Abu Bakr Ibn Al Mundhir

Int. J. Middle East Stud. 39 (2007), 351–368. Printed in the United States of America DOI: 10.1017/S002074380707050X Scott C. Lucas A B U B A K R I B N A L - M U N D H I R , A M P U TAT I O N , _ A N D T H E A RT O F I J T I H AD ¯ d: a total expenditure of effort in the seeking of an opinion as to what constitutes a ijtiha probable rule of divine law relative to a particular case under consideration.1 ¯ d: Islamic interpretation.2 ijtiha Few Islamic concepts have undergone as radical a semantic shift over the past couple of ¯ d. This Arabic term, confined for centuries to sophisticated works of centuries as ijtiha ¯ l al-fiqh), has been liberated and transformed into the handmaiden legal theory (us .u of modern Muslim reformists throughout the world. Numerous Western scholars have ¯ d of the first definition above or the modern investigated either the classical legal ijtiha ¯ d among reformists encapsulated in the second, succinct gloss of employment of ijtiha this word. Valuable studies have been published on topics ranging from the relationship ¯ d and writing fatwas (ifta ¯ )3 to the so-called “closure of the gate of ijtiha ¯ d ”4 between ijtiha 5 ¯ d in 19th- and 20th-century reform movements. In short, ijtiha ¯ d is to the role of ijtiha ubiquitous in modern studies and formulations of Islam. This article introduces the legal methodology of Abu Bakr Muhammad ibn Ibrahim ibn al-Mundhir al-Naysaburi (d. 930), an independent mujtahid (legal scholar) of the early 10th century, whose writings have been essentially ignored in the West. The case study of Ibn al-Mundhir’s investigation of laws concerning punishment for theft sheds fresh ¯ d on the eve of crystallization of the four Sunni legal schools light on the nature of ijtiha ¯ hib). Ibn al-Mundhir’s writings indicate that the Qur an and prophetic hadith (madha played a modest role in early elaboration of Islamic law and that the bulk of his efforts were devoted to culling and evaluating legal opinions of the companions, successors, and, in particular, a small group of postsuccessor jurists. His steadfast reluctance to promote or expand the authority of Abu Hanifa, Malik, al-Shafi i, or Ibn Hanbal puts him at odds with major trends of 10th-century Islamic law that Wael Hallaq describes in a recent monograph. I conclude by locating Ibn al-Mundhir within the literature of juristic ¯ f ) and highlighting features that make his writings exceptional disagreement (ikhtila within this tradition. Scott C. Lucas is Assistant Professor in the Department of Near Eastern Studies and the Religious Studies Program, University of Arizona, P.O. Box 210158B, Tucson, Ariz. 85721-0158, USA; e-mail: [email protected]. © 2007 Cambridge University Press 0020-7438/07 $15.00 Ibn al-Mulaqqin (d. 1026) purchased one of Ibn al-Mundhir’s books on juristic disagreements ¯t for the sole purpose of answering a technical question he had concerning the qunu supplication in the witr prayer. 1066) identifies him as the author of what has remained his most famous book. upon which early Muslim jurists purportedly agreed. 1282) offers elevated praise of Ibn alMundhir’s al-Ishraf. has also survived and is valuable for historians because it is one of the only legal digests from the premodern period that is independent from the four primary Sunni schools of law.”14 Al-Subki (d. Ibn al-Mundhir’s fame and reputation as an independent mujtahid derive exclusively from his books.Abbadi (d. four of which are relevant to this study. and includes him ¯d ” in his list of the “four Muhammads” who attained the skills of “unrestricted ijtiha 15 Finally. and Disagreement). al-Awsat fi al-Sunan wa-lIjma wa-l-Ikhtilaf (The Intermediate Study of Laws. his slender book al-Ijma (Consensus) consists of 765 rulings. clearly extracted from al-Ishraf.19 Finally. and it appears to be a complete book. a group that includes the founder of the classical Shafi i school. Lucas IB N A L -M U N D H IR : A MUJ TA H ID A N D H IS B O O K S Virtually nothing is known about Ibn al-Mundhir’s life other than that it began in Nishapur and ended in his adopted home of Mecca.16 Ibn al-Mundhir’s four surviving legal works consist of abridgements of what must have been a massive source book that has perished without a trace. Consensus.18 Ibn al-Mundhir’s legal hornbook.17 A major portion of al-Ishraf.11 Ibn Hazm (d. has been published and a chapter of this work will be the primary source under discussion in this article. five of which have been published in fragments or in their entirety.10 According to a remarkable anecdote.6 He appears less than a century after his death in the Fihrist of Ibn al-Nadim among the Shafi i school.13 and al-Dhahabi (case 1348) declares that Ibn al-Mundhir had “attained complete mastery of hadith and the disagreements [of the jurists] and was a mujtahid who did not bind himself to anyone’s opinions. identifies five of his useful books. al-Iqna (The Persuasive Argument).9 Abu Ishaq observes that Ibn al-Mundhir “composed books on the scholars’ disagreements. 