Wael B. Hallaq “Was al-Shafi’i the Master Architect of Islamic Jurisprudence?”in International Journal of Middle East Studies, 25 (1993), 587-605
Claim that Asy-Sya>fi’i> was the founder of Islamic methodology of law (ushul al-fiqh), as also was recognized by several scholars, motivated Hallaq to write this article. Through this article Hallaq tried to show that the theory in ar-Risalah had little effect during most of 9th century (C.E), and the assumption that Asy-Syafi’i as the founder of ushul al-fiqh emerged later in 10th century. Therefore, there is no continuity between Syafi’i’s theory and the classical ushul al-fiqh.
By historical approach, Hallaq tried to proof the claim that Asy-Syafi’i as the founder of ushul al-fiqh was not supported by historical evidence. Hallaq studied several sources both classical and medieval. Based on his study on 9th century’s works, Hallaq had concluded that there was no ushul al-fiqh work in 9th century, which laid down a systematic, comprehensive, and organically structured legal methodology whose purpose to derive legal rulings from the material sources. The works, indeed, were much entitled using term “usul”, but the term had a wide range of application including the prevailing cases of law (furu>’). In addition, although in the 9th century there were also individual works entitled such as fi> isbat al-qiyas, naqd isbat al-qiyas, ijtihad ar-ra’yu, khabar al-wahid, al-ijma’ and al-khusus wa al-‘umum, these works aimed at defending juridical position and not to lay down organically structured legal methodology to search the Divine Law. Hallaq also added that the biographers (rawi) of 9th century had never employed the nomenclature that indicated the authors of 9th century had specific knowledge on legal theory. On the contrary, such an appointment was often and became the norm for the biographers in 10th century.
Hallaq said that Ar-Risalah, as Syafi’i’s work in the last five years of his life in Egypt before died in 820 M, didn’t attract any commentary (syarh) or summary (mukhtasar) during 9th century. However, in 10th century, there were at least five commentaries and two works that rejected Ar-Risalah. According to Hallaq, the existing Ar-Risalah is the last version written by Asy-Syafi’i after his life in Egypt. Whereas the old version of Ar-Risalah is difficult to be traced. Nevertheless, it could be estimated that the latter is originally written originally as an apologia for the supremacy of the tradition. After studying the content of Ar-Risalah, Hallaq stated that the work was not only less satisfied but leaves fundamental problems that should be fulfilled in ushul al-fiqh. The problem of legal language that spent one-fifth or one-fourth part of the later works of ushul al-fiqh was not discussed in Ar-Risalah, except Amm and Khass. Likewise, the problem related to ijma’, naskh, ra’yu, ta’lil and so fort, had only little attention. Moreover, Hallaq stated Ar-Risalah was work that made Sunnah of the prophet as the ultimate concern and the use of Sunnah in elaboration of law. Therefore, according to Hallaq, Ar-Risalah didn’t meet the qualification as the work of ushul al-fiqh.
However, Ar-Risalah provides a synthesis between rationalism and traditionalism. According to Hallaq, Syafi’i was also a scholar that was difficult to be classified both into rationalist group or traditionalist. The vague of Syafi’i’s status was also shown by the absence of his name from the Ibnu Qutayba’s (d. 889 M) work, al-Ma’arif, which contained the list of famous scholar both from traditionalist group and rationalist group.
Hallaq, then, studied the works that emerged during 10th century. In this century, the works of ushul al-fiqh began to emerge. The authors of ushul al-fiqh in this century used the title that showed an independent and prominent knowledge. In his article, Hallaq mentioned at least sixteen jurists who had written several works of ushul al-fiqh. Besides, in this century there were at least five commentaries on Ar-Risalah and two works that contained the rejection to it.
