Canonizing al-Furūq: Shihāb al-Dīn al-Qarāfī’s Text on Legal Maxims

Abstract

Anwār al-burūq fī anwāʾ al-furūq (hereafter al-Furūq) by the Mālikī jurist Shihāb al-Dīn al-Qarāfī (d. 684/1285) is one of the most well-known legal texts written in Mamluk Cairo and has become a famous expression of Mālikī jurisprudence. This renown is not particularly surprising given both al-Qarāfī’s personal celebrity within Cairo during his lifetime, where he became the head of the Mālikī legal school and his prolific written corpus. Contemporary scholars have also relied on the text to unlock important findings about the history and development of Islamic law. Yet, there is something amiss with this book. In spite of its title, this work does not deal with furūq (legal distinctions) as normally used in legal discourse: the distinctions between apparently similar substantive laws.¹ Instead, the book deals with the different scope of application of legal maxims—when and how different legal maxims ought to be applied in the making of legal decisions. In other words, the most popular work of furūq seems to fall short of the basic requirements of being a work of furūq.²

To understand this peculiar situation, this article first provides an overview of canons and canonicity as a framework through which to understand the status of al-Qarāfī’s book and the responses to it. It then explains the traditional understanding of books of legal distinctions, including the Mālikī works before al-Qarāfī. A discussion of the pre-modern evidence of discomfort surrounding the generic format of this work follows this explanation. The article then moves towards an analysis of what theory from canon studies elucidates about al-Qarāfī’s book and in particular how we might understand the canonization process in pre-modern Islamic law and the intertwined relationships between legal–literary canons and legal genres and concludes with a brief discussion of the modern resonances of this text.

Before moving forward with a discussion of al-Qarāfī, his Furūq, and its place in the canon, it is important to review the concepts of canon and canonicity to see how these ideas will help us explore al-Qarāfī’s text and the reaction to it. Here, I draw on Jonathan A. C. Brown’s treatment of canons and canonicity, which provides a clear framework for addressing these two issues within the Islamic intellectual tradition.³ He engages productively with the work of Gerald Sheppard in which Sheppard delineates a spectrum along which we can place our understandings of the term canon. At one end of this spectrum, Sheppard places Canon 1—the notion of canon as a measure of truth and falsity—and at the other end, Canon 2—the standardized list or version of authoritative texts.⁴ The spectrum provides a rubric to think about how a particular text demonstrates its canonicity: Where along this spectrum does a given text lie? How much is a text a measure of truth and how much is it actually used as an authoritative text? In the case at hand: How can al-Qarāfī’s Furūq be seen to demonstrate either of these versions of canonicity?

Sheppard’s notion of Canon 1 derives from an ancient Greek meaning of canon (kanón), rule, or measure of truth. In this meaning, a canon is an unassailable truth against which other things are measured. As Stanley Fish writes, this understanding of canons signifies that canonical materials ‘function not to encourage thought, but to stop it’.⁵ Once you have established the truth about something, there is no reason to pursue further inquiry on the topic. Despite their potentially anti-intellectual nature, Fish still sees canons as aspirational. Critics want to create the canon, through inclusion and exclusion, and writers hope to be included within the canon. As Fish explains, a text becomes part of the canon through ‘a considered judgment that this text… is the kind of thing…to which all workers in the enterprise aspire’.⁶ Here, Fish draws our attention to a somewhat paradoxical aspect of canonicity—the tension between popularity and canonicity. He tells us ‘[c]anonicity is not conferred by popularity (which can in fact be disqualifying)’.⁷ Here, Fish leans on this tension between popular and critical approval. A text becomes part of the canon when it is deemed canonical through ‘considered judgment’, not ‘popularity’. At the same time, it is only a certain popularity that allows a text to be subject to such judgment.

Consider, in this light, thirteenth-century Cairo. One could see al-Qarāfī wanting to establish his text as Canon 1—the truth of the Mālikī school’s doctrine on substantive legal maxims. In this interpretation, commentators could be understood as the critics hoping to create a canon. The tension between popular and critical approval is harder to see, however, in the case of al-Qarāfī. The ‘popular’ appeal of an advanced legal text in thirteenth-century Cairo was limited to a subset of people who likely also made up the critics with ‘considered judgment’.

As Fish concerns himself with canon as a measure of truth, he centres on the important role of readers as the determiners of a canon. This is consonant with his larger interest in ‘interpretive communities’, that is communities of readers, as the ultimate arbiters of a text’s meaning.⁸ As Jonathan Brown states, ‘[u]ltimately, canon studies has demonstrated unequivocally that canonization is not the product of an author’s intention, but rather of a community’s reception of texts.’⁹ A study of canonization, then, ought to focus on commentary since commentary brings together many of these considerations. The discussions about a text—how it is accepted, how well it comes to stand as a measure of truth, whether it forms part of a standard list of texts—are central concerns in commentaries and speak directly to the canonicity of a text. Commentaries also provide an insight into the history of canonicity by giving us a diachronic sample of how communities understood, interacted with, and reacted to particular texts.¹⁰

Finally, Moshe Halbertal’s idea of the Principle of Charity is useful in understanding how readers interact with canonical texts—thereby demonstrating which texts count as canonical.¹¹ The Principle of Charity tells us that canonical status is transferred by a generous reading, one that ‘attempt[s] to minimize internal contradictions and reconcile[s] notions of truth established by the text with those evident in the outside world.’¹² The Principle of Charity thus tells us how communities interact with canonical texts and gives us a rough guide for recognizing canonicity. It also leads us to ask how a commentator might harmonize the truth of the text? This theoretical groundwork will inform our discussion of al-Qarāfī’s Kitāb al-Furūq and the Mālikī genre of legal distinctions.

