Abstract
This essay is a preliminary study of some aspects of the transmission of Kitāb al-Aṣl by Muḥammad b. al-Ḥasan al-Shaybānī. The essay examines information, preserved in later, mainly Ḥanafī works, about two major riwāyas of al-Aṣl, and analyses some points of doctrine on which they differ. These differences are shown to be substantial, as emerges from biographical sources. Given the divergence from each other and also, in one instance, from a third riwāya, I propose that the two riwāyas do not represent the content of a single original text. They may reflect either different stages in the development of a text that was still fluid, or else doctrinal changes that were introduced into a fixed text by its transmitters. The disparity between the riwāyas must be taken into consideration in any attempt to reconstruct the teachings and history of Kitāb al-Aṣl.
Of the three founders of the Ḥanafī school, Abū Ḥanīfa (d. 150/767) and his two leading disciples, Abū Yūsuf (d. 182/798) and Muḥammad b. al-Ḥasan al-Shaybānī, it is the last who is said to have put the school’s doctrine into writing. Whereas Abū Ḥanīfa left no written texts, and Abū Yūsuf only a few, many writings – which constitute the basis of Ḥanafī literature – are attributed to al-Shaybānī.1 This corpus includes al-Shaybānī’s magnum opus, al-Aṣl, also known as al-Mabsūṭ. It is the largest compendium of early Ḥanafī legal doctrine, and one of six works, all attributed to al-Shaybānī, that contain the most authoritative Ḥanafī doctrine, known collectively as ẓāhir al-riwāya.2 The high regard in which al-Aṣl is held is expressed in the opinion that it is sufficient for someone to memorize its contents (in addition to early tradition, madhhab al-mutaqaddimīn) to qualify as a mujtahid.3 This reverence for al-Aṣl is further reflected in an anecdote about a non-Muslim sage (ḥakīm min kuffār ahl al-kitāb) who embraced Islam after having read it.4
Despite its importance, al-Aṣl was published in its entirety only in 2012, and our understanding of the history of this text and its recensions remains deficient. The purpose of this article is to supplement our understanding with evidence relating to the transmissions of al-Aṣl. This evidence, which is taken from later Ḥanafī works and from biographical dictionaries, suggests that the differences between the transmissions are too substantial to consider them as reflecting a single original work.
1 The Riwāyas
The 2012 Beirut edition of al-Aṣl is a scholarly twelve-volume edition prepared by Mehmet Boynukalın, who added a thorough introductory volume (on which I rely throughout the essay).5 This edition represents what I shall refer to as the Aṣl vulgate (following Joseph Schacht’s usage in Das kitāb al-maḫāriğ fil-ḥijal). With the complete work available in print, it is easy to see that it is made up of treatises (kitābs) that had existed independently of each other before they became chapters of a single compilation.6 One indication of this is that most of the chapters open with an isnād naming the transmitter of the chapter from al-Shaybānī. It is now obvious that, as Norman Calder has noted, these isnāds differ from each other.7 Of the nearly sixty chapters that comprise the complete text of the Aṣl vulgate, thirty-eight are preceded by an introductory isnād. The other chapters, with one exception, open with qāla Muḥammad b. al-Ḥasan, or a variant of this statement, and no isnād. The isnāds vary in length and content: some give only the name of the immediate transmitter of that particular chapter from al-Shaybānī; others include one or two additional links – in one case even three – after the immediate transmitter.8 According to these isnāds, the direct transmitters of these thirty-eight chapters from al-Shaybānī are: Abū Sulaymān Mūsā b. Sulaymān al-Jūzjānī (d. after 200/815, Khurasan and Baghdad) – thirty chapters; Aḥmad b. Ḥafṣ, known as Abū Ḥafṣ al-Kabīr (d. 217/832, Bukhara) – five chapters; and, in addition, Dāwūd b. Rushayd (d. 239/853, Baghdad), Muḥammad b. Hārūn al-Anṣārī (d. ?), and a certain ‛Abdallāh, each of whom transmitted one chapter.9
It follows that the Aṣl vulgate does not reflect any single riwāya but rather is a collection of chapters from a number of riwāyas, among which that of Abū Sulaymān predominates. Furthermore, as Boynukalın demonstrates in detail, some chapters which, according to the opening isnād, represent a particular riwāya, nonetheless incorporate material from a different riwāya.10 For example, according to the isnād that opens the Kitāb al-Muzāraʻa (on Sharecropping), the chapter represents the riwāya of Abū Sulaymān; towards the end of the chapter, however, one finds a section from Abū Ḥafṣ’ riwāya.11 In this instance, the transition between the riwāyas is clearly indicated by the introductory phrase: qāla Abū Ḥafṣ. Elsewhere, elements of two and possibly more riwāyas were combined without mention. Only by comparison with later works, whose authors occasionally preserved legal opinions from different riwāyas, can the various constituent elements of the Aṣl vulgate sometimes be connected with their respective transmitters.12
The compiling of the vulgate, which involved both assembling the independent treatises and integrating the different riwāyas, probably took place between the end of the fourth/tenth century and the second half of the fifth/eleventh century. Al-Ḥākim al-Shahīd (d. 334/945), in his al-Kāfī, refers to texts that became chapters of the vulgate as independent treatises; their order in al-Kāfī differs from that of the vulgate. Ibn al-Nadīm, who completed his Fihrist in 377/987–8, lists the chapters as separate books, and does not mention the titles al-Aṣl or al-Mabsūṭ, which later were used to designate the compilation; apparently the titles were not yet in use. By the time of al-Sarakhsī (d. 483/1090), the separate treatises had been collected into the single work called al-Aṣl or al-Mabsūṭ; both titles are used by al-Sarakhsī throughout his Kitāb al-Mabsūṭ.13 The compiler (or compilers) of the vulgate had several riwāyas of the text at his disposal. It seems that he selected one as the basic text for each chapter, but deviated from it in favor of a different riwāya whenever he considered the latter preferable, or when there was a lacuna in his basic text.14
The riwāyas that were available to the compiler of the vulgate are, unfortunately, not available to us. The Aṣl is known to have been transmitted, as a whole or in part, in five major riwāyas, by five students of al-Shaybānī: Abū Sulaymān al-Jūzjānī, Asad b. al-Furāt (d. 213/828, Qayrawan), Abū Ḥafṣ al-Kabīr, Hishām b. ʻUbaydallāh (d. 221/836, Rayy), and Muḥammad b. Samāʻa (d. 233/847, Baghdad).15 As noted, three other scholars each transmitted a single chapter. None of the three is known to have transmitted any further material from the Aṣl. One of them, Dāwūd b. Rushayd, was also a student of al-Shaybānī,16 while the other two cannot be identified with certainty.17
Of the five major riwāyas, those of Hishām b. ʻUbaydallāh and Muḥammad b. Samāʻa are apparently lost.18 Numerous legal opinions given by al-Shaybānī on disputed questions and transmitted by either Hishām or Ibn Samāʻa appear in Ḥanafī works (indicated by “wa-fī [or: wa-huwa] riwāyat Hishām [or Ibn Samāʻa] ʻan Muḥammad”),19 but it is not clear whether they come from the Aṣl. One exception is a short paragraph transmitted by Hishām, which is included in only two manuscripts of the Aṣl vulgate and may reflect his riwāya of al-Aṣl.20 An instance of Ibn Samāʻa’s riwāya of al-Aṣl appears below.21 As noted, the riwāyas of Abū Sulaymān and Abū Ḥafṣ are credited for most of the Aṣl vulgate, at least in the chapters whose transmitters are mentioned in the prefatory isnāds. But there is no chapter for which the riwāyas of both Abū Sulaymān and Abū Ḥafṣ are known to have survived: The isnāds that open the chapters of the Aṣl vulgate and indicate their respective transmitters are the same in all seventeen manuscripts on which Boynukalın’s edition is based,22 and these isnāds are identical to those of the respective chapters included in the editions of Chafik Chehata and Abū al-Wafāʼ al-Afghānī.
Two riwāyas independent of the Aṣl vulgate, containing parts of the work, are known to have survived. One is a riwāya of its Kitāb al-Ḥiyal, published by Joseph Schacht in 1930. This riwāya, whose transmitter is not indicated, differs from that of Muḥammad b. Hārūn al-Anṣārī represented in the vulgate. Schacht raises the possibility that the transmitter is Abū Ḥafṣ, who is known to have transmitted the Kitāb al-Ḥiyal from al-Shaybānī,23 but he adds that this cannot be established with certainty. In fact, Schacht identifies three riwāyas of Kitāb al-Ḥiyal: that of al-Anṣārī contained in the vulgate, that of the text he published, and a lost riwāya of Abū Sulaymān.24 On the strength of details relating to their legal content, Schacht suggests that the first two riwāyas represent the same line of transmission of Kitāb al-Ḥiyal, the one identified with Abū Ḥafṣ, whereas the riwāya of Abū Sulaymān represents a separate line of transmission.25 Schacht’s suggestion implies that there were two major lines of transmission, that of Abū Ḥafṣ and that of Abū Sulaymān, and that at least the former was handed down along a number of different routes. Multiple transmission of the two riwāyas is suggested by the plural form nusakh (versions), which al-Sarakhsī regularly employs interchangeably with riwāya when referring to the transmissions of Abū Sulaymān or Abū Ḥafṣ: nusakh Abī Sulaymān or nusakh Abī Ḥafṣ.26 According to Boynukalın, al-Sarakhsī’s use of the plural form implies that each of the two riwāyas had many transmitters, and that all the transmissions agree on the opinion in question.27 Schacht was convinced that, although it was subject to later modifications,28 the text he edited was the work of al-Shaybānī.29
The other extant riwāya independent of the vulgate is that of Asad b. al-Furāt, a scholar from Qayrawan who studied in Medina under Mālik, and in Iraq under Abū Yūsuf and al-Shaybānī. He is said to have transmitted both Mālikī and Ḥanafī teachings in the Maghrib. Since the information about Asad has been preserved mainly by the Mālikī authors of Mālikī and North African biographical dictionaries, his role in transmitting Mālikī material in the Maghrib is emphasized, while his transmission of Ḥanafī material is eclipsed. In fact, Asad was the man most responsible for bringing Ḥanafī doctrine from Iraq to the Maghrib.30 The Ḥanafī material that Asad transmitted in Qayrawan included at least part of al-Shaybānī’s Aṣl.31 While there appears to be no reference to his riwāya of al-Aṣl in the surviving literary sources, three early fragments of it were preserved in the Great Mosque of Qayrawan.32 These were recently edited and published by Nejmeddine Hentati, and studied by Clément Salah.33 They include almost all of Kitāb al-Sariqa wa-Qaṭ‘ al-Ṭarīq, a little more than a half of Kitāb al-ʻItq wa-l-Tadbīr, and eleven folios of Kitāb al-Ṣalāt.34
The locations of the six identified transmitters of the material that would become Kitāb al-Aṣl, all direct disciples of al-Shaybānī, give us an idea of the extent to which this material spread in the generation immediately after al-Shaybānī, and perhaps even in his lifetime. Abū Sulaymān al-Jūzjānī lived in Baghdad where he studied under al-Shaybānī and Abū Yūsuf, whose works he transmitted.35 He also had a connection with Khurasan, and especially, it seems, with the town of Balkh,36 where he played a prominent role in spreading Ḥanafī doctrine and transmitting al-Shaybānī’s works.37 Abū Ḥafṣ al-Kabīr, the leading scholar of Bukhara who was responsible for establishing the Ḥanafī center there, transmitted a number of al-Shaybānī’s works after studying under him in Iraq.38 Hishām b. ʻUbaydallāh was one of the two leading Ḥanafīs in Rayy. He studied under Abū Yūsuf and al-Shaybānī (the latter died in his house in Rayy); his transmission of the Aṣl is mentioned in Ḥanafī biographical dictionaries, together with that of Muḥammad b. Samāʻa, a resident of Baghdad.39 Dāwūd b. Rushayd also lived in Baghdad.40 As noted, Asad b. al-Furāt transmitted the Aṣl in the Maghrib. Through these transmitters, the contents of al-Aṣl and al-Shaybānī’s teachings as documented elsewhere,41 were disseminated in Iraq, western Iran, Khurasan, Transoxania, and the Maghrib as early as the last decades of the second/eighth century.
