Disagreements of the Jurists. al-Qadi al-Nu'man

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СКАЧАТЬ and submission to authority (taqlīd). A major difference between it and standard manuals of uṣūl al-fiqh is the absence of chapters devoted to the linguistic principles of interpretation of scriptural material, particularly chapters on commands and prohibition, texts of general and particular scope, indeterminate and determinate texts, abrogating and abrogated texts, and so on. This suggests that al-Qāḍī al-Nuʿmān is in agreement with much of the grammatical and linguistic interpretations of Sunni jurists, or simply that he does not see a pressing need to address those topics in his polemics.

      The chapter on istidlāl shows the influence of Ẓāhirī jurisprudence in particular on al-Qāḍī al-Nuʿmān’s presentation. The chapter on taqlīd has most in common with the rejecters of taqlīd such as the Ẓāhirīs, al-Ṭabarī, and al-Shāfiʿī’s student al-Muzanī, who wrote Kitāb fasād al-taqlīd. The chapter on naẓar or speculative reasoning is not included as a chapter in extant works of uṣūl al-fiqh. The topic shows up in the epistemological postulates in the introductions to such works as al-Ṭūsī’s (d. 460/1067) al-ʿUddah, which argue that speculative reasoning can produce certainty in certain circumstances and not just probability. It is clear that al-Qāḍī al-Nuʿmān is referring to Muʿtazilah in particular in this chapter, including Ibn al-Ikhshīd in particular, and he may have had access to manuals of uṣūl al-fiqh written by Muʿtazilī scholars that included chapters devoted to naẓar.

      Ikhtilāf uṣūl al-madhāhib shows the importance of Shiʿi works for shedding light on the historical development of Sunni uṣūl al-fiqh. This is not only because seminal works from the tradition have been lost but also because the variety of opinion on many issues in the tradition considerably narrowed over time, and many works and ideas were suppressed, making it more difficult to reconstruct the contours of formative debate in the ninth and tenth centuries over jurisprudence and legal hermeneutics. Shiʿi authors such as al-Qāḍī al-Nuʿmān may preserve aspects of debate and sources that were later marginalized and may be more ecumenical in their description of Sunni thought than contemporary Sunni writers who represented one party in a large debate. Overall, it appears that al-Qāḍī al-Nuʿmān was drawing on manuals of uṣūl al-fiqh not only in the Shāfiʿī, Ḥanafī, and Mālikī traditions of legal study, but also from the Ẓāhirī, Jarīrī, and Muʿtazilī traditions, and of these it appears that Ẓāhirī influence was uppermost, so that, beside Ibn Ḥazm’s work al-Iḥkām fī uṣūl al-aḥkām, Ikhtilāf uṣūl al-madhāhib is the most important witness of Ẓāhirī jurisprudence in existence. Other Shiʿi sources may also provide valuable insights into the development of Sunni uṣūl al-fiqh, such as al-Shaykh al-Ṭūsī’s al-ʿUddah, al-Sharīf al-Murtaḍā’s (d. 436/1044) al-Dharīʿah ilā uṣūl al-sharīʿah, and the uṣūl al-fiqh manual of the Zaydi Imam Abū Ṭālib Yaḥyā ibn al-Ḥusayn al-Nāṭiq bi-l-Ḥaqq (d. 424/1033), al-Mujzī, and should not be overlooked in future research.