1. PREVIOUS SCHOLARSHIP ON AL-QARĀFĪ AND HIS FURŪQ

Legal distinctions (al-furūq al-fiqhiyya) is a genre of Islamic legal writing in which a scholar compares sets of two seemingly similar fact patterns (masāʾil) that lead to divergent legal rulings (aḥkām) followed by an explanation of how the apparent contradiction between these divergent rulings is not in fact a contradiction. Put differently, in these books, jurists ask: why do two situations that seem the same lead to different outcomes? Why does a certain act nullify a minor ablution but not a major ablution? Legal distinctions treatises are compilations of these comparisons. The texts of legal distinctions books are remarkably consistent in their presentation. They present one fact pattern and state its related legal ruling. They then present a second fact pattern and its related legal ruling. The two legal rulings are at odds. The difference between the legal rulings implicitly asks the question: ‘Why are the legal rulings distinct, given that the fact-patterns seem to be equivalent?’ The author of a text of legal distinctions then answers this implied question.¹³

The evidence for how these books were used is indirect as no source states their purpose explicitly. That said, some inferences can still be drawn as to their purpose, in particular, that these texts were likely used by advanced law students to hone their understanding of legal causation and the precise details of substantive law. The distinctions drawn between substantive laws almost always relate to the proper application of the legal rationale (ʿilla). Thus, these books can serve as a review of these high-level concepts. In addition, the distinctions drawn in these texts are also related to the back-and-forth argumentation of formalized legal disputation. From this, we can surmise that these books were likely used as part of the preparation for such disputations.¹⁴

Shihāb al-Dīn al-Qarāfī’s Furūq is perhaps the most well-known work of legal distinctions ever written. It exists in numerous manuscripts throughout Europe, North Africa, and the Middle East. For reasons that are still somewhat opaque, Anwār al-burūq was a very popular text in the Ottoman Empire, as evidenced by the number of copies of this work in Turkey. According to the catalogue at the Süleymaniye Library in Istanbul, al-Qarāfī’s al-Furūq is the most popular work of distinctions in the collections.¹⁵ This book is also the only Mālikī work of legal distinctions mentioned in Ḥājjī Khalīfa’s bibliographic treatise Kashf al-ẓunūn.¹⁶ The prevalence of this text within the Ottoman Empire signals a kind of function as to the canonicity of this text in this community, a circulation that seems to have taken place in large part among non-Mālikī jurists.

Scholars have disagreed about how to categorize this text. Until recently, most modern scholars have considered this text to be a work of legal distinctions. In a 1926 article, Joseph Schacht included al-Qarāfī’s al-Furūq within a brief bibliography of the furūq genre.¹⁷ Here, Schacht defines the furūq tradition by citing a definition given often in the classical tradition, ‘the criterion consists in the treatment of comparisons wherein the outward findings of the cases are similar, but the legal assessments differ’.¹⁸ This definition centres the comparison of substantive law (furūʿ) and thus reflects the genre of legal distinctions well, even if it does not describe al-Qarāfī’s text.¹⁹ Similarly, Wolfhart Heinrichs includes this work in his own bibliographic article on the furūq genre in a ‘preliminary bibliography’.²⁰ Although this article advances greatly on Schacht’s earlier treatment, Heinrichs includes the same definition, citing Schacht, and continues to include al-Qarāfī’s text as part of the furūq canon. It appears that Heinrichs does this since he is concerned with the way that the genres of furūq, qawāʿid [maxims],²¹ and ashbāh wa naẓāʾir [cognate and similar legal cases] overlap in helping to structure and systematize ‘existing furūʿ law’.²² Heinrichs’s focus on the use of these various genres to construct a better ‘furūʿ law’ overlooks how these genres may operate to create a legal structure separate from (but complementary to) that of furūʿ law.²³

Schacht and Heinrichs are joined in this identification by many of the editors of other works of legal distinctions who include brief bibliographies in their introductions, most notably Muḥammad Abū al-Ajfān and Ḥamza Abū Fāris in their introduction to the Kitāb al-Furūq of Muslim ibn ʿAlī al-Dimashqī (d. fifth/eleventh c.).²⁴ Abū al-Ajfān and Abū Fāris are explicit in having a very broad understanding of furūq, as being distinctions ‘sometimes between two substantive laws (farʿayn), sometimes between two substantive legal maxims, others between lexical phrases or technical terms related to substantive law or legal theory’.²⁵ This broad definition is capacious enough to include al-Qarāfī’s text, but seems to lose focus on the heart of furūq texts. This can be seen in their bibliography, which consists of 24 books, 18 of which are legal distinctions treatises that distinguish between substantive laws.²⁶ ʿUmar ibn Muḥammad ibn ʿAbd Allāh al-Sabīl also includes al-Qarāfī’s al-Furūq in his bibliography of furūq works in his introduction to Īḍāḥ al-dalāʾil fī l-farq bayn al-masāʾil by ʿAbd al-Raḥīm al-Zarīrānī (d. 741/1341).²⁷ Al-Sabīl uses a similar understanding of furūq as do Schacht, Heinrichs, Abū al-Ajfān, and Abū Fāris.²⁸