What did these contents consist of? According to Norman Calder, al-Aṣl as we know it had not yet taken shape at the time when, according to the above information, it was already in wide circulation throughout Islamic lands. Based on an analysis of its text, Calder concludes that al-Aṣl “is the end-product of a lengthy period of development, involving accumulation of basic materials, successive redactions, and interpolation of ikhtilāf items and authority statements”.42 He adds that “the uniformity of the literary expression” of the text disguises a “messy and disorderly” collection of components.43 It includes different modes of exposition, and several layers of interpolated materials.44 These characteristics of al-Aṣl indicate, in his opinion, that it was shaped by different hands, as a collective “school text”, in a long, organic process, at the end of which it was ascribed to al-Shaybānī.45 It remained fluid and open until receiving its more or less final shape only around the middle of the third/ninth century.46
One may infer from Calder’s conclusions that the transmissions of al-Aṣl by al- Shaybānī’s direct students did not yet represent a fixed text, but rather a stage in the process of producing such a text. His conclusions have recently been contested by Clément Salah, on the basis of a study of the three Qayrawan manuscripts of Asad b. al-Furāt’s riwāya. Based on an analysis of their script and of audition and collation notes added to the manuscripts by later copyists, Salah dates two of them to the third/ninth century, and one to the fourth/tenth century.47 Given that the earliest dated manuscript used by Boynukalın is from the seventh/thirteenth century,48 the evidence of these early fragments is significant. Of particular importance is a note in the manuscript that contains the Kitāb al-ʻItq wa-l-Tadbīr. Here the copyist indicates that he (or his master) collated the copied text with the book (kitāb) of Asad b. al-Furāt.49 According to Salah, the word kitāb in the context of collation means, in Qayrawanī usage, a copy owned rather than transmitted by the man whose name is mentioned in the collation statement. It follows, Salah argues, that the note refers to a copy of al-Aṣl, or of part of it, that was owned by Asad himself.50 If Asad b. al-Furāt owned a book containing a text from al-Aṣl, Salah concludes, this text must have been fixed during Asad’s lifetime, that is, before his death in 213/828.51 This is a possible but not inescapable conclusion. While a written text can reasonably be considered more stable than an oral one, the fact that a text was written down is not, in itself, a proof that it was fixed.52 Salah adds, however, a more persuasive argument in support of this conclusion. His comparison between the manuscripts and printed editions of al-Aṣl shows that the differences between these texts are minor; for instance, the addition or omission of a word or a letter.53 Furthermore, the organization of the chapters is identical, as is the list of the legal questions discussed.54 If the text of the vulgate is the same as that transmitted by Asad, then the final redaction of this text must be dated to no later than Asad’s lifetime, that is, several decades before Calder’s dating. Although Salah concedes that late additions (of ikhtilāf) appear in the printed editions but not in the manuscripts from Qayrawan,55 he takes the text of the manuscripts, and implicitly, that of the printed al-Aṣl, to reflect the teachings of al-Shaybānī.56
A comparison between different riwāyas of the same work is a natural way of learning about the history of that work. Similar riwāyas suggest that there was a single authoritative text from which all of them are derived; significant differences between them raise questions about the existence of such a text.57 This method has been applied to test Calder’s conclusions regarding the Muwaṭṭa’, of which many riwāyas are extant.58 In Calder’s opinion, the Muwaṭṭa’ was not authored by Mālik or by anyone else during his lifetime; rather, it was the product of a prolonged organic growth that involved several scholars, the final redaction taking place ca. 270 ah.59 Jonathan Brockopp, in a book devoted to another early Mālikī text, al-Mukhtaṣar al-kabīr by Ibn ʻAbd al-Ḥakam (d. 214/829), analyzed discrepancies between the riwāyas of the Muwaṭṭa’, and concluded that the variations between them are “very wide”, suggesting that the Muwaṭṭa’ developed organically and that “Mālik exercised no authorial control over his text”.60 Even if the Muwaṭṭa’ does contain an authentic core of Mālik’s juristic dicta, Brockopp argues, he did not produce it as a fixed text.61 Brockopp’s opinion accords with that of Goldziher, who called into question Mālik’s authorship of the Muwaṭṭa’ on the ground of the extensive differences between its versions.62 Other scholars who compared the riwāyas of the Muwaṭṭa’ arrived at a very different conclusion. For example, Yasin Dutton, in his review of Brockopp’s book, claims that Brockopp “downplays the similarities and highlights the differences” between the riwāyas of the Muwaṭṭa’. According to Dutton, the riwāyas “so clearly represent one author’s compilation and work … that it is pointless to consider them to derive from anyone other than Mālik”.63 The similarity between the riwāyas is even more striking, Dutton argues, when one considers that they were transmitted in many different and far-flung locations. This fact also leads him to conclude that all of the riwāyas are based on one source, which must be Mālik’s text.64 A recent study by Ahmed El Shamsy supports Dutton. Comparing four riwāyas of the Muwaṭṭa’, El Shamsy asserts that they are remarkably similar to each other, and suggests that the variations between them reflect “Mālik’s own rewrites”, or his students’ “recording and citation practices”.65 Unlike Calder, El Shamsy holds that the text was produced by Mālik himself and expresses his own doctrine.66
Since there are many extant riwāyas of the Muwaṭṭa’, its history can be studied by comparing them. This method can be applied to the Aṣl only to a very limited extent, because, as noted, parallel riwāyas are rare. At the same time, however, many of the legal disparities between the riwāyas, particularly between those of Abū Sulaymān and Abū Ḥafṣ, are recorded in later Ḥanafī literature.
I thought it best to include with it [i.e., the Mabsūṭ] a dictated text of a commentary on Kitāb al-Kasb, which was transmitted by Muḥammad b. Samāʻa from Muḥammad b. al-Ḥasan, God have mercy on him. It is one of his [i.e., al-Shaybānī’s] compositions; however, it is not widely known because neither Abū Ḥafṣ nor Abū Sulaymān, God have mercy on them, heard it from him. For this reason, al-Ḥākim, may God have mercy on him, did not mention it in the Mukhtaṣar.72
Considering the major role of these two riwāyas in transmitting the Aṣl, the differences between them, of which early Ḥanafīs were well aware, are essential for recovering the content and history of the Aṣl. With regard to these differences, the evidence of the two riwāyas that are independent of the vulgate – namely, that of Kitāb al-Ḥiyal and that of Asad b. al-Furāt – is of no help. Schacht found that the riwāya of Kitāb al-Ḥiyal that he edited, and the riwāya of the vulgate, are two variants of (probably) Abū Ḥafṣ’ riwāya.73 The three chapters (or parts thereof) transmitted by Asad b. al-Furāt are all represented in the vulgate by the riwāya of Abū Sulaymān (according to the isnāds that open the chapters). Therefore, when Salah compares Asad’s riwāya with what he calls “the contemporary edition”, or variants of this,74 he is in fact comparing Asad’s riwāya with that of Abū Sulaymān. Therefore, so long as we cannot identify elements from other riwāyas in these chapters, whatever we learn from his comparison is relevant only to the relation between the riwāyas of Asad and Abū Sulaymān.
In the absence of a text of al-Aṣl for which the riwāyas of both Abū Sulaymān and Abū Ḥafṣ are known, we cannot compare their wording, structure, or style. However, substantive disparities between them, as documented in later Ḥanafī literature, are instructive on the divergence of their content. The following discussion focuses on this divergence.
In Ḥanafī literature, the doctrinal differences between the two riwāyas are first indicated by al-Ḥākim al-Shahīd in al-Kāfī, and then in later works, notably al-Sarakhsī’s Mabsūṭ. Drawing on these indications, in the next section I present a sample of five disagreements. From these examples it emerges that the variations between the two riwāyas are by no means minor or insignificant. In response to specific legal questions, the solutions they propose differ substantially and in some instances they directly contradict one another, reflecting a dispute over a legal principle.
