علم الاحتسابJurisprudence Legal Theory Judgment and Fatwas

The Science of Hisbah

It consists in examining the affairs of the people of a city by implementing recognized procedures of conventional governance, forbidding what contravenes them, and carrying out

what the law has established concerning the enjoining of right and the forbidding of wrong.

The sovereign, in relation to the kingdom, is like the head in relation to the body, being the source of judgment and administration.

The minister is like the tongue that expresses what lies in the conscience.

The people of hisbah are like the hands, feet, retainers, and servants; the affairs of the kingdom cannot be completed without these three. This is an old expression of the sciences.

In Kashf al-Zunun it is said: It is a science that investigates the matters occurring among the inhabitants of a town, including the transactions without which civilization cannot endure, insofar as they are conducted according to a just law so that the parties consent to one another, and the governance of the people by forbidding wrong and enjoining right, without leading to quarrels and boastful rivalry among them, according to what the caliph deems appropriate in deterrence and restraint.

Its principles are partly juristic and partly matters of approbation arising from the caliph's judgment.

Its purpose is the acquisition of a habitus in these matters.

Its benefit is to conduct the affairs of cities along their proper courses in the most complete manner. This is among the most exacting sciences, apprehended only by one possessing penetrating understanding and sound intuition, for persons, times, and circumstances do not follow one single pattern. Each time and circumstance therefore requires a particular policy, which is among the most difficult matters. The office of hisbah is consequently suitable only for one endowed with a sanctified power free of desire, such as Umar ibn al-Khattab, may God Most High be pleased with him, who was learned in this matter. Thus it appears in Mawdu'at Lutf Allah.

Abu al-Khayr defined it as examining the affairs of the people of a city, implementing what has been prescribed in governance and established in the law, by night and by day, secretly and openly. He then said: The science of civic policy includes some of the requirements of this office, but we have not seen a book composed specifically on it; what is mentioned in al-Ahkam al-Sultaniyyah suffices. End quote.

I say: There is a book devoted specifically to hisbah, Nisab al-Hisbah. Its author states that hisbah in the Law encompasses every action prescribed by God, Glorious and Exalted is He, such as the call to prayer, the iqamah, and giving testimony, although the list is extensive. Hence it has been said that the judiciary is one of the chapters of hisbah. In customary usage, it is restricted to certain matters, which he lists up to fifty. Books concerning them are mentioned in their appropriate places. End of what is in the Kashf.

The Science of the Etiquette of Hisbah

It is among the obligations. The muhtasib must know the spheres of hisbah and must be pious and of good character, for knowledge and piety do not suffice for gentleness and kindness unless their possessor also has good character.

Among its etiquettes is reducing attachments, so that fear does not become excessive, and cutting off expectation, so that flattery is removed from him.

This science belongs to the sciences connected with customary practices. It is mentioned in Madinat al-Ulum, and it has also been discussed above under the Science of Hisbah.

The Science of the Principles of Jurisprudence

It is the science through which the derivation of subsidiary legal rulings from their general, certain proofs is known.

Its subject is the universal legal proofs, insofar as the legal rulings are derived from them.

Its principles are taken from Arabic, from certain religious sciences such as the principles of theology, exegesis, and hadith, and from certain rational sciences.

Its purpose is to acquire the habitus of deriving subsidiary legal rulings from their four proofs, namely the Book, the Sunnah, consensus, and analogy.

Its benefit is the derivation of those rulings correctly.

Know that although events are finite in themselves with the ending of the abode of legal responsibility, their abundance and uninterrupted occurrence so long as the world endures place them beyond the enumeration of those living in the present; their particular rulings therefore cannot be known individually. Since every human act is a ruling of the Lawgiver linked to a proof specific to it, they made them propositions whose subjects are the acts of those legally responsible and whose predicates are the rulings of the Lawgiver—obligation and its counterparts. They called the science concerning them, obtained from those proofs, fiqh.

They then considered the details and universality of the proofs and rulings. They found the proofs to return to the Book, the Sunnah, consensus, and analogy, and the rulings to return to obligation, recommendation, prohibition, reprehensibility, and permissibility. They examined how those proofs indicate those rulings in general, without considering their details except by way of illustration. They thus obtained universal propositions concerning the manner of using those proofs to reach particular rulings, and the methods and conditions of doing so, so that each proposition could lead to the derivation of many particular rulings from their detailed proofs. They recorded and compiled them, added related matters, and called the science concerning them the principles of jurisprudence.

Imam Ala al-Din al-Hanafi said in Mizan al-Usul: Know that the principles of jurisprudence are a branch of the principles of religion. It was therefore necessary that composition in this field proceed according to the author's creed. Most works on the principles of jurisprudence belong to the Mu'tazilah, who disagree with us on fundamentals, and to the people of hadith, who disagree with us on subsidiary matters; their works are not relied upon.

The works of our companions are of two kinds:

One kind attained the utmost precision and mastery because it was produced by those who combined fundamentals and branches, such as Ma'akhidh al-Shuru and al-Jadal by al-Maturidi, and similar works.

The other attained the highest degree of investigation into meanings and excellence of arrangement because it was produced by those who undertook to extract subsidiary rulings from the apparent meanings of transmitted texts. Yet, since they were not skilled in the subtleties of the principles and the questions of rational thought, their opinions came to agree with those of opponents in some sections. The first kind was then abandoned, either because its expressions and meanings were unfamiliar or because of weak resolve and delay, while the other became famous. End quote.

His attribution of this position to the people of hadith, and his refusal to rely on their works, is sheer partisanship issuing from the womb of taqlid. If one cannot rely on the works of the people of hadith—who are the exemplars and models in religion and who know the texts of the Book and Sunnah far more than jurists and imitators, by many degrees and through many avenues—then what group is fit to be relied upon? This statement by the bigoted Hanafi is nothing but a grave lapse, such as could come only from one lacking both knowledge and fairness. It has no trace of learning behind it.

In Kashshaf Istilahat al-Funun it is said: The science of the principles of jurisprudence is also called the science of dirayah, according to Majma al-Suluk, and it has two definitions:

The first is considered in terms of the genitive construction.

The second is considered in terms of the title, that is, insofar as it is the title of a particular science. He then mentioned these two definitions and elaborated on their benefits.

It quotes Irshad al-Qasid by Shaykh Shams al-Din al-Akfani al-Sakhawi:

The principles of jurisprudence are a science through which the formulation of practical legal rulings, the methods of deriving them, the materials of their proofs, and their extraction through reflection are known.

Its subject is the legal proofs and rulings, since it investigates the essential attributes of legal rulings—namely, their establishing a ruling—and the essential attributes of the proofs—namely, their establishing those rulings.

He said: If you desire further investigation, consult al-Tawdih and al-Talwih. End of the summarized quotation from the Kashshaf.

Know further that the first to compose on the principles of jurisprudence was Imam al-Shafi'i; al-Isnawi mentions this in al-Tamhid and relates consensus on it. He was the shaykh of the hadith scholars and jurists.

The books composed on it are numerous and well known. The best arranged, most complete in investigation and refinement, most widely accepted, and fairest in judgment is Irshad al-Fuhul ila Tahqiq al-Haqq min Ilm al-Usul by our master, the Chief Judge Muhammad ibn Ali al-Shawkani al-Yamani, who died in 1255 AH. We abridged this book and named it Husul al-Ma'mul min Ilm al-Usul. It is exceedingly precious. If you seek to establish truth while setting aside taqlid and partisanship for the opinions of men, and wish to know this science with all its disputes and controversies, turn to these two works; you will find them the world's finest brocade, the age's distinction, and the jewel of Mercury of which pride boasts.

Lovers have many creeds in passion ... I have one creed by which I live alone

How many opinions in religion distort the Law, and how many of them deviate from the community of the purified Sunnah: “And worship your Lord until certainty comes to you.”