However, several recent scholars have been troubled by the inclusion of al-Qarāfī’s text in the genre of legal distinctions. The first scholar to voice a clear objection was Yaʿqūb al-Bāḥusayn in his al-Furūq al-fiqhiyya wa-l-uṣūliyya (1998), the first detailed monograph on the topic of legal distinctions.²⁹ In this book, al-Bāḥusayn understands there to be two different genres of legal distinctions, substantive legal distinctions (al-furūq al-fiqhiyya) and legal-theoretical distinctions (al-furūq al-uṣūliyya). Within the genre of substantive legal distinctions, he includes works that compare laws that appear similar but have different outcomes—the same ones discussed by Schacht. He understands these books ultimately to be exercised in the correct use of legal rationales (ʿillas).³⁰ This is equivalent to the genre of legal distinctions as they are normally understood. Having closely studied these texts, al-Bāḥusayn does not include al-Qarāfī’s text here but rather considers it instead a work of ‘al-furūq al-uṣūliyya’.³¹ These works are not concerned with substantive law, but rather with legal theory, as their name suggests. Al-Qarāfī’s Furūq is the only example that al-Bāḥusayn gives in this entire section. More recently, I have made a similar claim in Harmonizing Similarities (2019). There, Saba states that al-Qarāfī’s al-Furūq ‘does not fit neatly into the genre of legal distinctions, but is more similar to a work of legal maxims’.³² I understand the genre as consisting of books containing lists of legal maxims along with explanations of how they should be applied and examples of their application.

Finally, Necmettin Kızılkaya has also written about the generic identity of this work in two publications, İslâm hukukunda farklar (2016) and Legal Maxims in Islamic Law (2021).³³ Although he includes al-Qarāfī’s al-Furūq in his listing of furūq works, he too notes its peculiarities.³⁴ In his recent work, Kızılkaya states that works of furūq can be gathered into three groups: ‘[t]hose that centre on the distinctions between maxims, those that centre on the distinctions between issues of substantive law, and the mixed methods which combines the two’.³⁵ He lists al-Qarāfī’s work within the first group, although he notes that this style of writing ‘was not followed after Qarāfī and did not have an independent development’.³⁶ Instead, he says, these kinds of works were folded into texts of al-ashbāh wa-l-naẓāʾir. It seems strange to include such a work, with no clear precedents and little follow-up within the genre. Through this formulation, it seems as though Kızılkaya wants to include this work while at the same time signal its marginal position within the genre of legal distinctions.

Turning our attention to al-Qarāfī’s text and its generic background, we see a small set of Mālikī texts of legal distinctions before al-Qarāfī. This set consists of four books: Furūq masāʾil mushtabiha fī l-madhhab by Abū al-Qāsim ʿAbd al-Raḥmān ibn ʿAlī ibn al-Kātib (d. 408/1017), al-Jumūʿ wa-l-furūq by al-Qāḍī ʿAbd al-Wahhāb al-Baghdādī (d. 422/1031), al-Nukat wa-l-furūq li-masāʾil al-Mudawwana by ʿAbd al-Ḥaqq ibn Muḥammad al-Ṣiqillī (d. 466/1073–74), and al-Furūq al-fiqhiyya by Muslim ibn ʿAlī al-Dimashqī (d. fifth/eleventh c.).³⁷ Of these four texts, only that by Ibn al-Kātib is lost. The other three are extant and exist in printed editions. ʿAbd al-Ḥaqq al-Ṣiqillī seems to have developed his book separate from that of al-Qāḍī ʿAbd al-Wahhāb, even though they share the formal strictures of the distinctions genre, discussed above. Muslim al-Dimashqī was al-Qāḍī ʿAbd al-Wahhāb’s student and his book is inspired heavily by that of his teacher.³⁸ Of the extant texts, all are easily recognizable as part of a set. Since they adhere to similar formal strictures, they resemble each other and serve as a kind of Canon 2—a set of authoritative texts.³⁹ After al-Qarāfī, the renowned North African Mālikī jurist, Abū al-ʿAbbās Aḥmad al-Wansharīsī (d. 914/1508), wrote a work on legal distinctions ʿIddat al-burūq fī jamʿ mā fī al-madhhab min al-jumūʿ wa-l-furūq.⁴⁰ In this book, al-Wansharīsī follows the strictures set out by Ibn al-Kātib, ʿAbd al-Ḥaqq al-Ṣiqillī, Muslim al-Dimashqī, and al-Qāḍī ʿAbd al-Wahhāb. By al-Qarāfī’s day, distinctions writing had become widespread in all four Sunni legal schools. These texts form a genre with a formulaic structure. This is the tradition that—it seems–al-Qarāfī chose not to engage with—or perhaps the canon that he sidestepped with his explicit focus on legal maxims.

Nevertheless, many scholars have continued to refer to this as a text of legal distinction or argue that this difference between the genres of maxims and distinctions is negligible. For instance, Mariam Sheibani states that, for al-Qarāfī, ‘maxims and distinctions were inextricably linked and functionally constituted a single discourse, making it ineffective to study them separately’.⁴¹ Studying maxims and distinctions together can be a highly productive way of improving our understanding of texts and the movement of legal ideas, as her article demonstrates. That does not mean, however, that a narrower focus on genre is not also productive. Elias G. Saba has made a case for this focus in regard to the distinctions genre, but such a discrepancy was also clear to Mālikī jurists contemporaneous with al-Qarāfī, including Muḥammad ibn Ibrāhīm al-Baqqūrī (d. 707/1307–08), Ibn al-Shāṭṭ (d. 723/1323), and perhaps even to Shihāb al-Dīn al-Qarāfī himself.⁴²

Al-Qarāfī relays his unease with the correspondence between the title of his book and its content in the introduction. ‘The custom of the virtuous is to write a book of distinctions between substantive laws, but this book regards distinctions between legal maxims and a summary discussion of them. It has the equivalent prestige over those books as the prestige of legal theory over substantive law’ (ʿawāʾid al-fuḍalāʾ waḍʿ kutub al-furūq bayn al-furūʿ wa-hādhā fī l-furūq bayn al-qawāʿid wa-talkhīṣihā fa-lah min al-sharaf ʿalā tilka al-kutub sharaf al-uṣūl ʿalā l-furūʿ).⁴³ In this passage, al-Qarāfī is doing several things. First, he makes plain his understanding of the genre of legal distinctions, al-furūq al-fiqhiyya, and signals to the reader his departure from the traditional methods of that genre. Instead of the expected discussion of distinctions between substantive law, he searches for distinctions between legal maxims. He then states that his book is a more refined version of the traditional genre. At once, he recognizes the Mālikī furūq tradition and sets it aside to blaze a better path through the analysis of legal maxims.

