Identity in the Margins - Unpublished Hanafi Commentaries on the Mukhtasar of Ahmad B. Muhammad...

7/31/2019 Identity in the Margins - Unpublished Hanafi Commentaries on the Mukhtasar of Ahmad B. Muhammad Al-Quduri

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brannon m. wheeler182

Koninklijke Brill NV, Leiden, 2003 Islamic Law and Society 10, 2Also available online www.brill.nl

IDENTITY IN THE MARGINS: UNPUBLISHED ANAF

COMMENTARIES ON THEMUKHTAAR OFAMAD B. MUAMMAD AL-QUDR

BRANNON M. WHEELER

(University of Washington)

Abstract

An examination of a number of unpublished commentaries on theMukhtaar fal-fiqh al-anafof Amad b. Muammad al-Qudr (d. 428/1037), shows thatthe anaf madhhab gains its authority and identity through a pedagogy focusedon the conflict of opinions. anaffiqh scholarship provides a case study of howcommentary functions to define and perpetuate the institutional identity ofindividual scholars and the madhhab to which they are attached. Over time, thedistinctions among the anaf authorities and between the anaf authorities andother non-anaf authorities were stressed and these distinctions multiplied rather

than diminished. It is this conflict of opinions which seems to characterize anaffiqh scholarship and serves as the primary means for the identification of individualscholarship and the authority of the madhhab as a whole. These unpublishedcommentaries show that being a anaf is not a matter of imitating earlier opinions,but rather suggest that anaf identity is linked to the authority of the members ofthe anaf madhhab who have learned to dofiqh through the medium of the ikhtilfdisplayed in anaf textbooks.

Recent scholarship has demonstrated the significance ofcommentarial activity in establishing and preserving the authority of

certain texts and the schools with which they are associated. On theone hand, scholars of Islamic law have examined the seminal role ofcertain hermeneutical and ontological issues in the development ofulal-fiqh scholarship.1 Similar conclusions have been reached by scholars

working with the textual traditions of Hinduism, Buddhism, and

1 Bernard Weiss, The Search for Gods Law: Islamic Jurisprudence in theWritings of Sayf al-Dn al-mid(Salt Lake City: University of Utah Press, 1992);A. Kevin Reinhart,Before Revelation: The Boundaries of Muslim Moral Thought(Albany: State University of New York Press, 1995); Norman Calder, Studies inEarly Muslim Jurisprudence (Oxford: Oxford University Press, 1993); MohammadHashim Kamali, Principles of Islamic Jurisprudence, 2nd ed. (Cambridge: IslamicTexts Society, 1991).
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identity in the margins 183

Judaism.2 On the other hand, historians, literary critics, and anthro-pologists have begun to uncover the central place of certain texts inthe perpetuation of social and institutional authority.3 Rituals of reading

and memorization, stipulated rules for the physical production andconveyance of certain books, and controlled learning environmentsare all ways by which certain texts were used to maintain highlyregulated modes for the transmission of knowledge and inculcationof specific cultural norms. These various studies highlight the value ofusing commentaries as a source for discovering how the significanceof authoritative texts was determined by the pedagogical sitz im lebenin which they were received and to which they were appropriated.

anaffiqh scholarship provides a case study of how commentaryfunctions to define and perpetuate the institutional identity of individualscholars and the madhhab to which they are attached. anaffiqh is aparticularly useful case in that it challenges the notion thatmadhhabidentity derives from following the opinions of the founder of themadhhab, since anaf scholars appear to rely on not one but threedifferent authorities whose opinions are often in conflict: Ab anfah,

Ab Ysuf, and Muammad al-Shaybn. The focus of the standardanaf textbooks is not the synthesis or elimination but rather thehighlighting of the conflict of these opinions. In addition, anaf textsoften cite the opinions of Zufar and those of Ibn Ab Layl, as well asthose associated with the other main madhhib and local authorities,

2 For Hinduism, see Laurie L. Patton, ed.,Authority, Anxiety, and Canon: Essays

in Vedic Interpretation (Albany: State University of New York Press, 1994) andJeffery Timm, ed., Text in Context: Traditional Hermeneutics in South Asia(Albany: State University of New York Press, 1991). For Buddhism, see Paul J.Griffiths,Religious Reading: The Place of Reading in the Practice of Religion(Oxford: Oxford University Press, 1999) and Steven Collins, On the Very Ideaof the Pali Canon,Journal of the Pali Text Society 15 (1990): 89-126. For Judaism,see Steven D. Fraade,From Tradition to Commentary: Torah and Its Interpretationin the Midrash Sifre to Deuteronomy (Albany: State University of New York Press,1991) and Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford:

Oxford University Press, 1985).3 For some examples, see Michael Chamberlain,Knowledge and Social Practicein Medieval Damascus, 1190-1350, Cambridge Studies in Islamic Civilization(Cambridge: Cambridge University Press, 1994); Bruce Lincoln, Authority:Construction and Corrosion (Chicago: University of Chicago Press, 1994);Mary Carruthers, The Book of Memory: A Study of Memory in Medieval Cul-ture(Cambridge: Cambridge University Press, 1990); Walter Ong, Orality and

Literacy: The Technologizing of the Word(London, 1982); Jack Goody, TheInterface between the Written and the Oral(Cambridge: Cambridge University

Press, 1987).


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such as al-Shfi, Mlik b. Anas, Amad b. anbal, al-Awz, andSufyn al-Thawr. As the anaf madhhab developed over time, thedistinctions among the anaf authorities and between the anaf

authorities and other non-anaf authorities were stressed and multi-plied rather than diminished. It is this conflict of opinions which seemsto characterize anaffiqh and serves as the primary means for theidentification of individual scholarship and the authority of the madh-hab as a whole.

The following pages examine a number of unpublished commenta-ries on theMukhtaar f al-fiqh al-anafof Amad b. Muammad al-Qudr (d. 428/1037).4 Section one introduces the ikhtilfin al-Qudrs

Mukhtaar and indicates how this is central in later anaf texts. Sectiontwo provides an overview of selected unpublished commentaries ontheMukhtaarwith brief descriptions of their contents. Section threeanalyzes the ways these commentaries emphasize and use the conflictof opinions in and related to the Mukhtaar of al-Qudr. From thecommentaries consulted it appears that the anaf madhhab gains itsauthority and identity through a pedagogy focused on the conflict of

opinions.

Ikhtilfin the Mukhtaarof al-Qudr

The Mukhtaar of al-Qudr is a foundational text for anaf fiqhscholarship. One of the earliest examples of its genre, the Mukh-

4 For information on the life of al-Qudr, see al-Khab al-Baghdd, TarkhBaghdd aw madnat al-salm (Cairo, 1349/1931), 4:377; Ibn Khallikn,Kitbwafayt al-ayn wa anb abn al-zamn (Blq, 1299 AH), 1:26; Ab SaidAbd al-Karm al-Samn, al-Ansb, facsimile by D.S. Margoliouth, E.J. GibbMemorial Series 20 (Leiden/London, 1912), 44b; Ibn al-Athr, al-Lubb f tahdhbal-ansb (Cairo, 1357-1369), 2:247; Muammad al-Qurash, al-Jawhir al-muyah f abaqt al-anafyah (Hyderabad, 1332), 1:93-4, 2:336-337; IbnQulbugh, Tj al-tarjim f abaqt al-anafyah, ed. G. Flgel (Leipzig, 1862),5; Ibn Kathr, al-Bidyah wa al-nihyah f al-tarkh (Cairo, 1351-1358), 12:40;Ibn al-Imd, Shadharat al-dhahab f akhbr man dhahab (Cairo, 1350-1351),

3:233; Ab Muammad Abdallh al-Yfi,Mirt al-jann wa ibrat al-yaqnf marifat m yutabar min awdith al-zamn (Hyderabad, 1337-1339), 3:47;Gustav Flgel,Die Klassen der hanefitischen Rechtsgelehrten (Leipzig, 1861),305; M. Ben Cheneb, al-udr,EI2 5:1184; Khayr al-Dn al-Zirikl, al-Alm:qms tarjim li-ashar al-rijl wa al-nis min al-arab wa al-mustaribn wa al-mustashriqn, 2nd ed.(Cairo, 1954-1959), 1:206; Umar Ri Kala,Mujamal-muallifn: tarjim muannifi al-kutub al-arabyah (Damascus, 1957-61), 2:66;Fuat Sezgin, Geschichte des arabischen Schrifttums (Leiden: E.J. Brill, 1967),1:451-455.


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taar,was designed as a textbook for the incipient legal curricula inIraq and Syria. In subsequent centuries this text became the basic sourcefor the teaching of anaf scholarship in the Fertile Crescent as well as

Central Asia, India, and Africa. Many later anaf texts take the formof commentaries on thisMukhtaar,quoting the entire text verbatim,phrase by phrase, as a pedagogic device to epitomize the text-basedepistemology and interpretive methods offiqh scholarship. This laterscholarship explains in detail how the opinions recorded in theMukh-taarrepresent authoritative interpretations of the Qurn and Sunnah.Today, theMukhtaarstill holds an important place infiqh scholarship,in both anaf and non-anaf curricula, and it is often used as theprimary textbook for the first year of madrasah study, especially inEgypt, Pakistan, Yemen, and Morocco. The centrality and continuedauthority of this text make it an excellent focus for close study of howdifferent notions of textual authority were established and evolved.