2 Sample Cases
2.1 The Prayer of a Believer Detained in an Impure Place
If a believer is detained (maḥbūs) in an impure place (makān qadhir) with no means of performing ablution, should he pray despite being ritually impure? According to the riwāya of Abū Sulaymān, such a believer should pray by moving the head (īmā’) in ways that substitute for the required bodily gestures, thus imitating those who, at the same hour, are praying in the proper manner.75 This opinion is said also to have been held by Abū Yūsuf. The riwāya of Abū Ḥafṣ presents the opposite view: a believer who is unable to perform ablution should not pray at all. This opinion is said to have been followed by Abū Ḥanīfa as well.76
The vulgate attributes to al-Shaybānī the opinion of Abū Yūsuf, and thus represents the riwāya of Abū Sulaymān (consistent with the chapter’s introductory isnād).77 Al-Kāfī, like the vulgate, accepts Abū Sulaymān’s riwāya, but it also mentions the riwāya of Abū Ḥafṣ.78 Al-Sarakhsī discusses both riwāyas, although – unlike al-Ḥākim – he seems to accept the riwāya of Abū Ḥafṣ.79
The two contrary opinions ascribed to al-Shaybānī originate in a dispute over a question of principle: should a believer who is unable to pray properly pray within the limits of his ability or should he not pray at all? Al-Shaybānī’s opinion, according to Abū Sulaymān’s riwāya, that this believer should pray by īmā’, is based on the principle that a believer unable to pray as required should not miss the prayer entirely. He should rather pray as best he can, since the extent of a believer’s religious obligation is determined by his capability.80 The opinion held by al-Shaybānī according to Abū Ḥafṣ’ riwāya, that a believer who cannot ritually purify himself should not pray at all, rests on the opposite principle, namely, that a prayer which cannot be performed properly should not be performed at all. A prayer performed by a ritually impure believer is, furthermore, tantamount to disobedience.81 The disagreement on this principle engendered dissent on other, similar questions. For example, Abū Yūsuf held that a man fleeing from an enemy, or engaged in fighting, or swimming away from a sinking boat, should pray by īmā’. In the opinion of both Abū Ḥanīfa and (according to al-Sarakhsī) al-Shaybānī, such a man should not pray at all, for the prayer in such situations does not please God (literally: it does not draw the believer closer to God, lā takūnu al-ṣalāt qurba).82
In this example, the contention is anchored in a dispute over a principle, and the two riwāyas stand in complete opposition: a ritual practice regarded by one riwāya as obligatory is categorically prohibited by the other.
2.2 A Foundling Claimed by Two Women
This example (like the two examples that follow) comes from Kitāb al-Laqīṭ (On Foundlings). A man who rescues a foundling becomes the child’s guardian, responsible for its upbringing and physical wellbeing, but he does not become the foundling’s legal parent.83 This means that if another person claims parentage, that claim is usually accepted, because the foundling’s interest in having a parent outweighs the custodian’s right to keep him.84 Ḥanafī doctrine considers several cases in which someone may claim parentage. One of these involves the rival claims of two women, each claim supported by the testimony of one other woman (understood to be the midwife who attended the foundling’s birth). The two riwāyas differ as regards Abū Ḥanīfa’s opinion on these competing claims.85 According to Abū Ḥafṣ’ riwāya, the doctrine of Abū Ḥanīfa is that the claims of both women are to be accepted, and thus the foundling is considered to be the child of both (the text does not address the practical implications of such a solution). This solution does not represent the direct opinion of Abū Ḥanīfa, but a ruling derived from it (qiyās qawl Abī Ḥanīfa),86 suggesting a degree of reasoning exercised by Abū Ḥafṣ or a previous scholar. According to the riwāya of Abū Sulaymān, Abū Ḥanīfa held the contrary opinion: both claims are to be rejected, and the foundling is considered the child of neither woman.87 Abū Yūsuf and al-Shaybānī followed the latter view.88 On this matter the Aṣl vulgate reflects the riwāya of Abū Ḥafṣ, without mentioning his name.89 There is no introductory isnād to Kitāb al-Laqīṭ, so it is not clear whose riwāya it represents otherwise.
The opposing legal solutions attributed to Abū Ḥanīfa by the two riwāyas originate in a disagreement over the weight to be given to the testimony of one woman. On the basis of Q. 2:282, the four Sunni law schools hold that witness testimony is valid only if provided by two men, or one man and two women. A concession may be made, however, in cases involving intimate feminine circumstances, such as giving birth, to which men have no access. In such cases, women’s testimony can be accepted on its own. The exception is justified by ḍarūra, or necessity, namely the absence of men from such settings.90 The four law schools disagree, however, over the number of women required for the testimony to be valid in such a case. Mālikīs require the testimony of two women, Shāfi‘īs that of four.91 Ḥanafīs and Ḥanbalīs apply to the number of witnesses the concession arising from ḍarūra: given that an intimate feminine setting is often witnessed by only one woman, they accept the testimony of just one woman.92
This Ḥanafī principle, namely, that in certain cases the testimony of one woman constitutes evidence, was interpreted in two different ways, as reflected in the difference between the two riwāyas. The opinion of Abū Ḥanīfa as represented in Abū Ḥafṣ’ riwāya, namely, that both women’s claims are to be accepted, each being supported by a single female witness, reflects the interpretation that such evidence is conclusive (ḥujja tāmma). The opposite opinion, attributed to Abū Ḥanīfa in Abū Sulaymān’s riwāya, results from the understanding that the testimony of one woman is ḥujja ḍaʻīfa, weak evidence, insufficient to validate a claim in opposition to another claim, as in this case.93
Thus, the disagreement between the two riwāyas originates in a dispute over the interpretation of a principle, and the result is a stark contrast between them.
2.3 How to Determine a Foundling’s Religion?
Two major criteria determine a foundling’s religious affiliation: the religion of his custodian, and the religion prevalent in the place where he was found. A foundling rescued by a Muslim in a Muslim location is considered a Muslim. A problem arises when the two criteria lead to contradictory results, as in the case of an infant found by a Muslim in a clearly non-Islamic location, such as a church or a village inhabited by dhimmīs. In the Aṣl vulgate, and following it, in al-Kāfī and later works, this question is dealt with, repetitively, in two chapters, Kitāb al-Daʻwā (On Claims) and Kitāb al-Laqīṭ. According to Kitāb al-Laqīṭ, whose transmitter from al-Shaybānī is unknown, the religion of the foundling is determined by the location in which he was found.94 According to Kitāb al-Daʻwā, the foundling follows the religion of his finder.95 The isnād at the beginning of Kitāb al-Daʻwā states that it represents the riwāya of Abū Sulaymān.96
With regard to this question, three more riwāyas (nusakh) of Kitāb al-Daʻwā are mentioned (that is, three riwāyas not included in the vulgate).97 At least two of them are attributed to Ibn Samāʻa. One of the three riwāyas offers a third answer: whatever the circumstances may be, preference is given to Islam.98 That is, a foundling rescued by a Muslim is considered a Muslim, regardless of what religion is practiced in the place where he was found; and he is considered a Muslim if found in Islamic surroundings, regardless of his finder’s religion. Another riwāya (baʻḍ al-nusakh) of Kitāb al-Daʻwā, attributed to Ibn Samāʻa, proposes a different solution: the religion of the foundling is determined by his external appearance,99 which means, according to the interpretation of Ibn Samāʻa himself, the marks that distinguish a dhimmī from a Muslim, such as a cross around the neck, or a decorated silk garment, or hair cut in the middle of the head.100 Alternatively, another riwāya of Kitāb al-Daʻwā, also attributed to Ibn Samāʻa, agrees with the vulgate, namely, that the foundling follows the religion of his finder.101
To sum up, one finds four different answers in al-Aṣl on the question of how to determine the religion of a foundling in ambiguous cases: by the religion prevailing in the place where the foundling was found (according to the riwāya of Kitāb al-Laqīṭ, whose transmitter is unknown); by the religion of his custodian (according to the riwāya of Kitāb al-Daʻwā, whose transmitter in the vulgate is Abū Sulaymān, and according to another riwāya of this chapter, ascribed to Ibn Samāʻa); by the foundling’s appearance (according to a second riwāya of Kitāb al-Daʻwā by Ibn Samāʻa); and by giving preference to Islam (according to a third riwāya of Kitāb al-Daʻwā, by Ibn Samāʻa or by another transmitter).102
Whereas the previous examples demonstrate that Abū Sulaymān and Abū Ḥafṣ, both of whom transmitted directly from al-Shaybānī, offered contradictory solutions to particular problems, here we have two, and perhaps three different answers that are attributed to one direct transmitter, Ibn Samāʻa. In other words, in addition to the first generation of transmitters, who disagreed with each other over the teachings attributed to al-Shaybānī, subsequent generations of transmitters disagreed over the contents of the riwāyas of al-Shaybānī’s direct students.
2.4 The Religion of a Foundling Claimed by a Dhimmī
The discussion regarding the religion of a foundling claimed by a dhimmī branches off from the previous example. Consider the case of a dhimmī who claims paternity of a foundling rescued by a Muslim in a non-Islamic location. In support of his claim, the dhimmī produces two dhimmī witnesses. Should his claim be accepted? To answer this question, one refers to the basic case, namely, a dhimmī who claims paternity of a foundling who was rescued by a Muslim in a Muslim location and is thus considered a Muslim. In such a case the dhimmī’s claim is accepted on the basis of istiḥsān, that is, consideration of the best interest of the child, who benefits from being of known descent. By the same rationale, however, the child who is deemed to be of the same descent as his dhimmī claimer would not follow the latter’s religion but rather would remain a Muslim. For whereas having a definite ancestry benefits the foundling, adopting the dhimmī’s religion is detrimental, since it would deprive him of the superiority he enjoys as a Muslim.103
Similarly, if a dhimmī claims paternity of a foundling rescued by a Muslim in a Christian location, and the dhimmī’s claim is corroborated by two dhimmī witnesses, the claim is accepted. The foundling is nevertheless deemed to be a Muslim. This is the riwāya of Abū Sulaymān.104 According to the riwāya of Abū Ḥafṣ, however, the foundling takes not only the dhimmī’s descent but also his religion.105 This riwāya implies that the testimony of the two dhimmīs is given preference over the child’s welfare. As al-Sarakhsī explains (in favor of Abū Sulaymān’s riwāya), the opinion represented by the riwāya of Abū Ḥafṣ, which calls for changing the foundling’s religious affiliation on the basis of the testimony of dhimmīs, implies the recognition of such testimony. This is unacceptable according to Ḥanafī doctrine, which holds that the testimony of unbelievers against Muslims is invalid.106 Therefore, such a testimony cannot serve as a proof against the Muslim custodian’s right to keep the foundling, or against the foundling’s right to remain a Muslim (following his custodian’s religion).107
In this example, the difference between the riwāyas reflects a disagreement over a legal principle, namely, the validity of a non-Muslim’s testimony against a Muslim. This is similar to Example 2.2, in which the difference between the riwāyas arises from a disagreement over the validity of one woman’s testimony. In both examples, the opinion in the riwāya of Abū Ḥafṣ reflects a greater willingness to accept the witness of disadvantaged groups, women and dhimmīs.