As mentioned above, Muḥammad ibn Ibrāhīm al-Baqqūrī noticed the discrepancies within this book. Al-Baqqūrī discusses the composition of al-Qarāfī’s text in his abridgement and revision of the text, Tartīb al-furūq wa-khtiṣāruh.⁴⁴ In this abridgement, one can see something akin to al-Baqqūrī applying the Principle of Charity to al-Qarāfī’s text. He says:

When I studied [Qarāfī’s] al-Furūq…, it became clear to me that al-Qarāfī, may God have mercy on him, was unable to organize it in a reader-friendly fashion because the book was published while he was still composing it and copies were distributed in this [unfinished] state. This stopped him from being able to change the book (aʿjazah dhālika wa-ʿāqah an yughayyirah).⁴⁵

To solve the problem that Baqqūrī sees in al-Qarāfī’s text, he composed his own work, an abridged and reorganized presentation of al-Qarāfī’s work on legal distinctions. The relative lack of organization and clarity is a problem that other Mālikī scholars also see in al-Qarāfī’s work, and therefore build their own works on legal distinctions with reference to al-Qarāfī’s pivotal book. A few decades later, Ibn al-Shāṭṭ puts it more briefly, stating that al-Qarāfī: ‘did not finish verifying the book, nor did he refine its language or order it correctly’ (lā istakmala al-taṣwīb wa-l-tanqīb wa-lā istaʿmala al-tahdhīb wa-l-tartīb).⁴⁶ It is a testimony to al-Qarāfī’s standing within the Mālikī madhhab in the 14th century that these two scholars wrote commentaries on al-Qarāfī’s work that understood the work to be a work in progress.

2. MĀLIKĪ TRADITION OF LEGAL DISTINCTIONS

As discussed, there did exist a tradition of Mālikī distinction writing prior to al-Qarāfī. An example will help us better understand the tradition which al-Qarāfī sidesteps: consider the following, a distinction from the al-Furūq al-fiqhiyya of al-Qāḍī ʿAbd al-Wahhāb al-Baghdādī (d 422/1031) which is exemplary of the genre:

Mālik held that the option to rescind a contract (al-khiyār) is not valid in a marriage contract. It is, however, valid in a sales contract. Both of these are contracts of exchange (muʿāwaḍa).

The distinction between them is that a contract of sale is rooted in mutual exaggeration and deceit (al-mukāyasa wa-l-mughābana). [Mālik] stipulated (jaʿala) the option of recission here so that deceit will not be introduced by either of the two parties. A marriage contract, however, is rooted in union and companionship (al-waṣla wa-l-ulfa). The option to rescind the contract is, therefore, not needed here. In addition, the option to rescind is stipulated in a sales contract in order that [the buyer] may examine the sold good closely (li-yakhtabira l-mabīʿ). This understanding (al-maʿnā) is not present in a marriage contract. Due to all of this, they differ. God knows best.⁴⁷

In this passage, al-Qāḍī ʿAbd al-Wahhāb explains the option to rescind a contract for two distinct kinds of contacts: those of sales and those of marriage. Although the contacts are for quite different kinds of exchange, they are in fact variations of one model. To put it more precisely, the marriage contract is modelled on the sales contract and exists as a modified version of the latter.⁴⁸ Given this relationship, it would stand to reason that they ought to work the same way. Reason, however, can only take one so far. Only in a sales contract can one stipulate a rescission clause. This kind of comparison characterizes the legal distinctions tradition and is explicitly the canon that al-Qarāfī ignored in his Furūq.

3. THE CONTENTS OF AL-QARĀFĪ’S TEXT

Given that there is something different about al-Qarāfī’s text, it is worth examining its contents. Perhaps in contrast with the impression given by the commentaries, al-Qarāfī’s text is relatively organized and consists of 274 numbered distinctions. The distinctions vary greatly in terms of length, with some taking up many pages in the printed edition and others only a few lines. In general, al-Qarāfī creates three kinds of distinctions: (i) between technical legal terms, (ii) between conceptual legal maxims (qawāʿid uṣūliyya), and (iii) between substantive legal maxims (qawāʿid fiqhiyya). There are no distinctions between rulings given in apparently similar cases. This section gives a few examples of the distinctions found in al-Qarāfī’s book to emphasize how much they differ from the distinctions in works of the legal distinctions genre.

After the introduction, he starts the book with ‘The First Distinction: Between Testimony (shahāda) and Report (riwāya).’⁴⁹ This distinction is one of the longest in the text and through this discussion, al-Qarāfī teases out the differences between these two concepts and how these differences relate to proper legal methodology. In addition, he also provides a history of how these terms have been used and why jurists are so confused about how to understand them properly. His comparison begins with a brief anecdote: ‘I start with this distinction between these two maxims (qāʿidatayn) because I spent around eight years searching for it and was unable to find it. I even asked eminent scholars (al-fuḍalāʾ) about the distinction between the two and how to verify the essence (māhiyya) of each one.’⁵⁰ The problem, as al-Qarāfī tells us, is that the apparent difference here—testimony as used in court and an eyewitness report pertaining to a legal ruling are different things—is obvious, but defining the actual difference between the two concepts—the root cause that makes one different from the other—is complex.