In this century, there was also someone whose name Abu al-Abbas Ibn Surayj (d. 918 M). He was one of the most important jurists of Syafi’i school of thought after the death of Syafi’i and the first who taught the juridical dialectic and combined knowledge between hadis and fiqh. Unfortunately, none of the Ibn Syurayj’s work that could be found and there was no proof that he had written a complete work of ushul al-fiqh. However, Ibn Surayj had some disciples who became the first author from the scholars of Syafi’iyah who wrote the works of ushul al-fiqh. Among the most famous disciples in the first half of 10th century were Ibn Haykuwayh (d. 930), Ibrahim al-Marwazi (d. 951), Abu Bakar al-Farisi, Ibn al-Qass, Abu Bakr al-Sayrafi, and al-Qaffal al-Sasi to mention some. The last two were the most important authors of ushul al-fiqh. The two disciples who were known as the follower of juridical dialectic showed their debt to Ibn Syurayj. Both Ibn Syurayj and his disciples conceptualized legal theory as the synthesis between rationality and textual tradition, and in this case they were in debt to Syafi’i. Then, Hallaq argued, when they knew that their legal theory was coincided to Syafi’i’s thesis, they began to praise Syafi’i as the usuli and the founder of ushul al-fiqh.
However, the Syafi’i’s image as the founder of ushul al-fiqh began to spread in the early 10th century, as obviously described by the development of manaqib attributed to him. Hallaq mentioned that a time before the Baihaqi’s manaqib work (d. 1066) – but exactly after the manaqib of Abu Hatim al-Razi (d. 938) – Syafi’i’s image as the founder of ushul al-fiqh had been formed.
In the last part of his article, Hallaq explained that because in the early 10th century the tendency towards the synthesis between rationalism and traditionalism had been completed, the way to ushul al-fiqh opened broadly. Then, when this knowledge developed in the hand of Sayrafi, Qaffal, and the others, the synthesis that had not been completed and created by Syafi’i a century before, became relevant and revitalized in the manner of commentaries on Ar-Risalah by attributing all branches of synthesis to Sya’fi’i himself. Thus, Syafi’i became the founder of ushul al-fiqh. Therefore, according to Hallaq, thank was not actually directed to Syafi’i, but to Ibn Surayj, Sayrafi, and Qaffal whose achievement was the product of a combination of emerging conditions in the end of 9th century and early 10th century, namely a tendency towards synthesis between rationalism and traditionalism.
However, Hallaq’s article has shown a serious effort by examining various works both in 9th century and 10th century as historical data, which leads him to the conclusion that claim that Syafi’i as the founder of ushul al-fiqh is not supported by historical data.
Nevertheless, it is important to note that such a conclusion is extremely influenced by the definition of ushul al-fiqh formulated by Hallaq himself. According to Hallaq, the work of ushul al-fiqh is a work whose primary task is to lay down a systematic, comprehensive, and organically structured legal methodology whose purpose is to derive legal rulings from the material sources. Besides, the work of ushul al-fiqh must consist of important elements such as epistemology, legal language, theory of abrogation (naskh), transmission of texts, consensus, qiyas, ijtihad, taqlid, and so fort. By formulating such a definition of ushul al-fiqh work, it is rare of course, the early works before 10th century which met the qualification of ushul al-fiqh work, including Ar-Risalah.
It is also important to know, there is opinion that shows ushul al-fiqh has already existed and developed before Syafi’i. Farhat J. Ziadeh, for example, stated that the unaccomplished form of ushul al-fiqh knowledge began to appear in the age of 2 H. The work of Ibn Nadim, Al-Fihrist, mentioned that a scholar of Hanafi school of thought, Abu Yusuf (d. 182 H/ 798 M) had collected the foundations of ushul al-fiqh knowledge in a separate volume, but the volume had been lost. And the first work of ushul al-fiqh that is available to us is Ar-Risalah, the work of Syafi’i, so that the author is reputed as the founder of ushul al-fiqh.
Nyazee also criticizes that whether the absence of book that discusses the legal theory means that there is no ushul al-fiqh knowledge, so that the knowledge of ushul al-fiqh is related to Asy-Syafi’i as the first author who writes on ushul al-fiqh (that is available to us). If so, there is no legal theory before Ar-Risalah. As long as there is Islamic Law, there is legal theory.