1401) reaffirms that Ibn al-Mundhir ¯ d al-mut (al-ijtiha laq ). .7 and the early Shafi i biographer Abu Asim al. The editor of a portion of Ibn al-Mundhir’s largest surviving abridgement.20 .Ilm (The Noble Overview of the Scholars’ Opinions). the great Shafi i jurist Abu Bakr al-Qaffal alMarwazi (d. al-Ishraf ala Madhahib Ahl al. 1083) puts Ibn al-Mundhir among the ten members of the second generation of Shafi i jurists. 1064). probably in the year 930. had clearly heard of Ibn al-Mundhir in his homeland of al-Andalus because he identifies him as one of only five mujtahids who lived after the generation of Ibn Hanbal and Ibn Rahawayh. argues that the lost mother book from which it was based was called al-Mabsut (The Expansive Study).8 Abu Ishaq al-Shirazi (d. ¯d ) and lists accurately his was above following a single master scholar or school (taqlı five surviving books.12 Ibn Khallikan (d. 1369) also speaks highly of Ibn al-Mundhir. minus the final chapter or two. as well as corrected the death date Abu Ishaq supplied in his biographical dictionary. Abu al.352 Scott C. Later scholars provided lists of these teachers. Ibn al-Mundhir’s famous abridgement of al-Awsat. the like of which had never been seen” and notes that he did not know the identities of Ibn al-Mundhir’s teachers. an independent mujtahid in his own right.Abbas ibn Surayj. and. and the Hanbali Ibn Qudama.21 The second group openly cited Ibn al-Mundhir’s presentations of his predecessors’ opinions but rarely mentioned his views. Ibn al-Mundhir’s books are late enough to have evaded the critical gaze of Western revisionist scholars.25 It seems safe to ascribe al-Ishraf to Ibn al-Mundhir.Abu Bakr ibn al-Mundhir. al-Ishraf. Ibn al-Mundhir’s lauded book. Amputation. and the Art of Ijtih¯ ad 353 FIGURE 1.22 The third and final group of jurists regularly cited both Ibn al-Mundhir’s research and his personal opinions. this study takes advantage of the fact that the majority of them acknowledged that he was a genuinely independent mujtahid. it is important to stress that his primary legacy in the Muslim scholarly tradition has been that of a diligent and honest compiler of a nearly unparalleled array of early legal opinions rather than that of a dazzling or iconoclastic jurist. such as Norman Calder. especially al-Ishraf (see Figure 1). is not merely the fruit of extensive research and meticulous organization.24 whose penetrating questions about the authentic authorship of most 9th-century fiqh books render the analysis of their purported authors’ hermeneutics nearly impossible. A preliminary overview of Ibn al-Mundhir’s influence. it is also a work in which the reader can follow its author’s legal reasoning on a case-by-case basis on hundreds of topics. Although we have seen that Ibn al-Mundhir was regularly identified by classical Muslim biographers as an independent mujtahid. given his personal independence . it includes the Maliki jurists Ibn Battal and al-Qurtubi. There are three ways in which later jurists employed his books. The first group of jurists drew on Ibn al-Mundhir’s presentation of juristic disagreements without openly citing him or his personal opinions.23 Even though most classical Muslim scholars appear to have paid scant attention to Ibn al-Mundhir’s legal reasoning. every topic for which there is disagreement [among the scholars] must be referred back to the Qur an because God ordered them to refer the topics which they dispute to the book of God and the Sunna of his messenger [paraphrase of sura 4:59]. add crimes in general in al-Ishraf. numerous Muslim jurists from an early date constructed a dynamic legal discourse that revolved around definitions of the precise meaning of thief. which position is preferable. His investigation focuses on three sources: (1) the Qur an. according to of wine (khamr). in the absence of consensus. “Cut off the hands of thieves. it is difficult to fathom who would have had a vested interest in forging this text in his name.354 Scott C. IB N A L -M U N D H IR A N D R U L E S C O N C E R N IN G P U N IS H M E N T FOR THEFT The punishment for theft ordained in the Qur an may be second in notoriety only to the Sunnaic punishment of stoning the adulterer. established proper procedure for prosecuting theft. executed solely by the state or its deputies. Lucas and the enormous amount of time needed for its composition. according to the literal meaning (z . Ibn al-Mundhir navigates all these topics surrounding punishment for theft and h .a amputated unless the scholars (ahl al. In short. whether they are male or female. Furthermore. add ¯ ).27 Despite the Qur an’s seemingly unequivocal prescription for appropriate punishment of a thief. (2) prophetic hadith. add crimes from political