Al-Qarāfī is unable to understand the difference between these concepts and other scholars are of no help. Presumably, this is because they do not understand it any better than he does. Al-Qarāfī continues:

Indeed, each one of the two is an assertion (khabar). Thus, they say, ‘The difference between the two is that, in contrast to a report, testimony requires the following: number, maleness (al-dhukūriyya), and freedom (al-ḥurriyya). A report is valid from just one person, even a woman or a slave.’

I said to them, however, ‘Such a requirement is only a secondary consideration of how testimony should be understood (ishtirāṭ dhālika fīhā farʿ taṣawwurihā) and it only serves to distinguish testimony from a report. Even if you could recognize the rules (aḥkām) and traditions (āthār) related to testimony—these are only known retroactively after the fact [that testimony is needed has been established] (fa-law ʿarafta bi-aḥkāmihā wa-āthārihā allati lā tuʿrafu illā baʿd maʿrifatihā lazima al-dawr).⁵¹ Indeed, if a case without any clear scriptural precedent (ghayr manṣūṣa) came before us, how could we know whether the case at hand requires testimony? Could we know this without a text that explicitly stipulates this? Perhaps it is actually the kind of report (fa-laʿalla min bāb al-riwāya) that is not stipulated [directly by a text] but necessity makes us distinguish between the two (al-ḍarūra dāʿiya li-tamyīzihimā). Similarly, let us consider the disagreement in affirming (ithbāt) the month of Ramadan: Is it sufficient for there to be one witness (shāhid) or do you need two witnesses? In their books, the jurists say, “The point of contention (manshaʾ al-khilāf) there is whether this is a kind of report (min bāb al-riwāya) or a kind of testimony (min bāb al-shahāda).”’⁵²

In this long passage, al-Qarāfī discusses what he sees as the main issue here in disambiguating a testimony from a report. Testimony is more conclusive than a report. Given its higher evidentiary weight, jurists say that the requirements for testimony are more stringent than the requirements for a report. Al-Qarāfī, however, sees this as a weak distinction because it only applies retroactively. The distinction made between a testimony and a report only concerns the requirements for each to be admissible. In other words, the distinction takes for granted that a report is something different from a testimony. It does not, however, discuss why one case required testimony and another a report. Given that a particular case requires testimony, we know it is different from one that requires a report. He says, however, that according to this definition, a jurist can only know whether a particular law demands evidence as testimony or as report based on an explicit textual marker. In the absence of one, there are no guiding principles that help jurists know they would need one rather than the other. Therefore, they do not really understand what makes testimony and report different in and of themselves. He gives the start of Ramadan as an example. Jurists disagree about whether the lunar sighting that officially begins Ramadan is a kind of testimony or a kind of report and thus disagree about the requirements for this lunar sighting. It seems clear then that this kind of distinction is inadequate to distinguish between these two terms.

Because of uncertainty resulting from this distinction, al-Qarāfī says:

I remained, therefore, quite anxious, yearning to understand this distinction (lam azil kadhālika kathīr al-qalaq wa-l-tashawwuf ilā maʿrifat dhālika), until I read Sharḥ al-Burhān by al-Māzarī⁵³… He says, ‘Testimony and report are both assertions. If the thing asserted is an unrestricted issue (amran ʿāmman) that is, it is not restricted by a particular characteristic, then it is a report. An example of this is the Prophet’s statement, “Verily, acts are nothing but their intentions (innamā al-aʿmāl bi-l-niyyāt).” The right of pre-emption (al-shufaʿa) in regard to that which is indivisible (lā yaqsamu) does not specify a particular person, but rather that [applies] to all creation in all times and cities, as opposed to the statement of a just witness (al-ʿadl) in front of a judge (al-ḥākim), “A is holding B’s dinar intended for C.” No one else can preempt C in this situation (li-hādhā ʿinda hādhā dīnār li-muʿayyan lā yataʿaddāhu ilā ghayrih). That is the essence of testimony (shahada maḥḍa). The first statement is the essence of report (al-riwāya al-maḥḍa).’ ⁵⁴

In other words, al-Qarāfī found a satisfactory distinction between testimony and report in the writings of the Sicilian jurist Muḥammad ibn ʿAlī al-Māzarī. The difference between them is that a report is necessary when dealing with an issue that is unrestricted—a legal matter not constrained by a particular prooftext from the Quran or Hadith that applies in most circumstances. Restricted legal issues, on the other hand, apply only in particular circumstances, as determined by a scriptural prooftext. Testimony, rather than a report, is necessary when dealing with restricted legal issues. The difference seems to hinge on the idea that an unrestricted issue is more general and the lower evidentiary burden of a report would suffice, whereas the more complex nature of a restricted issue necessitates testimony. Al-Qarāfī goes on to explain how from this essential version of each, aberrations (shawāʾib) have entered into the understanding of each concept, which then leads to the muddled definitions with which he began his discussion. Al-Qarāfī elaborates here at length clarifying the distinctions between these two concepts and the changing ways that jurists have understood them since the time of the Prophet.

As is clear from this distinction, al-Qarāfī is interested in defining legal terms. At root, this discussion is about legal jargon, its correct understanding, and its proper usage. Because of convenience and common use, jurists use broad definitions for testimony and report. It may be the case that these definitions are sufficient in practice, but al-Qarāfī wants to get to the heart of the matter and see how and why these concepts are different. In this sense, his discussion here is largely theoretical. He asks how these two concepts differ once one peels back the layers of legal habit. Having done so, he continues showing not only how these two concepts can be used in their essential versions, but also how and why the various impurities appear therein. Again, this discussion is ultimately about words and their meanings. This discussion relates, of course, to particular legal cases and matters of substantive law, but unlike in traditional works of legal distinctions, those concerns are secondary.

