CALDER Norman, Studies in Early Muslim Jurisprudence, Clarendon Press, Oxford, 1993.

4

THE KITAB AL-UMM
OF SHÀFI`Î

Muhammad ibn Idris al-Shâfi'i (d. 204) has become for Western
scholars, since the writings of Joseph Schacht, the intelIectual
heavyweight of early Muslim jurists. According to Schacht, he was the first to argue consistently, vehemently, and absolutely Chat legal rulings must be based on Prophetic hadith; lie was one of the first to develop a systematic approach to hadith and a terminology of legal argument that fitted with the priority he accorded to hadith; the first to elaborate a set of hermeneutic rules which permit a consistent approach to revealed sources (i.e. in his Risàla, for which see Ch. 9, Sect. V). `Shâfri's legal theory is a magnificently. consistent system and superior by far to the doctrines of the anciént schools. It is the achievement of a powerful individus] mind, and at the same Lime the logical outcome of a process which started when [hadith] from the Prophet were first adduced as arguments." These conclusions derive from, are indeed completely justified by, the contrast between the terminology and argumentation characteristic of Shàfi`i's Kitàb al-Umm and those evident in other early juristic works. It may, however, be noted as a problem that the magnificent totality of bis juristic achievement was not recognized by Muslim writers, and had no tangible influence on juristic
thought, before perhaps the beginning of the fourth century.
Muslim sources do not give Shàfi'i so high or so exceptional a statua, sine, in the end, cach of the major schools claimed for its founder and bis. pupils a roughly similar concern for Prophetie hadith, and a roughly similar combination of piety and brilliance.