2.5 Ownership of a Wadīʻa (Deposit) in a Territory Conquered by Muslims
The following difference between the two riwāyas appears in the Kitāb al-Siyar, in the discussion of spoils of war. It relates to the question of what happens to the property of a Muslim who lives in dār al-ḥarb when this territory is conquered by a Muslim army. Does he retain ownership of the property or is it treated as an integral part of dār al-ḥarb, thus becoming fay’, booty, that belongs to the entire Muslim community? The prevailing Ḥanafī opinion takes a middle course: the Muslim retains ownership over movables (manqūlāt), but his immovable property (ʻaqār, arḍ or dūr) is fay’.108
A specific question relates to a Muslim living in dār al-ḥarb who has entrusted movable property to another party in dār al-ḥarb as a deposit, wadīʻa.109 In Ḥanafī law, a deposit is usually treated differently from a movable that is in the possession of its owner, depending on whether the owner (a Muslim) is (i) a subject of dār al-ḥarb (usually a convert), or (ii) a subject of the Muslim state residing in dār al-ḥarb under an assurance of safety, amān (henceforth: a mustaʼmin).110
- (i)In the first case, the Ḥanafīs distinguish between a wadīʻa entrusted to a Muslim or a dhimmī, and one entrusted to a ḥarbī (an infidel who is not a dhimmī). The most authoritative Ḥanafī opinion (ẓāhir al-riwāya) is that if the wadīʻa was entrusted to a Muslim or a dhimmī, it remains the property of its owner; but if it was entrusted to a ḥarbī, it becomes fay’.111
- (ii)In the case of a mustaʼmin there are two views: (a) The opinion in the vulgate is that his wadīʻa becomes fay’ whether or not its custodian is a ḥarbī.112 (b) By contrast, according to al-Kāfī, a mustaʼmin’s ownership of his wadīʻa continues despite a Muslim conquest even if the depositee is a ḥarbī.113
Al-Kāfī usually adheres closely to the vulgate, and its deviation from it in this case is striking. The reason for the deviation emerges from later sources: al-Kāfī reflects the riwāya of Abū Sulaymān, while the vulgate reflects that of Abū Ḥafṣ.114 The difference between the opinions represented by the two riwāyas is substantial. The riwāya of Abū Sulaymān, as reflected in al-Kāfī, treats a deposit made by a mustaʼmin like any other movable that belongs to a Muslim in dār al-ḥarb. That is to say, he retains ownership despite the Muslim conquest. The riwāya of Abū Ḥafṣ, as reflected in the vulgate, is the opposite: if Muslims conquer dār al-ḥarb, the mustaʼmin loses ownership of the property. It becomes fay’, irrespective of the identity of the person to whom it was entrusted.
This difference has significant practical implications. The riwāya of Abū Sulaymān serves the interests of the individual mustaʼmin; that of Abū Ḥafṣ serves the interests of the Muslim state. Many mustaʼmins were merchants who traveled from one country to another and stored commodities in those countries.115 For them, the solution represented by the riwāya of Abū Ḥafṣ might mean serious loss in case of a Muslim conquest.
Whereas later sources indicate that the opinion in the vulgate (ii, a) reflects the riwāya of Abū Ḥafṣ, the isnād at the start of Kitāb al-Siyar states that this chapter is based on the riwāya of Abū Sulaymān. The discrepancy illustrates the phenomenon described above: the transmitter identified in the prefatory isnād of a chapter is not necessarily responsible for the entire content of that chapter.116 In this case, an element from the riwāya of Abū Ḥafṣ has been inserted into a text that generally represents Abū Sulaymān’s riwāya. This insertion attests to the liberty taken by the compiler (or compilers) of the vulgate in merging two – or possibly more – riwāyas into one text. The insertion of Abū Ḥafṣ’ riwāya also suggests an attempt to advance the state’s interests over those of the individual mustaʼmin.
In these five examples, the variations between the two riwāyas thus amount to significant ikhtilāf. They show the riwāyas to be entirely contrary to each other, as in examples 2.1 and 2.2; or in disagreement over matters of principle, as in examples 2.1, 2.2, and 2.4; or representing a wide variety of opinions, as in example 2.3; or reflecting contrasting interests, as in example 2.5. These differences are clearly too weighty to be explained by citation practices or copyist mistakes or any other activity relating to the physical production of a text. Rather, they reflect different legal approaches that created different legal contents. Such a divergence between the riwāyas indicates a divergence by at least one of them from any common source text. In other words, based on the sample examined, the riwāyas of Abū Sulaymān and Abū Ḥafṣ cannot both be regarded as conforming to the doctrinal content of a single original text of al-Aṣl.
But what is the degree of nonconformity? Are the two riwāyas separated merely by a few individual legal opinions, but otherwise closely related to each other, or are they broadly distinct from each other? To fully gauge the degree of nonconformity we need to know not only the nature of the differences between the riwāyas but also their number. If the number of instances is small, then, even if each of them is significant, the divergence of the entire riwāya from the original text is of limited significance. Because the complete riwāyas of Abū Sulaymān and Abū Ḥafṣ are unavailable, our estimate of the extent of ikhtilāf between them must rely on the points of dispute recorded in later Ḥanafī works. A digital examination of the literature reveals between fifty and sixty such points of difference between the riwāya of Abū Sulaymān and that of Abū Ḥafṣ, scattered over some thirty chapters.117 It is not clear if these differences represent the full scope of the discrepancy between the two riwāyas or if there are additional cases not recorded in the literature. Be that as it may, the number of documented disparities is not negligible, suggesting that the two riwāyas were significantly different from each other.
3 The Biographical Material
A similar impression emerges from biographical information, which, in addition, points to a contest for priority among the riwāyas of al-Aṣl in general, and between those of Abū Sulaymān and Abū Ḥafṣ in particular. A revealing anecdote about the latter two riwāyas is found in Faḍā’il Balkh, by ʻAbdallāh b. ʻUmar al-Wā‘iẓ al-Balkhī. The work, which was written in Arabic by 610/1214, survives only in a Persian translation (sometimes mixed with Arabic) by ‘Abdallāh b. Muḥammad b. al-Qāsim al-Ḥusaynī, completed in 676/1278. This is mainly a biographical dictionary of men connected to Balkh. It includes a biography of Abū Sulaymān, in which it is reported that when he and Abū Ḥafṣ had completed their legal training under al-Shaybānī and were about to return home – Abū Sulaymān presumably to Balkh or its vicinity, and Abū Ḥafṣ to Bukhara – they each asked al-Shaybānī for an ijāza, that is, an authorization to teach the doctrines that they had learned from him and recorded in writing. Al-Shaybānī agreed to Abū Sulaymān’s request but refused to give an ijāza to Abū Ḥafṣ. He explained that Abū Ḥafṣ had to cross the Oxus (Jayḥūn) on his way home, and the books (or notebooks, kutub) containing al-Shaybānī’s teachings might be lost in the river. For this reason, al-Shaybānī stipulated that Abū Ḥafṣ would have to memorize the contents of the books in order to receive an ijāza. Abū Ḥafṣ extended his stay in Iraq and complied with al-Shaybānī’s request. On his way home, the books did indeed fall into the river. Upon arriving in Bukhara, Abū Ḥafṣ sent to Abū Sulaymān asking to borrow his records of al-Shaybānī’s teachings in order to make new copies of his own. Fearing that his copies would likewise be lost in the river, Abū Sulaymān agreed only on the condition that Abū Ḥafṣ travel to him to use his copies. On hearing this, Abū Ḥafṣ decided to forego Abū Sulaymān’s copies and instead rewrote al-Shaybānī’s teachings from memory. This, the anecdote concludes, accounts for the differences between the riwāya of Abū Ḥafṣ and that of Abū Sulaymān.118
The anecdote is not historical. As its concluding remark implies, its purpose is to explain why there are differences between the two riwāyas. The story is also intended, however, to assess the value of the riwāyas in relation to each other. It implies that the riwāya of Abū Ḥafṣ, written from memory, is less reliable than that of Abū Sulaymān, which is based on notes approved by al-Shaybānī. The inevitable conclusion is that whenever there are differences between the two riwāyas, that of Abū Sulaymān is to be preferred. In elevating the authority of Abū Sulaymān’s riwāya above that of Abū Ḥafṣ, the anecdote supports the tendency reflected in Ḥanafī works, where Abū Sulaymān’s riwāya is dominant, and usually preferred over that of Abū Ḥafṣ. The attempt reflected in the anecdote to prove that Abū Sulaymān’s riwāya is superior to that of Abū Ḥafṣ suggests a competition between the riwāyas, and a dispute over their authority in relation to each other. It follows that the variations between the two riwāyas must have been weighty: Had they been minor, no competition or dispute would have arisen.
The controversy over the authority of the riwāyas of al-Aṣl extended beyond those of Abū Sulaymān and Abū Ḥafṣ. In the biography of Hishām b. ʻUbaydallāh, whose riwāya of al-Aṣl is lost, as noted, it is said that Abū Bakr al-Jaṣṣāṣ (d. 370/980) “disliked having al-Aṣl in the riwāya of Hishām read to him because it was [partially] corrupt. [Instead] he asked for the riwāya of either Abū Sulaymān or Muḥammad b. Samāʻa to be read to him because they were correct and accurate”.119 This report, whether true or not, echoes a dispute over the authority of the riwāyas.120 Whereas the Aṣl vulgate and al-Kāfī both give precedence to the riwāyas of Abū Sulaymān and Abū Ḥafṣ, here the riwāya of Abū Ḥafṣ is not mentioned, and the riwāya of Ibn Samāʻa – which, as mentioned above, is also lost, and is not represented in the vulgate -- is elevated to the level of Abū Sulaymān’s; the disapproval of Hishām’s riwāya is consistent with its elimination from the vulgate.