In the Mukhtaar,al-Qudr lists the opinions of the three mainanaf authorities of the second/eighth century on all of the funda-mental tenets of Islamic law, including practices relating to ritual,

commerce, agriculture, crime, personal status, and inheritance. To theseopinions, al-Qudr also contrasts the opinions of Zufar, a student ofAb anfah but not necessarily considered a anaf authority. In alarge number of the cases, al-Qudr indicates that the opinions of thesethree or four authorities were in conflict, and that they often opposedone another on key issues. For example, in his discussion of the titheon agricultural produce, al-Qudr lists a number of these authorities

conflicting opinions.

Ab anfah says that for the small and the large things that the earthsprouts there is a tithe, regardless of whether it is irrigated or watered bythe sky, excepting firewood, reed stalks, and grass. Ab Ysuf andMuammad say that the tithe is only required for perennial produce whenit amounts to five loads, a load being sixty s according to a of theProphet. According to Ab Ysuf and Muammad there is no tithe fornon-perennial produce. For that which is watered by bucket, waterwheel,

or waterscoop there is half a tithe according to the opinions of Ab Ysufand Muammad.

Ab Ysuf says: for that which is not measured in loads, like saffron andcotton, a tithe is required when its value reaches the value of five loadsbased on the minimum of what comes under the designation of a load.Muammad says that a tithe is required when the produce reaches fiveloads based on the maximum of that by which its type is evaluated. Fivebales are considered equivalent for cotton, five bundles for saffron.


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On honey there is a tithe when it is taken from ground upon which tithe islevied, whether a little or a lot. Ab Ysuf says that there is nothing duefor it until it amounts to ten skins. Muammad says [there is nothing duefor it until it amounts to] five parts, a part being thirty-six Iraq rals.

There is no tithe for produce taken from ground upon which land tax[kharj] is levied.5

Later anaf scholarship, beginning with theHidyahof al-Margh-nn (d. 593/1197), appropriated al-Qudrs compendium as anauthoritative collection of anaf opinions. TheHidyah,often referredto as a commentary on theMukhtaar,contains al-Qudrs entiretext word-for-word.6 This is important because it shows that theparticular collection of opinions in the

Mukhtaar,rather than the entire

corpus of anaf opinions, became the focus of al-Marghnnsscholarship. There were more extensive compilations of the anafauthorities opinions, collections which include opinions not found intheMukhtaar. Some later scholarship, such as that represented bytheKitb al-mabsof Amad b. Muammad al-Sarakhs (d. 483/1090),covering 30 volumes in the modern printed editions, draws on moreexpansive collections of opinions.7 By relying upon the text of the

5 al-Qudr,Matn al-Qudr f al-fiqh madhhab al-Imm al-Aam Ab anfahal-Numn (Cairo: Mabaat al-Khayriyyah, 1324), 21-22. The opinions of Zufar,almost always at odds with the opinions of other authorities, are not often mentionedby al-Qudr, but are included by later scholarship for the pedagogical purposesdiscussed in what follows. On Zufars opinions, see al-Kawthar, Lamat al-naar f srat al-Imm Zufar(Cairo: Mabaat al-Anwr, 1368).

6 There are small variations between the text preserved in the Hidyah

manuscripts and that in theMukhtaar manuscripts. There are also variationsamong the manuscripts of both texts. Most of theHidyahmanuscripts do, however,change the order of al-Qudrs contents, usually putting the sections on marriageand personal law before the sections on commercial law. This probably reflectsthe aims of the later commentator in using theMukhtaarfor pedagogical ends.See the useful article of Y. Meron, The Development of Legal Thought inHanafi Texts, Studia Islamica 30 (1969): 73-118.

For the text of theHidyah,see Ab Bakr b. Al al-Marghnn, al-Hidyah:shar bidyat al-mubtad,4 vols. (Cairo: Mabaah Muaf al-Bb al-alab,

1975) and al-idyah maa al-diryah f muntakhab takhrj adth al-Hidyah,2 vols. (Multan: Maktabah-i Shrkat Ilmyah, 1980). For a partial listing of themanuscripts of theMukhtaar,see Sezgin, 1:451.

7 On the claim of general agreement within the anaf school, perhapsoriginating at the end of the eleventh century, that the canonical corpus of anafopinions was to be found in the so-called hir al-riwyahof al-Shaybn, seeMuammad Izz al-Al, shiyah al-jallah al-mufdah al-musammh bi al-ib,published in the introduction and on the margins of al-Sharranbull,Nral-(Multan: Maktabah-i Imdyah, 1979), 2-8.


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Mukhtaar,al-Marghnn makes theMukhtaar into a sort of canoni-cal text: it is through the medium of this text that readers of al-Marghnn are taught how to interpret the opinions of the anaf

authorities.The style of commentary found in theHidyah is illustrated by thediscussion of wetnursing [ri] and the prohibitions against a manhaving sex with a woman who nursed him or is related to him by nursing.In the following passage, al-Marghnn comments on a statementrecorded by al-Qudr which defines a prohibition attached to a manhaving sexual intercourse with a woman who had nursed him. Thisexample is significant because it shows how al-Marghnn frequentlyinterprets theMukhtaar,by explaining how the anaf opinions arelinked to authoritative sources [ul]. The passage in parentheses istaken from al-Qudr.

(A little and a lot of nursing are equal in prohibition when it occurs duringthe period of nursing). al-Shfi says: its prohibition is not establishedexcept by five periods of nursing, on the authority of the word of theProphet: A single nursing or two nursings does not cause prohibition.

We rely upon the word of God: your mothers who nurse you... [Q 4:23]and the word of the Prophet: that which is forbidden on account of nursingis that which is forbidden on account of kinship.8

In this passage, al-Marghnn adds the opinion of al-Shfi to highlightthe different anaf opinion. The opinion of al-Shfi, al-Marghnnexplains, is based upon something the Prophet Muhammad reportedlysaid restricting the prohibition against sexual intercourse between a

man and woman to cases in which the man was nursed five separatetimes (or more) by the woman. The anaf position is also based uponSunnah, but, according to al-Marghnn, it is based upon a adth thatreiterates what is found in Qurn 4:23.9 Although both the anaf andShfi positions are based upon sources recognized by both madhhibas authoritative, the conclusions are different and not compatible. The

The concept of the opinions being limited to a certain collection of books islate. It is probable that these books, attributed to al-Shaybn, especially hisKitbal-al f al-fur,are the product of much later redaction. TheAl,in particular,seems to be the result rather than the basis of al-SarakhssKitb al-mabs. Fora brief overview of this argument, see Calder, 39-44.

8 al-Marghnn, 2:240-241.9 This saying of the Prophet Muhammad can be found in al-Nas, Sunan al-

Nas(Beirut: Dr al-Marifah, n.d.), 26:49 and Muslim, a,ed. Fud Abdal-Bq (Cairo: Mabaat al-Fajlat al-Jaddah, 1955-1956), 18:26.


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comment shows that it is not the use of a given source, but rather theway in which the common sources are used that accounts for thedifferent conclusions.

Beginning in the sixth/thirteenth century, anaf scholars focusedon explaining the reasons for the interpretive choices represented byearlier anaf opinions. These later generations of scholarship wereproduced in the form of commentaries on theHidyah, and thus includethe entire text of theHidyah and that of theMukhtaaras well.10 Bythe seventh/thirteenth century, a given anaf text could contain severalgenerations of commentaries: commentaries on commentaries on al-Marghnns commentary on theMukhtaar. This scholarship is exem-

plified in the discussion of the same issue of nursing, in Muammad b.Abd al-Wid b. al-Humms (d. 681/1276) commentary on theHid-

yah.

Mlik agrees [viz., with the passage quoted by al-Marghnn]. If there isdoubt that the breast entered the mouth of the child, then it is doubtfulthat the nursing took place, and the prohibition is not established becauseof the doubt. This is likewise the case if it is known that a woman from aparticular village nursed a young girl but it is not known who she was,

and subsequently a man from the people of this same village married theyoung girl. It [viz., allowing this practice] is sound because the prohibitionof a particular woman has not been established. It is incumbent upon

women that they not nurse every youth if it [viz., nursing] is not necessary.When they do nurse they should keep track of this and make it known sothat it is written down.11

Ibn al-Humm cites the opinion of Mlik as consistent with that of theanafs, and adds the qualification that the breast of the nurse must

enter the childs mouth in order for sexual intercourse between them tobe forbidden. The principle behind the prohibition is taken by Ibn al-Humm to be that the physical contact between the nurse and the childbe clearly established, and that, once established, a single nursing issufficient to cause the prohibition. This is further supported by Ibn al-Humms citation of an analogous case in which doubt precludes

10 This sort of textual transmission, accomplished through commentary on,

rather than through copying of, an earlier text is evinced in the manuscript traditionsfor the anaf and other schools. Earlier, authoritative texts were not often copied,but were included in toto in later commentarial works of scholarship. The originaltext is maintained, but only within the physical and interpretive confines of laterscholarship. The same can be said for the commentaries written specifically ontheMukhtaar. For a sampling of this manuscript evidence, see Sezgin, 1:393-516.