In Madinat al-Ulum it is said: Among the early books composed in this science are the book of al-Jassas, Ahmad ibn Ali Abu Bakr al-Razi; al-Asrar; and Taqwim al-Adillah by Imam Zayd al-Dabusi—[from] a village between Bukhara and Samarqand—who died in 402 AH.

Among them are Usul Fakhr al-Islam by al-Pazdawi, which has many commentaries, the most famous being al-Kashf by Abd al-Aziz ibn Ahmad al-Bukhari; and Usul Shams al-A'immah al-Sarakhsi.

Ihkam al-Ahkam by al-Amidi.

Muntaha al-Su'l wa al-Amal in the two sciences of principles and disputation, and abridgements of both by Ibn al-Hajib, whose commentaries number more than ten.

Al-Qawa'id wa al-Badi' by Ibn al-Sa'ati al-Ba'lbaki.

Al-Manar by al-Nasafi, which has commentaries; and al-Mughni by al-Khabazi, with its commentary by Siraj al-Din al-Hindi, the Hanafi judge in Cairo.

Al-Muntakhab by al-Akhsiqathi; al-Tahsil by al-Abiwardi; al-Mahsul by Fakhr al-Din al-Razi; al-Tanqih and its commentary al-Tawdih by Sadr al-Shari'ah; al-Talwih on the commentary of al-Tanqih by Sa'd al-Din al-Taftazani; Fusul al-Bada'i fi Usul al-Shara'i by Shams al-Din al-Fatwazi; and Minhaj al-Wusul ila Ilm al-Usul by al-Qadi al-Baydawi according to the Shafi'i school, which also has commentaries.

Among them is also Mirqat al-Wusul ila Ilm al-Usul, and others. End of the substance of his statement.

I add: Among them is Jam al-Jawami by Taj al-Din al-Subki, which has commentaries and has been printed in Cairo in this period. The finest book in this science is our master al-Shawkani's book mentioned above. Hold fast to it, and you will be guided to the straight path.

Section: Qadi al-Qudat Mu'ayyad al-Din Abd al-Rahman ibn Khaldun—may God Most High have mercy on him—said in al-Ibar wa Diwan al-Mubtada wa al-Khabar:

Know that the principles of jurisprudence are among the greatest religious sciences, since rulings and obligations are taken from them. The foundations of the legal proofs are the Book—which is the Qur'an—then the Sunnah that explains it. During the Prophet's life, rulings were received from what was revealed to him of the Qur'an and explained by his word and deed, through direct oral address requiring neither transmission nor reflection and analogy. After him, direct oral address became impossible, while the Qur'an was preserved by mass transmission. As for the Sunnah, the Companions unanimously agreed that it was obligatory to act upon what reached us from it, in word and deed, through sound transmission whose truth is more probable than not. The indication of the Law was thereby established in the Book and Sunnah. Consensus is then given their status, except for the Companions' consensus in condemning those who opposed them; this could only rest on a basis, since people like them do not agree without a firm proof, and testimony establishes the community's protection from error. Consensus thus became a firm proof in legal matters.

We then considered the methods by which the Companions and early generations reasoned from the Book and Sunnah. We found them comparing like cases with like cases and analogizing examples to examples, by their unanimous agreement and mutual acceptance. Many events after the Prophet were not included in the established texts, so they compared them with what was established and joined them to what had been explicitly stated, subject to conditions making the equality between the two similar or analogous cases valid, until it became probable that God's ruling concerning them was one. This became a legal proof by their consensus: analogy, the fourth proof. The majority of scholars agreed that these are the foundations of proof. Although some disputed consensus and analogy, that was an aberration. Others added further proofs to these four, but there is no need to mention them because of the weakness of their bases and the eccentricity of the opinions concerning them. The first discussions of this discipline therefore concerned what is valid of them, supported—as we have said—by the practice during his life of sending letters and messengers to the regions with rulings and laws, commanding and forbidding.

As for consensus, it rests on their agreement to condemn opposition to it, together with the community's established protection from error.

As for analogy, it rests on the consensus of the Companions, as we have stated. These are the foundations of proof.

The material transmitted from the Sunnah also requires verification of reports by examining the channels of transmission and the integrity of transmitters, so that the state

yielding the probability of their truth—the basis of the obligation to act—may be distinguished. This too is among the rules of the discipline. Related to it is the case of two conflicting reports and the search for the earlier of them, in order to know the abrogating and abrogated. This is also among its sections and chapters. Thereafter it is necessary to examine the indication of expressions, since acquiring meanings in general depends on knowing conventional indications, both single and compound. The linguistic laws governing this are the sciences of syntax, morphology, and rhetoric. When speech was a habitus possessed by its speakers, these were neither sciences nor rules, and jurisprudence did not then need them, because it was innate skill. When that linguistic habitus in Arabic deteriorated, the great scholars who devoted themselves to the task regulated it through sound transmission and correctly inferred analogies, and these became sciences needed by the jurist to know God's rulings.

There are also special inferences from constructions of speech: deriving legal rulings among meanings from their specific evidence in those constructions, which is jurisprudence. General knowledge of conventional indications does not suffice; other matters on which those special indications depend are necessary. Through them rulings are derived according to what the people of the Law and the masters of learning established and made into rules for this purpose: that language is not established by analogy; that a homonym is not intended to bear both meanings simultaneously; that the conjunction waw does not imply sequence; whether a general expression, after some individuals have been excluded as a specific exception, remains proof with respect to the rest; whether a command indicates obligation or recommendation, and immediacy or delay; whether a prohibition indicates invalidity or validity; whether an unrestricted expression is construed in light of a restricted one; whether an explicit statement of the effective cause suffices for extending a ruling to multiple cases; and similar matters. All these became rules of the discipline. Since they concern indications, they were linguistic.

Examining analogy is also among the greatest rules of this discipline, because it establishes the original and subsidiary cases in what is compared and equated of rulings, and discloses the attribute that is most probably the basis on which the ruling was attached in the original case, by identifying the attributes of that case or the presence of that attribute in the subsidiary case, without an opposing factor preventing the ruling from being applied to it in other matters. All related matters are rules of this discipline. Know that this discipline is one of the sciences newly developed within the religious community. The early generations had no need of it, because their linguistic habitus enabled them to derive meanings from expressions to a degree beyond what is available to later people.

As for the rules needed specifically for deriving rulings, they took most of them from the earlier generations. They did not need to examine chains of transmission because of the closeness of the age and their familiarity with the transmitters. When the early generations passed away, the first age ended, and all the sciences became crafts, jurists and independent reasoners had to acquire these rules.

The first to write on it was al-Shafi'i, who dictated his famous Risalah, discussing commands and prohibitions, clarification and reports, abrogation, and the ruling of an explicitly stated cause in analogy.

The Hanafi jurists then wrote on it, verifying those rules and expanding their discussion.

The theologians likewise wrote on it, but the jurists' writings were closer to jurisprudence and more appropriate to the branches because of their many examples and proofs, and because they built the questions upon juristic subtleties.

The theologians abstracted the forms of those questions from jurisprudence and inclined as far as possible toward rational proof, since that is predominant in their sciences and required by their method. The Hanafi jurists therefore had the upper hand in penetrating juristic subtleties and extracting these rules from the questions of jurisprudence wherever possible.

Abu Zayd al-Dabusi, one of their imams, wrote on analogy more extensively than all of them, completed the investigations and conditions required for it, and brought the craft of the principles of jurisprudence to completion; its questions were refined and its rules established.

People favored the theologians' method. Among the finest works written by theologians were al-Burhan by Imam al-Haramayn and al-Mustasfa by al-Ghazali, both Ash'ari works.

And al-Ahd by Abd al-Jabbar, with al-Mu'tamad by Abu al-Husayn al-Basri as its commentary; both are Mu'tazili works.