authorities. ijtiha book emerges as the practice of researching and taking sides in two and a half centuries of quarrels over minute legal details that lie on the outer periphery of rulings mentioned in the revealed Islamic texts. engaged in broader ethical questions concerning the desirability of concealing h . reads. ira ¯ d ) are all corporeal in nature and. If they agree upon something. designed proper means of amputation. illicit sexual intercourse (zina ¯ ba). brigandage (h . largely to ascertain whether consensus exists on an issue. finally. and (3) his predecessors’ opinions. we have in Ibn al-Mundhir a recognized author-mujtahid who walks us through his extensive research and provides insight into how an early Muslim jurist elaborated Islamic law. These jurists identified potentially mitigating factors to the punishment of amputation.28 As the following analysis will show. Punishments for h . add crimes of theft (sariqa). consumption false accusation of illicit sexual intercourse (qadhf ). ¯ d in this Far from being the art of extracting rulings from the Qur an and hadith.ilm) agree upon something. Verse 38 of the fifth sura (al-Ma ida). and. and apostasy (irtida Ibn al-Mundhir and many other jurists. crimes. then it is necessary to make an exception to the literal meaning of the Qur an. must have his hand be amputated. He lays out his legal principles very clearly: Every thief who steals something which is above the minimum value for which the hand must ¯ hir) of the book of God. or.”26 This draconian punishment led early jurists to categorize theft among the distinctive h . our mujtahid Ibn al-Mundhir devotes the lion’s share of his time to the study of earlier scholars’ opinions. as punishment for what they have done—a deterrent from God: God is almighty and wise. . ”32 “You should exempt one another from the h .”31 “Whoever covers up [a fault of] a Muslim. “Amputation is not a valid punishment for the embezzler (kha (mukhtalis). God will cover up [his fault] in the Hereafter. and embezzlers. although he professes that the practice advanced by the second one is preferable to any alternatives: 1. It is true that Ibn al-Mundhir repeatedly wields the literal meaning of the sole Qur anic verse concerning theft (5:38) against those jurists with whom he disagrees (especially Abu Hanifa). Zayd]. Ibn al-Mundhir allows the following four prophetic hadiths to restrict the scope of the Qur anic verse requiring amputation of the thief’s hand: 1. add punishment of amputation. “How dare you intercede [on behalf of someone] in a case that is among the crimes ¯ d Alla ¯ h)?”34 against God (h . and the Art of Ijtih¯ ad 355 QUR AN AND SUNNA Neither the Qur an nor prophetic hadiths provide much assistance for Ibn al-Mundhir’s articulation of theft laws in al-Ishraf. A Makhzumi woman borrowed some goods. Ibn al-Mundhir declares his skepticism that the following two Prophetic hadiths are authentic. simu The three Qur anic verses and nine hadiths that meet Ibn al-Mundhir’s (unspecified) criteria for authenticity do place substantial restrictions on application of the h . add crimes . since whatever h . “Perhaps you only kissed her or winked at her?” He replied. add penalties. “The hand of the thief is not to be amputated unless the [value of the stolen property] is one quarter of a dinar or greater. Amputation. Five of these hadiths cover broad principles related to h . add crime comes to my attention. “There is no amputation [for the theft of] fruit or the edible tubers growing at the upper end of the palm trunk (kathar). “Cauterize it (ih . concerning his role in the affair of the Makhzumi woman who stole.”39 ¯ ha ¯ ). These hadiths also lend support to the interesting ethical position that Muslims who are not part of the ruling administration should endeavor to keep h . refused to return them.”40 2.”35 ¯ shiya) unless it is taken 2. “No.”36 3.”29 Ibn al-Mundhir cites a total of eleven prophetic hadiths in his treatment of theft in al-Ishraf. 3. thieves who steal a free-ranging camel. [its penalty] must be executed. add crimes that are not specific to theft. They prohibit amputation for prepubescent thieves.”30 The Prophet said to Ma iz. and Ibn al-Mundhir considers authentic only four of the remaining six hadiths.”33 5. udu 1. 