reported to have said that had he limited himself to what people of knowledge do, Dāwūd would have suppressed people of innovation with his argumentative skills.24 A famous contemporary of Dāwūd—the grammarian Abū al-ʿAbbās Thaʿlab (d. 291/904)—described him as having had “greater reason than knowledge.”25

 In his Ṭabaqāt al-Shāfiʿiyyah al-Kubrā, al-Subkī mentions that he had a lengthy treatise which Dāwūd had sent to al-Shāfiʿī’s student Mūsā ibn Abī al-Jārūd that indicates Dāwūd’s mastery of argumentation and debate.26 Unfortunately, although some sources refer to some of these debates, they do not preserve sufficient, or even any, details of them. For example, some sources mention that Dāwūd once had a disagreement with Isḥāq ibn Rāhawayh  (d. 238/853), a celebrated Ḥadīth scholar of his time, on the subject of the cre-atedness of the Qurʾān.27 It is also reported that Dāwūd had a debate with the

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