These four were the rules and pillars of the discipline. Two outstanding later theologians then abridged them: Imam Fakhr al-Din ibn al-Khatib in al-Mahsul and Sayf al-Din al-Amidi in al-Ahkam. Their methods differed between investigation and argument: Ibn al-Khatib was more inclined to multiply proofs and arguments, while al-Amidi was devoted to verifying schools and branching out the questions.

As for al-Mahsul, Imam Siraj al-Din al-Urmawi's student abridged it in al-Tahsil, and Taj al-Din al-Urmawi in al-Hasil. Shihab al-Din al-Qarafi selected from them introductions and rules in a small book called al-Tanqihat, and al-Baydawi did likewise in al-Minhaj. Beginners took an interest in these two books, and many people wrote commentaries on them.

As for al-Amidi's al-Ahkam, which is more exact in its questions, Abu Amr ibn al-Hajib abridged it in his well-known al-Mukhtasar al-Kabir, then abridged that in another book circulated among students of knowledge. Scholars of the East and West devoted themselves to it, reading and commenting on it, and the essence of the theologians' method in this discipline was preserved in these abridgements.

As for the Hanafi method, they wrote much on it. Among the best works of the earlier scholars was Abu Zayd al-Dabusi's composition, and among the best of the later scholars was the work of Sayf al-Islam al-Pazdawi, one of their imams; it is comprehensive.

Ibn al-Sa'ati, a Hanafi jurist, combined al-Ahkam and al-Pazdawi's book in the two methods and called his work al-Bada'i. It was among the finest and most ingenious arrangements. The leading scholars of this age circulate it for reading and study, and many Persian scholars have eagerly commented on it. This remains the state of affairs today.

This is the reality of this discipline, the specification of its subjects, and an enumeration of the famous works on it in this age. May God benefit us through knowledge and make us among its people, by His grace and generosity. He is powerful over all things. End of his statement.

Among the books composed in this science are Mughnim al-Husul fi Ilm al-Usul by Shaykh Habib Allah al-Qandahari, one of the scholars of this century; Muslim al-Thubut by Muhibb Allah al-Bihari; Shaykh Muhammad Ismail al-Dihlawi's Risalah; and Husul al-Ma'mul by the author of these lines—may God pardon him.

The Science of Clarifying the Recognized Benefits in Every Chapter of the Legal Chapters

It is the science by which the wisdom of establishing religious laws and preserving all legitimate lineages is known.

Its subject is the Muhammadan Hanafi legislative order—upon its bearer be blessings and peace—insofar as it concerns benefit and harm.

Its aim is that one find no distress in what God and His Messenger have decreed, but submit fully to the divine rulings, trust them completely, be at peace with them, and preserve them, so that the soul is wholly drawn toward them and does not incline to a contrary path.

On this science there is the book Hujjat Allah al-Balighah by the eminent Shaykh Ahmad Wali Allah ibn Abd al-Rahim al-Umari al-Dihlawi, who died in 1174 AH. Few have composed on it, explored the foundations of its structure, arranged its principles and branches, or brought anything that nourishes or suffices. How could its secrets become clear except to one firmly grounded in all the religious sciences, who has mastered the divine disciplines to their end, whose understanding is purified by God for a knowledge from Him, whose heart is filled with a bestowed secret, and who is also keen in nature, fluid in inspiration, skilled in exposition and composition, and excellent in guidance and formulation? He knew how to connect principles and build branches upon them, establish rules, and provide rational and transmitted evidence for them. I know no one to whom God granted a share and portion of this science except the author of the Hujjah. He alone composed on this science and guided people to the clear path. God knows best.

The Science of Legal Stratagems

It is a chapter of jurisprudence, indeed one of its disciplines, like the science of inheritance. Books were composed on it, the most famous being al-Hiyal by Imam Shaykh Abu Bakr Ahmad ibn Umar, known as al-Khassaf al-Khafi, who died in 261 AH. It is in two volumes and was mentioned by al-Tamimi in Tabaqat al-Hanafiyyah.

It has commentaries, including that of Shams al-A'immah al-Halwani.

And the commentary of Shams al-A'immah al-Sarakhsi, and the commentary of Imam Khwahar Zadah.

Among them are books by Muhammad ibn Ali al-Nakha'i, Ibn Suraqah, Abu Bakr al-Sayrafi, Abu Hatim al-Qazwini, and others. They mention therein stratagems that ward off coercive litigation, and classify them as prohibited, reprehensible, or permissible.

Al-Hafiz Ibn al-Qayyim—may God have mercy on him—went at length in I'lam al-Muwaqqi'in an Rabb al-Alamin to refute the stratagems introduced by jurists, and did so excellently.

The Science of Disagreement

It is the science by which one knows how to present legal arguments, repel objections, and answer the defects alleged against disputed proofs by presenting decisive demonstrations. It is dialectic, a branch of logic, except that it is restricted to religious purposes.

It may also be defined as a science by which one can, as far as possible, preserve any position and demolish any position. Hence it is said that the dialectician is either a respondent who preserves a position or a questioner who demolishes one. This was discussed above under the Science of Dialectic.

In Madinat al-Ulum it is said: The distinction between dialectic occurring among adherents of subsidiary schools, such as Abu Hanifah and al-Shafi'i, and the science of disagreement is

that discussion in dialectic concerns the material, while in disagreement it concerns the form.

Some scholars composed works on disagreement containing ten questions, others twenty, and others thirty, to serve as examples to be followed in other matters. End quote.

Ibn Khaldun said in his Muqaddimah: Know that this jurisprudence, derived from legal proofs, contains abundant disagreement among independent jurists because their sources and considerations differ. Such disagreement must occur for the reasons we have mentioned. It spread among the four communities of scholars of the cities, and people held them in such good regard that they confined themselves to imitating them and prohibited imitation of others, because independent reasoning had disappeared through the difficulty and branching of the sciences that constitute its materials over the passage of time, and because no one remained to uphold any school besides these four. These four schools thus established the foundations of the religious community. Disagreement among those who adhered to them and adopted their rulings came to follow the course of disagreement over legal texts and juristic principles, and debates arose among them to validate each imam's school. These debates proceeded according to sound principles and upright methods, by which each person argued for the school he imitated and to which he adhered.

This was done in all the questions of the Law and in every chapter of jurisprudence.

At times the disagreement was between al-Shafi'i and Malik, while Abu Hanifah agreed with one of them.

At times it was between Malik and Abu Hanifah, while al-Shafi'i agreed with one of them.

At times it was between al-Shafi'i and Abu Hanifah, while Malik agreed with one of them. These debates explained the sources of the imams, the causes of their disagreement, and the sites of their independent reasoning. This branch of knowledge was called khilafiyyat. The independent jurist needs it for derivation, while the scholar of disagreement needs it to preserve those derived questions from being demolished by the opponent's proofs.

It is, by my life, a noble and beneficial science for knowing the sources and proofs of the imams, and it enables those who study it to reason in support of what they seek to establish.

Hanafi and Shafi'i works on it are more numerous than Maliki works, because analogy is the basis of many branches of the Hanafi school, as you have learned, making its adherents people of investigation and debate.

As for the Malikis, transmitted precedent is their principal reliance; they are not people of speculative investigation, and most of them are Maghribis, a rustic people largely unacquainted with the crafts except for a few.

Al-Ghazali has a book on it, al-Ma'akhidh.

Abu Zayd al-Dabusi has al-Ta'liqah.

Ibn al-Qassar, one of the Maliki masters, has Uyun al-Adillah. Ibn al-Sa'ati gathered in his abridgement of the principles of jurisprudence all the jurisprudence based on these disputed matters, inserting into each question what was based upon it of the disagreements. End quote.

Other works composed on it include al-Manzumah al-Nasafiyyah and the Disagreements of Imam al-Hafiz Abu Bakr Ahmad ibn al-Husayn ibn Ali al-Bayhaqi, who died in 458 AH; he collected the disputed questions between al-Shafi'i—may God have mercy on him—and Abu Hanifah—may God have mercy on him.

