Abu Bakr Ahmad bin Ali al-Razi

Known as:

AlAl-Jassas, alal-Razi, alal-Hanafi (305/370/981)

A Brief account of his life and work, His influence upon Islamic Jurisprudence, With a concise introduction.

By Ghulam Nabi Falahi School of Oriental and African Studies (University of London) UK
14th September 2004

CONTENTS

Cheptar-1

Introduction
Pages

1:1 1:2 1:3 1:4 1:5 1:6 1:7

General Background of Islamic Law Definitions of Usul Fiqh Difference between Fiqh and Usul Fiqh Unity and Diversity in Sharia Law Development of Sharia Early Works before al-Jassas. Old Manuscript of Hanafi school

4 5 6 6 7 8 9

Chapter 2
2:1 2:2 2:3. 2:4 2:5 2:6 2:7

Abu Bakr Ahmad bin Ali al-Razi al-Jassas

11 12 15 15 16 16 17

Brief Historical Background Al-Jassas, Abu Bakr al-Razi His prominent teachers. Among his famous students. Al-Jassas among the Hanafies His political view The Works of al-Jassas.

Chapter- 3

Predication of Usul al-Fiqh.

3:1 3:2

Method of deducing the Usul among the Hanafi School. Introductory work and General plan of al-Jassas

19 19

Chapter-4
4:1 4:2 4:3 4:4 4:5 4:6 4:7. 4:8 4:9 4:10. 4:11 4:12 4:13 4:14 4:15 4:16

His legal treaties, (Akkam al-Quran.)

22 22 24 25 27 31

Ahkamul al-Quran. Features of the Ahkamul al-Quran in brief The Structure of Interpretation. The alluded meaning (isharat al-nass). Ratiocination (talil) and Qiyas in the Quran. The Problem of Basmalah being a verse of the Quran

Ambiguous verses, which are liable to superstitious interpretation. 32 Tawil (Allegorical Interpretation) Words of the Quran Specification of the Quran by Quran. Specification of the Quran by Sunnah Specification of the Quran by Ijma Specification of the Quran by Rational argumentation. Specification of the Quran by the Kabar al-Wahid. Elaboration of the theory of obligation The Authoritative position of ijma by nass(text). 33 34 36 36 37 37 37 38 41

Chapter 5

Conclusion:

Features of his legal Theory and his great contribution.

43

Bibliography.

47

Chapter-1 Introduction

1:1 General Background. Obey God and his messenger1 The whole Islamic ideology and theory is based upon these words, in other words it will be interpreted Order or Law, which is central to Islamic piety. Islamic law or Sharia has the character of a religious obligation to be fulfilled by the believer. The law of God remains the law of God even though there is no one to enforce it2 the Muslims, where ever they reside, are bound by the law to secure order in society, Islamic sharia charges mankind with dual responsibility: One to serve God and the other in relation to society, which results in a law of duties.

But is not so easy to say when school of law came in to its existence, because none of the school of law is associated with anything like a present world datable charter. Ibn Khaldun (d.806/1408) is a notable exception, devoting a chapter of his prolegomena to the origins of the various schools of law.3 That is why the modern scholars often bear the impress of his discussion. He begins with the jurisprudence of Iraq and the Hijaz, the former skilful at analogy (qiyas) the later knowing much hadith.4 Goldziher most closely to Ibn Khaldun, formulated his theory that Islamic jurisprudence developed primarily from ray, and not from Quran and sunnah, in his article Fiqh5. Which is very close to Joseph Schachts explanation of how the old regional schools became personalised, as the followers of Abu Hanifah?6

1Theis verse is in the different chapters of the Quran, see for example 3:59, 3;80, 2:32, 2:132, 2 Fitzgerald, Nature and Sources of Sharia, Law in the Middle East, p. 85 3 Ibn Khaldun al-Muqaddimah Beirut: Dar al-Qalam, 1978. 3 vol. 4 Melchert C , The Formation of the Sunni School of Law, 9th-10th Centuries C.E. Brill Leiden, 1997 Introduction, pp xviii.

5 Encylopaedia of Islam, Leiden/London 1927 article Fikh, pp.101-105 6 Joseph Schacht, The Schools of Law and later Development of Jurisprudence, Law in the Middle East, Washington DC: The Middle East Institute, 1995) p,63

1:2 Definition of Usul Fiqh7 The Muslim Jurists and theologians frequently refer in their treatises to the fact that the pre-theoretical sense of the word fiqh is the understanding of the speakers intention8 Conceptually, the human attempt to understand divine law (shariah). Whereas shariah is immutable and infallible, fiqh is fallible and changeable. Fiqh is, the method of legal interpretation and analysis.9 Or the perception of concealed meanings(idraku l-ashyaI l-khafiyyah).10This reference indicates that the essential purpose in Islamic jurisprudence is to grasp successfully the intentions of Allah and His messenger via the quran and Sunnah11To introduce al-Jassass Usul al-fiqh, for the definitions of fiqh and usul al-fiqh.it is useful to quote Abu l-Yusr al Bazdawi, who begins his treatise Marifatu l-hugaga al sariyya with the definitions of basic notions occurring in the work, such as fiqh, usul al-fiqh, illa, and burhan. This is the lexicon of technical terms we usually find on the first pages of such writings from about the 4th century. Fiqh, says abu l yusr is the name given to a specific religious the sarias legal rules (al-ahkam al-sariyya): it is found in the Quran, sunnah and ijma, usul fiqh is the science of those three roots, and it is so called because fiqh is (contained) within them.12 This is a most significant conception of Usul al-fiqh. The basic postulate assumed by Abu l yusr was expressly formulated by al-Jassas. Although the priority of nass and scriptural sources is adopted by al-jasas, it

7 The bridge term was in the main preferred by muslim bio-bibliographers and historians. It is sometimes difficult to say whether it is meant to refer to usul al-fiqh or to kalam , since the same word, al usul, was also used to abbreviate usul al-din, one of the term designating Islamic theology. 8 See Yunis,A. Medieval Islamic Pragmatics

, Introduction , pp. 1, quoted Al-Basri,, 1:4; al Razi, 1/9.

9 On line Oxford English Dictionary. Search word Fiqh 10 Medieval Islamic Pragmatics, pp 1 11 Ibn Taymiyyah, Fatawa, 20/496. 12 See for details Bernand M, Hanafi Usul al-Fiqh JAO S, Vol. 105, No. 4 (Oct-Dec., 1985), 623-634

is obvious that the plan of the treaties is organized around one main principle: huggatu l-aqls efficacy when applied to the scriptural sources.13

1:3 Difference between Fiqh and Usul Fiqh Usul al-Fiqh has got two components Usul and Fiqh. Usul literally means the fundamentals. Technically, it means the science of the precepts that prescribe a defined code of principles for deducing rules from available evidence.14. And fiqh literally means understanding, and technically, the knowledge of the classification of the laws of God, which concern the actions of all responsible Muslims, as obligatory, forbidden, recommendable, disliked or permissible. These are derived from the Quran and the Sunnah (traditions) and from the evidence (that) Muhammad (pbuh) has established.15Accordingly, Usul al-fiqh would mean the principles that make explicit the method of deducing rules from elaborate evidence the Quran, Sunnah, Ijma and Quiyas.16 We may accordingly render Amidis definition of fiqh as follows: Fiqh is the knowledge, resulting from reasoning and demonstration, of that divine categorization of human acts that are mediated to us through revealed or divinely sanctioned indicators and thus constitute the Sharia.17

1:4 Unity and Diversity in Sharia Law. For, Ibn Khaldun, (732/1332-808/1406) the distinguishing feature of a school was a body of distinctive juridical opinions. A school was formed when a body of opinions was collected and ascribed to a particular teacher.18The mechanism by which four

13. Ibid. 14 Abu Zahra, Usul al-Fiqh,pp6-7 15 Muqaddimah, Eng.tans. by Franz Rosenthal,, London. 1967, 345 16 AbuZahrah, Usul al-Fiqh. Pp.7 17 Al-Amidi, Kita al ihkam fiusul al-ahkam, 4 vols. (Cariro:Dar al-Kutub al-Khidiwiya, 1914) 1:6 -10 18 al-Maqaddimah, pp448

schools came to be was taqlid, speaking on some ones elses authority, whereby one does not search the sources for ones own answer to a question (ijtihad) but merely repeats the opinion of a former jurisprudent.19 Taqlid in the great centres came to rest on these four; those who spoke on the authority of others died out.20 George Makdisis remark seems to be quite close to this opinion, stressing a school died out at the point when advocates for it were no longer to be found.21 Four schools of law only have survived in Sunnite Islam since the fifteenth century they were given the name by their founders asthe Hanafis, Malikis, Shafiis, and Hanabalies.22 This was as natural result of their circumstances of original schools of Medina and Kufa,

1:5 Development of the Sharia The word (Sharia or Shar.) Originally means the path or the road leading to the water which is a way to the very source of life. The verb sharaa means literally to chalk out or mark out a clear road to water. In its religious usage, from the earliest period it has meant the highway of good life, i.e. religious values, expressed functionally and in concrete terms, to direct mans life.23