4 Conclusion
There are a number of possible explanations for the differences between the riwāyas of Abū Sulaymān and Abū Ḥafṣ. One is that they originate with al-Shaybānī himself. Over decades of writing and lecturing, his teachings may have developed and changed, and the variations between the riwāyas would reflect different stages of this development. The phenomenon of a work being transmitted from its originator in more than one version is characteristic of early Islam. Students transmitted from their teacher a text that he approved at a certain time, but which he continued to develop and teach, transmitting modified versions to later students.121 Boynukalın proposes that this process of change gave rise to the differences and inconsistencies between the riwāyas of al-Aṣl: the author changed his opinion on a given legal question, one transmitter recorded his opinion before the change, another after it.122 This explanation accords with al-Sarakhsī’s note that most of the works (kutub, taṣnīfāt) that were later combined to comprise al-Aṣl were revised by al-Shaybānī more than once; after composing a work, he would rewrite or modify it.123 Ḥanafī texts contain instances in which al-Shaybānī gave different answers to the same legal question. These disparities were subsequently ascribed by the Ḥanafīs to al-Shaybānī’s changes of mind (indicated by the locution thumma rajaʽa Muḥammad ʻan …).124 Ahmed El Shamsy offers a similar explanation for the differences between the recensions of the Muwaṭṭa’: they reflect changes introduced by Mālik during the long period when he taught the Muwaṭṭa’.125 Mālik’s regular change of opinion is well documented,126 and he is known to have reshaped the Muwaṭṭa’ over several decades.127 According to this explanation, the texts transmitted by the author’s immediate students were not finalized, or fixed, but rather work in progress, and this process resulted in the variations between the riwāyas of the text.
Another possible explanation is that the differences between the riwāyas reflect changes introduced in a fixed text by its transmitters, whether the author’s students or later transmitters. In general, the early Muslims did not give much attention to the faithfulness of transmission, and transmitters took liberty in changing the texts they transmitted.128 Disagreement between students and their master, and among students, was a typical feature of the early legal schools.129 Thus, deviation from the original resulted not only from carelessness but also from wishing to leave a mark on the content transmitted. There is ample evidence to show that the founders’ teachings were sometimes expanded, revised, or overruled by their students, with the result that contradictory opinions were attributed to the same teacher.130 The divergent opinions of successive generations of jurists formed the layers that comprise the school’s doctrine. Taqlīd, as the term was generally understood, meant a commitment not to individual opinions, but rather to the school’s principles and methodology;131 that is, jurists were loyal to the school, not to any particular authority within it, not even the founder.132 Since students were committed to the founder’s legal principles rather than to the opinions he derived from them, their own opinions occasionally differed from his.133 But even the taqlīd of principles was not always followed, as Wael Hallaq showed in his discussion of takhrīj. Takhrīj indicates different ways in which ijtihād was applied in order to reach a legal opinion that was then attributed to the founder.134 In theory, legal cases resolved by takhrīj were supposed to represent the principles and doctrines of the presumed founder, so that they could be presented as derived from his methodology. In reality, however, takhrīj often rested on a basis far beyond the boundaries of the founder’s teachings and methodology. By means of takhrīj, as Hallaq demonstrates, Ḥanafī legal norms were transferred to Shāfiʻī law and came to be considered of Shāfiʻī origin,135 and jurists might propose two contradictory solutions for the same legal problem, both of which were incorporated in the school’s doctrine.136 The activity of takhrīj, through which the school doctrine developed, was most intensive in the fourth/tenth and fifth/eleventh centuries,137 but it started earlier. When, at the end of the second/eighth and the beginning of the third/ninth century, Ḥanafī students were producing legal solutions to questions not addressed by their masters, they did so, to a large degree, by means of takhrīj.138 Hallaq suggests that Abū Sulaymān and Abū Ḥafṣ were among those involved in this activity.139 Abū Sulaymān’s independent opinions, which are recorded in Ḥanafī works, corroborate Hallaq’s suggestion.140 Abū Ḥafṣ is similarly known to have developed his own opinions, in contrast to other Ḥanafī scholars.141 Furthermore, al-Aṣl contains many rulings said to represent not the opinions of the school’s founders, but rather opinions derived from them by means of qiyās (indicated in the sources by: qiyās qawl Abī Ḥanīfa wa-Muḥammad, for example, or qiyās qawl Abī Yūsuf wa-Muḥammad). The opinion represented by the riwāya of Abū Ḥafṣ in Example 2.2 above is a case in point.142 Boynukalın raises the possibility (which he does not favor) that these are additions to the text by its transmitters, developed by way of qiyās based on the founders’ opinions.143
It is not the purpose of this essay to decide whether either of these explanations, or any other, might account for the differences between the riwāya of Abū Sulaymān and that of Abū Ḥafṣ; in fact, the explanations proposed are not mutually exclusive. Rather, I have sought to demonstrate that the two major riwāyas of al-Aṣl are significantly distinct from each other. The nature of the legal differences between them, as emerges from the sample cases, their scope, and the evidence of the biographical dictionaries, all suggest that Abū Sulaymān’s and Abū Ḥafṣ’ riwāyas of al-Aṣl do not represent the content of a single base text, and that they were not perceived as doing so. Rather, they seem to have been competing versions attributed to two direct students of al-Shaybānī, each claiming to present the correct text. This divergence must be taken into account in any attempt to recover the history and teachings of al-Aṣl.
Acknowledgments
The research for this article was supported by the ISRAEL SCIENCE FOUNDATION (grant no. 889/20). I am indebted to Frank Stewart, whose insightful comments on drafts of the article improved it immensely. I also thank Etan Kohlberg and Miriam Nissimov for their valuable advice, David Powers for his careful editing, and the anonymous reviewers for their useful suggestions. Thanks are also due to Asaf Levy and Lotan Boker for their assistance.
For a list of al-Shaybānī’s works see Mehmet Boynukalın’s Introduction volume (al-Muqaddima) of Muḥammad b. al-Ḥasan al-Shaybānī, al-Aṣl, ed. M. Boynukalın, 12 vols. + Introduction (Beirut: Dār Ibn Ḥazm, 1432/2012), 32–37.
For the notion of ẓāhir al-riwāya and its development see Salman Younas, “Authority in the Classical Ḥanafī School: the Emergence & Evolution of Ẓāhir al-Riwāya”, Islamic Law and Society, 29 (2022), 58–122.
‘Umar b. ‘Abd al-‘Azīz b. Māzah, al-Ṣadr al-Shahīd, Kitāb Sharḥ Adab al-qāḍī li-l-Khaṣṣāf, ed. M. H. al-Sirḥān, 4 vols. [Baghdad: Maṭbaʻat al-Irshād, 1397/1977], 1:190; ‘Uthmān b. ‘Alī al-Zayla‘ī, Tabyīn al-ḥaqā’iq sharḥ Kanz al-daqā’iq, ed. A. ‘I. ‘Ināya, 7 vols. (Beirut: Dār al-Kutub al-‘Ilmiyya, 1420/2000), 5:83.
Muṣṭafā b. ʻAbdallāh, Ḥājjī Khalīfa, Kashf al-ẓunūn ʻan asāmī al-kutub wa-l-funūn, ed. M. Sh. Yāltaqāyā and R. B. al-Kilīsī, 2 vols. ([Istanbul]: Maṭbaʻat Wikālat al-Maʻārif, 1360–1362/1941–1943), 2:1581.
Shaybānī, al-Aṣl. The other (partial) publications of al-Aṣl include the chapter on Legal Devices (Kitāb al-Ḥiyal), edited by Joseph Schacht, together with a painstaking study of the text’s history (Joseph Schacht, Das kitāb al-maḫāriğ fil-ḥijal des Muḥammad ibn al-Ḥasan aš-Šaibānī: In zwei Rezensionen, Hildesheim: Georg Olms, 1968 [a reprint of the Leipzig 1930 edition]); an edition of Kitāb al-Buyūʻ wa-l-Salam (On Sales and Pre-Payments) by Chafik Chehata (Cairo: Maṭbaʻat Jāmiʻat al-Qāhira, 1954); an English translation by Majid Khadduri, based on unpublished manuscripts, of three successive chapters: Kitāb al-Siyar (On Military Expeditions), Kitāb al-Kharāj (On Taxation), and Kitāb al-ʻUshr (On Tithe) (Majid Khadduri, The Islamic Law of Nations: Shaybānī’s Siyar, Baltimore: The John Hopkins Press, 1966); a four-volume edition, including thirteen chapters that cover ritual law and some other subjects, by Abū al-Wafāʼ al-Afghānī (Hyderabad: Dāʼirat al-Maʻārif al-Uthmāniyya, 1966–1973). Nejmeddine Hentati has recently studied and edited three fragments of al-Aṣl, containing parts of three chapters: Kitāb al-Sariqa wa-Qaṭ‘ al-Ṭarīq (On Theft and Brigandage), Kitāb al-‘Itq wa-l-Tadbīr (On Manumission), and Kitāb al-Ṣalāt (On Prayer) (Nejmeddine Hentati, Ḥanafī Law in Ifrīqiya in the 3rd/9th Century: Asad b. al-Furāt’s Transmission of the Kitāb al-Aṣl by Muḥammad b. al-Ḥasan al-Shaybānī: Three Manuscripts from the Ancient Library of Raqqada-Kairouan Attributed to Al-Asadiyya: Book of Prayer, Book of Manumission, Book of Theft and Brigandage [Leiden: Brill, 2024]). I am grateful to the anonymous reviewer for drawing my attention to this recent publication.
Ḥājjī Khalīfa, Kashf al-ẓunūn, 2:1581; Iwan Dimitroff, Abū ʻAbdallāh Muḥammad Ibn Al-Ḥasan Asch-Schaibānī und sein corpus juris “al-ğāmiʻ aṣ-ṣaġīr” (Inaugural Diss., Berlin, 1908), 25; Boynukalın, Introduction, 43.
Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), 42–43.
In any attempt to date the final redaction of the vulgate, the death dates of the men who constitute these links should be taken into consideration, as well as a section from the Mukhtaṣar of al-Ṭaḥawī (d. 321/933) (Shaybānī, al-Aṣl, 2:211).
The Kitāb al-ʻUshr, the Kitāb al-Ḥiyal, and the Kitāb al-Shirb (On Water Rights), respectively.