1 Schacht, Origins, 137. Schacht's conclusion depends on the totality of his argument through pp. t-137.

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The Malikis perhaps lay greater stress on piety, the Hanafis on brilliance• but both Màlik and Abù Hanifa have attracted tales that testify te their outstanding wisdom, wit, and piety. So too for ShdE'i. 1-le was born in the year 150, perhaps on the very day that Abû Hanifa died, which was an auspicious start to a life dedicated te fiqh, though whether he was born in Ghazza, Ascalon, or the Yemen is net sure. His biographer Bayhagi (d. 458) prefers Ghazza, a site which, being in the Holy Land, he considered the most fitting of the three. Converted by a vision to the study offiqh, Sh1fi i trained first with Mâlik in Madina and later perfected the art of debate with Muhammad b. al-Hasan al-Shaybànl in Baghdad. (He thus inherited the best qualifies of the two eider schools.) He arrived in Baghdad, a prisoner of Hàran al-Rashid, having opposed the Government while on service in the Yemen (a certain degree of opposition to governors was de rigueur amongst the early great jurists—or their biographers). He travelled much but eventually settled in Fustat in Egypt in 198 (or 199 or 200) and died there in 204, a date first mentioned by Mas`ùdi (d. 346). The earliest recorded praise for Shâfi`i is that found in the Kitàb al jarh
dfl of Ibn Abi Hàtim (d. 327). He is not mentioned in the Kitab al-Ma ârrf of Ibn Qutayba (d. 276), which mentions most of the eal'ly jurists (under the rubric ashàb al-m'y), and aise gives a comprehensive ]ist ef the transmitters of hadith (ashàb al-hadith). I-le achieves one mention in Ibn Qutayba's Ta'wi1 Mukhtalif al‑
l•+adeth, where it is asserted of a particular hadith that it was
accepted by some fugahà, amongst them Shàfi'i and Ishàq ibn Rahawaylt (d. 238). If Shâfi'i was an outstanding jurist and
foundcr of a school, Ibn Qutayba had net noticed.2
His works are said to have been preserved in Iraq and in Egypt, the former being known as the 'old' (gadïm) books, the latter as the 'new' (jadfd) books. It seems that only the latter have been prescrved, as transmitted by Al-Rabi' ibn Sulaymàn al-Muradi,
For Shpfi'P's biography, sec Heffening in E/(i) and Schacht, Origins, 33o; aise Joseph Schacht, 'On Shnfi'r's life and personality'. Ahmad b. Husayn al-Bayhagi, Manaqi!,: prefers Ghazza, i. 74; Sh5fi'i'5 conversion to fgh, i. 92-9; bis involve- me  ment in politics, i. ro5-7 and nt—r7, Schacht gives bis arrivai in Egypt in 198 (following Kind); Bayhagr pives 199 or 200 (i. 237 ff.). 'Abd at-Rahman Ibn Abi I-IÜtim's biography of Shàfi`7, Al jarh wa-'!-ta'drl, üi(r), 20-4; sec also Ibn Abi II` t°n A` a!, a/-Shaf< < wa.mwidgibu-hu. The latter is certainly not by Ibn Ah' Haum (d. 327); it is possible to Wonder whetha l the totality of the contents of the Rada ivn-'l.rn'dif emerged prier to 327. 'Abdallùh b. Muslim Ibn Qutayba,
Qutayba ,i1rd<hr<rfiJ at-hadlt, 314, for the single mention of llàl' à.
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known as ràwi al-kutub al jadida. Rabi died in 270, sixty-six years after the death of Shâfi'i; he was the third successor to Shàfi`i, after al-Buwayti (d. 231) and al-Muzani (d. 264). Unsurprisingly the tradition makes much of Rabi"s memory. Shàfi`i said, 'The best of you in memory is Rabi' and he is the most useful te me'; which is certainly true, though Muzani, too, transmitted much,3
II
Here follows the passage in the Umm, as transmitted by Rabi`, which deals with the susceptibility of water to impurity. The passage is necessarily lengthy, for the arguments are both more complex and more integrated than any of the passages previously presented in this work.
I.I. He said: Ail haram things (al-muharram kullu-hu) are the same; if  they fall into less than five qirba of water, they tender it impure (nafii). 1.2. If a dead fish falls into a small quantity of water, or a dead Iocust, it
• does not become impure (lam yanjas); because they are halai when dead. 1.3. Likewise ail things possessed of life (kullu ma kana min dhawàt alarwàh), whether they live in water or otherwise, if they fall jute water that is susceptible to impurity, being dead, they renfler the water impure.
1.4. That is if they have a blood-system (idhà Mn minima la-hu nafsunsà'ila).
1.5. As to things which do not have a blood-system such as flics, beetles,
etc., there are two views on these:
r. If these things die in water of small or large quantity, they do net impart impurity. Those who say this argue as follows: If someone says, But they are carrion, so how can you claim that they do net impart impurity? we reply, They do net change the water at ail and they do not have a blood-system. If proof is demanded, we say, The Prophet of God commanded that if a fly faits into water, it should be dipped into it. He ordered the same fora fly that falls into foodstuffs. Now, a fty may well die when dipped in this manner. The Prophet would net order it to be dipped into water and food if, on dying, it caused impurity; for that would constitute a deliberate imparting of impurity.
2. If these things die in something susceptible to impurity, it is rendered impure. For these things are forbidden (muharram). The Prophet may have ordered the dipping of the dead fly because of the curative property contained in it. Aise, the most probable thing is that it will net die.
3 For the successors to Shâfi'i, Muhammad b. Ahmad al-'Abbâdi, Tabagat, 7- 14; 'Abd al-Wahhâb b. 'Ali al-Subki, Tabagdt, ii. 132-9 (Rabi'), 162-70 (Buwayt5), and 93-1o9 (Muzani). Aise Bayhagt, Mandgib, ii. 337 ff.     69
rising, i.e. from sleep, at Paragraphs 1 and 2, and culminates in the triomphant formulation of a distinction that separates the sitting sleeper from ail others. He has `entrusted himself to the ground' (Para. g): such are the relative Positions of the anus and the earth that the latter, it is claimed, fonctions as a support against inadvertent pollution. This becaine the classic argument of the
Shah'! tradition in favour of the anomalous ruling on one who sleeps Sitting upright.
Bayhagi might have cited this as an example of Muzani instituting an attack on Shâfi on the basis of deficiencies which were remedied in the transmitted dicta of Shifi`7. But these are not the transmitted dicta of Shâfi'i. The Mukhtasar and the Umm are, in fact, the record of ongoing argumentation within contiguous groups or 'schools', sharing a commun allegiance to Shâfi`i, and a commun approach to the law, but expressing their immediate loyalty by reference to the transmission activity of Rabi` or Muzani. The creation and develOprnent of juristic argument within these groups was clearly a long-terra process, probably enacted by circles of students and jurists meeting to discuss the law in the
mosque, The recording, storing, discarding, and redacting of these discussions was likewise carried out over a long period of time, by
different people, displaying different degrees of editorial skill. The gru
 in	nd. the narre of Rabi was apparently the more
arguments after the et cOnti ued to develop new material and
Mukhtasar, and, the et		and final rédaction of Muzani's
uentl
contais the better and y' in cases of dispute is likely to sometimes also préseand more developed arguments (though it to botte groups was the convent e
nofctattribu arguments) the form and content of their juristic discoveries to the ever more distant
malter,er w . Taking into considération the argument of Chapter 4, t	r with the arguments of this Chapter, it will be evident
the bulk the ulk of material now contained in the Umm or in the Rabi'- sar must be attributed to the generations after Muzanï and Rabi'. Whatever personal impetus these masters gave to the tes
that bear their names is unlikely now, with any degree of certainty, to be recoverable.