Form the above we learn that it is: The Way, ordained by God, as the word Shariah occurs in the Quran, God addresses the Prophet, Thus we gave you a Shsriah (Q45: 18) wherein man is to conduct his life in order to realize the Divine Will. It is a practical concept having to do with conduct as such. But it includes all behaviour, spiritual, mental and physical activities. We may find this definition in classical Islamic theory, which in agreement with Modern Islamic theory that Islamic law is
19 Melchert, S. The Formation of the Sunni School of Law, 9th-10th Century C. E,Broll, Leiden 1997. pp xviii 20 al-Muqaddimah, 448. 21 George Makdisi, The Rise of colleges, Edinburgh: Uiversity Ppress. 1981, 4 22For further details see, Encyclopadia of Islam 2nd edition, pp123, 124, 181,182,320,321 23Ibn Man.zur, Mu.hammad ibn Mukarram, Lisanul al-arab, Vol 8, Word root (SHAR) Bayrut : Dar .Sadir, 1955-56

the revealed will of God, a divinely ordained system preceding and not preceded by the Muslim State, controlling and not controlled by Muslim society.24 In the Islamic concept of Sharia (Islamic Law) embodies the will of God Who is the Sovereign and the source of law and to Him is due the obedience of man: He is the sovereign of the Heavens and the earth and unto Him (all) things are brought back25 because of this, the early Muslims were concerned with the explication of the concept of a divine categorization of an act than with the explication of the concept of the sharia as such.

1:6 early works before al-Jassas Ibn Khaldun, in his remarkable book Muqadima26 differentiates between two kinds of writings on Usul fiqh, first includes works written by theologians and second by jurists (fuqah) in first kind complied by rational methods and second are closer to the subject of jurisprudence.27 As Kamali has mentioned that the, three of the most important works, which adopt the theoretical approach, were later, summarised by Fakhr al-Din al-Razi (d.606) in his work entitled Al-Mahsul, and Sayf al-Din al-Amidis larger work, Al-Ihkam fi usul al-Ahkam is an annotated summary of the three pioneering works referred to above.28 Al-Karkhi (260/863-340/952) and Isa b. aban (d.221/836) the two jurists of hanafi school are ever often mentioned in legal treatises but the al-Fihrist attributes to al Saybani (d. 189/804) a Kitab usul al-fiqh.29 Even though it is considered that the Risala of al Shafi (d.204/819) is the first treatise on usul al-fiqh, but it cant be affirmed that no other work concerning this subject was written by other scholars.

24 Coulson, History of Islamic Law, p.1 25 Quran. 57:5 26 al-Muqaddima English trans Vol 3, pp23-34

27 Ibid pp. 28-32 28 Kamali, M, Principles of Islamic Jurisprudence. P 11. 29 Seefor details, Fihrist, Tagaddud, 258-259

However we may find two type of books in early hanafi scholarship, one is that were written in a very precise fashion, because their authors knew both the principles and their application. Examples of this type are: Ma'khadh al Shar' "The Approach of the Shari'ah" and al Jadal "Argument" by Abu Mansur al Maturidi (d 333 AH)30."The second, dealt very carefully with the meanings of words and was well arranged, owing to the concern of their authors with deriving detailed solutions from the explicit meanings of narrations. 1:7 Old Manuscript of Hanaf School. It has been said that, no Hanafi Usul al-fiqh manuscript older than that of al-Jassas has been found.31 It is likely that the Hanafi School knew, before al-Jassass Usul al-fiqh, as we learn from above that some works anticipating it. Since the development of the science of fiqh needed to have a solid basis, it is conceivable that Hanafi authors were compelled to meditate on the questions of Usul al-fiqh. Now it is clear, that the development of Usul al Fiqh, as a specialized discipline, had been completed, and that had defined its issues and academic parameters by the fourth and fifth century A.H. Indeed, by that century, the scholars of every school of thought had recorded their own interpretations and understanding of Usul al Fiqh.

Approaches to the study of Islamic jurisprudence in this essay will be systematic and topical; focus will be upon the writings of a single author, the eminent hanafi jurisprudent, Abu Bakr Ali al-Razi. Al-Jassas, (370/981) by devoting ones research time to a single author, one is able to explore the entire range of topics dealt with in this important Muslim discipline and to discover how ideas on these topics fit together to form an integrated whole. But it is not possible to explore the whole work of the
30 Muhammad ibn Muhammad ibn Mahmud Abu Mansur al-Samarqandi (d. 333) known as the Imam of Guidance see,

www.sunnah.org/history/Scholars/al_maturidi.htm 31 JAOS, 105.4 (1985) pp 624

author in this concise research paper; however discussion will be very limit, as it follows in to two parts, the first one being about his first systematic work Al Fusul Fi al Usul
32

as an introduction to his Ahkam al Qur'an "Legal Interpretations of the

Qur'an"33. This is the other part of this dissertation. In the pages that follows a brief history of the political transformations, along with a short description of the religious rivalries, in order to understand the intellectual milieu in which al-Jassas was born and led his life. Biographers and historians have not been able to provide us from their accounts, any detailed information about the life history of Abu Bakr Ahmad ibn Ali al-Razi al-Jassas. However, an attempt has been made to sketch briefly the life of Abu Bakr al-Jassa from the information available scattered here and there. It will open the way forward for those who wants to carry further studies in this field. I am extremely thankful to SOAS library staff that helped me in collecting the data from Washington DC congress Library. I am also thankful to Dr Mustafa Shah, who supervised and guided me. It was his love and affectation, which encouraged me to do this work. Finally to my wife and my kids incipit their younger age, who released me of my household obligation in order to enable me to complete the dissertation, I wish them all success and a happy life.

Ghulan Nabi Falahi London, 14 September 2004.

32al-Jassas, Usul al-fiqh al-musamm bi al-Fu.sul fi al-u.sul; dirasat wa-ta.hqiq `Ujayl Jasim al-Nashami. al-Kuwayt. Wizarat al-Awqaf wa-al-Shu'un al-Islamiyah. Idarah al-`Ammah lil-Ifta' wa-al-Bu.huth al-Shar`iyah, 1994 33 Al Jassas's, Ahkam al Qur'an, presently being translated, along with detailed annotation, into English. (Ed.)

10

Chapter -2

Imam Abu Bakr Ahmad bin Ali al-Razi (305/370) AH

2:1 Brief Historical Back Ground In the third century A.H., the Muslim history is witnessed a great influx of ideas from classical antiquity. Differing schools of thought arose, some remaining close to the original faith, and others wandering away from it. It was in this period that the problem of the created ness vs. eternity of the Qur'an arose, exposing the revelation to the relativization of history. Under the leadership of Ahmad ibn Hanbal34 the view of created ness was defeated and the threat removed, which naturally affected juristic thinking.
35

Al Shafi'is Risalah evoked numerous thinkers to write for or against its

views. Isa ibn Aban36(221/836) rose to the defence of liberalism, Al Nazzam (221/836)37 added a dialectical argument against ijma' and its possibility; and Asbagh ibn Faraj (225/840)38 wrote a defence of the Shafii view. The raging controversies did not fail to bring about a conservative reaction. Dawud ibn 'Ali al Zahiri wrote against both parties, pleading for the sanctity of the letter of the revelation and hence

34 Ahmad ibn Muhammad ibn Hanbal, (d. 241). The founder of Hanbali school of Law. 35 See, Theology, Jurisprudence and Constitutional Theory, Darf Publication Ltd, London 1985 pp91-117 36 A Hanafi scholar and judge, 189/805) see. Bedir, Murteza, An Early Response to ShafI , Islamic Law and Society, 9, 2002, 285-311 37 Al-Nazzam, Abu Ishaq Ibrahim b. Sayyar b. Hani', Mu'tazili theologian, (d 220/835 and 230/845 see Encyclopedia of Islam

2nd edition, leiden, 38 Asbagh ibn Faraj: the mawla of 'Umar ibn 'Abdu'l-'Aziz., faqih of Egypt , died in 225/839

11

the meanings that attach to it. His work, Al Wusul ila Ma'rifat al Usul

39

remains to

this day the best defence of the literalist interpretation. The law itself was being developed by the disciples and followers of Abu Hanifah, such as Sufyan ibn 'Uyaynah (198/814), Muhammad 'Abdul Rahman ibn Abu Layla, Supreme judge of Kufah (148/756), 'Abdul Malik ibn Jurayj (1 50/768), 'Abdul Rahman al Awza'i (157/775), and al Layth ibn Sa'd al Fahmi (175/792), all of whom took advantage of the pragmatism and liberal rationalism of the Hanafi school and operated under the intellectual impetus its methodology provided.

