Disagreements of the Jurists. al-Qadi al-Nu'man
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(Madison, NJ: Fairleigh Dickinson University Press, 2007); A. Hartmann, An-Nāṣir li-Dīn Allāh (1180–1225): Politik, Religion, Kultur in der späten ʿAbbāsidenzeit (Berlin: Walter De Gruyter, 1975).
33 On religious authority and the authority of the jurists, see George Makdisi, The Rise of Colleges (Edinburgh: Edinburgh University Press, 1981); Devin J. Stewart, Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System (Salt Lake City: University of Utah Press, 1998), 25–59; idem, “Al-Ṭabarī’s Kitāb Marātib al-ʿUlamāʾ and the Significance of Biographical Works Devoted to ‘The Classes of Jurists,’” Der Islam 90.2 (2013): 347–75.
34 See the introduction to al-Sharīf al-Murtaḍā’s Intiṣār, 189–92, in Devin J. Stewart, “al-Sharif al-Murtada (d. 436/1044),” in Oussama Arabi, David S. Powers, and Susan A. Spectorsky (eds.), Islamic Legal Thought: A Compendium of Muslim Jurists (Leiden: Brill, 2013), 167–210.
35 George Makdisi, “Ṭabaqāt-Biography: Law and Orthodoxy in Classical Islam,” Islamic Studies 32 (1993): 371–96.
36 Stewart, “Al-Tabari’s Kitāb Marātib al-ʿUlamāʾ.”
37 Stewart, “Muḥammad B. Jarīr al-Ṭabarī’s al-Bayān ʿan uṣūl al-aḥkām,” 347–48.
38 Makdisi, The Rise of Colleges, 8.
39 Stewart, Islamic Legal Orthodoxy, 61–109.
40 I discuss this in a forthcoming study of the famous Twelver Shiʿi historian al-Masʿūdī.
41 Stewart, Islamic Legal Orthodoxy, 111–73.
42 The question is somewhat more complicated in the Zaydi case than it is for the Twelvers. See Bernard Haykel and Aron Zysow, “What Makes a Madhhab a Madhhab: Zaydī Debates on the Structure of Legal Authority,” Arabica 59 (2012): 332–71.
43 Al-Qāḍī al-Nu‘mān, Ikhtilāf uṣūl al-madhāhib, 93, 105–6, 193.
44 Al-Qāḍī al-Nu‘mān, Ikhtilāf uṣūl al-madhāhib, 232–33.
45 Ibn al-Nadīm, Kitāb al-Fihrist, Ayman Fuʾād Sayyid ed., 1:622.
46 Devin J. Stewart, “Muḥammad b. Dāʾūd al-Ẓāhirī’s Manual of Jurisprudence, al-Wuṣūl ilā maʿrifat al-uṣūl,” in Studies in Islamic Legal Theory, ed. Bernard Weiss (Salt Lake City: University of Utah Press, 2002), 99–158.
47 Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta: Lockwood Press, 2013), 2–4 and passim.
48 See Stewart, Islamic Legal Orthodoxy; idem, “al-Sharif al-Murtada,” 172–79, 188–95.
49 See Stewart, “Muḥammad b. Dāʾūd al-Ẓāhirī’s Manual of Jurisprudence”; idem, “Muḥammad B. Jarīr al-Ṭabarī’s al-Bayān ʿan Uṣūl al-Aḥkām.”
50 Lokhandwalla, Introduction, 133–35.
51 Muṣṭafā Ghālib believes, it appears, that this statement was written by al-Qāḍī al-Nuʿmān himself, when it is clearly the work of his grandson.
52 Ikhtilāf uṣūl al-madhāhib/Disagreements of the Jurists, edited and translated by Devin J. Stewart (New York: New York University Press, 2015.)
DISAGREEMENTS OF THE JURISTS
THE PROVENANCE OF THIS BOOK
1 I praise God for the gifts He has showered upon us, as a worshiper who is grateful for His grace and pleads for more of His bounty. God bless Muḥammad, the Seal of His prophets, who will intercede for his nation on the day of the Meeting with God, and may He bless ʿAlī, his trustee, and the Imams among his descendants, God’s Chosen Ones.