11 Ibn al-Humm, Shar fat al-qadr al al-Hidyah(Cairo: Muaf al-Bbal-alab, 1289; reprint, Beirut: Dr al-Fikr, n.d.), 3:439-440.


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requiring prohibition on a woman whose specific relationship in nursingto a future husband is not established.

Similar comments are made in the eighth/fourteenth-century work

of al-Bbart (d. 782/1384), whose commentary on theHidyah is oftenpublished together with the comments of Ibn al-Humm, concerningthe interpretation of al-Marghnn on the statement of al-Qudr.

This [viz., the same passage quoted by al-Marghnn] is our opinion. al-Shfi says: prohibition is not established except by five periods of nursingin each one of which the child is satiated. This is based upon the words ofthe Prophet: A single nursing or two nursings [maah aw maatn waimljah aw imljatn] does not cause prohibition.Maahis the action

of the one being nursed.Imljahis the action of the nurse. It is nursing.On the face of it, this report seems to indicate that a little [nursing] is notprohibited. Yet that it [viz., the period of nursing] be restricted to fivesatiating periods of nursing is not indicated in this report. The madhhabagrees with this on the basis of another report. The first report is explainedby the fact that among the Companions of the Prophet it was observedthat they said three satiating periods of nursing. al-Shfi follows thesaying of ishah: Once the Prophet received as a revelation that ten

fixed periods of nursing cause the woman to be prohibited. This wassubsequently abrogated [by the revelation stipulating that] five fixedperiods of nursing cause the woman to be prohibited. This is what wasfollowed after the death of the Prophet. This indicates what al-Shficlaims but her [viz., ishahs] report was that this [practice of five fixedperiods] was what was followed only after the Prophets death. Thisweakens the authority of the report because there can be no abrogationafter his death.

We rely upon the word of God: Your mothers who nursed you... andthe word of the Prophet: That which is forbidden on account of nursingis that which is forbidden on account of kinship. That is to say, [we relyupon] the Book and the Sunnah. This is better than relying upon the Book[as reported to have been revealed in the report from ishah] knownfrom only a single transmission.12

In this case, al-Bbart discusses further the opinion of al-Shfi asreported by al-Marghnn, which was originally introduced to explain

the opinion mentioned by al-Qudr. First, he explains the use of thetwo synonymous terms maah and imljah in the adth from

which al-Shfis opinion is said to be deduced.13 Second, al-Bbart

12 al-Bbarts text is printed in Ibn al-Humm, Shar inyah al al-Hidyah(Cairo: Muaf al-Bb al-alab, 1289; reprint, Beirut: Dr al-Fikr, n.d.), 3:439-440.

13 The report of ishah can be found in al-Nas, 26:51, Muslim, 18:24, Ab

Dd, Sunan,ed. Muammad Muy al-Dn al-amd (Beirut: Dr al-Kutub al-


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states that this adth is not actually from the Prophet Muammadhimself, but from his Companions. Third, al-Bbart writes that, in anycase, al-Shfis opinion is not primarily based upon this adth,

because in the firstadth cited there is no mention of five separateperiods of nursing, but only that one or two do not cause a prohibition.The opinion of al-Shfi is based on a adth by ishah that the

Prophet Muammad received two separate revelations indicating thatthe number of nursings that cause a woman to be prohibited is ten orfive.14 Both of these revelations were abrogated or removed from thetext of the Qurn, but al-Shfi claims that the legal force of the secondrevelation, indicating five periods of nursing, is still binding. To counter

the authority of this claim, al-Bbart highlights the fact that the practiceof five periods causing prohibition was followed only after the deathof the Prophet Muammad but not before, implying that the legal forceof the abrogated revelation was not continuous, but only later reinstatedafter the Prophet Muammads death. Despite this, the opinion of al-Shfi is weaker authority than that of the anafs because the reportused by al-Shfi is found only in a single adth, and the reported

revelation cannot be verified by the extant text of the Qurn or in aseparately related adth. Q Zdah (d. 988/1525) emphasizes thisthird point by discrediting the claim that ishahs report of therevelation to the Prophet Muammad and the people following itconstitute two independent sources for al-Shfis opinion.15 Giventhat the anaf position is based on Qurn 4:23 and a adth thatreiterates this verse, if the saying of ishah is valid, then there are

Ilmyah, 1980), 12:9, al-Tirmidh, al-Jmi al-a,ed. Muammad Shkir etal. (Delhi: Kutub Khnah Rashdyah, 1937-1965), 10:5, Ibn Mjah, Sunan,ed.Muammad Fud Abd al-Bq (Cairo: Mabaat al-Tazyah, 1952-1953), 9:35,Ibn Kathr, Tafsr al-Qurn al-am(Cairo: Mabaat Muaf Muammad, 1937),1:739-49, in the context of Srat al-Nis 4:23.

14 On the classical theory of abrogation [naskh] and its association with thewritings attributed to al-Shfi and his followers, see al-Shfi, al-Rislah,ed.Muammad Shkir (Cairo: Maktabat alab, 1358 AH), 105-17, 241-58 andMuammad b. Ms al-zim, al-Itibr f al-nsikh wa al-manskh min al-thr(Cairo: Idrat al-ibah al-Munryah, 1346 AH). On the development ofthe theory ofnaskh in general, see Ab Jafar al-Nas,Kitb al-nsikh wa al-manskh (Cairo, 1323 AH). For an overview of the use ofnaskh in early fiqhscholarship, see John Burton, The Collection of the Qurn (Cambridge: CambridgeUniversity Press, 1989) and idem, The Source of Islamic Law: Islamic Theories ofAbrogation (Edinburgh: University of Edinburgh Press, 1990).

15 See Q Zdah, Natij al-afkr f kashf al-rumz wa al-asrr (Cairo:Muaf al-Bb al-alab, 1289 AH; reprint, Beirut: Dr al-Fikr, n.d.), 3:440.


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two possibilities: either it came before Qurn 4:23, in which case theearlier ten and five periods of nursing are both abrogated; or, it cameafter Qurn 4:23, in which case, being a report from ishah and not

included in the text of the Qurn, it is not considered to be of equalauthority.16

Unpublished Commentaries on the Mukhtaarof al-Qudr

These few examples show how the text of theMukhtaarwas centralto later anaf scholarship, and functioned to illustrate not only specificanaf interpretations but more general points of epistemology andmethodology. In addition, anaf scholars produced a number ofcommentaries that focused directly upon the text of the Mukhtaar.Many of these commentaries incorporated issues found in other anaftexts although the relationship among them is still far from settled.Only two of the direct commentaries on the Mukhtaar have beenpublished and none have been studied. To date, the most important ofthe published commentaries, the al-Jawharah al-nayyirahof Ab Bakr

b. Al al-a (d. 800/1397), remains without a critical edition andannotation.17 TheLubb f shar al-kitb of Abd al-Ghan al-Maydn(d. 1298/1881) is a more recent commentary on theMukhtaar, thoughof a different character than the commentary found in theJawharah.18

Even a summary of the contents of the unpublished commentaries ontheMukhtaar has not been completed until now, and the relationshipof these commentaries to other anaffiqh scholarship therefore remains

unknown.The following list includes the unpublished commentaries consulted

in the holdings of the al-Maktabah al-Azharyah and Dr al-Kutub al-Miryah in Cairo, the al-Maktabah al-Waanyah in Tunis, and the al-Mataf al-Waan in Kairouan. The commentaries are listed by authorand title and arranged chronologically by date of composition. For each,I provide relevant bibliographical information, library holdings, multiple

copies, and give a brief descriptive overview of the contents as theyrelate to theMukhtaar and its pedagogical setting.

16 This is also discussed briefly in Ibn al-Humm, 3:443.17 For the published edition, see Ab Bakr b. Al al-addd, Jawharat al-

nayyirah(Cairo: Mamd Bey, 1301 AH).18 For the published edition, see Abd al-Ghan al-Maydn, al-Lubb f shar

al-kitb, 4 vols. (Cairo, n.d.; reprint, Beirut: al-Maktabat al-Ilmyah, 1413/1993).


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(1) Ab Nar Amad b. Muammad b. al-Aqa (d. 474/1081), Sharal-Aqa [Dr al-Kutub al-Miryah: Fiqh anaf 737, dated to 1192].According to Sezgin, the only other copy available is in the commentaryon the work of Ab Nar al-Aqa by Ibn Qulbugh (d. 879/1474),entitled Gharb al-adth al-madhkrah f shar Mukhtaar al-Qudral-Aqa, available in an autograph copy in the Laleli holdings of theSleymaniye Ktphanesi in Istanbul.19 The only copy available inEgypt is incomplete. Manuscript Fiqh anaf 737 begins withKitbal-Ijrah and only goes through anbah. This suggests that theentire text would be quite large, since the small portion available hereis already 234 folia in length. This commentary is remarkable for the

way in which it lists systematically all the authoritative sources [ul]from which the opinions found in the Mukhtaar are thought to bederived.