Boynukalın, Introduction, 80–82.
Shaybānī, al-Aṣl, 10:178–179 (noted by Boynukalın).
Boynukalın, Introduction, 80–82; and see Example 2.5 below.
Schacht, Das kitāb al-maḫāriğ fil-ḥijal, 9–10; Boynukalın, Introduction, 44. For Ibn Nadīm’s list of the chapters as separate works, see Ibn al-Nadīm, al-Fihrist, ed. I. Ramaḍān (Beirut: Dār al-Maʻrifa, 1415/1994), 253–254.
Boynukalın, Introduction, 82.
Boynukalın (Introduction, 74) also mentions a riwāya of al-Muʻallā b. Manṣūr, but gives no reference. Transmissions by al-Muʻallā from al-Shaybānī are documented a number of times in Ḥanafī literature, but it is not clear whether they represent his riwāya of al-Aṣl or al-Shaybānī’s opinions that originate elsewhere.
‘Abd al-Qādir b. Muḥammad Ibn Abī al-Wafā’ al-Qurashī, al-Jawāhir al-muḍiyya fī ṭabaqāt al-Ḥanafiyya, ed. ‘A. M. al-Ḥulw, 5 vols. (2nd ed., Cairo: Hajr li-l-Ṭibāʻa wa-l-Nashr wa-l-Tawzīʻ wa-l-Iʻlān, 1413/1993), 2:186. In addition to his riwāya of Kitāb al-ʻUshr, Dāwūd b. Rushayd transmitted other opinions of al-Shaybānī (for example, see Abū Bakr b. Mas‘ūd al-Kāsānī, Badā’i‘ al-ṣanā’i‘ fī tartīb al-sharā’i‘, ed. ‘A. M. Mu‘awwaḍ and ‘A. A. ‘Abd al-Mawjūd, 10 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1418/1997], 4:127; Maḥmūd b. Sulaymān al-Kafawī, Katāʼib aʽlām al-akhyār min fuqahāʼ madhhab al-Nuʻmān al-mukhtār, ed. ʻA. ʻAbd al-Raḥmān, 2 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1440/2019], 1:311). These opinions may perhaps originate in al-Shaybānī’s nawādir collection, known to have been transmitted by Dāwūd b. Rushayd (Muḥammad b. al-Ḥasan al-Shaybānī, Kitāb al-Āthār, ed. A. W. al-Afghānī, 2 vols. [2nd ed., Beirut: Dār al-Kutub al-ʻIlmiyya, 1413/1993], 1:22 [editor’s introduction]), and see note 41 below.
Boynukalın, Introduction, 96–97.
Ibid., 74, 82.
For example, Muḥammad b. Aḥmad al-Sarakhsī, Kitāb al-Mabsūṭ, 30 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1414/1993), 4:15; 30:232; Maḥmūd b. Aḥmad, Burhān al-Dīn Ibn Māzah, al-Muḥīṭ al-Burhānī fī al-fiqh al-Nuʻmānī, ed. ʻA. S. al-Jundī, 7 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1424/2004), 1:512; 8:605.
See Example 2.3 below.
Boynukalın, Introduction, 173.
Sarakhsī, al-Mabsūṭ, 30:209; al-Shaykh Niẓām et al. [eds.], al-Fatāwā al-Hindiyya al-ma‘rūfa bi-l-Fatāwā al-‘Ālamkīriyya fī madhhab al-imām al-a‘ẓam Abī Ḥanīfa al-Nu‘mān, 6 vols. (2nd ed., Beirut: Dār al-Kutub al-ʻIlmiyya, 2010), 6:460.
Abū Sulaymān’s riwāya of Kitāb al-Ḥiyal is mentioned in Niẓām, al-Fatāwā al-Hindiyya, 6:460.
Schacht, Das kitāb al-maḫāriğ fil-ḥijal, 12–13.
For example, Sarakhsī, al-Mabsūṭ, 1:91; 6:100; 9:163.
Boynukalın, Introduction, 74–75.
Schacht, Das kitāb al-maḫāriğ fil-ḥijal, 23–25.
Ibid., 5–9; 11; 23.
Miklos Muranyi, Beiträge zur Geschichte der Ḥadīṯ- und Rechtsgelehrsamkeit der Mālikiyya in Nordafrika bis zum 5. Jh. D.H.: bio-bibliographische Notizen aus der Moscheebibliothek von Qairawān (Wiesbaden: Harrassowitz, 1997); 22–23; Nurit Tsafrir, The History of an Islamic School of Law: The Early Spread of Hanafism, (Cambridge, Mass.: Harvard University Press, 2004), 105–107; EI3, s.v. Asad b. al-Furāt (Jonathan Brockopp). Clément Salah has recently called into question Asad’s connection with Mālikism. He suggests that Mālikī historians of North Africa merely portrayed him as an affiliate of the Mālikī school, in an attempt to reconstruct a Mālikī-oriented history of the region (Clément Salah, “Le maḏhab ḥanafite d’Ifrīqiya (IIe–IVe/VIIIe–Xe siècle): Asad b. al-Furāt (m. 213/828) et la transmission du Kitāb al-aṣl d’al-Šaybānī (m. 189/805)”, Asiatische Studien – Études Asiatiques, 76.4 [2022], 853–921, at 878).
Apart from al-Aṣl, Asad transmitted in Qayrawan the Kitāb al-Aqḍiya, a work by the Ḥanafī Yaḥyā b. Zakariyyāʾ b. Abī Zāʾida (d. 182/798) (Muranyi, Beiträge, 25–26; idem, Die Rechtsbücher des Qairawāners Saḥnūn b. Saʻīd: Entstehungsgeschichte und Werküberlieferung [Stuttgart: Franz Steiner, 1999], 10–11). He may also have transmitted in Qayrawan al-Shaybānī’s Kitāb al-Siyar (Muranyi, Beiträge, 22–23). In addition to legal teachings, Asad handed down Ḥanafī biographical material in the Maghrib (Tsafrir, The History, 171 n. 39).
The three fragments are listed by Muranyi in Beiträge, 23–24, and in Sahnun b. Saʻīd, 7–8. This was before Muranyi identified the fragments as parts of al-Aṣl, but he mentions that Muḥammad al-Nayyāl has suggested to identify them as such (Muranyi refers to al-Nayyāl’s al-Maktaba al-athariyya bi-l-Qayrawān, Tunis, 1963, 30–31, which is not available to me).
Hentati, Ḥanafī Law; Salah, “Le maḏhab ḥanafite”.
Hentati included in Ḥanafī Law only two of the extant folios of Kitāb al-Ṣalāt.
Ibn al-Nadīm, Fihrist, 255; al-Khaṭīb al-Baghdādī, Ta’rīkh Baghdād, 14 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, n.d.), 13:36; Qurāshī, Jawāhir, 3:124, 492.
Al-Wā‘iẓ al-Balkhī devoted an entry to Abū Sulaymān al-Jūzjānī among the seventy biographies included in his Faḍā’il Balkh, of men who lived in Balkh or had a significant connection to it (‘Abdallāh b. ‘Umar Wā‘iẓ, Faḍā’il Balkh, trans. from the Arabic: ‘A. M. b. M. Ḥusaynī [Tehran: Bonyād-e Farhang-e Īrān, 1350], 210–214) (English translation: Faḍā’il-i Balkh or “The Merits of Balkh”, tran. A. Azad, E. Herzig, and A. Mir-Ansari, [Cambridge]: Gibb Memorial Trust, 2021). Al-Jūzjānī’s grave reportedly is located in Fāriyāb, in the Jūzjān district, not far from Balkh (Faḍā’il Balkh, 213); even if the claim is false, it points to his connection to this area. He appears as “al-Jūzjānī al-Balkhī” in Muḥammad Maḥrūs ‘Abd al-Laṭīf al-Mudarris, Mashāyikh Balkh min al-Ḥanafiyya wa-mā infaradū bihi min al-masā’il al-fiqhiyya (Baghdad: al-Dār al-ʻArabiyya li-l-Ṭibāʻa, 1978), 1:88, 158.
Wā‘iẓ, Faḍā’il Balkh, 211. Al-Jūzjānī transmitted al-Shaybānī’s al-Siyar al-kabīr to the Balkhī Nuṣayr b. Yaḥyā (d. 268/882) (Muḥammad b. Aḥmad al-Sarakhsī, Sharḥ Kitāb al-Siyar al-kabīr li-l-imām Muḥammad b. al-Ḥasan al-Shaybānī, ed. M. Ḥ. al-Shāfi‘ī, 3 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1417/1997], 1:5). For his students in Khurasan, see Nurit Tsafrir, Collective Liability in Islam: The ʻĀqila and Blood-Money Payments (Cambridge: Cambridge University Press, 2020), 98 n. 24.
Muḥammad b. Jaʻfar al-Narshakhī, Tārīkh Bukhārā, ed. and trans. from the Persian: A. ‘A. Badawī and N. M. al-Ṭirāzī (3rd ed., Cairo: Dār al-Maʻārif, [1993]), 86–87; Qurashī, Jawāhir, 1:166; Kafawī, Katāʼib, 1:272; Muḥammad ‘Abd al-Ḥayy al-Laknawī, al-Fawā’id al-bahiyya fī tarājim al-Ḥanafiyya, ed. A. al-Zu‘bī (Beirut: Sharikat Dār al-Arqam bin Abī al-Arqam li-l-Ṭibāʻa wa-l-Nashr wa-l-Tawzīʻ, 1418/1998), 40, and see n. 41 below.
Tsafrir, The History, 73–74, and p. 23 below.
The transmitters of al-Aṣl also handed down nawādir from al-Shaybānī (for Abū Sulaymān and Abū Ḥafṣ, see Boynukalın, Introduction, 93, 95; for Hishām, Ibn Samāʻa, and Dāwūd, see, for example, Ibn Māzah, al-Muḥīṭ al-Burhānī, 2:216; 4:20). Abū Ḥafṣ transmitted in Bukhara al-Shaybānī’s Kitāb al-Āthār (Behnam Sadeghi, “The Authenticity of Two 2nd/8th Century Ḥanafī Legal Texts: the Kitāb al-āthār and al-Muwaṭṭa’ of Muḥammad b. al-Ḥasan al-Shaybānī”, Islamic Law and Society, 17 (2010), 291–319, at 313–314). Asad b. al-Furāt presumably transmitted al-Shaybānī’s Kitāb al-Siyar in the Maghrib, as mentioned above (n. 31).