In another distinction, al-Qarāfī does something similar, making a distinction between two concepts of rights (ḥuqūq): ‘The Twenty Second Distinction: Between the Rights of God, may He be exalted, and the Rights of Humans. God’s claims are His command and His prohibition (ḥaqq Allāh amruh wa-nahyah). The rights of the worshipper are their interests (maṣāliḥ).’⁵⁵ In this case, the distinction is straightforward, perhaps because the distinction is between two specific concepts rather than general terms. From here, al-Qarāfī goes on to specify what he means: ‘Obligations are of three types: God’s rights (ḥaqq Allāh), like faith and forbidding disbelief; rights of worshippers, like debts and prices, and rights that combine the rights of God and rights of worshipper, like the capital punishment (ḥadd) against false accusation of illicit sexual intercourse.’⁵⁶ The legal obligations imposed by Islamic law are all divided into those owed to God and those owed to others, although these categories are not mutually exclusive. The imposed duties which we considered the rights of God are qualitatively different than those considered rights of humans. In the rest of the discussion, al-Qarāfī explains this in detail with a few illustrative examples. As with the previous example, he is interested not in distinguishing between particular applications of substantive law, but rather in distinguishing between two particular legal concepts.

Moving to a third example, al-Qarāfī does not distinguish between lexical items, but instead between two legal maxims. Given that words and maxims are very different, the ensuing discussion is quite different from the preceding examples. That said, the formal features of all three distinctions are quite similar. Once more, al-Qarāfī does not centre rulings based on substantive laws (aḥkām). This discussion focuses on istibrāʾ, establishing evidence of non-pregnancy. This issue arises most commonly when a man purchases an enslaved woman. Before having sexual relations with this woman, the slave owner must establish that the enslaved woman is not pregnant. This process serves to dispel any doubts about the paternity of children to whom she may give birth. If the enslaved woman is already pregnant, the father must be her previous owner, but if the current owner can establish that she is not pregnant, then he can be assumed the father of any future pregnancy.

I provide the discussion in full so that the reader can appreciate al-Qarāfī’s style of reasoning and then explain the distinction:

The One-Hundred Seventy-Seventh Distinction: Between the maxim ‘establishing evidence of non-pregnancy by menstruation can be done with one menstrual cycle (qarʾ)’ and the maxim ‘establishing evidence of non-pregnancy by months cannot be done with one month’.

Given that women usually have only one menstrual cycle [per month], then one month should be sufficient, as is one menstrual cycle. The difference between the two approaches (bābayn) is that one menstrual cycle, ie, menstruation (al-ḥayḍ), is normally indicative of an empty womb. Usually (ghāliban), menstruation and pregnancy do not occur together. Thus, one menstrual cycle indicates an empty womb and lack of pregnancy. Although, for those who menstruate (fī ḥaqq man taḥīḍu), one menstrual cycle may occur in a month, for someone who does not menstruate (fī ḥaqq man lā taḥīḍu) one month is insufficient to prove there is an empty womb. This is because in the womb semen can remain semen for approximately one month and only then does it become an embryo (muḍgha) after having been a blood clot (ʿalaqa). Thus, pregnancy is usually not visible until after three months, when the womb grows (fa-takbiru l-jawf) and the first movements [of the fetus] occur. As for one month, the womb (jawf) of a pregnant woman is equivalent in appearance to that of a non-pregnant woman. Because of this, one month is not considered sufficient, while one menstrual cycle is.⁵⁷

Al-Qarāfī presents two maxims for establishing non-pregnancy. The first maxim has to do with menstrual cycles, while the second with months. The discussion assumes a particular confusion at work: one menstrual cycle lasts one month, but the maxims require either 3 months or one menstrual cycle. If this is indeed the case, then it seems that one maxim allows for a much faster establishment of non-pregnancy than the other. It is quicker to judge by menstrual cycles rather than months, though the two are roughly equivalent. But, al-Qarāfī says, things are not so simple. While it might be usual for a menstrual cycle and a month to be a similar unit of time, the two are actually quite different. In the first maxim, a menstrual cycle is not a way of measuring time. The legally important aspect of the cycle is the menstruation itself, which is what proves the absence of pregnancy. The second maxim, however, does work by measuring time. If a woman is pregnant, she will not menstruate. Pregnancy, however, is only one of the many reasons why a woman may not menstruate. For the purposes of establishing non-pregnancy, the particular reason a woman does not menstruate is irrelevant. The only relevant consideration is the passage of three months because that is enough for a pregnancy to occur and, importantly, for the enslaved woman to show signs of pregnancy. After three months of no evidence of pregnancy, it can be assumed that the woman is not pregnant.

As with the prior examples, even here al-Qarāfī does not discuss apparently similar legal cases with distinct outcomes. One could, of course, rephrase the distinction so that it does not involve legal maxims and rather has to do with the application of substantive law. Al-Qarāfī could have written something like: ‘A man purchases an enslaved woman. She goes through one menstrual cycle. Intercourse with her is licit for him. It would not be licit had only one month passed.’ In this rephrasing, two specific circumstances are being compared, with the reader asking themself the implicit question: ‘Why not? Why are these different?’ Such phrasing would be in line with the larger tradition of Mālikī furūq, but al-Qarāfī instead centres his discussion on legal maxims and comparing them. This change, while seemingly minor, is not only a break with the genre, but also serves to demonstrate that Mālikī law can, in fact, keep up with the times and be expressed through maxims, as was the Shāfiʿī trend at the time.