(2) Khwharzdeh Muammad b. al-usayn (d. 483/1090), Sharmushkilt al-Qudr. According to Sezgin, this manuscript was ori-ginally housed in the al-Maktabat al-Baladyah in Alexandria.20 It isnow catalogued as: (a) Fiqh anaf 21 in the Dr al-Kutub al-Miryah.There is another copy available in microfilm, catalogued as : (b)FiqhTaymur 377, also available at the Dr al-Kutub al-Miryah. Thiscommentary focuses upon the explanations behind the conflict ofopinions among the anaf authorities in theMukhtaar. Some attentionis given to the citation of the opinions of earlier anaf authoritiesabout the conflict of opinions, but most of the comments are dedicatedto explaining the reasons for the conflicts. Khwharzdeh himself often

gives direct explanation. The citations of earlier anaf texts areprimarily references to sources preceding theMukhtaar, rather thancitations from texts produced after, and influenced by, theMukhtaar,as is common in other anaf compendia.

(3) Jaml al-Dn Ab Sad al-Muahhar b. al-usayn al-Yazd (d. 591/1195),Lubab.21 Catalogued at the al-Maktabah al-Azharyah as (a)Fiqh anaf 1656 (391ff [3 additional folios at end with notes]).22 There

19 See Sezgin, 1:452. Also see the entry inFihrist al-kutub al-arabyah al-mawjdah bil-Dr li-ghyat sanat 1932,ed. Fuad Sayyid (Cairo: Mabaat Dral-Kutub, 1924-1933), s.v. On Ab Nar al-Aqa, see Kala, 2:148.

20 See Sezgin, 1:452. On Khwharzdeh, see al-Qurash, 1:236, 2:49.21 See Sezgin, 1:453. On al-Yazd, see al-Qurash, 2:175.22 For this reference, see Fihrist al-kutub al-mawjdah bil-Maktabat al-

Azharyah, 7 vols. (Cairo: Mabaat al-Azhar, 1365-1382), s.v.


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is another copy (b) available on microfilm in the Dr al-Kutub al-Miryah, with the titleKhulat al-nawdir, catalogued as Fiqh anafalat 864. A third copy (c) is in the al-Maktabah al-Waanyah in

Tunis, entitled al-Lubb, catalogued as Abdalyah 1616. The al-Azharmanuscript is written in a Maghrb hand and includes two differenttables of contents with paginations, in two different Maghrb hands. Itincludes two main types of comments: citation ofadth to support theopinions in theMukhtaar (usually providing the matn but not the isnd),and references to the opinions of al-Shfi. The manuscript fromthe al-Maktabah al-Waanyah is of different organization and content,more closely paralleling the structure of the Tajrdof al-Qudr andthe Tass al-naar of Al b. Umar al-Dabs.23 The end of this manu-script has several sections devoted exclusively to listing the ikhtilfamong the various anaf authorities and between them and the opinionsof Mlik and al-Shfi (esp. 81a-240a).

(4) usm al-Dn Al b. Amad b. Makk (d. 598/1201),Khulat al-dalil f tanq al-masil.According to Sezgin, this manuscript was

originally housed in the al-Maktabat al-Baladyah 1215 (251ff), and isdated to 978 AH.24 There are seven copies available on microfilm inthe Dr al-Kutub al-Miryah, catalogued as: (a) Fiqh anaf 651, 653,(b) b 20712, (c) Fiqh anaf Khall Agha 39, (d) Fiqh anaf alat543, 846, 883. Fiqh anaf 651 has 118 folia and is dated to 15 Rajab1192 AH. This commentary focuses primarily on the conflict of opinionamong the anaf authorities and between them and al-Shfi. This

attention to the conflict of opinion with al-Shfi is shared with theLubb, with the Tajrdof al-Qudr, and with the Hidyah of al-Marghnn but not with many of the other commentaries on the

Mukhtaar. The opinion of Ibn Ab Layl is often mentioned as well.The text is relatively brief and the manuscript identified as Fiqh anaf651 includes some interesting later marginalia.

23 See Al b. Umar al-Dabs, Tass al-naar(Cairo: Zakary Al Ysuf,1320). On the Tajrd, see Sezgin, 1:455. A microfilm of the Tajrdis available atthe Dr al-Kutub al-Miryah, Fiqh anaf 290. The text is primarily a listing ofthe ikhtilfbetween Ab anfah and al-Shfi. Portions of the Tajrdare alsoquoted by Ibn Qulbugh in his Ta, mentioned below. There is also Al b.Muammad al-Jurjn (d. 887/1482),Hshiyat al shar al-Tajrd, located in theMaktabah l Ibn shr, 1678, in Tunis.

24 See Sezgin, 1:453. On usm al-Dn b. Makk, see Carl Brockelman,Geschichte der arabischen Litteratur (Leiden: E.J. Brill, 1937), Suppl. 1:649.


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(5) Mukhtr b. Mamd al-Zhid al-Ghazmin (d. 658/1260), al-Mujtab.25 Available at al-Maktabat al-Azharyah 193. Catalogued as:(a) Fiqh anaf 287, 7589, 148ff. Manuscript dated to 1127 AH. Sezgin

lists a manuscript as Fiqh anaf 1262 (427ff) but this was not found.

26

There are three additional manuscript copies available at the Dr al-Maktabah al-Miryah: (a) Fiqh anaf 475 (217ff) dated to 849 AH,(b) b 23421, (c) Fiqh anaf alat 1015. This commentary paysattention to explanatory and linguistic matters, references to adth(with citations ofisnds and transmitters), references to ikhtilfamongthe anafs, between the anafs and Shfis, and even Companionsin some cases (as a form ofadth criticism). In reporting the disagree-

ments with al-Shfi, al-Zhids work most closely resembles theKhulat of usm al-Dn. al-Zhid also specifies if an opinion hasbeen reached on the basis of the Qurn, Sunnah, Qiys, orIstisn,particularly in cases of disagreement. He also adduces a number ofikhtilfcases not mentioned in theMukhtaar.

(6) Rashd al-Dn Ab Abdall h Muammad b. Abdallh Raman

al-Shibl (d. 769/1367), al-Yanb f marifat al-ul wa al-tafr.27

According to Sezgin, this text is available at the Maktabah al-Baladyahin Alexanderia, catalogued as 1232b (262ff) and dated to 723 AH.28

There do not seem to be any copies of this text available at the Dr al-Kutub al-Miryah, though copious citations exist in many of thecommentaries consulted.

(7) Ysuf b. Umar b. Ysuf al-f al-Kdr (d. 832/1429),Jmi al-mumart wa al-mushkilt.29 Available at the al-Maktabah al-Azhar-

yah, catalogued as: (a) Fiqh anaf 2829 (421ff), dated to 1194 AH.There are two additional microfilm copies available at the Dr al-Kutubal-Miryah: (a) Makhut Zakyah 30, (b) Fiqh anaf Khall Agha6. The end of the al-Azhar manuscript lists 1194 AH as the copy datebut two comments on the title page list 1229 as the date of the copy inthe same hand as the text. The fact that there are numerous marginal

corrections to the text done in the same hand suggests, along with the

25 On al-Zhid, see Brockelmann, 1:382.26 See Sezgin, 1:453.27 On al-Shibl, see Kala, 10:219.28 See Sezgin, 1:453.29 See Sezgin, 1:454. On al-Kdr, see Ktib Celeb,Kashf al-unn (Istanbul,

1941-43), 1632-33, 1838.


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different dates, that this is a thirteenth century copy of the twelfth centurycopy. The commentary itself includes long explanations of the contentand division of the chapters, linguistic explanations, explanations

of the reasons forikhtilf, additional adduction ofikhtilf, includingreferences to ikhtilfwith al-Shfi and Mlik, and copious citationsof earlier scholarship and authoritative sources, with careful attentionto specific ul terminology.

(8) al-Qsim b. Abdallh b. Qulbugh (d. 879/1474), Ta Mukh-taar al-Qudror al-Tarj wa al-tanq al al-Qudr.30 Twomicrofilm copies of this are available at the Dr al-Kutub al-Miryah:(a) Ta: Fiqh anaf 801, 1370, (b) Tarj: Fiqh anaf 124, b 33591.This is an important commentary, incorporating information from muchof the earlier scholarship, and close in character to the commentary ofal-Maydn. It focuses primarily on the ikhtilfamong the anafauthorities, with special attention to what earlier authorities say aboutthis: whether there are variant opinions not mentioned in theMukhtaar,

which opinion is considered most sound and by whom, and reports of

what earlier scholars have given as the reasons behind the ikhtilf. IbnQulbugh references about thirty earlier commentaries and textsrelated to theMukhtaar, including many which are not known to beextant in manuscript.