Calder, Studies, 49.
Ibid., 48–49.
Ibid., 40–42.
Ibid., 49.
Ibid., 51.
Salah, “Le maḏhab ḥanafite”, 869–873, also referred to in Clément Salah, “The Earliest Manuscripts of Kairouan (9th-11th centurhes): New Approaches for a More Accurate Dating”, Arabica, 71 (2024), 247–303, at 273–276.
Boynukalın, Introduction, 143–146.
Salah, “Le maḏhab ḥanafite”, 869; Hentati, Ḥanafī Law, 51.
Salah, “Le maḏhab ḥanafite”, 869.
Ibid., 884.
According to Calder, the “transmission within a school tradition” did not mean “transmission of books with fixed texts. Books grew up through the slow accumulation of material and successive redactions” (Studies, 44); the material subject to this process of accumulation and redaction was, according to Calder, “initially, oral law … which was gradually acquiring literary forms” (Studies, 49). The complexity of the organic growth of al-Aṣl, as described by Calder, through the interpolation of various elements into different literary formats, implies a written text that continues to develop.
The editions used in this comparison are Abū al-Wafāʼ al-Afghānī’s 1990 edition, and Boynukalin’s 2012 edition (Salah, “Le maḏhab ḥanafite”, note 123).
Salah, “Le maḏhab ḥanafite”, 888.
Ibid., 891.
Ibid., 892.
Whether or not a given difference is significant can, of course, be a matter of dispute.
For the known riwāyas, see EI2, s.v. Mālik b. Anas (Schacht); for the extant ones, see Yasin Dutton, The Origins of Islamic Law: The Qur’an, the Muwaṭṭa’, and Madinan ‘Amal (Surrey: Curzon, 1999; reprint: New Delhi: Lawman [India] Pvt. Ltd., 2000), 23–24.
Calder, Studies, 34, 36–37.
Jonathan E. Brockopp, Early Mālikī Law: Ibn ʻAbd al-Ḥakam and his Major Compendium of Jurisprudence (Leiden: Brill, 2000), 74–77 (the quotation is from p. 77).
Ibid., 74 n. 15.
Ignaz Goldziher, Muslim Studies, ed. S. M. Stern, trans. from the German by C. R. Barber and S. M. Stern, 2 vols. (London: George Allen & Unwin Ltd, 1967–1971), 2:204 ff.
Yasin Dutton’s review of Brockopp’s Early Mālikī Law: Ibn ʻAbd al-Ḥakam and his Major Compendium of Jurisprudence, in Journal of Islamic Studies, 13.1 (2002), 42–49, at 44.
Dutton, The Origins of Islamic Law, 27.
Ahmed El Shamsy, “The Ur-Muwaṭṭa’ and its Recensions”, Islamic Law and Society, 28 (2021), 352–381, at 380.
Ibid., 380–381.
Ḥājjī Khalīfa, Kashf al-ẓunūn, 2:1581; Boynukalın, Introduction, 75.
EI2, s.v. Ḥanafiyya (Heffening and Schacht).
Boynukalın, Introducution, 119.
Ibid., 74, 120.
Ibid., 74.
Sarakhsī, al-Mabsūṭ, 30:244. My translation follows partly that of Michael Bonner in his “The Kitāb al-Kasb Attributed to al-Shaybānī: Poverty, Surplus, and the Circulation of Wealth”, Journal of the American Oriental Society, 121.3 (2001), 410–427, at 414.
See p. 6 above.
Salah, “Le maḏhab ḥanafite”, 885, 888.
Instead of moving the head, moving the eyes, the eyebrows and even, metaphorically, the heart was also accepted by some scholars, but not by the prevailing Ḥanafī opinion (Aḥmad b. Muḥammad al-Qudūrī, Mukhtaṣar al-Qudūrī, ed. S. Bakdāsh, [3rd ed., Beirut: Dār al-Bashāʼir al-Islāmiyya, and Medina: Dār al-Sirāj, 1437/2016], 45; ‘Alā’ al-Dīn al-Samarqandī, Tuḥfat al-fuqahā’, 3 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1414/1993], 1:192).
Sarakhsī, al-Mabsūṭ, 1:123; Kafawī, Katāʼib, 1:273.
Shaybānī, al-Aṣl, 1:105.
Muḥammad b. Muḥammad al-Marwazī, al-Ḥākim al-Shahīd, al-Kāfī, MS Istanbul, Millet Library, Feyzullah 922, fol. 7b.
Sarakhsī, al-Mabsūṭ, 1:123.
Text: wa-l-taklīf innamā yuthbatu bi-ḥasab wasʻihi (ibid.).
Text: al-ṣalāt bi-ghayr ṭuhūr maʻṣiya (ibid.).
Ibid.
EI3, s.v. Foundling (M. Fadel).
Qudūrī, Mukhtaṣar, 204; ‘Abdallāh b. Maḥmūd al-Mawṣilī, al-Ikhtiyār li-ta‘līl al-Mukhtār, ed. ‘A. M. ‘Abd al-Raḥmān, 5 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1419/1998), 3:33. All references to males in this context include also famales.
According to al-Kāsānī (Badā’i‘ al-ṣanā’i‘, 8:325) the dispute is over al-Shaybānī’s opinion, not that of Abū Ḥanīfa.
Shaybānī, al-Aṣl, 5:245.
Text: fa-huwa ibnuhumā jamī‘an fī qawl Abī Ḥanīfa raḥimahu Allāh taʻālā wa-hādhā fī riwāyat Abī Ḥafṣ raḥimahu Allāh taʻālā wa-ammā fī riwāyat Abī Sulaymān raḍiya Allāh ‘anhu lā yakūnu ibn wāḥida minhumā (Sarakhsī, al-Mabsūṭ, 10:217. See also Ḥākim, al-Kāfī, fol. 164a; Maḥmūd b. Aḥmad al-‘Aynī, al-Bināya sharḥ al-Hidāya, ed. A. Ṣ. Sha‘bān, 13 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1420/2000], 7:317).
Shaybānī, al-Aṣl, 5:245; Ḥākim, al-Kāfī, fol. 164a.
Shaybānī, al-Aṣl, 5:245.
Sarakhsī, al-Mabsūṭ, 16:142–143; ‘Abdallāh Muwaffaq al-Dīn Ibn Qudāma al-Maqdisī, al-Mughnī, ed. ‘A. b. ‘A al-Turkī and ‘A. M. al-Ḥulw, 14 vols. + Index (2nd ed., Cairo: Hajr li-l-Ṭibāʻa wa-l-Nashr wa-l-Tawzīʻ wa-l-Iʻlān, 1412–1413/1992), 14:134–135.
For the Mālikīs see Saḥnūn b. Saʻīd, al-Mudawwana al-kubrā, 5 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1415/1994), 4:22; for the Shāfiʻīs see Muḥammad b. Idrīs al-Shāfi‘ī, al-Umm, ed. M. Maṭrajī, 8 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1413/1993), 7:88.
Ḥanafīs: Qudūrī, Mukhtaṣar, 339; Ḥanbalīs: Ibn Qudāma, al-Mughnī, 14:134–135 (where another opinion of Ibn Ḥanbal’s, which requires two women, is also mentioned).
Sarakhsī, al-Mabsūṭ, 10:217; Niẓām, al-Fatāwā al-Hindiyya, 2:305.
Shaybānī, al-Aṣl, 5:244; Ḥākim, al-Kāfī, fol. 164a; Sarakhsī, al-Mabsūṭ, 17:130; Kāsānī, Badā’i‘ al-ṣanā’i‘, 8:320.
Shaybānī, al-Aṣl, 8:75; Ḥākim, al-Kāfī, fol. 347a; Sarakhsī, al-Mabsūṭ, 17:130.
Shaybānī, al-Aṣl, 7:573; see also: Mawṣilī, al-Ikhtiyār, 3:34.
On al-Sarakhsī’s use of nusakh (pl.) to indicate several versions of a single riwāya, see p. 6 above.
Text: ayyuhumā kāna mūjiban li-l-Islām yuʻtabaru dhālika) Sarakhsī, al-Mabsūṭ, 10:215; see also ‘Alī b. Abī Bakr al-Marghīnānī, al-Hidāya sharḥ Bidāyat al-mubtadī, ed. M. M. Tāmir and Ḥ. ‘A. Ḥāfiẓ, 4 vols. [Cairo: Dār al-Salām, 1420/2000], 2:888). It is not clear to me if the transmitter of this riwāya is also Ibn Samāʻa.
Text: annahu yuḥkamu li-ziyy al-laqīṭ wa-simāhu (Sarakhsī, al-Mabsūṭ, 17:130, and a variation in 10:215). According to one, late source, Ibn Samāʻa transmitted the same opinion from al-Shaybānī’s nawādir (‘Aynī, al-Bināya, 7:317).
Text: wa-tafsīr hādhihi al-riwāya dhakarahu Ibn Samāʻa raḥimahu Allāh annahu idhā kāna fī ʻunqihi ṣalīb wa-ʻalayhi thawb dībāj wa-wasaṭ ra’sihi muḥraz [read: majzūz] fa-l-ẓāhir annahu min awlād al-Naṣārā fa-lā yuḥkamu lahu bi-Islāmihi (Sarakhsī, al-Mabsūṭ, 17:130). For the correct reading of muḥraz, see al-Ḥasan b. Manṣūr al-Ūzjandī, Qāḍīkhān, Fatāwā Qāḍīkhān, ed. S. M. al-Badrī, 3 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 2009), 3:297 (I owe this emendation and the reference to Qāḍīkhān’s Fatāwā to Tareq Rajab); it is not clear to me exactly what kind of a haircut is referred to.
Text: wa-fī Kitāb al-Daʻwā fī baʻḍ al-nusakh: uʻtubira al-wājid wa-huwa riwāyat Ibn Samāʻa ʻan Muḥammad (Marghīnānī, al-Hidāya, 2:888; ʻUmar b. Ibrāhīm Ibn Nujaym, al-Nahr al-fāʼiq sharḥ Kanz al-daqā’iq, ed. A. ʻI. ʻInāya, 3 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1422/2002], 3:274; and a variation in Sarakhsī, al-Mabsūṭ, 10:215).