2:2 Al-Jassas Abu Bakr al-Razi, (370/981) The History of Islam is witness that the 4th century Hijar, rivalries among Sunnis and Shias were high and shaking the foundation of the Abbasid society as a whole. It is known, that the Persians enjoyed great political influence in the establishment of the Abbasid Caliphate. They were consequently entrusted with important positions in the administration of the state. But whenever any caliph showed signs of mistrust or lack of confidence in them, they never hesitated in getting rid of him. The ruthless executions of Abu Muslim Khurasani, Baramiks, and Ibn Sahl are a few instances of it. 40 Influence of Turks in the affairs of the Abbasid Kalifhat rose also rapidly. They not only tried their best to usurp all power of the Khulafa, but also made incessant efforts to oust Persians from responsible positions.41 This was the age when Al-Jassas was born, but there is a little dispute about his name and legacy in which he born. It seems that the confusion was present at the time of 19th century Indian author and biographer Mawlana Abd al-Hayy Lacknawi, (1304/1868) in his Fawaid al-Bahiyya

39 See, Wiss, B G. Studies in Islamic Legal Theory, article by Stewart, Devin ,pp99-158

40 Ahmad Amin, Zuhral Islam, pp49 41 Ibid.

12

42

quotes the following statement of Muhammad Abd al-Baqi al-Zurqani from his

Sharh al-Mawahib al-Laduniyya: The name mentioned by al-Zarqani is actually not Abu Bakr al-Jassas he is rather another scholar from Naisabur, whose biography has been recorded by al-Dahahabi in his Tadhkirat al-Huffaz,, and who died in 315 A.H. Mawlana Abd al-Hayy seems to have mistaken Ahmad ibn Ali ibn Husayn for Ahmad ibn Ali al-Razi al-Jassas.43 Actually there are three persons who bear the name of Abu Bakr al-Razi: one is Abu Bakr Ahmad ibn Ali ibn Husayn who died in 315 A.H.44 the second is Abu Bakr Ahmad ibn Ali al-Razi al Jassas who died in 370 A.H., and with whom we are mainly concerned here.45The third is Abu Bakr Ahmad ibn Ali al-Razi al- Isfaraini, who either died at the end of the first, or beginning of the second, quarter of the fifth century A.H.46 Abu Bakr Ahmad ibn Ali al Razi al-Jassa was born in al-Rayy47 in 305/917. Characterized by Zirikli as fadil ahl al-ray48 He came to Baghdad in the year 325/937 when he was 19 years old, and joined the lectures of Abu al-hasan al-Karkhi.49 From Baghdad he went to al-Ahwaz perhaps for acquiring knowledge. From al-Ahwaz he came back to Baghdad and started attending lectures of Abu al-Hasan al-Karkhi, and many other scholars.50

42 Qazi Seedullah, Principles of Muslim Jurisprudence, Al-Maktabat-el-Ilmiyyah, Lahore, 1981, pp23 43 Al. Dhahabi, Tadhkirat al Huffaz, Vol 3 s.n 781 44 ibid, 45 See Qazi,S, Qarshi, al-Jawahir al Mudia, 84-5. 46 Tadhkirat al-Huffaz, Vol,3 serial no 988. 47 Khatib Baghdadi-although he has not been able to determin the place of al-Jassas birth has reported that He come down to Baghada in his youth, and attended the lectures of Abu al-Hasan al-Karkhi.. See Qai Seeduallah, pp24 48 Ibid, Alam 1,165. 49.Islamic Studies, 1977, p 131-141 50 ibid

13

After some time his teacher, Abu al-Hasan al-Karkhi,51 asked him to accompany Abu Abd Allah al-Hakim al-Naisaburi and study in Naisabur under his guidance.52 Abu al-Hasan al-Karkhi died in 340/952 and was succeeded by Abu Ali Ahmad ibn Muhammad al-Shashi. However, in 344/956, when al-Shashi fell seriously ill, Abu Bakr al-Jassas, left Naisabur for Baghdad.53 Al-Jassas travelled to Ahwaz and Naisabur, in about 344/955 and died in 370/981.54 After the death of al-Shashi55 in the year 344 the responsibility of teaching was entrusted to Abu Bakr al-jassas by time he had grown into a great scholar and acknowledged leader of the Hanafi School of jurisprudence. He started teaching his students in the mosque of Abu al-Hasan al Karkhi. He had studied Fiqh and Hadith with distinguished scholars. He wrote many important books mostly on jurisprudence.56 Abu Bakr al-jassas was a pious man; so much so that when once he was offered the post of a qadi he declined.57 Reference to al-Jassas in Ibn al-Mutrtadas Tabaqat is quit significant. He reminds his readers that the Hanafi Usuli, whose Mutazili affinities are obvious, refused to fulfil the roll of the office of qada in Baghdad after having initially accepted it. He then mentions that although the task of al-Jassa was to produce books of fiqh, he used to compose kalam treatises for himself, arguing that it was the best way to get near to God.58 Ibn Kaldun

51 See, his prominent teachers., p.15 52 Kataib al-Baghdadi, Tarikh Baghdad, vi, 314 53 Ibid. see al-Dhahabi, Kitab al-Ibar, 370 A.H.; Ibn Kathir, al-Biddaya wa al-Nihaya, pp 266. al-Fihrist, 307-8 54 Mari Bernand, JAOS, Vol. 105, No. 4 (Oct-Dec., 1985), 623-635. 55 Abu Ali Ahmad Muhammad al-Shashi. See. Islamic Studies, 42:3 (2003)pp.415-436 56 Hajji Khalifa, in his Kashf al-Zunun, states: (In the field of Ikhtilaf al Ulama many people wrote books. One of them is Imam Abu Jafar Ahmad ibn Muhammad al-Tahawi who died in 321 A.H; and his work is called Iktilaf al-riwayat, which is in more than 130 parts. And it was abridge by Imam Abu Bakr Ahmad ibn Ali al-Jassa al-Hanafi who died in 370 A.H. 38) 57 Khatib al-Baghdadi,iv, 314. 58 JAOS (Oct-Dec., 1985), 623-635.

14

in his Muqaddima mentions, Al-Dabusi, but not al-Jassas the article al-Djassas reflects the brevity of the sources.59

2:3 His Prominent Teachers

1.

Abu al-Hasan al-Karkhi Ubaid Allah ibn al-Husain ibn Dallal ibn Dalham, Known as Abu al-Hasan al Karkhi, was born in Karkh Juddan in 260 A.H. He lived in Baghdad and after Qadi Abu Hazim and abu Said al-Bardai, became as head of the Hanafi school of Fiqh. He was considered to be one of the best mujtahidein of resolving the most complicated problems, for which no provision could be found in the Holy Quran and Sunnah of the Holy Prophet. He died on the 15th of Shaban, 340 A.H.

2.

Abu Sahil al-Zujaji. Al-Jassass second teacher was Abu Sahl al-Zujaji, the pupil of Abu al-Hasan alKarkhi. A prominent fuqaha from Naisabur attended his lectures. He died in Naisabur, leaving behind him a famous Kitab al-Riyad.60

2:4. Among his famous students were.

1. Al-Jurjanin. Abu Abd Allah Muhammad ibn Yahya Mahdi al-Jurjani, lived in Baghdad, He died 20th of Rajab, 393, and was buried near the grave of Abu Hanifah.

59 Article Hanafiyya. J.Schacht does not mention al-Jassa, In vol 111, pp.166-67 although in G.Maqdisis Ibn Aqil, we find

the great usuli mentioned several times. 60 For the detailed biographies of these jurists, see Murteza Bedir, Early Development of Hanafi Usul al-Fiqh(Unpublished PhD Dissertation, the University of Manchester UK 1999)

15

2. Al-Khawarizmi. Muhammad ibn Musa Muhammad al-Khwarizmi, He died on Friday, the 18th of Jamad alAwwal, 403 A. 3. Al-ZAfrani, Abu al-Husain Muhammad ibn Ahmad ibn Muhammad ibn Abdus ibn kamil al-Dallal, known as al-Zafrani, (d 293) A.H 4. Abu Jafar al-Nasafi, Abu Jafar Muhammad ibn Ahmad ibn Mahmud alNasafi was one of the leading jurists of his time. (18th 9-414) A.H 5. Ibn al-Maslamah. Abu al-Faraj Ahmad ibn Muhammad Umar ibn al-Hasan, known as ibn al-Maslamah, was born 337 A.H, Lived in Baghdad, died in 11415 A.H. 6. Kamari, abu al-Husain Muhammad ibn Ahmad ibn Tayib ibn Jafar ibn Kamar al kamari. He died in 417 A.H.61

2:5 Al-Jassas: Among the Hanafis. Muslim jurists or Ulma have divided jurists in several categories and grades. Hanafis have divided their own jurists in seven different grades; it is through these grades that Islamic law implements its system of following precedents.62 Legal theorists draw a sharp distinction between mujthids and non-mujtahids, the latter being commonly known as the followers or imitators muqallidun,(pl.of muqallid) of the former. Al jassas subscribed to the Hanafi school of thought, and is considered to be a mujtahid fi al-masail, though his opponents consider him as one of ashab al-takhrij. However, no one can deny the fact that Al-Jassas has been acknowledged as a very competent hanafi scholar; and the irrelevant remarks about him of his opponents should not mislead us towards underestimating his grand personality.63

61 ibid also see Encyclopedia of Islam 2nd edition. for the entries of the names, 62 See, Al-fusul fi-usul, , Preface .Vol. pp 17-20 63 Al-fusul fi-usul, , Preface .Vol.1. Also al-Mahallawi Tashil al-Usul, 325. Abu Zahara, Imam Abu Hanifa-,3rd edition , pp.443

16

2:6 Political View Al-Jassas does not consider the khilafat of Muawiyah as valid. He is often the opinion that Ameer Muawiyah and his successors superseded khilafat from its rightful claimants. Khalafa four Ali and Imam Husain.64 There are some other differences we may find them in coming pages about Punishments in the Grave, Magic (Sihr), and life after death.