In Madinat al-Ulum it is said: The science of disagreement investigates the various forms of derivation from general or detailed proofs, each of which is followed by a group of scholars. The best and most exemplary among them are Abu Hanifah al-Nu'man ibn Thabit al-Kufi, his companions Abu Yusuf, Muhammad, and Zufar, and Imams al-Shafi'i, Malik, and Ahmad ibn Hanbal.

It then examines these forms by strengthening or refuting any position desired. Its principles are derived from the science of dialectic; dialectic is to it as matter is to form.

It draws upon the Arabic and religious sciences.

Its purpose is to acquire the habitus of establishing and refuting.

Its benefit is to repel doubts from schools and to place them upon the opposing school. Imam Fakhr al-Din al-Razi presented the science of disagreement and dialectic in al-Ma'alim and other epistles and annotations, but his books have been lost, his traces effaced, and his principles have disappeared in our time.

Know that the first person in the world to bring forth the science of disagreement was Abu Zayd al-Dabusi, who died at the age of sixty-three. He once debated a man who began smiling and laughing, so Abu Zayd recited these lines of his own:

When I bind him with a proof,

he answers me with laughter and guffaws.

If a man's laughter comes from his understanding,

then the lizard in the desert is the most learned of all.

The science of dialectic and disagreement may be made branches of the science of the principles of jurisprudence. End of his statement, may God have mercy on him.

The Science of the Law

It is a science issuing from the Law, or a science upon which the science issued from the Law depends for its existence, such as theology, or for its perfection, such as Arabic and logic. Thus said Abu Hajar al-Makki in his commentary on al-Nawawi's Forty Hadith.

Its instrumental sciences include morphology, syntax, lexicon, semantics, and rhetoric.

The religious science means exegesis and hadith.

As for jurisprudence, it is among the sciences of this world. The Law is what God Most High prescribed for His servants of rulings brought by His revealed Book and His sent Prophet, inspired by Him, whether they concern how one acts—in which case they are called subsidiary and practical, and the science of jurisprudence was composed for them—or how one believes—in which case they are called foundational and creedal, and the science of theology was composed for them. The Law is also called religion and community.

Those rulings, insofar as they are obeyed, are religion.

Insofar as they are dictated and written, they are a religious community.

Insofar as they are legislated, they are Law. The difference among these terms is one of perspective, not essence, except that usage attaches shari'ah and millah only to the Prophet and the community, while din may also be attached to God Most High.

It may be expressed otherwise: it is a divine institution that leads rational beings, through their praiseworthy choice, to intrinsic good, namely what benefits them in their worldly and eternal lives.

The divine institution consists of the rulings brought by one of the prophets, peace be upon them.

The term Law may be restricted to subsidiary practical rulings; this is indicated by what appears in Sharh al-Aqa'id al-Nasafiyyah.

The science concerning subsidiary rulings is called the science of laws and rulings.

The science concerning foundational rulings is called the science of divine unity and attributes. End quote.

In al-Tawdih it is stated that a ruling, meaning God's address, is of two kinds: legal, namely God's address concerning what depends upon the Law and could not be known without the Lawgiver's address, such as the obligation of prayer.

And non-legal, namely His address concerning what does not depend upon the Law, but upon which the Law depends, such as the obligation of faith in God Most High and His Messenger—peace and blessings be upon him. End quote.

In Sharh al-Mawaqif it is stated that the legal is what the intellect judges possible in both affirmation and negation, while the intellect has no route to it; its counterpart is the rational, which is not so. End quote.

The Law may also be used for judgment, meaning the judge's ruling.

The term legal, as used above, is also used in contrast with sensory.

The sensory is that which has sensory existence only.

The legal is that which has legal existence in addition to sensory existence, such as a sale. A sale has sensory existence, but it also has legal existence, for the Law judges that the offer and acceptance existing sensibly are legally connected, producing a legal meaning of which ownership is the effect. That meaning is the sale. If the offer and acceptance occur outside the proper place, the Law does not recognize them. Thus in al-Tawdih and al-Talwih.

It is also said that if an act is designated in the Law as the basis of a desired ruling, it is legal; otherwise it is sensory. End quote.

It is said that the Law mentioned on the tongues of jurists means clarification of legal rulings.

The shari'ah is every method established by a divine institution transmitted from one of the prophets. It is often used for the particular rulings by which the legally responsible person is disciplined in worldly and eternal life, whether they are explicitly stated by the Lawgiver or referred back to Him.

The Law, like the shari'ah, is every specific act or omission of a prophet, explicitly or by implication. Applying it to universal principles is metaphorical, whereas with millah applying it to branches is metaphorical and applying it to fundamentals is literal, such as belief in God, His angels, His messengers, His books, and so forth. Abrogation does not affect these, nor do the prophets differ concerning them.

According to the Sunnis, the Law is presented as the origin of rulings.

According to the Mu'tazilah, it is presented as permitting and confirming a judgment of reason, not as originating it. God Most High says: “For each of you We have appointed a law and a way.” Ibn Abbas said: The law is what the Qur'an has brought, and the way is what the Sunnah has brought.

The shari'ah is adherence to the obligation of servitude. It is also said to be the path in religion; in that case Law and shari'ah are synonyms, as in al-Jurjani and Kashshaf Istilahat al-Funun.

The Science of Legal Instruments and Registers

It is the science that investigates how rulings established by a judge are recorded in books and registers in a form valid as evidence after the witnesses to the circumstance have passed away.

Its subject is those rulings insofar as they are written down.

Some of its principles are taken from jurisprudence, some from epistolary composition, and some from customs, conventions, and matters of approbation.

It is a branch of jurisprudence insofar as the arrangement of its meanings accords with the rules of the Law; it may also be made a branch of belles-lettres and composition insofar as it improves expression.

The first to compose on it was Hilal ibn Yahya al-Basri al-Hanafi, who died in 245 AH.

Abu Zayd Ahmad ibn Zayd al-Shuruti al-Hanafi wrote three books on it, a large, a small, and a medium one. Yahya ibn Bakr al-Hanafi also wrote a work. Abu Jafar Ahmad ibn Muhammad al-Tahawi, who died in 321 AH, composed a work in forty parts, beginning, “After praising God, Mighty and Majestic.” Muhammad ibn Aflatun al-Rumi al-Bursawi, known as Aflatun, who died in 737 AH, was also prominent in it. al-Jurjani mentioned, in his preference for Abu Hanifah's school, that al-Shuruti had no predecessor; Abu Mansur Abd al-Qahir ibn Tahir al-Baghdadi answered in his refutation that the Prophet—peace and blessings be upon him—was the first to dictate books of covenants and treaties.

Among them was his covenant with the Christians of Aylah, written in the hand of Ali ibn Abi Talib, may God Most High be pleased with him. Muhammad ibn Jarir al-Tabari exhaustively discussed the conditions in a book according to al-Shafi'i's principles, and Abu Jafar al-Tahawi took from his book what he included in his own, claiming that it came from the people of rational opinion. After him came the master of legal instruments and treaties, Abu Bakr Muhammad ibn Abd Allah al-Sayrafi, who composed on the etiquette of judging, instruments, and treaties. Among those who wrote on legal instruments were al-Muzani, who dictated a comprehensive book; Abu Thawr, whose book is expansive; Abu Ali al-Karabisi, who explained in his work the defects in the instruments of the people of rational opinion; Dawud ibn Ali al-Isfahani, who explained al-Shafi'i's principles and mentioned what the imams criticized in Yahya ibn Aktham's instruments; his son Abu Bakr, who added chapters and sections to his father's work; and, before him, Abu Abd al-Rahman al-Shafi'i.

The Science of Fatwas

It is a branch of the science of jurisprudence.

In Madinat al-Ulum it is said: It is a science in which rulings issued by jurists concerning particular cases are transmitted, to make matters easier for those of lesser capacity who come after them.