      A Note on the Text

      The Arabic Text

      It is very difficult to identify, let alone collect, all the available manuscripts of Ikhtilāf uṣūl al-madhāhib because most are not catalogued. Earlier editors have referred to the fact that many manuscripts are held by religious authorities and private individuals who are reluctant to make them available, with the result that it has not been possible to construct a proper stemma codicum of the work based on all extant copies. To date, two editions of Ikhtilāf uṣūl al-madhāhib have been published, in 1972 and 1973. The manuscripts those authors used as a basis for their editions, as well as the other manuscripts that I have been able to consult, are all late, dating between the late eighteenth and the early twentieth centuries. The manuscript tradition shows many instances of contamination, whereby one manuscript has been corrected with readings from another manuscript, one factor complicating the construction of a stemma codicum. Because of the continued importance of al-Qāḍī al-Nuʿmān’s legal work in modern Ismaʿili Islam, Ikhtilāf uṣūl al-madhāhib has continued to be copied throughout the centuries, and a large number of copies may exist. Counting the ones used for previous editions, I am aware of nine extant manuscript copies, and I surmise that dozens more may exist. Moreover, it is very likely that several older copies of the work exist but remain inaccessible. Ismaʿili religious authorities and owners of private collections are likely to have expended great efforts to preserve the works of al-Qāḍī al-Nuʿmān in particular, and the relatively large number of copies suggests that copyists had access to earlier exemplars from which to make them in the not-too-distant past. The fact that Asaf A. A. Fyzee located a manuscript of Daʿāʾim al-Islām that dates from 865/1461 indicates the likelihood that copies of Ikhtilāf uṣūl al-madhāhib that are of a similar age and presumably stand at fewer removes from al-Qāḍī al-Nuʿmān’s original work are extant but not available to the public. Under these circumstances, I have expended great effort to present a version of the Arabic text that is as reliable as possible, but I am forced to admit that this is not a definitive edition but merely a significant advance over what has been available since the early 1970s. If a superior manuscript copy comes to light, it may enable scholars to rectify the edition further and to resolve some of the problems of interpretation that have remained intractable or that have escaped my notice.

      In editing the text I have consulted two manuscripts in the library of the Institute of Ismaʿili Studies in London, Lokhandwalla’s published edition, and Muṣṭafā Ghālib’s published edition.

      [خ] MS No. 256 (Ar.)

      This manuscript is in the collection housed at the Institute for Ismaili Studies in London. A note on the front page indicates that it belongs to the Chhotu Lakhani Collection of Fatimid Ismaili Manuscripts, no. 60. The colophon, which is rather long, and in verse, states that the manuscript was completed on Thursday, the 8th of Rajab 1209, corresponding to 29 January 1795. It does not give the name of the copyist. I have designated this manuscript as (خ‎).

      [ز] Zāhid ʿAlī MS, no. 1131

      The other manuscript, also housed at the library of the Institute of Ismaili Studies in London, belongs to the Zāhid ʿAlī collection and is numbered 1131. The colophon gives the date of completion of the copy as 27 Shawwal 1255/2 January 1840. No copyist’s name is given. Corrections are made in the text itself and corrections and missing passages have been added in the margin, sometimes followed by the word nuskhah, indicating that the source of the corrections was a different manuscript copy. The fact that this manuscript was corrected by someone who had access to a superior manuscript makes it the better of the two manuscripts to which I had access. I have designated this manuscript as (ز‎).

      [ل] Lokhandwalla’s 1972 edition

Shamoon Tayyib Ali Lokhandwalla published an edition of Ikhtilāf uṣūl al-madhāhib at the Indian Institute for Advanced Study in Simla in 1972. Lokhandwalla had access to three manuscripts of the work. He based the edition primarily on a manuscript in his possession which he designated as (ب). The manuscript is dated 8 Safar 1272/20 October 1855. He compared the text with another manuscript owned by Fyzee, which he designates (ع), and which was copied by Ḥamūd Yaḥyā Ismāʿīl al-Aḥlasī, who he believes was a student from Yemen. That second manuscript was copied at the Madrasah of Adamjee Peerbhoy in Bombay on 20 Jumada al-Thani 1335/13 April 1917. He also consulted a third manuscript owned by an anonymous source who allowed him to consult it for a short time and which he designates (حذ‎).⁵⁰ He does not give a date for that manuscript. While the editor clearly took some care in producing the Arabic text, it contains many minor errors in punctuation and spelling. I designate Lokhandwalla’s edition as (ل‎).

      [م] Muṣṭafā Ghālib’s 1973 edition

      The Syrian Ismaʿili Muṣṭafā Ghālib, who edited many Ismaʿili works, published an СКАЧАТЬ