Of these four opinions, the one documented in Kitāb al-Laqīṭ prevailed, and achieved the status of ẓāhir al-riwāya (Kāsānī, Badāʼiʻ al-ṣanā’i‘, 8:320; Mawṣilī, al-Ikhtiyār, 3:34; Ibn Nujaym, al-Nahr al-fāʼiq, 3:274).
Text: daʻwāhu tuḍminu al-nasab wa-huwa nāfiʻ li-l-ṣaghīr wa-ibṭāl al-Islām al-thābit bi-l-dār wa-huwa yaḍurruhu fa-ṣaḥḥat daʻwatuhu fīmā yanfaʻuhu dūna mā yaḍurruhu (Marghīnānī, al-Hidāya, 2:888. See also Aḥmad b. ‘Alī al-Jaṣṣāṣ, Sharḥ Mukhtaṣar al-Ṭaḥāwī fī al-fiqh al-Ḥanafī, ed. M. ʻIṣmat Allāh ʻInāyat Allāh et al., 8 vols. [2nd ed., Beirut: Dār al-Bashāʼir al-Islāmiyya, 1431/2010], 4:67–68; Sarakhsī, al-Mabsūṭ, 17:130).
Shaybānī, al-Aṣl, 8:75. The attribution to the riwāya of Abū Sulaymān is based on the opening isnād of the chapter (Kitāb al-Daʻwā) and on references in later sources.
Ḥākim, al-Kāfī, fol. 347a; Sarakhsī, al-Mabsūṭ, 17:131.
Kāsānī, Badā’i‘ al-ṣanā’i‘, 9:56.
Text: wa-shahādat ahl al-dhimma laysat bi-ḥujja ʻalā al-wāḥid (read: al-wājid) wa-lā ʻalā man ḥukima bi-islāmihi tabʻan li-l-wāḥid (read: li-l-wājid) fa-kāna wujūduhu ka-ʻadamihi (read: wujūduhā ka-ʻadamihā) (Sarakhsī, al-Mabsūṭ, 17:131).
Shaybānī, al-Aṣl, 7:456–7; Sarakhsī, al-Mabsūṭ, 10:66; Marghīnānī, al-Hidāya, 2:831–832; ‘Abdallāh b. Aḥmad al-Nasafī, Kanz al-daqā’iq, in ʻUmar b. Ibrāhīm Ibn Nujaym, al-Nahr al-fā’iq sharḥ Kanz al-daqā’iq, ed. A. ʻI. ʻInāya, 3 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1422/2002), 3:216; Zayla‘ī, Tabyīn al-ḥaqā’iq, 4:107–108.
With regard to wadīʻa, Ḥanafī jurists do not distinguish between movables and immovables, but they appear to assume that a deposit is always a movable.
The term mustaʼmin usually refers to a non-Muslim from dār al-ḥarb residing in Islamic territory under a pledge of security (EI3, s.v. Amān [H. Halilieh]). Here the opposite is meant, namely, a subject of the Muslim state staying in dār al-ḥarb under amān. I use the term mustaʼmin in the latter sense in the absence of a more specific term (I found mustaʼmin in this latter meaning only in a late source: Muḥammad b. ‘Alī ‘Alā᾿ al-Dīn Al-Ḥaṣkafī [d. 1088/1677], al-Durr al-muntaqā fī sharḥ al-Multaqā, in ‘Abd al-Raḥmān b. Muḥammad Shaykhīzādah, Majma‘ al-anhur fī sharḥ Multaqā al-abḥur, ed. Kh. ʻI. al-Manṣūr, 4 vols. [Beirut: Dār al-Kutub al-ʻIlmiyya, 1419/1998], 2:430).
Sarakhsī, al-Mabsūṭ, 10:67; Marghīnānī, al-Hidāya, 2:831–832; Zaylaʻī, Tabyīn al-ḥaqā’iq, 4:107–108; Shaykhīzādah, Majma‘ al-anhur, 2:427–428.
Text: wa-kadhālika mā kāna awdaʽa ḥarbiyyan aw ghayrahu fa-innahu lā yakūnu lahu wa-yakūnu fay’an (Shaybānī, al-Aṣl, 7:458).
Text: wa-mā kāna lahu min wadīʻa ʻinda ḥarbī aw dhimmī fa-huwa lahu wa-laysa bi-fay’ (Ḥākim, al-Kāfī, fol. 210b; followed by Sarakhsī, al-Mabsūṭ, 10:68).
Zaylaʻī, Tabyīn al-ḥaqā’iq, 4:108; Shaykhīzādah, Majmaʻ al-anhur, 2:430; Ḥaṣkafī, al-Durr al-muntaqā, 2:430; Niẓām, al-Fatāwā al-Hindiyya, 2:234–235.
In fact, the expression tājir bi-amān (a merchant under a pledge of safety) is sometimes used generically for any subject of the Muslim state who resides in dār al-ḥarb under amān (Ḥākim, al-Kāfī, fol. 210b; Sarakhsī, al-Mabsūṭ, 10:67).
See p. 4 above.
The inquiry did not include al-Kāfī, which is not available in print.
Text: va-az īn ast keh revāyāt mayān-e Abū Sulaymān va-Abū Ḥafṣ mokhtalef ast (Wā‘iẓ, Faḍā’il Balkh, 211–212).
Text: … annahu kāna yakrahu an yuqra’a ʻalayhi al-Aṣl min riwāyat Hishām li-mā fīhi min al-iḍṭirāb wa-kāna ya’muru an yuqra’a ʻalayhi al-Aṣl min riwāyat Abī Sulaymān aw riwāyat Muḥammad b. Samāʻa li-ṣiḥḥat dhālika wa-ḍabṭihimā (Qurashī, Jawāhir, 3:569; and similar versions in Ḥusayn b. ‘Alī al-Ṣaymarī, Akhbār Abī Ḥanīfa wa-aṣḥābihi [Beirut: ʻĀlam al-Kutub, 1405/1985], 162; and in Aḥmad b. Muṣṭafā Ṭāsh Kubrī Zādah, Ṭabaqāt al-fuqahāʼ [2nd ed., Mosul, 1961], 28).
I suspect that the text in al-Qurashī’s Jawāhir, or at the least its wording, is later than al-Jaṣṣāṣ, because the title al-Aṣl came to indicate al-Shaybānī’s work only after the lifetime of al-Jaṣṣāṣ, as discussed above. In fact, the version preserved by al-Ṣaymarī (d. 436/1044) has al-uṣūl instead of al-Aṣl.
El Shamsy, “The Ur-Muwaṭṭa’”, 353.
Boynukalın, Introduction, 87.
Sarakhsī, al-Mabsūṭ, 30:287; Boynukalın, Introduction, 106, 109–110. Al-Shaybānī also wrote two versions of al-Jāmiʽ al-kabīr, the later more comprehensive and more nuanced than the earlier; his students transmitted first the early version, then the later one (Muḥammad b. al-Ḥasan al-Shaybānī, al-Jāmiʽ al-kabīr, ed. M. M. Tāmir [Beirut: Dār al-Kutub al-ʻIlmiyya, 1421/2000], editor’s Introduction, و).
For example, Naṣr b. Muḥammad Abū al-Layth al-Samarqandī, ‘Uyūn al-masā’il fī furū‘ al-Ḥanafiyya, ed. S. M. Muhannā (Beirut: Dār al-Kutub al-ʻIlmiyya, 1419/1998), 36; Zaylaʻī, Tabyīn al-ḥaqā’iq, 5:141; Zayn al-Dīn b. Ibrāhīm Ibn Nujaym, al-Baḥr al-rā’iq sharḥ Kanz al-daqā’iq, ed. Z. ‘Umayrāt, 9 vols. (Beirut: Dār al-Kutub al-ʻIlmiyya, 1418/1997), 5:162.
El Shamsy, “The Ur-Muwaṭṭa’”, 375–376, 380. Schacht too notes that the form of Mālik’s teachings changed over time (EI2, s.v. Mālik b. Anas [Schacht]).
Umar F. Abd-Allah Wymann-Landgraf, Mālik and Medina: Islamic Legal Reasoning in the Formative Period (Leiden: Brill, 2013), 21.
El Shamsy, “The Ur-Muwaṭṭa’”, 373; Dutton, A Review of Brockopp’s Early Mālikī Law, 43–44.
EI2, s.v. Mālik b. Anas (Schacht).
Wymann-Landgraf, Mālik and Medina, 16–22.
Nimrod Hurvitz, “The Mukhtaṣar of al-Khiraqī and its Place in the Formation of Ḥanbalī Legal Doctrine”, in Law, Custom and Statute in the Muslim World: Studies in Honor of Aharon Layish, ed. Ron Shaham (Leiden: Brill, 2006), 1–16, at 12–13; Wymann-Landgraf, Mālik and Medina, 21; Clément Salah, “Ašhab b. ʿAbd al-ʿAzīz (m. 204/820) et l’évolution du maḏhab mālikite (iiie-vie/Ixe-xiie siècle)”, Islamic law and Society, 30 (2023), 392–441, at 401–403.
Wael B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 98–99; Ahmed El Shamsy, “The First Shāfiʻī: The Traditionalist Legal Thought of Abū Yaʻqūb al-Buwayṭī (d. 213/846)”, Islamic Law and Society, 14 (2007), 301–341, at 321–322.
Hallaq, Authority, 109.
El Shamsy, “The First Shāfiʻī”, 317–322; idem, “Rethinking Taqlīd in the Early Shāfiʻī School”, Journal of the American Oriental Society, 128.1 (2008), 1–23, at 9–13.
Hallaq, Authority, 43–56.
Ibid., 45–47.
Ibid., 44–45.
Ibid., 43.
Ibid., 48.
Ibid.
See, for example, Kāsānī, Badā’i‘ al-ṣanā’i‘, 1:411; Ibn Māzah, al-Muḥīṭ al-Burhānī, 1:96; Ibn Nujaym, al-Nahr al-fā’iq, 3:34.
Text: Wa-li-Abī Ḥafṣ ikhtiyārāt yukhālifu fīhā jumhūr al-aṣḥāb (Laknawī, Fawā’id, 39).
See p. 15 above.
Boynukalın, Introduction, 66–70.