The books composed in this science are too numerous to count, so there is no hope of surveying their contents; they are too famous to be hidden, so there is no need to discuss them. End quote.

We have a book on the etiquette of issuing fatwas called Dhakh al-Muhti min Adab al-Mufti. It is extremely valuable. The books of fatwas contain analogies and branches for which neither the proofs of the Book nor the texts of the Sunnah bear witness, and they have multiplied to the point that they cannot be encompassed.

The statements of muftis from the schools differ in them so greatly that they can scarcely be controlled. The truth is to leave consideration of such fables and falsehoods, and not waste time occupying oneself with them, since they are not built upon proof. God guides whom He wills to the straight path.

The Science of Inheritance

It is a science of rules and particulars by which one knows how an estate is transferred to an heir after identifying the heir. Its subject is the estate and the heir, because the specialist in inheritance investigates the estate and its recipient by inheritance, insofar as it is transferred to him as inheritance according to specified legal rules, including the amount he receives and the matters attached to the estate.

The reason it is needed is to deliver to every heir the amount to which he is entitled.

Its aim is the ability to do this and bring it about; what is investigated in it is its questions.

It derives from the foundations of the Law. Thus in Aqd al-Fara'id.

There is disagreement concerning the Prophet's statement, “It is half of knowledge.” One group, mentioned by the author of Daw al-Siraj and others, said that they were people of safety: We do not know, and that is not our concern; rather, we must follow it whether or not we understand the intended meaning, because an interpretation may be mistaken.

Others interpreted it in fourteen ways.

The first: it is half by transmission, in view of its widespread occurrence; al-Bayhaqi narrated this.

The second: because it lies between the two phases of life and death. This was said in al-Nihayah, and most scholars adopted it.

The third: because the cause of ownership is either voluntary or necessary. The voluntary includes purchase and acceptance of a gift or bequest; the necessary is inheritance. This was said by the author of al-Daw and others.

The fourth: as an expression of its exalted status, as in al-Ibtihaj.

The fifth: because of its many branches and the calculations added to it, as stated by the author of Ighathat al-Lahf.

The sixth: because of the increased difficulty, as stated by the resident of Aleppo.

The seventh: with respect to the two sciences, since knowledge is of two kinds: knowledge by which the causes of inheritance are known, and knowledge by which everything required is known. This was said by the author of al-Daw and others.

The eighth: with respect to reward, because a person deserves one hundred good deeds for teaching a single question of inheritance, but ten good deeds for teaching a single question of jurisprudence. If all inheritance were estimated at ten questions and all jurisprudence at one hundred, each would yield one thousand good deeds; inheritance would then be equal to the other sciences in reward.

The ninth: with respect to estimation, meaning that if the science of inheritance were fully expanded, the volume of its branches would equal that of the branches of the other books, as in Sharh al-Sirajiyyah.

The tenth: it was called half of knowledge to encourage people to learn it, because it was known to be the first science forgotten and taken away from the people.

It has also been reported that it is a third of knowledge. Ibn Abd al-Salam al-Maliki reconciled the two in his commentary on Ibn al-Hajib's Furu by saying that reconciliation is not obligatory for the jurist. Imam Abu Mansur Abd al-Qahir ibn Tahir, who died in 429 AH, said in al-Radd ala al-Jurjani concerning his preference for Abu Hanifah's school:

It is more likely to establish their precedence in inheritance, but this was refuted by Sa'id ibn Jubayr, Ubaydah, and Abu al-Zinad. In Abu Hanifah's time, Ibn Abi Layla and Ibn Shubrumah had already composed works on inheritance. Malik's and al-Shafi'i's companions also had books, including Abu Thawr's book, al-Karabisi's book, and a book transmitted by al-Rabi from al-Shafi'i. The most extensive books were those of Abu al-Abbas ibn Surayj, and more extensive than all of them was Muhammad ibn Nasr al-Marwazi's book. Nothing composed on it was more precise or sounder; it exceeded fifty parts. He said: Our book on inheritance exceeds one thousand folios. Ibn al-Subki said: It is a book of great rank, and nothing surpasses its excellence. End quote. Success is through God.

The Science of the Branches

It is what is known as the science of jurisprudence, which will follow shortly.

1. This science has already been discussed under the Science of Calculation; let it be known. Ali Husayn, the writer—may God pardon him.

The Science of Jurisprudence

In Kashshaf Istilahat al-Funun it is said:

The science of jurisprudence, together with the science of the principles of jurisprudence, is also called the science of dirayah, according to Majma al-Suluk. It is knowledge of what the self has and what it owes. This is transmitted from Abu Hanifah. By knowledge is meant apprehension of particulars through proof, which excludes imitation.

Al-Taftazani said: The final qualification in this definition of knowledge has no indication at all, neither linguistically nor technically.

The phrase “what it has and what it owes” may mean what benefits the self and what harms it in the Hereafter; this is suggested by the common view that jurisprudence is a religious science. It may mean what is permitted and obligatory for it, or what is permitted and forbidden for it.

The phrase “what it has and what it owes” also encompasses beliefs, such as the obligation of faith and the like.

It encompasses inward states, namely inner morals and dispositions.

And practical matters, such as fasting, prayer, sale, and the like.

The first is the science of theology.

The second is the science of ethics and Sufism.

The third is the technical science of jurisprudence.

Al-Ghazali stated that people altered the use of the name jurisprudence, restricting it to the science of fatwas and knowledge of their proofs and causes. In the first age, the name jurisprudence was applied generally to knowledge of the Hereafter, knowledge of the subtle defects of souls, awareness of the Hereafter, and the worthlessness of the world.

Al-Shafi'i's companions said: Jurisprudence is knowledge of practical legal rulings derived from their detailed proofs. By ruling is meant a complete predicative relation, knowledge of which is assent and anything else conception.

Jurisprudence is assent to legal propositions concerning how one acts, an assent obtained from the detailed proofs established by the Law for those propositions: the four proofs, namely the Book, Sunnah, consensus, and analogy.

Calling jurisprudence knowledge, although it is probabilistic, is permitted because knowledge may be used for probabilities just as it is for certainties, as in medicine and similar fields.

Al-Shafi'i's companions then gave jurisprudence four pillars. They said: Legal rulings either concern the Hereafter, namely acts of worship, or concern this world. The latter either concern the survival of the individual, namely transactions, or the survival of the species with respect to the household, namely marriage, or with respect to the city, namely punishments. There are discussions here that we have omitted for fear of prolixity; whoever wishes to learn them should consult al-Tawdih and al-Talwih.

Its subject is the act of the legally responsible person, with respect to obligation, recommendation, permissibility, prohibition, and the like, such as validity and invalidity. It is said that its subject is broader than acts, because the statement “time is a cause” or “prayer is obligatory” is among its questions, though its subject is not an act. The answer is that this returns, by interpretation, to explaining the state of the act: prayer is obligatory because of the time, just as their saying “intention in ablution is recommended” effectively means that intention in ablution is recommended.

In sum, no one has held that the subject of jurisprudence is unrestrictedly broad. In every question whose subject does not return to the act of the legally responsible person, it must be interpreted until it does return to it, as in the question of the insane person and child, which returns to the act of the guardian. Thus in al-Khayali and its glosses. Its questions are practical legal rulings, such as our statement that prayer is obligatory.

Its purpose is salvation from the punishment of the Fire and attainment of reward in Paradise. Its distinction is evident, since it is among the religious sciences. End of the Kashshaf's statement.

The author of Miftah al-Sa'adah said: It is a science investigating subsidiary practical legal rulings insofar as they are derived from detailed proofs.

Its principles are the questions of the principles of jurisprudence.

It draws upon all the other religious and Arabic sciences.

Its benefit is to act upon it in the manner prescribed by the Law.

