CHAPTER 10

FINAL REMARKS IN LEGAL THEORY

WE found that the theory of the Iraqians was in several respects more highly developed than that of the Medinese, for instance with regard to the theory of traditions, the sunna of the Prophet, consensus, and ijtihād.¹ But the statement of Khaṭīb al-Baghdādī (xiv. 245 f.), that Abū Yūsuf was the first to compose books on the theory of law on the basis of the doctrine of Abū Ḥanīfa, is not confirmed by the old sources.

Later legal theory subsumes every relevant act under one of the 'five legal categories' which are: obligatory, recommended, indifferent, disapproved, and forbidden, and discusses the relationship between these categories and the concepts of validity, nullity, and intermediate degrees. The 'five categories' as such are as yet unknown to Shāfi'ī and his predecessors.

Shāfi'ī discusses several aspects of this subject in the whole of Tr. VI (pp. 265-7), in Tr. VII, 270, and in Ris. 48 f.; it is obvious that he does not know 'disapproved' as a separate category, and I do not remember having met makrūh, which is the term for it, in his writings. Mustaḥabb, which is a later term for 'recommended', occurs with this meaning in Tr. III, 25, but it is obvious from the context as well as from Tr. VI that it is not yet part of Shāfi'ī's technical terminology. Another term for 'recommended' is sunna, in later terminology strictly distinguished from 'sunna of the Prophet'; Shāfi'ī seems to use it with this meaning in Ikh. 184, but again clearly not as part of his technical terminology. In Ris. 43 he distinguishes between 'obligatory proper' (wājib) and 'obligatory by choice' (wājib fil-ikhtiyār) which is the same as 'recommended'.² Muzanī's terminology is not more precise than that of his master.³

Shaibānī, too, has no fixed terms for 'recommended' and 'disapproved', and the tradition of the Hanafi school is presumably right when it holds that Shaibānī used the term makrūh as meaning 'forbidden'.⁴ In Muw. Shaib. 225, Shaibānī, quoting a tradition from Ibn 'Umar, comments 'this is the sunna', but explains that one may also act differently; this shows that the two meanings of sunna were not yet clearly separated, and the same can be assumed for Shāfi'ī 's usage in Ikh. 184.