(9) Ysuf b. Muammad b. Sulaymn al-Zaghwn (d. 1144/1731), al-Minan al Mukhtaar al-Qudr. Sezgin lists this as al-Maktabah al-

Zaytnah 4:257, 2421-2422 but many of the holdings of the Zaytnahhave been moved to the al-Maktabah al-Waanyah. This manuscriptis part of the Abdalyah collection, H. 29/18, Q. 418, S. 31 (vol. 1), H.29/18, Q. 417, S. 31 (vol. 2) copied by a Muammad b. Hshim al-alab, with no date. This commentary includes a wide spectrum ofreferences: citations ofadth, scholars before al-Qudr such as al-aw and al-Karkh, scholars after al-Qudr such as al-Marghnn,

Ab al-Layth al-Samarqand, and Ibn Nujaym (d. 970/1563), andreferences to other unpublished commentaries such as the Sirj al-wahhj and that of al-Isbjb (c. 7th/13th century). This manuscript isbound and many of the pages in the second volume are stuck togetherand cannot be read without restoration of the manuscript.

30 See Sezgin, 1:455. On Ibn Qulbugh, see Brockelmann, 2:82.


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(10) al-Shihb f ta al-kitb: al-taaliqt al-mufdah al matn al-Qudr. Commentary by Abdallh Musaf al-Haragh and AbdallhHamzah. First printing: Cairo: al-Bb al-alab, 1371/1952. Three

volumes. Dr al-Kutub al-Miryah bound and printed books: b25227.Only volume three was available for examination. The other twovolumes were reported lost. Although not a manuscript, this printedvolume is unknown outside of Egypt, and may have received littledistribution outside of the Religious Institute of al-Azhar, for which it

was used in the fourth year of the beginning section. The contentsinclude a complete text of theMukhtaar printed at the top of the page,

with footnotes at the bottom. Comments are limited to short remarks.

Most of these remarks are explanations of unusual phrases but alsoinclude: linguistic explanations, authorizing commentary referring tothe Qurn or Sunnah, extra-textual conditions, and ikhtilffound intheMukhtaar. Comparable to this is the Taysr al-Qudr f al-fiqh al-

anafof Muammad Muaf aba and Rajab al-yad (Cairo: al-Azhar, 1402).

These ten commentaries exhibit several distinct types of com-

mentarial activity, all of which can be related to pedagogical settings.31

They are valuable for the insight they provide on the interpretation,reception and teaching of theMukhtaar in anaf scholarship. In sofar as theMukhtaar continued to be used as a central authoritativetext in anaf pedagogical contexts, these commentaries may be seenas a window onto the way in which anaf students learned theprecedents and interpretive strategies to be used later in their scholarship.The most salient feature of these commentaries is their focus on anafikhtilf. It is noteworthy that the commentaries do not downplay theikhtilfbut highlight and exacerbate the differences of opinion. This isat odds with the conclusions of some scholars of Islamic law who haveargued that, as the schools developed, the distinctions between andamong them disappeared, and the use of independent reasoning and

31 In addition to these separate commentaries, I was also able to consult

numerous manuscripts of the Mukhtaar, many of which had marginal com-ments. These marginalia also attest to the way in which the Mukhtaar wasinterpreted. From the holdings of the Dr al-Kutub al-Miryah, the followingmanuscripts of theMukhtaarwere consulted: Fiqh anaf: 365, 366, 367, 601,633, 705, 706, 1151, 1215, 1216, 1319, 1363, 1510 1545, 1671, 1785, 1901; b:21701, 24686, 32522; Fiqh Taymur: 39, 376; Fiqh anaf Khall Agha: 52; Fiqhanaf alat: 389, 400, 401, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531,532, 533, 534, 639, 769, 770, 798, 1106; Fiqh anaf Qf: 127, 128, 129, 130,131, 132; Fiqh anaf Mm: 118.


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divergence of opinion also lessened. Historians of anaf fiqh inparticular have argued that, especially with the Ottoman adoption ofanaf fiqh, the school became standardized and the divergence of

opinions was removed.32

Use ofIkhtilfin the Commentaries

The focus of the commentaries on ikhtilf is directly related to theprominence of ikhtilf in the Mukhtaar of al-Qudr. There areapproximately 200 occurrences ofikhtilfcited in theMukhtaar amongAb anfah, Ab Ysuf, Muammad al-Shaybn, and Zufar. Thefollowing list provides the frequencies and locations of this ikhtilf:

Ab anfah Ab Ysuf and al-Shaybn (83 occurrences),33 Abanfah (36 occurrences),34 Ab anfah and Ab Ysuf al-Shaybn(16 occurrences),35 Ab anfah and al-Shaybn Ab Ysuf (12occurrences),36 Ab Ysuf al-Shaybn (9 occurrences),37 Ab Ysufand al-Shaybn (7 occurrences),38 Ab Ysuf (7 occurrences),39 al-

32 See the critical analysis of this position in some of the articles collected inBaber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the

Muslim Fiqh, Studies in Islamic Law and Society 7 (Leiden: E.J. Brill, 1999), esp.his Legal Literature and the Problem of Change: The Case of the Land Rent,446-464 where he critiques Schacht, Coulson, and Chehata with reference toRudolph Peters, Idjtihdand taqldin 18th and 19th century Islam,Die Weltdes Islams 20 (1980): 131-45 and Wael Hallaq, Was the Gate of Ijtihd Closed?

International Journal of Middle East Studies 16 (1984): 3-41. Also see BernardWeiss, Ul-relatedMadhhab Differences Reflected in midsIkm, in Studies

in Islamic Legal Theory, ed. Bernard Weiss (Leiden: E.J. Brill, 2002), 293-313and Wael Hallaq,Authority, Continuity and Change in Islamic Law (Cambridge:Cambridge University Press, 2001), 86-120. A fuller critique of how thesetheoretical and pedagogical practices mitigated against the formulation of a legalcode, especially in anaf law, is a major desideratum.

33 See al-Qudr, 4, 5, 7, 7, 9, 10, 11, 12, 12, 14, 14-15, 15, 15, 16, 16, 16, 18,20, 21, 21, 22, 26, 28, 29, 31, 34, 34, 35, 39, 40, 42, 44, 46, 47, 47, 47-48, 54, 55,55, 56, 56, 57, 58, 60, 63, 65, 65, 66, 67, 67, 67, 69, 73, 83, 86, 86, 86, 90, 92, 97,101, 104, 105, 106, 107, 108, 108, 109, 109, 111, 111, 113, 114, 114, 116, 117,

117, 121, 123, 123, 124, 126, 127. Duplicate page numbers indicate multiplereferences on the same pages.34 See al-Qudr, 27, 27, 30, 30, 33, 36, 42, 42, 44, 44, 47, 55, 56, 62, 67, 69,

70, 70, 72, 73, 76, 79, 79, 80, 85, 89, 89, 94, 104, 104, 105, 118, 121, 123, 123,123.

35 See al-Qudr, 15, 15, 29, 30, 37, 37, 44, 62, 68, 70, 71, 73, 74, 77, 108.36 See al-Qudr, 4, 5, 9, 20, 23, 56, 59, 60, 61, 61, 72, 81.37 See al-Qudr, 21, 22, 50, 55, 61, 61, 65, 106-107, 119.38 See al-Qudr, 20, 21, 22, 28, 38, 43, 81.39

See al-Qudr, 22, 45, 61, 61, 88, 98, 108.
http://www.ingentaconnect.com/content/external-references?article=/0043-2539^281980^2920L.131[aid=2751029]http://www.ingentaconnect.com/content/external-references?article=/0043-2539^281980^2920L.131[aid=2751029]


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Shaybn (6 occurrences),40 Ab anfah Ab Ysuf al-Shaybn (6occurrences),41 Ab anfah and al-Shaybn (5 occurrences),42 Abanfah Ab Ysuf (3 occurrences),43 Ab anfah and Ab Ysufand al-Shaybn Zufar (2 occurrences),44 Ab anfah and Ab Ysuf

(1 occurrence),45

Ab anfah al-Shaybn (1 occurrence),46

Abanfah and Ab Ysuf al-Shaybn and Zufar (1 occurrence).47

The commentaries often adduce additional ikhtilfamong these anafauthorities, and also between anaf authorities and figures associated

with other schools, such as Ibn Ab Layl, al-Shfi, and Mlik. Thisadduction serves to exacerbate rather than resolve the ikhtilfmentionedin theMukhtaar.

TheTa

of Ibn Qulbugh, one of the longest of the unpublishedcommentaries, exemplifies the compounding ofikhtilf. Ibn Qulbughlists five different opinions on the issue of whether it is necessary toreperform wu and wash a cloth when it is affected by a small amountof najsah. 48 The comments come on a single line found in the

Mukhtaarwhich does not contain an indication ofikhtilf.