4. AL-QARĀFĪ IN HISTORICAL CONTEXT

Al-Qarāfī was a major figure in the Mālikī school of Mamluk Cairo, even though he was never officially appointed to a judicial post. As Sherman Jackson notes, ‘during his lifetime […] al-Qarāfī was hailed as one of the greatest scholars of his day’.⁵⁸ Al-Qarāfī became the head (raʾīs) of the Mālikī school in Cairo where he devoted himself to studying and writing about Mālikī law, which was losing favour among the ruling classes.⁵⁹ As Mariam Sheibani explains, the Shāfiʿī madhhab was ascendant in Egypt after Saladin (r. 569–589/1174–1193) and the Ayyubids. The Ayyubids favoured Shāfiʿī jurists for ‘the majority of judicial, ministerial, and ambassadorial appointments’.⁶⁰ Seeing this political reality, many Mālikī jurists were leaving the Mālikī school for the Shāfiʿī school.⁶¹ Yet, in spite of this, al-Qarāfī was able to reinvigorate the Mālikī school and return it to a place of prestige. Students came from North Africa to study with al-Qarāfī and his works became the new standard for Mālikī jurists going forward. Sheibani has shown that the trick to al-Qarāfī’s success was his adoption of ‘scholarly discourses and literatures [developed by the] Shafiʿis’.⁶²

Given these circumstances, it should not surprise us that al-Qarāfī had many Shāfiʿī teachers. From these teachers, al-Qarāfī developed a particular ‘attachment to [the Shāfiʿī scholar Fakhr al-Dīn] al-Rāzī [(d. 606/1209)]’.⁶³ Al-Qarāfī held him in great regard and perhaps saw him as an aspirational figure who blazed a clear and novel path in legal–theoretical writing. Al-Qarāfī wrote a book responding to al-Rāzī’s al-Maḥsūl fī ʿilm uṣūl al-fiqh called Tanqīḥ al-fuṣūl and a commentary on this text Sharḥ tanqīḥ al-fuṣūl. Nevertheless, Sherman Jackson points out that ‘despite his genuine admiration for al-Rāzī, al-Qarāfī was not in the habit of slavishly following the master’.⁶⁴ In other words, al-Qarāfī greatly admired al-Rāzī and displayed this admiration through a critical engagement with al-Rāzī’s renowned legal–theoretical work. In addition, the Shāfiʿī jurist al-ʿIzz ibn ʿAbd al-Salām was ‘al-Qarāfī’s most important teacher’.⁶⁵ Al-ʿIzz ibn ʿAbd al-Salām was a Shāfiʿī scholar with familial connections to North Africa, not unlike al-Qarāfī himself. Ibn ʿAbd al-Salām achieved his prominence in Damascus before being invited to Cairo by the last Ayyubid sultan, al-Ṣāliḥ Ayyūb (d. 647/1249), and Sheibani has demonstrated how al-Qarāfī’s al-Furūq should be understood as a kind of response to and ‘Malikization’ of Ibn ʿAbd al-Salām’s al-Qawāʿid al-kubrā.

As part of this effort, al-Qarāfī’s work is concerned with maxims and general principles rather than minute distinctions between rules of positive law. As discussed above, he appears to use the term furūq in a general way, not as the term had otherwise come to be known in the realm of fiqh. In discussing the contents of his work, he tells us:

I wrote the beginnings of my investigations (mabādiʾ al-mabāḥith) of maxims by discussing distinctions and asking about the distinctions between two substantive laws, or two legal maxims. When there is a question about the distinction between two substantive laws, it is clarified by discussing a maxim, or two maxims between which there is a distinction, and both are sought, by discussing a distinction as a way of resolving both (taḥṣīlihimā). If a question of distinction occurs between two maxims and the goal is to verify both of them (taḥqīqihimā), then their verification by asking for the distinction between them is prior to verifying them through some other means.⁶⁶

This discussion is far removed from the standard presentation of legal distinctions discussed earlier in this article. Al-Qarāfī’s clear engagement with maxims literature and the Mālikī contributions to the genre should be seen as part of his campaign to revitalize the Mālikī school. This means, in part, downplaying the connections with the past and emphasizing the theoretical refinement of Mālikī doctrine.

His simultaneous embrace and rejection of Shāfiʿī legal thought tells us both why he wrote his works and explains his innovative approach to Mālikī law. Indeed, Sheibani argues that ‘much of al-Qarāfī’s intellectual production was prompted by a desire to produce for the Mālikī school intellectual discourses that the Shāfiʿis had pioneered, while resisting appearing overtly influenced by a rival school’.⁶⁷ Al-Qarāfī succeeded in producing this kind of work and al-Furūq was no exception. Jackson notes that ‘this work, perhaps more than anything else al-Qarāfī wrote, reflects the state to which Muslim legal science had evolved up to his time’.⁶⁸ Sheibani, meanwhile, refers to this book as ‘the crowning achievement of his intellectual career’.⁶⁹ With respect to maxims, Sheibani’s statement could be rephrased slightly to say that al-Qarāfī understood contemporary Shāfiʿī scholars as being a kind of canon, conforming here with the idea of Canon 1—an unassailable standard against which truth is measured. Al-Qarāfī understands the great Shāfiʿī works as aspirational and seeks to create a similar set of texts for his own madhhab.⁷⁰

By many measures, it appears that al-Qarāfī succeeded in this undertaking. He was rewarded professionally during his life and has had an enduring legacy as a key Mālikī thinker. Both Sherman Jackson and Mariam Sheibani have disagreed with the judgments of al-Qarāfī’s contemporaries. Jackson expresses surprise at Ibn al-Shāṭṭ’s statements regarding al-Furūq: ‘In fact, it seems at times that Ibn al-Shāṭ‏ṭ’s zeal to upstage al-Qarāfī results in his misunderstanding the latter.’⁷¹ Perhaps out of a sense of professional jealousy, Jackson says, Ibn al-Shāṭṭ is driven to misunderstand al-Qarāfī and his project. Less directly, Sheibani argues that ‘a careful reading reveals that al-Qarāfī loosely groups together related topics and roughly structures the work according to the standard organization of a book of law’.⁷² In other words, she disagrees with al-Baqqūrī in seeing al-Qarāfī’s organization of al-Furūq as problematic. While she is correct in reading organization into this work, we should still take seriously the fact that al-Baqqūrī and Ibn al-Shāṭṭ expressed discomfort with it.