Its purpose is to acquire the habitus enabling one to perform religious acts. Since the end and purpose of practical sciences are attained through probability rather than certainty, and since the strongest proofs are the Book and Sunnah—although the science of jurisprudence is certain in transmission, most of it is probabilistic in indication—it became a field for independent reasoning. It became permissible for the imitator initially to follow whichever independent jurist he wished. The famous schools that the community received with acceptance and that Muslims accepted as sound are the four schools of the four imams: Abu Hanifah, Malik, al-Shafi'i, and Ahmad ibn Hanbal. The most deserving and preferable among them, however, is Abu Hanifah's school—may God have mercy on him—because it is distinguished among them by precision, mastery, excellent insight, strength of judgment in deriving rulings, extensive knowledge of the Book and Sunnah, sound judgment in legal questions, and other qualities. Nevertheless, whoever follows a particular school in the branches should hold that his school is correct but may be mistaken, and that the opposing school is mistaken but may be correct.

In matters of belief, he should hold that his school is certainly true and the opposing school certainly false. End quote. Something similar appears in Madinat al-Ulum.

I say: The school most deserving of precision, best in following, soundest, and most worthy of adherence is what the people of hadith and the Qur'an followed. Preferring one school over another is an unsupported arbitrary judgment; in reality the four schools are equal. Everyone is obliged to follow the explicit statements of the Noble Book and purified Sunnah, rather than the opinions of men and statements of scholars, and to accept their independent reasoning, especially where it conflicts with the Noble Qur'an and sound hadith.

We investigated this discussion in our book al-Jannah in al-Uswah al-Hasanah bi al-Sunnah, and al-Ghazali mentioned, in explaining the alteration of the names of the sciences, what has been cited above. We gave the complete discussion in our book Qasd al-Sabil ila Dham al-Kalam wa al-Ta'wil.

The books composed according to the four schools are extremely numerous and scarcely countable. The Islamic collections of hadith and their commentaries suffice for all people—villagers and nomads, learned and ignorant, near and distant—in place of books of opinion and independent reasoning.

The four imams forbade people to imitate them. God, Glorious and Exalted is He, did not oblige anyone to imitate any Companion or Successor, who are the community's exemplars, imams, and early generations, let alone independent jurists and individual scholars. Everyone is obliged to follow what the Book and purified Sunnah brought. Imitation of independent jurists was needed because sound hadiths and reports had not been compiled; now, praise be to God, those knowledgeable in the Sunnah have compiled the science of the Messenger's hadith and freed people from anything else. May God not honor a servant who imitates without following, knows nothing of the Sunnah's worth, and praises imitation.

The claim that one of the four schools is older and sounder than the others is among the most false assertions and basest statements. Its being uttered by one claiming knowledge shows that he is not among the learned, for imitation is the work of the ignorant, and an imitator is not counted among scholars. Consult the books written to refute imitation, such as I'lam al-Muwaqqi'in an Rabb al-Alamin and others; the truth will become clear from falsehood without doubt. The books composed concerning sound reports

1. This book has been printed in the protected city of Bhopal—may God preserve it from affliction. Ali Husayn—may God pardon him.

and good and weak reports are very numerous. We mentioned them in our book Ithaf al-Nubala al-Muttaqin bi Ihya Ma'athir al-Fuqaha al-Muhaddithin. The most dependable among them are the six canonical collections, which are known and readily available in every land. There are also many books devoted specifically to the rulings of the purified Sunnah. Among the most authoritative are Munt al-Akhbar and its commentary Nayl al-Awtar; Bulugh al-Maram and its commentary Musk al-Khitam; Subul al-Salam; al-Umdah and its commentary al-Uddah; and other works composed to record rulings established by the Sunnah and what follows them, such as al-Sayl al-Jarrar, Wabl al-Ghamam, Manh al-Ghaffar (a gloss on Daw al-Nahar), al-Hady al-Nabawi, and Safar al-Sa'adah. The works of our Yemeni masters likewise contain what suffices. The poor imitator imagines that the Qur'an and Sunnah contain fables.

Al-Arniqi went at length in Madinat al-Ulum in providing biographies of the four imams—Abu Hanifah, Malik, al-Shafi'i, and Ahmad—and of the Hanafi jurists Abu Yusuf, Muhammad ibn al-Hasan al-Shaybani, Ibn al-Mubarak, Dawud al-Ta'i al-Kufi, Waki ibn al-Jarrah, Yahya ibn Zakariyya, Isma'il ibn Hammad, Yusuf ibn Khalid, Afiyah ibn Yazid, Hiban and Mindal, the sons of Ali al-Ghazzi, Ali ibn Mushir, al-Qasim ibn Ma'n, Asad ibn Amir, Ahmad ibn Hafs, Khalaf ibn Ayyub, Shaddad ibn Hukm, Musa ibn Nasr, Musa ibn Sulayman al-Jawzajani, Hilal ibn Yahya, Muhammad ibn Sama'ah, and Hakam ibn Abd Allah—and elaborated on their biographies.

He said: Know that the Hanafi imams are too numerous to count, for they covered most of the inhabited world. It has even been said that Imam Abu Hanifah had seven hundred and thirty students. This is only what is known of them; what is unknown is greater. We have limited ourselves here to what time allowed. Now let us mention the famous, authoritative books of jurisprudence in our age. End quote.

He then mentioned books by name and said: A complete survey of the Hanafi imams and their works lies beyond the capacity of this abridgement. We shall then mention selections from the Shafi'i imams, so that the book may be complete on both sides and possess both honors. These are of two classes: those honored by companionship with al-Shafi'i, and the imams who followed them. End quote.

He then discussed these two classes at length, with a fine account of their virtues. The books composed on the classes of adherents of the four schools suffice instead of naming particular imitators of a single school, even if they were imams and authors. The number of imitators who followed one of the four schools is not the criterion; the criterion is choosing truth and correctness, abandoning imitation of men's opinions, preferring truth over falsehood, and adhering to the Sunnah.

Many groups have composed books on the classes of those who follow the evidence and biographies of hadith preservers and scholars. They are thousands, beyond the count of any book however long its chapters, and—God willing—they are more numerous and better than the imitators.

The authors of sectarian biographical works showed partisanship in counting their own adherents, including among them people who did not belong to them. Most of the imams of the schools were not imitators, even if they affiliated themselves with one of them; rather, they were independent reasoners who chose the best opinions and soundest rulings after reflection and investigation. Counting them among imitators merely because they shared some learning is not fair. They feared the common people's sedition over claims of independent reasoning or rejection of imitation, so they endured being attributed to one of those schools. This is known to anyone familiar with the works of these noble men. This is not the place to expand upon

this matter; otherwise I would show you the marvels of the subject and bring you matters of great significance that your ear has never heard.

Know that the foundations of religion are two, with no third: the Book and the Sunnah. Their claim that the proofs are four—the Qur'an, hadith, consensus, and analogy—has no trace of knowledge behind it. Imam Ahmad ibn Hanbal, the imam of the Sunnah, may God be pleased with him, rejected the consensus recognized today, and Dawud al-Zahiri, the leader of the adherents of the evidence, rejected analogy as a legal proof. The disagreement of these two imams is explicit on the point at issue, and a great body of Muslims, ancient and modern, followed their view down to our own time. They did not regard consensus and analogy as matters to be followed, especially when they conflict with the texts of revelation and the sound proofs of the Sunnah. This is one of the main battlegrounds between imitators and adherents of evidence. The Hanafis are the most contentious concerning it because they are the most partisan toward their school. The matter is discussed at length in the works composed on this subject.

Anyone who examines the works of Shaykh al-Islam Ibn Taymiyyah—may God have mercy on him—and his sole student, the speaking hadith master Ibn al-Qayyim, and those hadith and Qur'an scholars who followed their example, especially the blessed Yemeni imams and their students, will know that this opinion is the victorious truth and the chosen school. Every other argument is mirage and ruin. Were it not for fear of length and weariness, I would mention there the proofs that compel assent, the corruptions involved in the contrary position, and other matters. Success is through God, who protects from deviation from the straight path. O God, have universal mercy upon the community of Muhammad, peace and blessings be upon him.