2 The Chief Justice ʿAbd al-ʿAzīz ibn Muḥammad ibn al-Nuʿmān1 said: I transmit this book, The Islamic Legal Schools’ Conflicting Principles of Interpretation, and Refutation of Those Who Contradict the True Doctrine Therein, from my father, the Judge Muḥammad ibn al-Nuʿmān,2 may God be pleased with him and grant him contentment. My father transmitted this book from his father, the Judge al-Nuʿmān ibn Muḥammad ibn Manṣūr ibn Aḥmad ibn Ḥayyūn of the Tamīm tribe, may God be pleased with him and grant him contentment, and make his final destination and resting place one of honor, the author of this book. This, after he had presented this book to our Master and Ruler, the Imam al-Muʿizz li-Dīn Allāh,3 the Commander of the Faithful, God’s blessings upon him, upon his pure forefathers, and upon the Imams among his noble progeny, and after the Imam had permitted him to transmit it. My grandfather’s composition of the book and transmission of it to his son, and the son’s transmission of it to his son after him, took place after each transmitter among them had presented the work to the Imam of his time and obtained permission from him to transmit it on the Imam’s authority, and after his Highness al-ʿAzīz bi-llāh,4 the Commander of the Faithful, God’s blessings upon him, had granted a second permission to my father, his Chief Justice Muḥammad ibn al-Nuʿmān, God be pleased with him. I presented the book to our Highness, the Imam al-Ḥākim bi-Amr Allāh,5 the Imam of the present age, and he granted me permission to transmit it on his authority and to dictate it without restriction to the Imam’s servants, inscribing on the back of the volume a venerable affidavit in his exalted hand: “We have permitted the audition and dictation of this book to Our Judge, ʿAbd al-ʿAzīz ibn Muḥammad ibn al-Nuʿmān, praise be to God, Lord of all the generations!”
PROLOGUE
In the Name of God, the Merciful and Beneficent:
3 Praise be to God, Who revealed the Book to his servant, Muḥammad, the bearer of glad tidings and warner, and rendered it as He describes it in His Scripture: «a cure for what is in the breasts of mankind, guidance, and mercy for the faithful,»6 and «an explanation of all things, guidance, mercy, and glad tidings for the Muslims.»7 God bless Muḥammad, the Seal of the Prophets and Foremost of the Messengers, and the Imams among his pure and virtuous progeny.
4 Now, to the heart of the matter: I noticed that all those who pray toward Mecca,8 after agreeing on the explicit text of the Qurʾan and accepting the Messenger as truthful, differ in their legal rulings on many individual points of the law, some fundamental principles, and many matters of interpretation. Concerning these issues they have adopted sundry views, dispersed into diverse groups, and formed various disputing parties, and this despite being aware of God’s word: «that you remain steadfast in religion, and make no divisions therein»;9 «Nor did those to whom the Scripture was given make schisms until after there came to them clear evidence»;10 «Those to whom the Scripture was given differed concerning it only after clear proofs had come unto them»;11 «Religion before God is Islam. Nor did the People of the Book dissent therefrom except after knowledge had come to them, through malevolence toward each other»;12 «Do they then earnestly consider the Qurʾan, or are their hearts locked up?»;13 and «Do they not earnestly consider the Qurʾan? Had it been from other than God, they would surely have found therein much incongruity.»14 For in these verses, God censured division and disagreement and encouraged unity and solidarity, commanding and promoting the latter. He made it desirable to uphold the faith and prohibited the formation of schisms therein.
5 I have therefore decided to write a detailed exposition of this matter in the present book, and in doing so I seek assistance from God, place my trust in Him, and depend on the support, direction, and guidance of His ward the Imam, adopting him as a beacon to guide my way and a stock of provisions against my time of need, and drawing and scooping up water from his overflowing sea. I begin by setting forth the causes of their disagreement, what led and compelled