Whoever comes into contact with a gross physical impurity [najsah]like blood, feces, urine, and wine, as small as or smaller than a dirhem-

sized spot, prayer is permitted with it. If it exceeds the size of a dirhem,prayer is not permitted.49

Ibn Qulbugh first cites the opinion of al-ad in theJawharah,according to which if the small-sized spot ofnajsah is dry and leavesno trace then it is not considered polluting. Second, Ibn Qulbughreports al-Zhids opinion in the Mujtab,which holds that theallowance is only made when the najsah is the size of a dirhem or

less. This is contrasted with the opinion reported by al-Marghnn intheHidyah, by Ab Jafar al-Hind, and in the Yanb of al-Shibl,that the najsah can be up to the size of the palm of the hand. Ibn

40 See al-Qudr, 68, 78, 82, 84, 103.41 See al-Qudr, 36-37, 39, 48, 61, 61, 93.42 See al-Qudr, 27, 41, 43, 50, 123.43 See al-Qudr, 24, 68, 115.44

See al-Qudr, 2, 56. On the first reference, also see the text in al-Qudr, al-Mukhtaar al-Qudr(Multn, 1980), 2-3 and al-Qudr, Qudr arab frisafghn(Baluchistn, n.d.), 3.

45 See al-Qudr, 91.46 See al-Qudr, 49.47 See al-Qudr, 6.48 For this section, see Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh

anaf 801, 6b-7a.49 al-Qudr, 5.


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Qulbugh concludes with Only God knows [Allhu alam] and givesa further instance ofikhtilfbetween Ab anfah and Ab Ysuf, onthe one hand, who argue that if the area is larger than a dirhem or palm

then it must be wiped, and Muammad al-Shaybn, on the other, whosays that it must be washed with water.Another example of the emphasis upon ikhtilfcomes from the

Khulah of usm al-Dn b. Makk.50 He reports ikhtilfbetween theanafs, on the one hand, and the Mliks and Shfis, on the other.The anafs hold that a little najsah, when it is ones own bodily

waste, does not invalidate wu. He proceeds to give a catalogue ofthe types ofnajsah that qualify for this category, based on the text oftheMukhtaar: blood, urine, feces, and wine, all of which are allowedup to the size of a dirhem. usm al-Dn then adduces a contradictoryopinion regarding blood: According to Ab anfah, if the najsah isblood of any amount which dries in the sun and loses its color, then itloses its character as najsah. Ab Ysuf states that if the spot of bloodis mixed with thick najsah, then it retains its character as najsah.Muammad al-Shaybn holds that any najsah bigger than a dirhem

must be washed with water regardless of whether it is dried blood ornot. And Zufar is reported to have said thatnajsah of dirhem size isalways non-polluting, regardless of the type ofnajsah, blood orotherwise, and that this is the opinion of Mlik and al-Shfi.

Several commentaries also emphasize the ikhtilfsurrounding thediscussion of the timing of theMaghrib and Ish prayers, which isrelated to the length of the shadows and the red and the white of the

sky. The passage taken from theMukhtaar comes at the beginning ofal-Qudrs discussion ofalt.

The earliest time [to perform] the sunset [maghrib] prayer is when thesun sets. The latest time [to perform] it is as long as the twilight dusk hasnot disappeared. The twilight dusk is the white which is in the horizonafter the red, according to Ab anfah. Ab Ysuf and Muammad sayit is the red. The earliest time [to perform] the evening [ish] prayer iswhen the twilight dusk disappears. The latest time [to perform] it is as

long as the dawn has not broken.51

Ibn Qulbugh mentions a number of conflicting adth reportssupporting the opinions of both Ab anfah, and Ab Ysuf andMuammad al-Shaybn.52 On the one hand, Ab Bakr, Mudh b. Jabal,

50 See usm al-Dn,Khulat al-dalil fi tanq al-masil, Fiqh anaf 651.51 al-Qudr, 10.52

See Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 8a-b.


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and ishah all report that the twilight dusk is the white which is inthe horizon after the red, as Ab anfah holds.53 This is also reportedon the authority of Ab Hurayrah in the a of al-Tirmidh.54 On the

other hand, Abd al-Razzq reports, on the authority of Ab Hurayrah,on the authority of Umar b. Abd al-Azz, that the twilight dusk is thered which is in the horizon, as Ab Ysuf and Muammad al-Shaybnhold.55 The red is also reported by Ibn Umar and others, accordingto Ibn Qulbugh, though he adds that the white is established usingqiys on the authority of the Companions.56

Ibn Qulbugh reports additional ikhtilfover the requirement ofZakt for horses, as stated in theMukhtaar.57In addition to the general

requirement of Zakt for horses, al-Qudr adds the opinion of AbYsuf and Muammad al-Shaybn specifying that Zakt is due onlyin the case of horses used for commercial purposes.

Ab Ysuf and Muammad say there is no Zakt for horses nor foranything such as mules or donkeys unless they are for commerce.According to Ab Ysuf and Muammad there is no almsgiving forsuckling camels, lambs still carried by their mother, or calves under a

year old, unless older ones are with them.58

According to Ibn Qulbugh, Qakhn and al-a cite the opinionof Ab Ysuf and Muammad al-Shaybn that no Zakt is requiredfor horses, and generalize this to mean that horses are subject to Zaktonly in so far as they, like donkeys and mules, fall under the categoryof commercial items. In theMabs of al-Sarakhs, the Yanb of al-

53 For these and related reports, see al-kim al-Nsbr, al-Mustadrak alal-aayn, ed. Muaf Abd al-Qdir A (Beirut: Dr al-Kutub al-Ilmyah,1990), 300-12. Also see the discussion in Ibn al-Humm, Shar fat al-qadr(Beirut: Dr al-Fikr, n.d.), 1:222-23.

54 For this report, see al-Tirmidh, al-Jmi al-a (Beirut: Iy al-Turthal-Arab, n.d.), 1:283-85.

55 For this report, see Abd al-Razzq, Muannaf, ed. abb al-Ramn al-Aam (Beirut, 1970-1971), 12-15. Also see the discussion in Ibn al-Humm,Shar fat al-qadr, 1:223. Ibn al-Humm also cites al-Awz, al-Muzan, and

Ibn al-Mundhir as holding this opinion, on the basis of the report given on theauthority of Umar b. Abd al-Azz.56 For the adth given on the authority of Ibn Umar, see Mlik b. Anas,

Muwa, ed. Muammad Fud Abd al-Bq (Beirut: Dr al-Kutub al-Ilmyah,n.d.), 1:6-7. Also see the discussion of these adth reports in al-Bbart, Shar al-inyah al al-Hidyah, 1:221-22.

57 For the discussion of these opinions, see Ibn Qulbugh, Ta Mukhtaaral-Qudr, Fiqh anaf 801, 17b.

58 al-Qudr, 25.


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Shibl, theKanz al-daqiq of al-Nasaf, and theKhulah of usmal-Dn, however, it is the opinion of Ab anfah, i.e., that Zakt isrequired for horses, that is taken to set the general precedent.59 Ibn

Qulbugh further reports that the opinion of Ab anfah is preferredfor legal decisions, and he follows this with a lengthy commentary onthe relevant passage in al-Nasaf. A similar overview of the ikhtilfconcerning Zakt for horses is found in the al-Minan of al-Zaghwn,

where al-aw is cited as reporting conflicting opinions and severaldifferent, diametrically opposed evaluations of the opinions of theanaf authorities are given.60

In many cases, the commentaries use ikhtilfto disclose, from theopinions listed in the Mukhtaar, some of the epistemological andmethodological considerations often associated with ul al-fiqhscholarship. Of all the commentaries, that of Ab Nar al-Aqa, written

within 50 years of al-Qudrs death, exemplifies the outright citationof authoritative sources. In the treatment of the section on Hibah intheMukhtaar, for example, Ab Nar al-Aqa refers to a number ofauthoritative sources.

The basis [al] for permittingHibah is the word of God and the adth ofthe Prophet. al-Qudr says there is no Hibah without an offer andacceptance because it is a contract. Mlik saysHibah is allowed withoutan acceptance based on a adth of the Prophet. This is in contradictionwith the Qurn and otheradth transmitted on the authority of AbBakr and ishah.61

Ab Nar al-Aqa discusses how the specific anaf definition ofHibah

is derived using qiys and istisn. He cites the opinions given in theMukhtaar to demonstrate the authoritative sources of anaffiqh. Healso indicates the anaf use of the sources in comparison with theinterpretations of othermadhhib. In other cases where there is no basisin the Qurn, such as the section on Waqf and Hermaphrodite[khunth], Ab Nar al-Aqa cites and evaluates numerous adthreports. He also explains the bases [ul] for divergent opinions among

the anafs (including Zufar) and the opinions of others such as IbnAb Layl, Mlik, and al-Shfi.62 Along these same lines, the copy of

59 For these passages, see al-Sarakhs,Kitb al-mabs (Beirut: Dr al-Marifah,1993), 2:186-188; al-Nasaf,Kanz al-daqiq (Multan: Maktabah Amddyah,n.d.), 58-59. A similar discussion can be found in al-Maydn,Lubb f shar al-kitb, 1:143-45.