2:7 The Works of Abu Bakr al-jassas. Al- jassas compiled many works, on the topic of fiqh & Usul fiqh, his work al-Fusul fi al-Usul, known as Usul al-Jassas, is the first systematic which treats comprehensively the principles of Hanafite jurisprudence. This consists of more than 105 chapters, excluding the one that are missing in the beginning. Recently an Arabian scholar has edited the book.65 His second work Ahkam al-Quran, in three volumes, is another important contribution not only to the science of legal treatises, but also to the science of the Islamic jurisprudence, the main characteristic of this work will be discussed in coming pages, author has reported not only the views of the Sahaba and Tab;iun and others but also those of al-Awazai, al-Thawri, Uthman al-Batti, Ibn Abi Layla,66 Ibn Shubruma,67 and the like. As no independent separate accounts of the views of these scholars are available to us, we can confidently refer to Ahkam al-Quran, where their views regarding different problems have been recorded. Al-Jassas mentions himself in the beginning of this monumental tafsir that his book al-fusul fi

64 Usul al-Jassasa. Vol 2/ 228 65 Usul al-fiqh al-musamm bi al-Fu.sul fi al-u.sul; dirasat wa-ta.hqiq `Ujayl Jasim al-Nashami. al-Kuwayt. Wizarat al-Awqaf wa-al-Shu'un al-Islamiyah. Idarah al-`Ammah lil-Ifta' wa-al-Bu.huth al-Shar`iyah, 1994

66 Muhamed bin Abdulrahman bin Abi Layla the jurisprudent, the judge of Kufah, died in 148H, and it is known that Ibn Qutayabah was born in 213H, after the death of Ibn Abi Layla by 65 years 67 ibn Shubruma (a judge in al-Kufa during the rule of al-Mansur

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usul is the introduction of al-Ahkamul al-Quran.68In 198, Dr Saeedullah Qazi edited, introduced and annotated two chapters of al-Jassass usul al-fiqh (qiyas and ijtihad),69 with an introduction, in which he presents al-Jassas, assigns him a place in the Hanafi School and points out the importance of Abu l Husan al Karhi influence on al-Jasass thought. A list of books mentioned by biographers and historians are about twelve in numbers. Earliest work of Hanafi school on Usul al-fiqh is Kitab fi al-Usul by Abu al-Hasan al-Karkhi (d.340) which was followed up by Usul al-Jassas of Abu Bakar al-Razi al-Jassas (d.370) Fakhr al-Islam al Bazawis(d.483) well-known work, Usul al-Bazdawi, is also written in conformity with the Hanafi approach to the study of this discipline. This was followed by an equally outstanding contribution by Shams al-Dine al-Sarakhsi (d.490) bearing the title, Usul al-Sarakhsi.70

1. Sharh jami al-Kabir of Muhammad ibn Hasan al-Shaybani; 2. Sharh jami al-sigeher of Muhammad ibn Hasan al-Shaybani 3. Sharh jami al-manacik of Muhammad ibn Hasan al-Shaybani 4. Sharh Mukhtasar al-Karkhi; 5. Sharh Mukhtasar al-Tahawi 6. Sharh al-Asma al-Husan; 7. Jawabai an masaif waradat alayh; 8. Sharh of Khassafs Adab al-Qada71 9. Mukhtasar of Tahawis Ikhtilaf al-Ulma /Fuqaha. 10. Sharh adbil qazi, Lil khasf

68 See Ahkamul al-Quran, vol 1,p.1 69 Al-fusul fi I usul . Ed Saeedullah Qazi. Peshawar. Nov 1981, I could not locate this work except the University of Edemburgh , Main Library, Coll 27999 Jas. 70 Principles of Muslim Jurisprudence, p. 11. 71 Kitab adab al-qa.di / ta'lif Abi Bakr A.hmad ibn `Umar ibn Muhayr al-Shaybani al-Kha.s.saf ; wa shar.h Abi Bakr A.hmad ibn `Ali al-Razi al-Ja.s.sa.s ; ta.hqiq Far.hat Ziyadah

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11. Usul al-Jassas, 12. Ahkamul al-Quran

Chapter-3 Predication of Usul al-Fiah

3:1

Method of deducing the Usul among the Hanafi scholars.

The Hanafi scholarship developed from debates among early Islamic groups concerning the legitimacy of the opinions of conflicting local authorities that lived at the end of the second century. After that the method of writing on al Usul involved defining the principles of Usul from the details of legal issues with which their earliest predecessors had already dealt, which is going back to the authority of the prophet as the model interpreter of the Quran. Thus, the basis for their studies of al Usul was derived from the details of previously settled legal issues, and not the other way round. The construction of this epistemology and the method requires soiled bases for practice of Hanafi scholarship, which al-Jassas provide by his legal treaties, by using the Sunnah as the medium through which to derive the definitions. Therefore, one

who studies Usul al Fiqh according to this method will gather the details of issues concerning which the Hanafi Imams have already given Fatawa, and then analyse them. Through this analysis he will decide the basis on which these Fatawa were given. As there are no early resources available, we may refer confidently to al-Jassas as an authoritative source for Hanafi school of thought. This methodology could be found in al-Jassass producer in deducing the ahkam.

3:2. introductory work and General Plan of al-Jassas It is important to look at four volumes of usul al-Jassas, before approaching to Ahkamul al-Quran as it is his introductory work for his monumental tafsir, and because of it, it is not possible to explore any thing from of his Ahkam al-Quran.

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Author in his first part Usul, examines the divine speech (nass) its different modes, and its linguistic aspects, which are:

1. The general and particular declaration (al-amm wa-l-khass) and different ways of particularizing the general declaration. 2. The general concept (mugmal). 3. The linguistic function of the particular of negation (harf al-nafy); 4. Real meaning and metaphoric meaning (haqiqa wa magaz) 5. Clear and obscure concepts ((muhkam wa mutasabih.) 6. Defines bayan (elucidation), indicates its different modes and determines those cases in which we must have recourse to it. 7. Having elaborated the linguistic framework, the author examines a special mode of location, the importance of which is easy to understand in this context: command (amr), its qualifications and temporal determinations72 8. Then come the problem of abrogation (nask) and the question of the relationship between the Quran and sunnah from the point of view of abrogation. 9. In the fourth chapter, the notion of kabr (report) is examined: the reliability of the khabar al-wahid (one transmitters report), conditions of such reliability, the problem of a mursal report (transmitted by an incomplete chain of trustworthy transmitters), particular case, and especially the problem of the Prophets tradition (sunna). 10. The ijma73 is examined after which comes the question of taqlid (reliance on the teaching of master), which is censured (damm) in favour of nazar, except for the sahabistaqld if nobody contradicts it. But if contradiction appears, it is important

72 ibid 625 73 usul al-Jassas, Vol 3, pp.255-328

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to notice that the sahabis qiyas and igtihad make knowledge triumphant. This section ends with the definition and the status of the naf (the denier who discusses rational or scriptural proofs.)74 11. Rules of qiyas, and discussion of the problems which these question raises. 12. Qiyas and Ijtihad and their legal position.75 13. Istihsan on which al-Jassas have devoted a long chapter. Which will be discussed in following chapter? Among the different modes, which al-Jassas applied to interpret the Book of God, is as follows: 1. Specification of the Quran-by-Quran, A Quranic general declaration can be specified by another Quranic verse. 2. Specification of the Quran by the Sunnah. 3. Specification of the Quran by ijma. 4. Specification of the Quran by rational argumentation. 5. Specification of a general declaration by the kabar al-wahid (one transmitters report) where al-Jassas agreed with Isa b. Abban, as we will see following pages.76 6. Kulu mugtahid musib (the soundness of the specialists opinion) 7. Dalil al-hitab is not valid among the Hanafi scholars; as for al-Jassas dalil al hitab means nothing other than fahwa I-hitab. 77,

74 al-Jassas , al-ahkam, vol.2. Pp.375. 75 Qazi, Seeduallah has editied these two works of al-Jassas, known as Principles of Muslim Jurisprudence, Lahore, 1981, 76 all the relating matters regarding this issues see, Usul al-Jassas, Vol 3, pp173-141 77 See for details, usul al-Jassas vol 1-2-3.