Here, it is worth reflecting briefly on the relevance of genre and the overlap between a sense of genre and generic identity and the concept of a canon as an idealized series of texts against which other texts are compared.⁷³ With both ideas, the standards and expectations of a genre and the canonicity of a particular text are expressed through the ‘considered judgment’ of a community of interpreters.⁷⁴ To quote Jonathan Brown once more, ‘canon studies has demonstrated unequivocally that canonization is not the product of an author’s intention, but rather of a community’s reception of texts’.⁷⁵ We can understand al-Baqqūrī and Ibn al-Shāṭṭ as members of this interpretive community. By writing a commentary on this text, al-Baqqūrī and Ibn al-Shāṭṭ take part in its reception. As interpreters, they simultaneously enshrine al-Qarāfī’s text as canonical—underscoring brilliant aspects of the work—while expressing scepticism about how it is canonical—it is not a work of legal distinctions. We can understand their position as both elevating al-Qarāfī’s text while at the same time enforcing boundaries around the genre of legal distinctions. This is an important text, they say, but not of the kind that al-Qarāfī claims it to be. Given the novelty of al-Qarāfī’s text, al-Baqqūrī and Ibn al-Shāṭṭ do not recognize it as falling within the distinctions genre. That is a problem with genre, but not necessarily with the text itself.

It is instructive to see how the Mālikī biographer Ibn Farḥūn (d. 799/1397) sees this situation. In his biographical dictionary, he tells us about al-Qarāfī’s al-Furūq. In his entry on al-Qarāfī, Ibn Farḥūn relates that al-Qarāfī wrote a ‘Kitāb al-qawāʿid, a book unlike any ever written and unlike any written since.’⁷⁶ It seems likely that Ibn Farḥūn is referring here to the Anwāʾ al-burūq since he does not mention it otherwise and the description fits the contents and reputation of al-Furūq as a groundbreaking work. Ibn Farḥūn sees it not as a work of distinctions, but as a work of legal maxims, and thus does not call it Kitāb al-Furūq. Ibn Farḥūn also includes biographical notices on the two commentators, al-Baqqūrī and Ibn al-Shāṭṭ. Regarding al-Baqqūrī, Ibn Farḥūn tells us that he wrote ‘a commentary (kalām) on Shihāb al-Dīn al-Qarāfī’s book on uṣūl’.⁷⁷ Here, there is no title given and the contents are referred to as uṣūl. Ibn al-Shāṭṭ, meanwhile, wrote ‘Anwār al-burūq fī taʿaqqub masāʾil al-qawāʿid wa-l-furūq’, referring presumably to al-Qarāfī’s text.⁷⁸ This is confusing given that al-Qarāfī’s text is titled Anwār al-burūq fī anwāʾ al-furūq and Ibn Farḥūn seems to use this title to refer to Ibn al-Shāṭṭ’s commentary. Nevertheless, once more there is a close connection between legal maxims and al-Qarāfī’s al-Furūq. Ibn Farḥūn refuses to refer explicitly to this text as a text on legal distinctions. The comments made by al-Baqqūrī and Ibn al-Shāṭṭ can be understood in their proper context. In commenting on al-Qarāfī’s text, they are taking part in cementing his status as a pivotal jurist who brought prominence to the madhhab. At the same time, they sense the disconnect between his text and earlier texts of the tradition. Perhaps the very impulse that pushed al-Qarāfī to write this text was what later commentators needed to quell through interpretative commentary.

5. MODERN RESONANCE

The fame and popularity surrounding al-Qarāfī’s text have endured, even if the shape that the fame and popularity have taken changed over time. Alongside the Ḥanbalī scholar Ibn Qayyim al-Jawziyya (d. 751/1350), al-Qarāfī has emerged as a key historical figure in the development of fiqh al-wāqiʿ (understanding reality or contemporary jurisprudence), a term coined by the Egyptian scholar Yūsuf al-Qaraḍāwī (d. 2022).⁷⁹ In addition, the Saudi-based Mauritanian scholar Abdallah bin Bayyah (b. 1935), a ‘highly regarded Neo-traditionalist scholar’⁸⁰ rose to prominence based, in part, on his doctoral dissertation from Umm al-Qurā University. His thesis centred on al-Qarāfī’s approach to legal maxims and their usefulness for regulating financial transactions.⁸¹ Similarly, in an impromptu speech decrying what he sees as the underdeveloped legal thought of the Andalusian scholar Abū Iṣḥāq al-Shāṭibī (d. 790/1388), the former Grand Mufti of Egypt, Ali Gomaa (b. 1952) claimed that al-Qarāfī is one of the ‘especially learned’ touchstones of the Islamic tradition.⁸² The relevance of al-Qarāfī today makes clear his place as a canonical figure in the Islamic legal tradition. He is recalled as an aspirational figure and his approach to the study of Islamic law continues to inspire new intellectual and legal developments.

Footnotes

Author notes