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CALDER Norman, Studies in Early Muslim Jurisprudence, Clarendon Press, Oxford, 1993.

6

THE KITÀB AL-KHARÀ.J OF ABÛ YÛSUF

It is reported that Ya'qùb b. Ibrâhim al-Ansâri known as Abù Yùsuf was bon in r 13 Aï-4 and died in 182. Of humble origins, he found his way to the study sessions of Abri Hanifa, who, recognizing his merit, provided him with a bursary and was his first and most important teacher. Abù Yùsuf and Muhammad b. al-Hasan al-Shaybâni, together with their teacher, Abù Hanifa, constitute the three great authorities of the Hanafr figh tradition. Sharing and guaranteeing variant views on juristic questions, they serve in the developed tradition to keep options open and ensure flexibility. In contrast to Muhammad b. al-Hasan, who represents the school's commitment to dialectical skills and refinement of juristic opinion, Abn Yùsuf is presented in biographical works as an authoritY in hadith. Ibn Hanbal, when he started collecting Prophetic hadith, avent first to Abù Yùsuf—which is a good story and a speaking credential. Abti Yùsuf's knowledge of hadith, however, was coupled with interpretative skills which distinguished him from the ah! al-hadith. Asked by A'mash concerning a juristic subtlety, he replied on the basis of a hadith which he had originally heard from A'mash himself. `We are only the pharmacists,' laid A'mash in admiration, `and you the doctors.' There are a great many Prophetic hadith in Abù Yûsuf's Kitâb al-Kharlj (one of several ways in which this book differs from other early Hanafi attributions), a fact which may have promoted this biographical characteristic. In contrast to Abû Hanifa, whose death is represented as brought about by his refusai to accept judicial office, Abia Yüsuf rose to high rank, showing himself a willing and capable servant of