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Chapter- 4 His legal treatise (Akkam al-Quran.) 4:1 Ahkm al-Quran The question of the origins of Islamic law and the development of Jurisprudence up to the beginnings of the classical schools of law has occupied Islamic studies intensively since the second half of the last century. It would be no exaggeration to suggest that tafsir literature mirrors Muslim religious and social thought at its best. The real genius of the Muslim mind has expressed itself in its unceasing efforts to understand and interpret the word of God as enshrined in the Quran and as exemplified in the Sunnah of the Prophet (peace be upon him). The history of tafsir has traditionally been seen to begin with the Companions and Followers, who were in closest contact with the Revelation. Arabic quotes from all of the rightly guided caliphs, Abu Bakar, Umar, Uthman, and Ali, as well as from Aisha, one of the Prophets wives. The discussion here will be only about Ahkamul al-Quran of al-Jassas, its features, and some aspects of his Tafsir in connection with al-ahkam.

4:2 Features of Ahkamul al-Quran in brief 1. Bearing in mind that Al-Jassas as a celebrated Hanifi jurist and writer78 of the famous Tafsir called Ahkam al-Quran, does not interpret the Quranic verses, as is done by other commentators. He explains the verses, which have directly, or indirectly a connection with the subject with which he is dealing. He wrote his Tafsir as if it is book jurisprudence. He often discusses various points of view held by jurists. He also used another kind of material that is the variant readings of the Quran, but since, as he explains himself, he has dealt with this subject of his work. By doing so let us see what he has produced on different topics. He divided
78 Al-Baidawi, Anwar al-Tanzil, ed. H. O. Fleischer,i. 64: Dumyari, 11. 214

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all the suras of the Quran under different sections and under theses sections, there are the different chapters which are nearly more than four hundred.

2. Al-Jassas is famous for having attained an exceptional degree of knowledge of Quranic text and its interpretation, He was also a renowned expert in pre-Islamic history and the early genre of biography of the Prophet known as mghazi.

3. He explains obscure expressions or unusual grammatical construction in his almonumental tafsir work al-Ahkamul al-Qur,an.79 Al-Jassas cites, among others, a Tradition from Zaid b. Thabit which gives an account of the compilation of the official codex of the Quran under Uthman in which Zaid played a major role.

4. The material which al-Jassas quotes falls three kinds: the Traditions from the Prophet of tafsir and tawil, Ijma, and Faqah (although the later of these two terms to denote a more allegorical style of interpretation than the former, al-Jassa use them as synonyms, as the very title of his commentary indicates), which are cited with full isnad; and the opinions of grammarians, which are usually quoted some times anonymously and some times by as coming from a Basran grammarian or a Kufan grammarian.

5. The exegetes and interpreters he quotes are, for the most part, Companions of the Prophet, of whom the most important in Ibn Abbas, or Followers-those, mostly of the next generation, who never met the Prophet but knew one or more of the Companions; and the Basran and Kufan grammarians are usually Abu Ubaida and al-Farra respectively.

79 See ahkamul al-Quran, Chapter , al-qawl-fi Basmallah, vol 1.6.

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6. Al-Jassas usually expresses his teachers as al-Sarkhasi80 and other hanafis preferred opinion in the form of a paraphrase of the whole, or part, of the few verses in question, and he always give systematic reasons for his preference.

7. Al-Jassas have divided his tafsir in to two hundred fifty seven Sections and these sectionss contains nearly three hundred and sixty five chapters, which are related to the ahkam, there are also several chapters of the Quran where he has not given any section or any subheading.

8. Al-Jasass used the terms came to tafsir and tawil interchangeably. In time, however, the two terms came to designate two distinct branches of the general science (ilm) of the Quran. Tafsir means uncovering or unveiling, Tafsir is therefore the illumination of the various meanings or designations of a Quranic verse or passage. It includes the elucidation of the occasion or reason for the revelation of a verse, its place in the surah, to which it belongs, and its story or historical reference.81

4:3. the structure of interpretation. The primary task of the jurist is to discover the ahkam from the nass (text). This is accomplished through a reading of the texts. Depending on the text, the jurist adopts several methods through which the ahkam are established. In hanafi scholarship they are four broad methods, as al-Jassas have called them dalalat or mudlul (indication) the implications of the text. Theses are as follows:

80 For example see ahkamu al-Quran pp,8 81 seeZarkashi, 11, p. 148

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1. Ibarat al-nass,82 the ahkam are established through obvious meanings reveald through a plain reading of the text. 2. Isharat al-nass, the ahkam are established through the connotation of the texts. 3. Dalalt al-nass, the ahkam are established through meanings implied by the text. 4. Iqtida al-nas, the ahkam are established through meanings required by the texts of a necessity. Because of the space, discussion will be only limit to Isharat al-nass (alluded meaning) what he mean by this and how he have applied it to deduce the ahkam is as follows:

4:4 the alluded meaning (isharat al-nass): The connotation of the text in which the hukm is established through an indication of the text by focusing on a meaning accompanying the primary meanings that are the main object of the text is called Isharat al-Nass. Thus the hukm established is not the main object of the text, but becomes evident in its complete form after a little reflection. To put it in more literally, the meaning at which the utterance is driven it should be noted, however, that it is very frequent in principles of jurisprudences terminology to speak of expression, utterance; or text as being driven at some meaning, but driven to somebody. Likewise the ahkam established by ibarat al-nass and isharat al-nass that is, both are established by the same text. Al-jassas has applied this method in ahkamu alQurn. For example: In the Quran But he (to whom the child is attributed) shall bear the cost of their food and clothing (Q: 2:233)

82 Usul al-Jassas, fc, fi Sifat al-nass, pp 59

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In the first Quranic passage, he said that this verse indicates through a plain reading or ibarat al-nassthat the maintenance of a wife weaning a child is on the husbad. By the indication of the text several ahkam are established; two of these are mentioned below: a) That the child is attributed to the father. This is obvious from the word. b) These same words also indicate indirectly that the father has a right over the child, his possessions and wealth. This is further affirmed by the words of the Prophet (peace be upon him) ( you and your wealth are for your father). This also means that the father cannot be subjected to qisas (retaliation)

In order to illustrate these different forms of meaning another passage he quotes in his Ahkam is for example: Say not uff to them in the Quranic verse. Your Lord has decreed, Do not worship any but Him, Be good to your parents; and should both or any one of them attain old age with you, do not say to them even fie neither chide them, but speak to them with honour, and be humble and tender to them.83 The stated meaning of this passage is the prohibition of saying uff (Fie) to parents, a meaning that is encoded in the conventional wording of the utterance. But this clearly stated meaning amounts to something else, that is, the probity of striking them, insulting them, and so forth. Al-Jassas has this to say about them: Every discourse (khitab) that comes from God, exalted be He, and the prophet, upon him be peace, cannot be devoid of significance (faida). The meaning (mana) of some (such discourse) is sometimes grasped with the intellect (maqulan) through the utterance (lafz). Others signify (yufid) a judgement (hukm) and a meaning whose explanation (bayan) may come in a second (significant discourse). Of the discourse
83 al-Quran 17/23.

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whose meaning is grasped with the intellect through the utterance some signify by way of indication (min jihat al-dalala) a meaning for which the utterance is not put (laysa mawduan lahu), as when God, exalted be He, says: And dont say uf (an expression of anger and displeasure) to them (your parents). This signifies by way of indication the forbiddance of what is above that shouting at, beating, and killing them.84Al-Jassa adds: There is plenty of this kind (of discourse) in the Quran, the Sunnah (traditions), and peoples habits of speaking. This is (what is called) the indicant of a discourse whose indication of what it indicates should be attentively considered (wa hadha huwa dalil al-Khitab al-ladhi yajibu I tibaru dalaltihi ala ma alayhi al-ahkam)85 He then adds that this is what his teach AbuiHasan al-Karkhi (b.260/873-.340/952) used to say in claming that it is the viewpoint of the Hanafis.86

4:5 Ratiocination (Illa) and analogy (Qiyas). Illa and Qiyas were two another tools, al-Jassas applied for Ahkam, it seems good to quote here the famous argument between Dawud al-Zahri and al-Jassas, by Refuting Dawud Zahris statement in which he declares that no ruling should be based on analogy and that legal discretion (istihsan) must not be allowed.87 Abu Bakar al-Jasas enlightens us further on the sense of the word indicant as used by Dawud, and says in a cryptic sentence in which he addresses Dawud: Tell us about the necessity of professing (the doctrine of) the indicant which you calm takes only one meaning (khabbirna ;an wujub al-qawl bil-dalil alladhi zaamta annahu la yahtamil illa

84 Usul-al-Jassas, pp290 85 Ibid:pp291-294 86 Ibid. pp292 87 Medival Arabic sources consider Abu Sulayman Dawud ibn Ali ibn Khalaf (200/815 or 202/818 270/884) as the founder of the Zahiri (the apparent or the literal) school of law. See for Instance al-Baghdadi (d.463/1070) Tarikh Baghdad (cario,1931), VIII, pp.369