Regarding the tendency of juridical dialectic towards the synthesis between rationalism and traditionalism in the early 10th century, as pioneered by Ibn Surayj and continued by his disciples, however, they were in debt to Syafi’i. In this case, a question needs to be raised, if they were not the disciple of Syafi’i, did they tend to such a synthesis? The answer to this question is difficult to be guessed, but it can be predicted that each disciple has a big tendency to follow the tenet of his master. If so, according to the reviewer, Syafi’i was the real founder of ushul al-fiqh, in the meaning that he was the first scholar who offered the synthesis between reason (rationalism) and revelation (traditionalism) – which is the representation of ushul al-fiqh according to Hallaq – and as the author of ushul al-fiqh whose work became the first work which was available to us.
See for example, Philip K. Hitti, Makers of Arab History (London: Macmillan, 1986), especially Chapter “Al-Shafi’I: Founder of Science of Islamic Law,”167-83; Muhammad Abu Zahrah, Ushul al-Fiqh (Cairo: Dar al-Fikr al-Arabi, 1958), p. 13; Badran Abu al-‘Aynayn Badran, Ushul al-Fiqh al-Islami (Alexandria: Mu’assasah Shabab al-Jami’ah, 1402/1982), p. 14; idem, Tarikh al-Fiqh al-Islami wa Nazariyyat al-Milkiyyah wa al-Uqud (Beirut: Dar an-Nahdah al-Arabiyyah, t.t), p. 87; Ignaz Goldziher, The Zahiris: Their Doctrine and Their History, trans. Wolgang Behn (Leiden: E.J Brill, 1971), p. 21; Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1986), p. 48; Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), p. 60-1; Muhammad Hashim Kamali, Principles of Islamic Jurispridence (Cambridge: The Islamic Texts Society, 1991), p. 5; Sherman A Jackson, “From Prophetic Actions to Constitutional Theory: A Novel Chapter in Medieval Muslim Jurisprudence,” in International Journal of Middle East Studies 25 (1993), p. 71; However, some scholars also indicate that ushul al-fiqh has been exist and developed before Syafi’i, therefore, Syafi’i is only one from a number of scholars who takes a part in the development of ushul al-fiqh. See for example, Mustafa Ibrahim Zalami, Dalalat an-Nusus wa turuq Istinbat al-Ahkam fi Daw’ Ushul al-Fiqh al-Islami (Baghdad: Matba’ah Asad, 1972/1973), p. 4; Aron Zysow, “The Economic of Certainty: An Introduction to Typology of Islamic methodology of law” (Dissertation, Havard University, 1984), p. 3; Anwar A. Qodri, Islamic Jurisprudence in the Modern World (Lahore: S.H. Muhammad Ashraf, 1973), p. 131-2; Bernard G Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (Salt Lake City: University of Utah Press, 1992), p. 18; George Makdisi, “The Juridical Theology of Shafi’i: Origins and Significance of Ushul al-Fiqh,” in Studia Islamica 59 (1984), p. 6-7; Farhat J. Ziadeh, “Ushul al-Fiqh,” in The Oxford Encyclopaedia of the Modern Islamic World, ed. John L. Esposito (Oxford: Oxford University Press, 1995), IV: 298-9.
Coulson, A History, p. 55. Ar-Risalah is written to fulfill the request of ‘Abd ar-Rahman ibn Mahdi (d. 813-4 M) who has asked Syafi’i to compose a work on Qur’anic legal statements, the accepted historical accounts on the Qur’anic legal statements, consensus, and to clarify naskh and mansukh. Makdisi, “The Juridical,” p. 6.
Ziadeh,”Ushul al-Fiqh,” p. 299. While according to Makdisi, Khatib al-Baghdadi (d. 463/1071) called Abu yusuf as the first author who composed book on ushul al-fiqh. Ibn Nadim (d. 377/987) mentioned Syaibani and Abu Yusuf had written Kitab Ushul al-Fiqh. Makdisi, “The Juridical,” p. 6-7.