60 See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 154a.61 Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 59b.62

For another example of discussing the relative value of the ul, see the


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the al-Lubb from the al-Maktabah al-Waanyah includes a specialsection devoted to defining istisn and its use in the opinionsrepresented in theMukhtaar.63

Other commentaries, such as theKhulah of usm al-Dn, alsouse the ikhtilfof the anaf authorities to underline and illustrate certainsources and types of reasoning. For example, usm al-Dn cites thepractice of the Companions as precedent forikhtilfover the wiping ofdried najsah. In the al-Minan of al-Zaghwn, additional adth reportsare cited to support certain positions, such as the type of water to beused for purification or the minimum dry measure [] of produce

which requires a tithe.64 Also, the reason for the ikhtilfbetween the

anafs and other schools is explained in terms of using differentauthoritative sources, such as in the discussion of ri found in theal-Lubb of al-Yazd or the Shar mushkilt al-Qudrof Khwhar-zdeh.65 In another context, al-Zaghwn provides biographical detailsabout al-Mughrah b. Shubah (d. 50/671), whom al-Qudr cites assupport for the wiping of the forelock in wu.66 Ibn Qulbugh alsocites by name and isndthe adth basis for certain anaf positions,

and he commonly refers to textual criticism and specific collections ofadth reports.67

Some commentaries do not identify the authoritative sources directlybut make evident the basic principle or source [al] underlying theikhtilfthrough the multiplication of examples that illustrate the ul.For example, several of the commentaries discuss the ikhtilfsur-rounding the issue of al-Qudrs statement that vomit filling the mouth

discussion of Qurn versus qiys in Jaml al-Dn Muammad al-anaf, al-Irshd:majmah fiqh madhhab al-Imm Ab anfah. Abdalyah library, 1454/8872number, 95a. Although not strictly a commentary on the Mukhtaar, the extantversion of this text (only through the section on alt) closely parallels the textof al-Qudr.

63 See al-Yazd, al-Lubb, al-Maktabah al-Waanyah, 225b. The four or solines define istisn as when a person does something without knowing the sourceof the precedent because the transmitter has died but it is assumed that the precedentgoes back to the Prophet Muammad.

64

See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 17b, 158b.65 See al-Yazd, al-Lubb, Abdalyah 1616, 215b-216b. A similar discussioncan be found in Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 143. Notethat the discussion in Khwharzdeh, Shar mushkilt al-Qudr, Fiqh anaf 21,56b mentions the Qurn as the source for the anaf position but does not mentionthe ikhtilfwith al-Shfi.

66 See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 6b.67 See, for example, Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf

801, 8a-b, 17a, and 18a.


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invalidates wu. The original statement is listed as one of severalconditions that invalidate wu and no ikhtilfis given in theMukh-taar for the opinion.

That which invalidates wu is everything that comes out of the twoapertures, blood, pus, and purulent matter, when it comes out of the bodyand comes into contact with a place attached to the area of purity, vomitif it fills the mouth, and sleep while in a bed, reclining, or leaning againstsomething that if it were moved away from the sleeper he would fall, andthe mind being overcome by unconsciousness, madness, and a guffawduring any prayer in which there is bowing and prostration.68

The commentaries introduce the ikhtilfamong the anaf authorities,

stating that Ab Ysuf argues that vomit comes down from the headwhile Ab anfah and Muammad al-Shaybn say vomit comes upfrom the stomach.69 According to Ibn Qulbugh, if the vomit is con-sidered to have come down from the head, like phlegm (which doesnot invalidate wu), then one might suppose that vomit also does notinvalidate wu.70 By defining the issue in this fashion, Ibn Qulbughprovides a partial explanation for the ikhtilfamong the three authorities.

There is also a discussion in the commentaries about the disagreementover the definition in theMukhtaarof vomit filling the mouthlikethat found in theJmi al-mumart wa al-mushkilt of al-Kdr. Oneinterpretation is that this phrase refers to one single vomiting of mouth-sized volume, but another interpretation is that it refers to reaching thevolume of a mouth-full of vomit over a more extended time period,like the course of a day.71 According to other commentaries, like thatof Khwharzdeh, al-Yazd, and al-Zhid, the ikhtilfis misleading,for the principle behind the statement in theMukhtaar is that the personvomiting is not able to control the vomit, thus making the vomitinganalogous to urination, menstruation and other natural bodily functionsover which a person has no control.72 The issue is not how much vomit

68 al-Qudr, 3.69 This distinction is made in al-Zaghwn, al-Minan al Mukhtaar al-Qudr,

11a.70 See Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 3a-b.71 See al-Kdr,Jmi al-mumart wa al-mushkilt, Fiqh anaf 2829 (421ff).

al-Maydn,Lubb f shar al-kitb, 1:12-13 cites al-Zhid as saying that it is theopinion of Ab Ysuf that filling the mouth can consist of several separate incidentsof vomitting, while Muammad al-Shaybn ties the vomitting to nausea.

72 See Khwharzdeh, Shar mushkil t al-Qudr, Fiqh anaf 21, 44a; al-Yazd,Lubb, Fiqh anaf 1656, 12a-b; al-Zhid, al-Mujtab, Fiqh anaf 287,7589, 14a-15b. Also see the various opinions in Ibn Qulbugh, Ta Mukhtaaral-Qudr, Fiqh anaf 801, 3a-b and al-a,Jawharah al-nayyirah, 1:45.


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but whether or not the person was able to control the vomit from exitinghis body. According to these commentaries, the range of differenceillustrated in the ikhtilfserves to define the parameters of the basic

principle of non-control involved in the adjudication of the action.This type of comment, which makes explicit the underlying principlein the ikhtilf, may also be seen in a variety of other cases. Referring toal-Qudrs definition of the hermaphrodite [khunth], Ab Nar al-Aqa reports that urine is the principle in determining the gender despitethe disagreement among the anaf authorities over this issue.73

When a first-born has a vagina and a penis, then it is a hermaphrodite[khunth ]. If it urinates from the penis, then it is a boy, and if it urinates

from the vagina, then it is a female. If it urinates from both of them andthe urination of one of them precedes the other, the [gender of the]hermaphrodite is ascribed to what precedes. If both of them precedeequally, then there is no taking into account of that which urinates more,according to Ab anfah. Ab Ysuf and Muammad say, the [genderof the] hermaphrodite is ascribed to that which urinates more.74

Several of the other commentaries report that according to Ab anfah,the quantity of urine indicates only that the urinary passage in one of

the two genitals is larger than the other, whereas Ab Ysuf andMuammad maintain that the relative quantity of urine indicates theprecedence of one of the two genitals over the other.75

A similar case is made of the ikhtilfover how to slaughter animals.Ab anfah says that the two jugulars, larynx and esophagus, mustbe cut while Ab Ysuf and Muammad al-Shaybn say that onlyone of the two jugulars must be cut.

Slaughtering [dhab] is performed on the throat [alq] and the neck[labbah]. The veins which are cut in the slaughter are four: the alqm,the mar, and the two jugular veins. When the slaughterer cuts these fourthings, the eating of the [meat of the] animal is permitted. If he cuts morethan these four, it is likewise the case [that the eating is permitted],according to Ab anfah. Ab Ysuf and Muammad say that the cuttingof the alqm, the mar, and one of the two jugular veins is neces-sary.76

73 See Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 111b. The samepoint is made by al-Maydn,Lubb f shar al-kitb, 2:212, citing theHidyah,al-Mabb, al-Nasaf, and adr al-Sharah.

74 al-Qudr, 54.75 See, for example, Khwharzdeh, Shar mushkilt al-Qudr, 54a and the

discussion in al-a,Jawharah al-nayyirah, 2:15.76 al-Qudr, 75.


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Despite the apparent disagreement, the commentaries specify that theprinciple here is the same, namely that the animal must be killed byspilling its blood, and cutting one jugular will accomplish the same as

cutting two.77

In some cases the principle is not made explicit by the commentaries,but instead the interpretive reasoning used by the different authoritiesis disclosed through their conflict of opinions. Consider the discussionon the status of the Witr prayer. Although theMukhtaar does not men-tion the ikhtilfhere, several of the commentaries state that Abanfahs opinion is at odds with that of Ab Ysuf and Muammadal-Shaybn over whether it is allowed to combine the Witr prayer withthe Ish prayer. The passage from theMukhtaar mentions the timingof the prayers.