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manan wahidan)88 In the context in which the above statement is made no explanation is given of the alleged doctrine. However, al-Jasas clarifies it in another place and context89 this is where he lists the accepted judicial judgments that are not stated in the legal sources. Al-Jassas classifies these judgments according to the method used in obtaining them. One such category of judicial judgments includes those that we derive from the established legal sources by extracting (istikhraj) from such sources an indicant (dalil) that takes only one meaning. An example is when Ibn Abbas (d.68/687 or 69/688 or 70/689) inferred from statements in the Quran that a woman can give birth to a child after no more than a six-moth period of pregnancy. This he did by putting together two verses from different chapters in the Quran that have a clear-cut meaning. These are: His (i.e., the childs) bearing and his weaning was in thirty months90; and His weaning was in two years91 on the basis of these two verses he regarded it as legally valid to speak of a six-month pregnancy92. In another, not quite parallel, example a judicial judgment is extracted from a single Quranic verse. The Quran says: If he (i.e., a man) has no children, and his heirs are his parents, a third (of his inheritance goes) to his mother.93 This indicates in a definite way, al-Jassas goes on to say, that the father receives two-third of his sons inheritance in that particular circumstance. According to al-Jassas, the method used in case as the above is not called ijtihad (exercising ones own judgment with discretion).94

88 al-Jassa, Usul al-Fiqh, 11, 89 Ibid, Dawuds name is not mentioned here. 90 Al-Quran 46:15 91 Ibid 31:14 92 Usul Al-Jassas , 1994, pp107 93 Ibid. 4:11. 94 Ibid

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Al-Jassas mentions four types of judicial judgments that are not given in the authoritative legal sources, divided according to the method used in obtaining them. 1. The first includes the judgments obtained through a common illa (reasons or cause) which they share with those judgments that are given in the authoritative legal sources. 2. The second includes the judicial judgments that we derive by rational means without resort to the authoritative legal sources, such as when we use the stars to determine the direction of the Sacred Mosque before praying or when we try to decide the best tactics to be used in a holy war. Such judgments are determined by the nature of the situation involved and the rational devices we develop to handle them, and not by consulting the legal texts. 3. The third includes the judicial judgments that are indicated by the authoritative legal sources (al-istidlal ala al-hukm bil-usul). For instance, the Prophet orders us to wash a pot seven times if a dog licks it. This indicates (dalla) that such a pot is to be regarded as defied (najas), because the legal sources speak of cleanliness (tahara) in connection with the pots when they are considered as defiled. 4. The fourth type includes the judicial judgments that are derived from the legal sources through an indicant that takes only one meaning. According to al-Jassas, only the processes employed in obtaining the first three types of judgments are called ijtihad. In the list no mention is made of analogy by similarity (qiyas altashabuh). Elsewhere in his book, al-Jassas refers to any inference by analogy. We may conclude that the list was meant to include only the methods he himself approves of in obtaining judicial judgments. If so, then the method of extracting an indicant that takes only one meaning is acceptable to him. It seems, then, that

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for Dawud a judicial judgment should be stated fully in the established legal sources or else be based on a textual indicant whose meaning is clear-cut. Arguing this Shehaby Nabi,95 expressed his view that One problem remains. It concerns the meaning of the word mana as reportedly used by Dawud. In legal theory, the word may have either the dictionary meaning or that of illa (reason or cause). Added that96 one may argue that perhaps Dawud used mana in the sense of illa; and therefore al-Jassass statement could be interpreted as showing that Dawud advocated a strict and narrow process of analogy by illa in contrast with a freer one (where different reasons for enacting the same judicial judgment could be suggested) used by al-Jassas.97Al-Jassas in his book ahkam, tells us that early Jurists supporting analogy claimed that there is a definite indicant (dalil) established by God for each judicial judgment covering an event (haditha), since for each event there is but one textual basis that has only one single illa. And it is this illa that we take as a basis for analogy. This seems to mean that every legal case that is not treated in the legal sources can be compared with only one case that is to treated by bringing out the signal illa they both share. When such an ill is discovered, the judicial judgment given to the second can be extended to cover the first as well. Al-Jassas attributes this doctrine to al-Asamm, (Ibrahim ibn Ismail) ibn Ulayya (151/768-218/833, described by al-Baghdadi.98 This is the method by which al-Jassas, deduced the laws or usuls from text (nass) we my turn to some other aspects of his tafsir where his approach is not only near to hanifi school of thought, but some times using a strong argument against the other schools. To do so let us examine some of them.
95 Shehaby,N , JAOS, Vol.102, No. 1 (Jan-Mar., 1982), 27-46 96 Ibid 97 Ibid p30 98 Ibid

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4:6 The Problem of Basmalah being a Verse of the Quran: Al-Jassas has devoted twelfth pages for this chapter, saying that there is disagreement among the jurists about tasmiyah or basnmalah (In the name of Allah, the Compassionate, the Merciful) in the beginning of the surahs whether it is an independent verse like other verses of the Quran. (Qala abu bakr la khalafa banal almuslimeem)99Al-Jassas argued that, Muslims are agreed that the tasmiyah in verse 27:30 is an independent verse of the Quraan. The disagreement that exits relates to basmalah when it occurs in the beginning of the surah. There are three opinions that:

1. Tasmiyah is a verse of the Quran in the beginning of each surah or along with the first verse of the surah except in Surat al-Tawbah(9th surah) this view is held by al-Shafi. 2. It is not all a verse of the Quran when it occurs in the beginning of the surah. This view is held by Malikis, and among the Shafis by al-Baqallani. 3. It is verse of the Quran when it occurs in the beginning of the surahs. It is not a part of Surat al-Fatihah or any others surah. It was revealed to separate the surahs from one another. This view is held by Abu Hanifah and Ahmad b.Hanbal.

The approach of al-Jassas: He holds that basmalah in the beginning of the surahs is part of the Quran. It was revealed to separate the surahs from each other, as the Prophet (peace be upon him) could not know the beginning of one surah and the end of another before the revelation of basmalah. Further more, there is no consensus that what is contained between the two covers of the copy of the Quran is a Divine word. Thus, basmalah is a part of the Quran for it was recorded in the copies of the Quran

99 Ahkamul al-Quran, vol 1. pp, 8

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by the Prophets command and reached us in the same state. The Companions usually avoided to record in the copies of the Quran, things that were considered not to be part of it. The problem is that there is no consensus on its being a verse of a surah, as it was revealed to indicate the separation of one surah from the other. Al-Jassas and other Hanafis are of the opinion that the criterion to determine whether something was a Quranic verse or not is that it should be so established by tawatur, that is, it should have been regarded as a part of the Quran all though and should have been, in actual fact, always included in the text of the Quran.100

4:7 Ambiguous verses, which are liable to superstitious interpretation: The ambiguous verses explained by al-Jassas in the light of Arabic poetry and usage, and by reference to clear statements in other parts of the Quran and to authentic sayings of the Prophet. By doing this he avoided the mistakes made by other commentators, the verse (Q.2/102) has been thought by some commentators to constitute a proof of the existence of sorcery. But Jassas says that there is no such thing as sorcery, and that it is merely a form of trickery. He says that the word Sahr applies to every thing or action used for the purpose of deceiving and misleading others. It is something, which just does not exist.101 Explaining the verse at first he gives a full linguistic description of the word (sehr). Arabic poetry, Quranic verses, and sayings of the Prophet are quoted in his explanation of the word. Stories of Jewish origin suggesting that Solomon had practised sorcery and the tradition saying that the Prophet had been

100 For details, see ahkamu al- Quran ,Vol -1 pp 4-18 101 Ibid, vol-1 p.49.

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affected by a Jewish witch, and had been rejected by Jassas.102 It is quite hard for the Sunni authorities to reject a tradition and said: unbelievers have fabricated it.103 His long and excellent discussion can be summarized as follows: The so-called Sihr (sorcery) does not exist. The word (Shitan) is also used for wicked people who practised sorcery during the days of Solomon. Traditions suggesting that a witch had affected the Prophet are baseless. The Quran itself made it clear by stating (wal yaflih ..hais ata) (Q.20/69) that sorcery has no reality. Al-Jasas does not believe in magic as others people do. According to him every act which is confusing, and by which is intended deception, and exposition of a thing unreal to appear as real is called Sihr(Magic)104 Explaining his point further, alJassas says that every thing has got two meanings-implicit and explicit; and these meanings are comprehended only by those who have the knowledge of it. Those are ignorant the implicit meaning of a particular thing appears to them as beyond the grasp of human understanding. For instance when a man appears to be travels in a boat, the trees and the buildings on the seashore appear to be travelling alongside with him. For supporting his argument he gave some more examples.105

4:8 Tawil (Allegorical Interpretation) in Ahkamul Al-Quran Tawil which means the final end (aqibah) of a matter, as the Quran says: On a day when its (the Qurans) tawil (that is, fulfilment) shall come (Q.7: 53); Tawil is the science of elucidating the general as well as particular meanings of the words of the Quran. The difference between tafsir and tawil, according to some commentators, is that tafsir is concerned primarily with the deeper comprehension (dirayah),

102 Ibid, pp.55, 63. 103 Bukhari,vii.27, (chapter on Sorcery) 104 Ahkam al-Quran, Vol 1, pp. 42, 43 105 Ibid , pp, 43.58

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whereas inner meaning of the sacred text. As for example, during tafsir of the verse (And speak not those who are slain in Allahs way as dead. Nay, they are alive, but you perceive not), Q1: 154) al-Jassas writes that people will be resurrected, and will be given sustenance in their graves. Likewise, the polytheists will also be raised in their graves, and will be punished there for their wrong deeds.106 But the question is how would that dead bodies are resurrected from their graveyards while they are decayed bones in the dust? Replying this question al-Jassa proceeds two ways.