Section

Ibn Khaldun, may God Most High have mercy on him, said: Jurisprudence is knowledge of God's rulings concerning the acts of those legally responsible—obligation, prohibition, permissibility, recommendation, and reprehensibility. These are received from the Book and Sunnah and from the proofs established by the Lawgiver for knowing them, though scholars disagree over them. Disagreement must occur, because most proofs are texts in the Arabic language, and scholars are known to differ over what the forms of its expressions entail of meanings.

The Sunnah has varied channels of transmission, and its rulings most often conflict, requiring preference, which is itself disputed. Proofs other than texts are also disputed. New events are not fully covered by the texts; what is not explicit in them is compared with an explicit case because of a similarity between them. These are all indications that disagreement is inevitable, and from this arose disagreement among the early generations and later imams.

The Companions were not all people qualified to issue fatwas, nor was religion taken from every one of them. Rather, this was restricted to those who carried the Qur'an and knew its abrogating and abrogated passages, its ambiguous and clear passages, and all its indications through what they received from the Prophet, peace and blessings be upon him. Some of the eminent Companions heard it from him. For this reason they were called the Qurra, meaning those who read the Book, because the Arabs were

1. There are extensive discussions here. The truth is that the two original sources suffice for all events until the Day of Resurrection, and that the hadiths do not conflict. Everything Ibn Khaldun says in this passage is subject to criticism, as becomes clear from consulting Irshad al-Fuhul, al-Fath al-Rabbani, and others. Hakim Muhammad Hasan—may God Most High preserve him.

an illiterate people. Whoever among them could read the Book was given this name because it was unusual at that time. This remained the case at the beginning of the religious community. Then the cities of Islam grew, illiteracy disappeared from the Arabs through practice with the Book, derivation became established, and jurisprudence matured into a craft and science. The readers were consequently renamed jurists and scholars.

Jurisprudence divided into two methods: the method of the people of opinion and analogy, who were the people of Iraq,

and the method of the people of hadith, who were the people of the Hijaz.

Hadith was scarce among the people of Iraq, so they relied heavily on analogy and became skilled in it; hence they were called the people of opinion. The foremost of their group, in whom the school became established and among whose companions it endured, was Abu Hanifah. The imam of the people of the Hijaz was Malik ibn Anas, followed by al-Shafi'i.

Then a group of scholars rejected analogy and invalidated acting upon it: the Zahiris. They confined all sources to texts and consensus and reduced manifest analogy and an explicitly stated cause to the text, because a text stating the cause is a text stating the ruling in all its instances. The imam of this school was Dawud ibn Ali, together with his son and companions.

These three schools were the well-known schools of the majority. The House of the Prophet diverged with schools they invented and jurisprudence of their own, building it upon their practice of disparaging some Companions, their belief in the infallibility of the imams, and their removal of disagreement from their statements. All these foundations are weak. The Kharijites likewise diverged. The majority paid no attention to their schools, but subjected them to severe condemnation and criticism. We know nothing of their schools, transmit none of their books, and find no trace of them except in their own regions: the Shi'i books in their lands wherever their state was established, in the Maghrib, East, and Yemen, and likewise the Kharijites. Each group has books, compositions, and strange opinions in jurisprudence.

The school of the Zahiris has now disappeared with the passing of its imams and the majority's condemnation of its adherents. It remains only in bound books. Many students who undertake to adopt their school may sit over those books, seeking to take their jurisprudence and school from them, but gain little, come to oppose the majority, and incur their condemnation. They may even be counted among the innovators because they transmit knowledge from books without the key provided by teachers. Ibn Hazm did this in al-Andalus. Despite his high rank in memorizing hadith, he adopted the Zahiri school and excelled in it through an alleged independent reasoning concerning their opinions. He disagreed with their imam Dawud and attacked many Muslim imams, so people denounced him and subjected his school to intense disdain and condemnation. They neglected and abandoned his books, to the point that their sale in markets was sometimes prohibited and they were occasionally torn apart. Only the school of opinion in Iraq and the school of hadith in the Hijaz remained.

As for the people of Iraq, their imam, under whom their schools became established, was Abu Hanifah al-Nu'man ibn Thabit. His rank in jurisprudence is unmatched, as his compatriots testified, especially Malik and al-Shafi'i.

1. This criticism of Ibn Hazm, the unique scholar and most distinguished independent jurist, is unwarranted. Consult his biography in the books of history and classes; the difference between error and correctness will become clear. Mawlawi Muhammad Abd al-Samad, companion of Bashawari—may God the Powerful preserve him.

As for the people of the Hijaz, their imam was Malik ibn Anas al-Asbahi, the imam of the Abode of Migration, may God Most High have mercy on him. He recognized another source of rulings beyond those recognized by others, namely the practice of the people of Madinah. He believed that, in what they agreed to do or leave, they necessarily followed those before them as required by their religion and imitation, continuing back to the generation that directly witnessed the Prophet's act, peace and blessings be upon him, and received it from him. It thus became for him one of the foundations of legal proofs. Many thought it a matter of consensus and rejected it because the proof of consensus does not restrict itself to the people of Madinah rather than others, but encompasses the community.

Know that consensus is agreement on a religious matter through independent reasoning. Malik, may God have mercy on him, did not regard the practice of the people of Madinah in this sense. He regarded it as the successive following, by direct observation, of one generation by another until it reached the Lawgiver, peace and blessings be upon him, and as their necessary imitation of that very practice, which encompasses the community. I mentioned it under consensus because it shares with consensus the comprehensive agreement in its chapters; however, the agreement of those who form a consensus results from consideration and independent reasoning over proofs, whereas the agreement of these people in doing or leaving something rests on observing those before them. It would have been more appropriate to mention it under the Prophet's acts and tacit approvals, or among disputed proofs such as the position of a Companion, the law of those before us, and presumption of continuity.

After Malik ibn Anas came Muhammad ibn Idris al-Muttalibi al-Shafi'i. He traveled to Iraq after Malik, met the companions of Imam Abu Hanifah, learned from them, combined the method of the people of the Hijaz with that of the people of Iraq, adopted a distinct school, and disagreed with Malik—may God have mercy on him—in many matters of his school.

After them came Ahmad ibn Hanbal, one of the foremost hadith scholars. His companions studied with the companions of Abu Hanifah while possessing abundant hadith material, and they formed another school. Imitation in the cities settled upon these four, while the imitators of others disappeared. People closed the door of disagreement and its paths because the technical usages in the sciences had become greatly divided, because access to the rank of independent reasoning was obstructed, and because they feared entrusting it to those unqualified and unreliable in judgment or religion. They openly acknowledged incapacity and need and directed people to imitate these four, each imitator following the one to whom he was attached. They prohibited the circulation of their imitation because of the manipulation it entailed. Nothing remained but transmitting their schools, with each imitator acting according to the school he followed after the principles had been corrected and their chains connected by transmission. Today jurisprudence yields nothing beyond this. Anyone claiming independent reasoning in this age is turned back and his imitation is shunned. The Muslims today have adopted the imitation of these four imams.

Ahmad ibn Hanbal has few imitators because his school is remote from independent reasoning and strongly committed to supporting transmitted reports by one another. Most of them are in Syria and Iraq, in Baghdad and its environs; they are the people most devoted to preserving the Sunnah and transmitting hadith.

As for Abu Hanifah, his imitators today are the people of Iraq, the Muslims of India and China, Transoxiana, and all the Persian lands, because his school was especially suited to Iraq and Dar al-Salam and because his students were companions of the Abbasid caliphs. Their compositions and debates with the Shafi'is multiplied, their investigations of disputed matters were excellent, and they produced novel learning and remarkable insights.