The earliest time [to perform] the Ish prayer is when the twilight duskdisappears. The latest time [to perform] it is as long as the dawn has notbroken. The earliest time [to perform] the Witr prayer is after the eveningprayer. The latest time [to perform] it is as long as the dawn has notbroken.78

Several of the commentaries explain that the statement in theMukhtaarabout allowing the Witr prayer to begin immediately after the Ishprayer is the opinion only of Ab anfah.79 The ikhtilfis explainedas being due to Ab anfahs considering the Witr prayer to be required[wjib] whereas Ab Ysuf and Muammad al-Shaybn consider itto be a sunnah muakkidah. In the al-Sirj al-wahhj, it is explainedthat when the Witr prayer is considered required, it is allowed, according

to Ab anfahs opinion, to be performed along with the Ish prayer,like performing the prayer of that time along with a make-up prayer.When the Witr is considered sunnah muakkidah, according to theopinion of Ab Ysuf and Muammad al-Shaybn, it is performedafter the evening prayer as two sets of bowings and prostrations.80

Another example of this indirect disclosure of the principle throughthe ikhtilfis found in the citation and interpretation of Q 9:60 in the

77 For these comments, see al-Lubb, Abdalyah 1616, 43a. Also see thediscussion of slaughtering in Ibn al-Humm, Shar fat al-qadr and al-Bbart,al-Inyah al al-Hidyah, 9:484-98 and in Ibn bidn,Hshiyat radd al-mutral al-durr al-mukhtr (Beirut: Dr al-Fikr, 1992), 6:293-310.

78 al-Qudr, 11.79 See the discussion of the various positions in al-Maydn, al-Lubb f shar

al-kitb, 1:57.80 See al-Sirj al-wahhj, Dr al-Kutub al-Miryah, Fiqh anaf 216, 82b-

83a.


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discussion in the Mukhtaar of things that are permitted and notpermitted in the giving of Zakt.

God the exalted said: Alms are only for the poor and the destitute...[the

worker, those whose hearts are reconciled, slaves, debtors, those in theway of God, and the wayfarerit is an obligatory duty from God. God isKnowing and Just] [Q 9:60]. From these eight types [the category of]those whose hearts are reconciled is dropped, because God the exaltedempowered Islam and did not require them.

The commentaries provide differing interpretations of the phrase fsabl Allh in this verse though the principle said to be illustrated inthis verse is agreed upon by all of the authorities as referring to soldiers,

travellers, or scholars. Other commentators remark that the reason fordeleting those whose hearts are reconciled from the obligation ofreceiving Zakt is consensus [ijm].81

Conclusions: Authority and Identity

By and large, the commentaries, within the pedagogical settings in

which they were produced and used, seemed to have functioned toprovide props for individual [shaykh] and institutional [madhhab]authority. The actual physical settings in which these texts were usedis not always apparent from the texts themselves. Others scholars havereconstructed, from abaqt works, the cultural and social milieux in

which the transmission, display, and storage of texts allowed for theconstruction of authority structures.82 Some recovery of such settings

can also be gleaned from the physical character of the texts themselves,but a fuller picture of the relationship between teacher and studentsremains to be investigated.83 What these manuscript commentaries do

81 An analogous case can be found in al-Zaghwn, al-Minan, 257a where it isexplained that the ruling that bad breath is a defect in a slave girl is based upon theprinciple that the slave girl is to be used for singing. A similar example is found ina comment on the opinion of Ab anfah that a woman with braids must wash

her hair to its roots, adding that according to Muammad al-Shaybn a womanmust wash her fingernails more carefully than a man, pointing to the principlethat womens bodies require extra washing forahrah. See al-anaf, al-Irshd,20a.

82 See, for example, the analysis ofabaqt works in Chamberlain,Knowledgeand Social Practice in Medieval Damascus, 1190-1350, and the related work ofLouise Marlow,Hierarchy and Egalitarianism in Islamic Thought, CambridgeStudies in Islamic Civilization (Cambridge: Cambridge University Press, 1997).

83 See, for example, the analysis of texts in Brinkley Messick, The Calligraphic


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disclose, however, is part of the interpretive context of anaf scholar-ship, and how authority is generated through the use of commentary.

At times this authority takes the form of simple explanations of the

Mukhtaar,using phrases like because of... [li-anna dhlik] orstraightforward definitions such as it is ... such and such [huwa kadhwa kadh...]. Other times the commentaries provide linguistic explana-tions of unusual or key terms, and sometimes the commentaries criticizethe received text of theMukhtaar by making reference to manuscriptvariants. The citations of authoritative sources, which also includesciting the ul, criticism ofadth, references to particularadthcollections, and cataloguing of earlier scholarship on a given issue,allows the commentaries to establish their necessary critical rle vis--vis the text upon which they comment. Many of the commentariespurposefully build links among themselves, and between themselvesand theMukhtaar and other authoritative anaf texts.84 The applica-tion of otherfur and ul works to theMukhtaar by the commentariesis often made explicit. Ibn Qulbugh and al-Maydn each cite morethan 30 different anaf texts and authorities in their interpretation of

theMukhtaar.As texts in the margins of theMukhtaar, all of these various types

of comments allow the teacher (who has access to the commentary) todemonstrate his authority and knowledge of anaffiqh and its bases.In this sense, the commentaries might be seen to resemble a teachersmanual (with the answers in the back, for example), allowing theteacher to establish his authority vis--vis the text and vice-versa. The

recentShihb f ta al-kitb is a particularly good, modern exampleof this pedagogical approach to commentary use. It provides, in afootnote type format, simple references for use by instructors in theteaching of theMukhtaar. This form of commentary results, in part,in delineation of the content and outline of a Hanafi madhhab: thehistory of the madhhab, the positions of earlier scholars, the relation oflater scholarship to the opinions of the early authorities, and the relation

of the early authorities to the authoritative sources.Commentaries like that of Ibn Qulbugh provide a full spectrum

State: Textual Domination and History in a Muslim Society, Comparative Studieson Muslim Societies (Berkeley: University of California Press, 1993), esp. 231-50.

84 On the relationship among these texts, see the beginnings of critical analysisin Abd al-akm al-Afghn,Kashf al-aqiq shar kanz al-daqiq (Cairo: al-Mabaat al-Adabyah, 1318).


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of anaf authorities. But the mere act of interpretation and teachingwith anaf examples is a de facto definition, relative to the teacherand students, of anaffiqh. Other commentaries, like that of Ab

Nar al-Aqa, demonstrate how theMukhtaar epitomizes the properuse of authoritative sources and reasoning. By explaining the ikhtilf,the commentaries use theMukhtaar to exemplify anaf jurisprudence.They display how to reason like a anaf. They illustrate how thediffering opinions can be seen to represent conflicting but equallyauthoritative or anaf examples of inducing principles [tall] fromthe canonical sources [ul]. The commentaries teach by example,showing how the ikhtilfof Ab anfah, Ab Ysuf, and Muammad

al-Shaybn epitomize the anaf epistemology and methodologyof reasoning. Authority generated by the commentaries is equivalentto identity: what gives the opinions authority is that they are identifiedas being consistent with and belonging to a particularmadhhab.

The pedagogical focus of the commentaries and their emphasison ikhtilfcan also be seen in other anaf works. On the one hand,the small but important theoretical work of al-Dabs is roughly

contemporary with the work of al-Qudr and also focuses exclusivelyon the ikhtilfamong the anafs, and between the anafs and otherauthorities. In a more systematic fashion, al-Dabs details the episte-mological and methodological reasons for the specific identity of anafopinions vis--vis those of other schools and authorities.85 On the otherhand, roughly contemporary with al-Qudr is the much larger al-

Mabs of al-Sarakhs with its possible but tenuous and underexaminedrelationship to theAl attributed to Muammad al-Shaybn. The morediscursivefur style ofal-Mabs might be compared productively totheMukhtaarof al-Qudr and its treatment by the later commentaries.As well, the use of ikhtilfcan be seen at work within the anafmadhhab, allowing students to discern the epistemology and methodo-logy of anaf scholarship through the conflict of Ab anfah, AbYsuf and al-Shaybns opinions.86

85 This is based on a reading of al-Dabss Tass al-naar, and more solidconclusions might be based upon an examination of three longer but unpublishedworks by al-Dabs: hisKitb al-asrr wa al-taqdm lil-adillah f al-fur, hisKitb al-taliqah f masil al-khilf bayn al-aimmah, and his Taqwm al-adillahf ul al-fiqh. See Sezgin, 1:456 for information on manuscript holdings of thesetexts.

86 This position was argued in my al-Qudr al-Ul, presented at the annualmeeting of the American Oriental Society, Madison, March 1994 and is discussed


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in preliminary terms in myApplying the Canon in Islam: The Authorization andMaintenance of Interpretive Reasoning in anaf Scholarship (Albany: StateUniversity of New York Press, 1996), 132-150. Further work remains to be doneon the manuscripts and unpublished commentaries on the works of al-Dabs and

From the commentaries on the Mukhtaar, it seems that being aanaf is not a matter of imitating earlier opinions, and certainly notthose of a single founder. Nor does the focus on ikhtilfin the com-

mentaries seem to be a matter of resolution, synthesizing, or showingwhich position is most correct. Instead, the commentaries give cluesand indications that to be a anaf means, in part, to be trained infiqhthrough the medium of the anaf canon, which, in large part, includesand consists of these conflicting opinions. Insofar as identity is linkedto authority, the notion of a anaf madhhab is delineated by itsmembers, those who have gained authority and identity (whether inthe texts, in a present pedagogical setting, or in an application of thelaw), who have learned to dofiqh with others acknowledged as anaf.

Identity in the Margins - Unpublished Hanafi Commentaries on the Mukhtasar of Ahmad B. Muhammad...

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