1), Insana (human being) is actually the name of Ruh (soul) which is a little invisible body; and the comforts and tortures are given to it, and not to the physical body; secondly, Insana is the name of visible solid body; and Allah selects from amongst its various organs a few such major parts as on which its life depends; and comforts and punishment, whatever the case may be, are given to them in accordance with what they actually deserve. Then Allah would destroy them as He would destroy the rest of the creatures living and non-living before the actual Hour of Resurrection comes. Then Allah would raise them again for final interrogation on the Day of Judgement.107Supporting his viewpoint, he quotes a hadith (the soul of a Muslim is a bird that flies above the Tree of Paradise till its reunion with its former body.)108

4:9 Words of the Quran: The Quran was revealed in Arabic. The words of the Quran are words of Arabic. This attested by the Quran itself in following verses: Surely we have sent it down as an Arabic Quran that you may understand (12:2)

106 Ahkam al-Quran. Vol 1. 93,94 107 Ibid 108 Ibid

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A book whose verses are explained in detail, an Arabic Quran for a people having knowledge (41:3) Since the term Quran may not be applied to its translation, Ones prayer will not be valid if one were to recite its translation, nor will the command to recite the Quran will be considered to have been fulfilled if one were to recite the translation of the Quran. Like wise, any argument on the basis of the translation of the Quran will not be taken into consideration in deriving rules of law. Keeping it in mind, this verse constitutes one of the arguments adduced in support of Abu Hanifahs initial opinion that if some one recites the Quran in translation in his Prayer, the Prayer is valid, As reportedly that he allowed a person, who could not pronounce the Quran in Arabic, to recite it in his Prayers in Persian.109 According to Abu Bakr al-Jassas, the basis of this argument is that he also said what God says in the Quran in previous Scriptures for, quite obviously, these were not delivered in Arabic. Hence, to translate its teachings in any other language does not exclude it from being a part of the Quran.110 The contention is not tenable, for it is the themes of the Quran as such. Moreover, the Quran itself indicates Arabic as one of its characteristics. The view of al-Jassas also conflicts with the majority opinion about the Quran on this point. However the weakness of this argument is self-evident. Whether it is the Quran or any other Scripture, the text of these sacred Books was not so revealed to the Prophet with meanings, which the respective Prophets expressed in their own words. Rather, both the text and the meaning came together, and their source was God Himself. There fore, the teaching of the Quran which were part of the earlier Scriptures were not couched in human words but in Gods Words and, hence, no translation of these
109 Islamic Studies 38:4 (1999) 110 Ahkam al-Quran, Vol. 3, p.348

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Books can be called the Book of God it has been said with great emphasis, over and over again, that it was revealed in clear Arabic: We have revealed it as a Recitation in Arabic that you (the people of Arabia) may fully understand (yusuf 12:2) al-Rad 13:37, al-Zumar 39:28. The ascription of this view to Abu Haifa is not correct, for the reliable authorities of the Hanafi school have reported that he subsequently abandoned this view, which he presumably held in some earlier period of life. Ibn Abi Maryam has transmitter the report of his withdrawal.111 Abu Hanifa codified his position and accepted the

standpoint of Abu Yousf and Muhammad ibn al-Hasan al-Shaybani.112

4:10. Specification of the Quran by the Quran. A Quran general declaration can be specified by another Quranic statement. ) God says in iv,3. Marry such of the women as seem good to you. This is a general declaration whose literal meaning implies license to marry all women. But, in Quran 1V. 23. God says, Forbidden to you are your mothers. Your daughters, your sisters We can infer then that verse 3 must be understood as excepting among women. Mothers, daughters and sisters.113

4:11 Specification of the Quran by the Sunnah114. Quran 1V, 12 says. A half of what your wives leave belongs to you. But the Prophet said, The Muslim cannot inherit from the kafir, nor can the kafir from the Muslim.

111 Islamic Studies 384 (1999) 112 for further details see, Ibid 113 Usul al-Jassas, pp.142-152 114 ibid pp144

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4:12 Specification of the Quran by ijma,115 Quran, says, the fornicates and the fornicator, scourge each of them with a hundred stripes.116 The community then decided that the punishment for the slave should be fifty lashes, according to general Quranic prescriptions concerning slaves.117

4:14 Specification of the Quran by rational argumentation ( dalalatul-aql)118 or rather, rational indication. This means of taksis is so important for al-Jassas that he confines upon aql as much dignity as he does the Quran and sunnah, pointing out that the Quran is nothing but Gods revealed arguments. Which are fundamentally rational? The author quotes Quran, Oh ye people!119 Explaining that it would not be reasonable to address a speech to children or mad people; it would be foolishness (safah) to do so. We may consider then that the verse can be specified by reason of the nas means only reasonable people. The purpose of the aya is elucidated (tabyin) by rational arguments. There is no difference indeed. Concludes the author, between rational specification and specification by the Quran or by the sunnah 120

4:15 Specification by the Khabar al-Wahid General declaration can be specified by the kabar al-wahid
121

(one transmitters

report). Abu Baker quotes Isa b. Aban,122 to whom he attributes, in a further chapter

115 Ibid,147 116 Quran .11: 24 117 al-Jassas, Usul-al-fiqh. Pp. 146. 118 Ibid. 119 Quran, 1V, 1 120 Usul al-Jassaas, pp.147. 121 Ibid , pp/155 122 See introduction of this article.

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the book Al-radd ala Bisr al-Marisi fi l-ahbar.123 According Bernad, Wiss, it seems that Al-Jassas agrees with Isa b.Aban on specification by kabar al-wahid, as by qiyas, and distinguishes two possibilities: .( ) 124

Literal meaning (zahir) whose purpose is obvious and does not need elucidation (bayan)125 Literal meaning of the Quran and sunnah which is equivocal and can be interpreted in different ways (kana fi-l-lafz ihimal al-maani). In such a case particularization by kabar al-wahid is reasonable (maqul) this rule is based on a principle clearly expressed and repeated several times in the treatise: Whatever is established by means which necessitates ascertained knowledge (ilm) cannot be rejected in favour of that which does not necessitate it126.

4:16 Elaboration of the theory of obligation in al-Jassass treaties: Among the several topics treated by Al-Jassas in his Tafsir al-ahkam was the obligation to wage war on Gods behalf against His enemies. Prescriptions relating to Holy war are a case in point. For Jassas the obligation to fight in the way of God was derived not from Q. 2:216, but from Q.2: 190. (Fight against those who fight against you in the way of Allah, but do

not transgress.)127

123. That Bisr was a disciple of Abu Hanifa and that he agreed with the Mutazilis on the creation of the Quran but he accused them of infidelity (akfafr) for their belief in the creation of the act. 124 Usul-al-jassas 158. 125 Ibid 126 Ibid. pp. 172 127 Translations Towards Understanding the Quran, Vol 1, pp150

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Commentators have differed128 in interpreting this verse. According Tabari that this was the forts verse that commanded the Muslims to fight against those of the associates who waged war against them, but it was later abrogated by (Q 9:36)129. AlJassas hold the claim that this verse is in which was stressed the exclusively defensive character of combat imposed upon Muslims.130 Precluded by its terms were thus non-combatants, such as women, children, and hermits/ monks. The real intent of the verse is to stress that force should be used only when only its use is unavoidable, and only to the extent that is absolutely necessary.131 A different qualification was that made between infidels and scriptures (ahl-al-kitab) as liable, by divine decree, to attack by believers. Of the four verses (Q.2: 191 and 4:91, 4:89 and 9:5) adduced to support the progression from defensive to offensive warfare and from selected targets to a general declaration of hostility to non-Muslims, Q 9:5 became the scriptural prop of a formulation designed to cover any and all situations which might arise between the Muslim community and its enemies, and included lingering compunctions about clauses attaching to the sacred months (ashur hurum) and the sanctuary at Meca (masjid haram) called in the exegetical tradition the sword-verse (ayat al-sayf), Q. 9:5)......... ( But when the sacred months expire, slay those who associate others with Allah in His divinity wherever you find them; seize them, and besiege them, and lie in wait for them. But if they repent and establish the Prayer and pay Zakah, leave them alone. Surely Allah is All Forgiving, Ever Merciful.)132

128See for example Ibn Kathir, 1,p.400, Tabarsi, II, p.139, Wahidi, PP.49-50 129 Tabari, Jami al-Bayan an Tawil Ay al-Quran .III, pp. 561-662 130 Ahkam al-Quran I, 256-63 : Bab Fard al-Jihad 131 Towrads Understanding the Quran, pp151-152 132 Ibid, Translation, Vol 111, pp 190,

