134 FINAL REMARKS ON LEGAL THEORY

The same ambiguous use of sunna occurs in Mud. i. 128, where Saḥnūn quotes a tradition from 'Ali to the effect that the witr prayer is not absolutely obligatory like the prayers ordained in the Koran, but is a sunna introduced by the Prophet. Quotations in Zurqānī, i. 184, show Mālik's fluctuating terminology for 'recommended'.¹

Shāfi'ī's discussion of the relationship between the categories of allowed and forbidden and the concepts of validity and nullity² shows that opinions were divided on this problem of legal theory, but does not enable us to trace the development of doctrine. It appears, however, from Shāfi'ī's use of the term fāsid, approximately 'voidable', as a synonym of bātil 'null and void', that he abandoned the never very clear distinction between fāsid and bātil which was familiar to the ancient schools before him.³

Another subject discussed at length in later legal theory is the validity of judgments in general, and in particular the annulment of judgments given against explicit rulings of Koran, sunna, and consensus. Shāfi'ī gives the general rule that a judgment is to be rescinded if it disagrees with a text in the Koran, a sunna, a consensus, or one of their necessary implications (Tr. 1, 56). Qiyās is significantly absent from this list, and even Shāfi'ī recognizes the old freedom of ra'y to this extent.

Legal philosophy is concerned with the question whether every act is to be regarded as allowed on principle, unless it is specifically forbidden, or as forbidden on principle, unless it is specifically allowed. Shāfi'ī does not consider this theoretical problem, and in Ris. 48 f., where he discusses the general relationship between the categories allowed and forbidden, he keeps his feet firmly planted on positive law.

As regards the hierarchy of sources, Shāfi'ī refers to them as a rule, with variations in detail, in the following order: Koran, sunna or traditions from the Prophet, āthār or traditions from Companions and others, consensus, qiāys and reason (ma' qūl). He says in Ris. 70: 'The basis of legal knowledge (jihat al-'ilm) is the Koran, the sunna, the consensus, the āthār, and the qiāys based on these. The scholar must interpret the ambiguous passages of the Koran according to the sunna of the Prophet, and if he does not find a sunna, according to the consensus of the Muslims, and if there is no consensus, according to the qiāys.'