105

the state, a courteous and wily courtier, finally becoming gàdi alqudàt in Baghdad in the service of Hârûn al-Rashid. His enemies said ha had wrestled with the world and been defeated but the Hanafis had in him a model of honourable and cunning service to the government. These stories, sanctioning a many faceted response to fiqh, to hadith and to judicial office, were preserved as
symbols of the flexibility and varied aspirations of the Hanafi juristic tradition.
Of books attributed to Abu YGsuf, there are two tracts preserved within the Shâfi`i corpus of law-books as objects of dispute. These are the Kitàb al-radd 'alà siyar al-Awzà'i and the Ikhtilàf Abi Hanifa wa-Ibn Abi Laylà, Just as the Muwatta' of Shaybàni is a Hanafï preservation of the Mâliki tradition, so these works are a Shâfi`i preservation of the Hanafi tradition. Also attributed to Abfi Yfisuf is a collection of àthàr, and the famous Kitàb al-Kharàj.l The latter, usually accepted as an authored text dating to before r82, is analysed in this Chapter. It is claimed that the analyses which follow net only permit a fairly comprehensive undersbook,g of the processes which brought about the emergence of this book, but also give a snapshot picture of the taxation system as organized from Baghdad in the middle of the third century.
II
The Kitàb al-Kharàj is available in several printed versions, the oldest of which is the Bulaq edition of 1302/1885. The Salafiyya Press lias produced an edition, reprinted several times, based on a single manuscript collated with the Bulaq text. This edition exhibits only tninor deviations from the Bulaq edition; it is Probably based on the saine manuscript or the same manuscript t
tradition. The Bulaq edition bas no and the Salafiyya editions Little significant editorial apparatus. A complete edition of the Kitàb al-
Two of the larger biographies of Abù Yusuf are contained in Ahmad b. 'Ali alBaghd-di, Ta'rrkh, xiv. 242ff. and Dhahabi, Manàgib. Stru les
Baghdad i, Ta'rikh, xiv. 248; Ahmad's recourse te xiv,
aise the m ltcrDhahab;, Mana 1b,		gg	e with the world,
also the smallcr biographes of 4c. Baghdâd1 gives invective tas well as pr se. Sec Q
production, Sez in,	urashi and Laknawi. For Abù Yûsuf's litera ha describes the ikhuildf litera(ure as un oubted1 ad Abu Yusuf' in EI(ü) (where in Schibe to). Sec also Ic'acht's discussion on the authorship of the Kitab aI-hiyal,
in Schacht, Dûs	Y genuine', not a view I would'
kitâb af-mnhkrig, 5-13.
106
Kharàj is contained in a commentary, entitled Fiqh al-mulûk wamiftàk al-ritâj, by 'Abd al-'Aziz b. Muhammad al-Rahbi (d. 1194 AH). The editor of this work, A. U. Kabisi, has set the text of the Kitàb al-Kharàj aboya the text of the commentary and lie has systematically compared Rahbi's edition, as made available in two manuscripts, with the printed editions. The result is a useful text, with a decent editorial apparatus. The most recent printed text, editor Ihsân `Abbàs, is notsuperior to that produced by Kabisi 2
The Kitàb al-Kharàj begins with an address to a prince, the contents of which are not particularly juristic; they consist of advice and general paraenesis (more adab than fiqh), followed by an accumulation of hadith, the majority of which are from the Prophet. This is followed by juristic material relating to the distribution of booty taken in battie; then by numerous more or less clearly marked sections relating to landholding, land-taxes, and taxes on agricultural produce. Broadly, discussion of the tax termed kharàj precedes discussion of the tax termed 'ushr, zakàt, or sadaga—though much of the detail is inextricably interwoven, aven confused. This is followed by discussion of the poli-tax or jizya, applicable only to non-Muslims, together with discussion of the social status, rights, and obligations of non-Muslim citizens in Islamic territory. The last sections of the book relate to such topics as how to deal with thieves, how to implement the prescribed penalties (hudûd), how to pay government officiais, administer border crossings, organize warfare with non-Muslim neighbours, etc. The whole is recognizable as selected and presented with the immediate aim of elucidating administrative practice and as exhibiting a more particular concern for inodes of taxation and landholding. The title Kitâb al-Kharàj is justified by the expansive
2 Sec Bibtiography under Abû Yiisuf for details of these texts. References hereafter are to the Rahbi edition of the Kit&b al-Kharàj; where necessarY references to the Bulaq edition follow alter a slash, Rahbi/Bulaq. The text of Ihsàn 'Abbàs is bàsed on the three printed editions, with the addition of material derived from the British Museum manuscript of the Kitdb al-K arai. This manuscript, described by 'Abbàs as defective towards the end and with folios missing in the middle, seems to fonction as a source of bad readings, recorded in the footnotes. 'Abbas knows of fifteen manuscripts of the Kitàb al-Kharaf in Istanbul which, pressed for time at the critical moment, lie was unable to use. His editorial ntethod is eclectic. The resuit, of course, of an eclectic reading of four texts, only one of which is competent (that of KabisïRahbi), is that the competent text (usually) prevails. Where it does net, Kabisi's apparatus already indicated the divergences  amongst the printed texts.
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