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Quoting Ibn Arabi, John Wonsbrough, remarked that achieved a quite extraordinary status in the elaboration of Islamic jurisprudence, as the alleged arrogant of 124 Quranic Verse. Theses included all passages in scripture, which could be interpreted as recommending leniency (safh wa-afw; cf. Q 2:109, 5:13) towards unbelievers. The range and Varity of such were equally extraordinary, at least as set out in what became the classical work of Quranic abrogation, the Kitab al-nasikh wal-mansukh of the employment of exegesis traditions in the ahkam literature was not limited to precision of juridical niceties.133 As in the much-disputed problem of reference in Q 5:33) Those who wage war against Allah and His Messenger, and go about the earth spreading mischief indeed their recompense is that they either be done to death, or be crucified, or have their hands and feet cut off from the opposite sides or be banished from the land. Jassas provided two hadiths: one from Ibn Abbas applying the verse to polytheists (mushrikun), and another from Ibn Umar identifying those hostile to God and His prophet as the clan of B. urayna (Uraniyyun) Summing up the evidence additional hadiths from Ibn Abbas, conflicting and with different isnads) as offering a choice between polytheists and apostates, Jassas found himself constrained to reject both on the grounds that whatever the occasion of the revelation, its semantic content was clear: reference was to all transgressors of Gods law. The principle thus enunciated was that juridical application could not be based upon an occasion (presumably a historical accident) but only upon the general validity of the scriptural expression: .134

John Wansbrough, pointed out that the manner in which this kind of argument cut across earlier exegetical method based on the chronological arrangement of scripture
133 Wansbrough, J

. Quranci Studies, pp 185.

134 Ahkam al-Quran II, 406-8.

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emergence from a comparison of Jassas, with Abu Ubayd, who reported that the incident involving B. Urayna had taken place in the early years of Islam.135

4:13. The Authoritative position of Ijma by nass (Text) Classical jurists were agreeing that the ijam is fourth bases of Islamic Law, along with the kitab an khabar al-mutawatir as the conclusive proofs of law. How important is this among the classical jurists let us look the Jassass theory? According to Jassas the prime justification for the authority of ijma136 comes from the Quran, whereas the Prophetic reports play a secondary supportive role. The latter, by emphasising the infallibility of the command as well as adherence to the community, endorses the idea of a chosen narrative, which is introduced by the Quran. But this view has been refuted that, there is no room in al-Jassass justification of the authority of ijma for reason, for it is rationally plausible that a group of people may agree on error, though it is less possible than the plausibility of error in the reasoning of an individual.137 The case of ijma however, exceptional due to the fact that reason cannot be utilised for justification. Another striking fact is that treatment of justification of authority by al-Jassas stresses the communal aspect of ijma. For him, the authority of ijma is derived not only from the convergence of opinions but also for substituting the authority of the Prophet (peace be upon him)138 The exclusion of reason from having a say in ijma is vigorously upheld by Jassas In Quranic verse (2:143) Jassas first draws attention to the point, which stresses the special relationship with the idea of the community, then further substantiates this relationship with the idea of the community taking the place of the Prophet in
135 see Quranic Studies, Cf, Principles of Exegesis, pp 150-190 136 The topic of the authoritativeness of ijma is discussed in Jassas, al-Fusul, 3:257-267; In Ahkam Vol 1. Pp. In Dabusi, Taqwim, ff./ 8-10. in Pazdawi, Usul, 3:971-82. 137 Bedir, M. The Problem of Usul Al-Shashi, Islamic Studies, 42:3 (2003) pp 415-436. 138 See. Al-Jassasa Ahkamul al-Quran, Vol 1. Chapter, Ijam, (Q 2:143)

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religious matters. The sunnah further advances this status of the ummah by introducing the notion of infallibility of the community as a whole. Those Quranic passages and the Prophetic reports which enjoin the believers to follow the path of the community are apparently regarded as of secondary importance when compared with the idea of special status of ummah. In other words, these ideas constitute the rationale on which the authority of ijam is based. Later Hanafi jurists tried to keep the question of the justification of ijma within the confines of the Islamic dogma, thereby denying reason a role in this matter.

Chapter-5 Conclusion
Feature of his legal theory and his great contribution. A brief analysis of this text enables us to draw a few conclusions concerning the text of Ahkamul al-Quran, and Usul al-Jassas as are follows: First of all its brevity as we conciseness makes it closure to a style of writing which, is a mature development already elaborated in the tradition in a way that satisfied the immediate needs of not only the Hanafi School of law but as whole Islamic Jurisprudence system. Secondly, Al-Jassas has already presented his Ahkam in such development manner which new age required, it is not possible any body by passes his scholarship, who so ever wants to carry further investigation in Islamic jurisprudence system. Thirdly, the prominent features of the work are total control of material from begging to the resulting in conciseness and rogation.

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Fourthly, It seems that, al-Jassases Ahkam payes the way for the scholarship of Islamic Jurisprudence to dunce the usuls from The Quran and emergence of madrassahs (traditional Islamic centres learning) seems to coincide with this change in writing style, which al-Jassas marks the beginning of this style in Hanafi usul tradition. Fifthly, Al-Jassas does not put his vast knowledge as Tabari at the disposal of his students and those who solicited his legal opinions. Evidently, he sought no high office for himself and refused any he was offered. His professional life was one of persistent scholarship, dedicated teaching, and prolific writing.

Seventhly, it is clear that al-Jassass contribution to legal theory was not confined to the theory of Prophetic reports, but extended it with companions, jurists,anology and fataws of precedents, all most all references to his name in latter tafsir or Quranic interpretation scholarship touch upon an issues concerning legal transmission rules. Eighthly, Being Hanafi jurist, al-Jassas defended his mahab hanafi and appears in his commentary as a Hanafi commentator who has to defend his own school of though. The question of whether or not a man may take a girl for his wife as with whose mother he has committed adultery is a disputed one among the jurists. After giving the different views he described the Shafii views as follows: It is quite clear that what is said by Shafi empty and meaningless.139 In spite of the harsh language used by al-Jassas against other schools of thought and his tendency to sympathize with the Hanafi School, his commentary is an excellent work to sympathize with the Hanafi School. It is valued highly by Muslims, particularly by Hanafis. But, Muhammad Husain al-Dhahabi, has not appreciated his approach of rationalism. Al-Dhahabi says

139 Ibid,11 143

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that the Mutazilla140 influenced Jassas in his views about sorcery. Jassass criticism of Muawiya that he had revolted against a lawful Caliph, Ali, al-Dhahabi says that it would have been much better for Jassas to leave this matter to God.141 This sort of criticism, however, dose not detracts from the value of Jassass work. But if alJassass successors had continued their research with the same spirit as he had, a great many of the stories of Jewish origin and superstition would have been removed long ago from the face of the Quran. Finally, His great contribution towards the Usul fiqh in general, particularly which is regarded as a part of hanifi scholarship142 is Istihsan, Some writers have used the word urf (custom) to indicate that this one method of employing istihsan. Care has to be exercised in using such concepts, al-Jassa explains that one meaning of istihsan is where the shariah is asking us to follow what is good and has left the determination of this maruf to our opinion. For example, the words of the Quran: (A gift of a reasonable amount is due from those who wish to do the right thing)143 so also the words: (But he (to whom the child is attributed) shall bear the cost of their food and clothing.)144 In such cases, the principle is that we follow what the shariah would consider to be good, that is, we determine it in accordance with the general principles of the shariah. It does not mean following each and every custom in accordance with what the people have been practising.145 Supporting hanifi view on istihsan, Coulson, N.J expressing his view that the freedom and flexibility of legal reasoning is the

140 See also, , Studies in Islamic Legal Theory, Mutazilism and Maturidism in Hanafi legal Theory, Part three, Edit, Bernard G,W. Leiden. Boston. 2002, pp235141 Al-Mufassitun, Cairo, 1962, 1331/1912. 142 Encyclopadia of Islam, IV, 256-258. 143 al-Quran 2:236 144 Ibid: 2:233 145 for details Al-fusul fil usul, vol 4 pp 233-256

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keynote of the Hanafi principle of istihsan, or jurisprinciple146 Al-Jassas expressed his view that the best proof of this necessity is that one who denies the validity of rational arguments is he obliged to resort reason to justify his denial. This assertion, which is typical of the ahl alilm wa-l-nazar argumentation against traditionalism and scepticism, appears in the chapter entitled Al-qawl fi wugub al-nazar wa damm al taqlid, in Usul fiqh. Anyway the greatest contribution of al Jassas, however, laid in his refutation of Shafi'is arguments against istihsan and his establishment of it as the necessary condition of all creative legal thinking. Under Shafi'i, the ability of the jurist to attend to the welfare of the community was reduced, and that of responding to novel problems with novel solutions as inspired by the ultimate purposes of the Sharia was eliminated. Without istihsan, Islamic law stood condemned to fossilization. However, istihsan is not to be equated with juridical license, for the purposes of the Sharia guard it against any possible aberration.

146 Coulson, J.N, A history of Islamic Law, pp. 91

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