1. Consult the ruling on imitation, with its arguments for and against, in Irshad al-Fuhul, Adab al-Talab, al-Qawl al-Mufid, and the writings that follow them, short and long. You will learn that everything Ibn Khaldun says here is among the most baseless falsehoods, unknown to any recognized scholar. Sayyid Ali Hasan Khan Bahadur—may God Most High preserve and maintain him.

These works remain in people's hands, though only a little of them reached the Maghrib, carried there by Qadi Ibn al-Arabi and Abu al-Walid al-Baji on their journeys.

As for al-Shafi'i—may God have mercy on him—his imitators are more numerous in Egypt than elsewhere. His school had spread through Iraq, Khurasan, and Transoxiana, and they shared with the Hanafis the giving of fatwas and teaching in all the cities. Their debate assemblies grew important and the books of disputed matters filled with their various arguments. All this then disappeared in the decline of the East and its regions. When Muhammad ibn Idris al-Shafi'i settled among the Banu Abd al-Hakam in Egypt, a group of the Banu Abd al-Hakam, Ashhab, Ibn al-Qasim, Ibn al-Mawaz, and others learned from him, followed by al-Harith ibn Miskin and his sons.

The jurisprudence of the Sunnis then disappeared from Egypt with the rise of the Shi'i state; the jurisprudence of the House of the Prophet circulated there, while all else faded, until the state of the Ubaydis was removed by Salah al-Din Yusuf ibn Ayyub. The jurisprudence of al-Shafi'i and his companions from Iraq and Syria returned, regained its finest condition, and flourished. Among them became famous Muhyi al-Din al-Nawawi, from the circle raised under the Ayyubid state in Syria, and also Izz al-Din ibn Abd al-Salam, then Ibn al-Rif'ah in Egypt, Taqi al-Din ibn Daqiq al-Eid, and Taqi al-Din al-Subki. This continued until it reached the shaykh of Islam in Egypt in this age, Siraj al-Din al-Bulqini. He is now the greatest Shafi'i in Egypt, the leading scholar, indeed the greatest scholar of the age.

As for Malik—may God have mercy on him—his school was adopted by the people of the Maghrib and al-Andalus. Although it is found elsewhere, they rarely followed anyone else, because their journeys usually went to the Hijaz, the limit of their travel. Madinah was then the abode of knowledge, and Iraq lay beyond it and not on their route. They therefore limited themselves to learning from the scholars of Madinah, whose shaykh and imam at that time was Malik, may God have mercy on him, and from his predecessors and later students. The people of the Maghrib and al-Andalus thus returned to him and followed him rather than those whose method had not reached them. Moreover, nomadic life predominated among the people of the Maghrib and al-Andalus; they did not experience the civilization of the people of Iraq and were therefore more inclined toward the people of the Hijaz, in keeping with their nomadic character. The Maliki school consequently remained fresh among them and did not undergo the refinement and cultivation brought by civilization as occurred with other schools.

When each imam's school became a distinct science among its adherents, and they had no avenue to independent reasoning and analogy, they needed to compare questions for purposes of extension and distinguish them when similar, after relying on the principles established in their imam's school. All this required a firmly rooted habitus by which they could perform that kind of comparison or distinction and follow their imam's school in both as far as possible. This habitus is the science of jurisprudence in this age, and all the people of the Maghrib are imitators of Malik, may God have mercy on him.

His students had dispersed through Egypt and Iraq. In Iraq were Qadi Isma'il and his generation, such as Ibn Khuwayz Mindad, Ibn al-Labban, Qadi Abu Bakr al-Abhari, Qadi Abu al-Husayn ibn al-Qassar, and Qadi Abd al-Wahhab after them. In Egypt were Ibn al-Qasim, Ashhab, Ibn Abd al-Hakam, al-Harith ibn Miskin, and their generation. Abd al-Malik ibn Habib traveled from al-Andalus, learned from Ibn al-Qasim and his generation, spread Malik's school in al-Andalus, and composed al-Wadihah. al-Utbi, one of his students, then composed al-Utbiyyah. Asad ibn al-Furat traveled from Ifriqiyah and wrote first from

the companions of Abu Hanifah, then adopted Malik's school. He wrote down from Ibn al-Qasim on all the chapters of jurisprudence, brought the book to Qayrawan, and called it al-Asadiyyah after Asad ibn al-Furat. Sahnun read it to Asad, then traveled to the East, met Ibn al-Qasim, learned from him, and presented him with questions from al-Asadiyyah. Ibn al-Qasim retracted many of them. Sahnun wrote and compiled its questions, recording what Ibn al-Qasim had retracted, and wrote to Asad asking him to adopt Sahnun's book. Asad refused. People therefore abandoned his book and followed Sahnun's Mudawwanah, despite its mixing of questions among the chapters. It was called al-Mudawwanah al-Mukhtalitah. The people of Qayrawan devoted themselves to this Mudawwanah, while the people of al-Andalus devoted themselves to al-Wadihah and al-Utbiyyah.

Ibn Abi Zayd abridged al-Mudawwanah al-Mukhtalitah in a book called al-Mukhtasar. Abu Sa'id al-Baradha'i, one of the jurists of Qayrawan, also summarized it in his book al-Tahdhib. The elders of Ifriqiyah relied on it and abandoned what lay beyond it. The people of al-Andalus likewise relied on al-Utbiyyah and neglected al-Wadihah and the rest. The scholars of the school continued to care for these foundational works through commentary, clarification, and compilation.

The people of Ifriqiyah wrote on al-Mudawwanah as much as God willed, including Ibn Yunus, al-Lakhmi, Ibn Muhraz al-Tunisi, Ibn Bashir, and their like.

The people of al-Andalus wrote on al-Utbiyyah as much as God willed, including Ibn Rushd and his like. Ibn Abi Zayd gathered all the questions, disagreements, and opinions in the foundational works in al-Nawadir. It contained all the school's opinions and branched out all the foundational works in one book. Ibn Yunus transmitted most of it in his work on al-Mudawwanah. The seas of the Maliki school surged in the two horizons until the fall of the states of Cordoba and Qayrawan. The people of the Maghrib then held fast to it until Abu Amr ibn al-Hajib's book appeared. He summarized the methods of the school's adherents in every chapter and enumerated their opinions in every question, making it like a program of the school. The Maliki method had remained in Egypt since al-Harith ibn Miskin, Ibn al-Mubashshir, Ibn al-Layth, Ibn Rishiq, and Ibn Shas, and existed in Alexandria among the Banu Awf, Banu Sind, and Ibn Ata Allah. I do not know from whom Abu Amr ibn al-Hajib took it, but he came after the fall of the Ubaydid state, the disappearance of the jurisprudence of the House of the Prophet, and the rise of Sunni jurists from the Shafi'is and Malikis.

When his book reached the Maghrib at the end of the seventh century, many students of the Maghrib devoted themselves to it, especially the people of Béjaïa, because their leading shaykh, Abu Ali Nasir al-Din al-Zawawi, had brought it to the Maghrib. He had studied with its authors in Egypt and copied the abridgement, then brought it back. It spread through the district of Béjaïa among his students, and from them to the other Maghribi cities. Students of jurisprudence in the Maghrib today circulate it and study it because Shaykh Nasir al-Din is known to encourage it. A group of their shaykhs, including Ibn Abd al-Salam, Ibn Rushd, and Ibn Harun—all among the shaykhs of Tunis—wrote commentaries on it. Ibn Abd al-Salam surpassed his peers in excellence. They also continue to study al-Tahdhib in their lessons. God guides whom He wills to a straight path.

The Science of the Judiciary

It is a science investigating the etiquette of judges in their circumstances and cases, the resolution of disputes, and related matters. The most famous book on it is Adab al-Qadi by al-Khassaf, as stated in Madinat al-Ulum. I say: The best and most comprehensive in evidence is our book Zafar al-Ladhi in what the judge must observe in the judiciary.

The Science of Bequests

It is mentioned in Kashf al-Zunun.