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Origins of Muḥammadan jurisprudence

Origins of Muhammadan Jurisprudence

جوزيف شاخت - 1389 AH

Publisher

Oxford At The Clarendon Press

Publication Year

1950 AH

Genres
Principles of Islamic Jurisprudence
history of legislation
•
Regions
Germany

324 SHĀFI'Ī'S REASONING

point of penal law in which Shāfi'ī obviously did not wish to diverge from the majority. On p. 300, where Shāfi'ī criticizes Mālik (above, p. 313), he combines superior systematic reasoning with unwarranted and unnecessary assumptions.

Typical features of Shāfi'ī's thought are sound philological distinctions and linguistic arguments.1

The limitations and faults of Shāfi'ī's reasoning cannot detract from the unprecedentedly high quality of his technical legal thought which stands out beyond doubt as the highest individual achievement in Muhammadan jurisprudence. In order to convey an adequate picture of the extent and character of this achievement, I shall give a list, which could easily be extended, of passages in which Shāfi'ī's thought appears particularly brilliant, and illustrate it by the translation in full of a few selected examples.

Tr. I, 129, 138, 150, 184, 195 (cf. Sarakhsī, xxvii. 28), 196, 210, 215 (at the end of 216), 234, 245, 247, 253.

Tr. III, 31, 34, 52, 89, 141, 142, 143.
Tr. VI, 266: A beautiful piece of systematic reasoning on the interplay of religious and legal valuation.
Tr. VII, 273: Two impressive pieces of systematic reasoning in favour of qiyās as against istiḥsān.2
Tr. VIII, 6: Masterly systematic reasoning; already in this early treatise Shāfiʿī claims to be more consistent in his systematic thought (qiyās) than Shaibānī; in fact, both try to rationalize a traditional ruling which defies rationalizing.
Tr. VIII, 13: Excellent systematic arguments against the Iraqians, but combined with a cheap debating device at the end; compare the later parallel passage Ikh. 389 ff. (see below).
Tr. IX, 5. 25. 40.
Umm, iv. 170 ff.: This section contains at the end sound reasoning on broader systematic issues and parallels.
Umm, vii. 34: Although Shāfiʿī merely follows the Medinese doctrine (Muw. iii. 183), his technical legal thought is of a high standard.
Umm, vii. 394 (and, more shortly, ibid. 405): Excellently reasoned

1Tr. III, 12, 36 (above, p. 144), 91, 141; Tr. VIII, 20; Tr. IX, 3 (anticipated by Mālik), 25 (better than Abū Yūsuf); Ikh. 93 (a linguistic basis for a systematic argument, not necessarily inherent in the problem); Ṭaḥāwī, i. 32 ff., takes over and elaborates the rest of Shāfiʿī’s argument, but does not reproduce the linguistic part).—On the other hand, Shāfiʿī in Tr. III, 140, ignores a sound philological interpretation given by Mālik. 2 See above, p. 121.

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