2.37 ¯ in) and the pilferer 4. and then stole [them]. so the Prophet ordered that her hand be amputated. The Prophet said to Usama [b. 4. thieves who steal less that a quarter dinar worth of goods. The five general hadiths found in this section of al-Ishraf are the following: “The pen [recording bad deeds] has been raised in the case of a youth until he hits puberty. “There is no amputation [in the case of a stolen] camel or sheep (ma from the fold and its value is greater that that of a round shield (mijann).Abu Bakr ibn al-Mundhir.”38 Finally. The only other Qur anic verses he cites in additional verses in his ijtiha this section on theft merely reaffirm the widespread consensus that Muslim boys and girls must reach maturity prior to the applicability of Islamic law to their conduct and that “maturity” means “being capable of sexual intercourse. The Prophet ordered that a man’s hand be amputated and then said. but he is reluctant to enlist any ¯ d on this topic. One who pilfers (ikhtalasa.356 Scott C.44 ¯. Abu Hanifa. Sufyan al-Thawri. The theft of a very young slave in a state of guarded custody (h . and the companions of ra y. Qadi Shurayh. al-Zuhri. according to Ata . Although these nine hadiths. and amputations. Abu Thawr. Malik. the Kufans. were Ibn al-Mundhir’s primary preoccupations.46 ) 5. provide a firm foundation for legal and ethical discourses concerning the h . and Ata . and the companions of ra y. according to the Prophet 6. al-Zuhri. according to Ata b. Ibn Rahawayh. Abu Yusuf. Abu Hashim. Abd al-Malik. One who refuses to return a loaned item is not subject to amputation. al-Shafi i and his companions. Ali. al-Shafi i. the implications of which Ibn al-Mundhir explains away by means of a variant version. Umar II. according to the Prophet Muhammad. Ata . floggings. according to Malik. The theft of something greater than the minimum value for amputation that is in a state of guarded custody is grounds for amputation. add punishment for theft and then to analyze which scholars’ legal opinions are most frequently considered in Ibn al-Mundhir’s research on this topic.49 Mansur b. Only the Basran qadi Iyas b. it is clear that they offer limited guidance to a judge on the definition of theft and absolutely no help with procedural issues. the Medinans. al-Hasan al-Basri. when he does so. Ata . Ibrahim al-Nakha i. An analysis of the authorities whom he cites. Abu Thawr. according to Malik. al-Shafi i.42 2. Lucas concealed from rulers and judges in order to reduce the number of public executions. Theft of an item from a canopy (fust t) is grounds for amputation. and disagreement. Zadhan. Dinar. al-Walid b.50 Qatada. Dinar. Ibn Rahawayh. Ibn Hanbal. ijma CONSENSUS The idea that the consensus of (Sunni) Muslim scholars constitutes a solid legal proof appears regularly in every work on legal theory. al-Hasan al-Basri.45 4.48 ¯ in) is not subject to amputation. al-Sha bi. One who embezzles (kha Muhammad. al-Zuhri. the “companions of ra y” (Abu Hanifa. Ibn Hanbal. It is little wonder that our Abbasid-era mujtahid felt compelled to devote so much energy to analyzing opinions of his predecessor jurists in order to identify upon which legal topics they agreed and upon which they disagreed. al-Zuhri. Mu awiya47 disagreed with this position. according to Sufyan .a al-Thawri. and possibly al-Hasan al-Basri. add punishment of amputation. The following two sections of this article demonstrate how consensus ¯ and ikhtila ¯ f. The following twelve cases of consensus are cited by Ibn al-Mundhir in both al-Ishraf and al-Ijma . al-Shaybani). and all but three of them pertain specifically to theft.43 Umar b. Only one hand is to be amputated in the case of a thief who has stolen many times but is convicted only after his most recent theft. irz) is grounds for amputation. Abi Rabah. khilsa) is not subject to amputation. Our tireless mujtahid invokes consensus in fifteen cases in this section of al-Ishraf. Umar. Ibn Rahawayh. 3. Ibn Hanbal. Malik. We have already seen that Ibn al-Mundhir declares scholarly consensus one of the only means by which a Qur anic injunction can be mitigated in a specific case. Sufyan al-Thawri. and the companions of ra y. follows this list: 1. Abd al.Aziz ( Umar II). . al-Shafi i. and al-Shaybani.41 My goal in the following pages is to identify the twelve cases of consensus that are intimately linked to the h . Malik. along with verse 5:38. (This consensus is opposed by Ibn Hanbal and Ibn Rahawayh on the basis of a Prophetic hadith. al-Sha bi. Abu Thawr. Sufyan al-Thawri. Amr b. Abu Thawr. Amr b. Ibn Rahawayh. Abu Hanifa. Qatada. Ibn Hanbal. Abu Bakr.51 7. Ibn Rahawayh. al-Shafi i. Malik. Abu Thawr. Ibn al-Mundhir says also that this position “is similar to the position of al-Shafi i. Sharahil al-Sha bi. These twelve rulings derived from consensus compensate somewhat for the limited guidance that the Prophetic Sunna provided for elucidation of rules concerning punishment for theft. and Ibn Rahawayh. 9. and what I call ¯ ba). upright. Despite this uncertainty. ah ¯ ). it also sheds valuable light on whose legal opinions count in determining consensus on any given topic. in the canonical hadith collections. Abu Thawr. al-Ishraf. Abu Thawr. these rulings partially clarify the requirement and nature of “the state of guarded custody.” al-Shafi i.57 A Muslim who steals wine from another Muslim is not subject to amputation. and . according to Ali. and articulate correct procedure for prosecuting theft. Dinar. the thief’s hand must be amputated. Abi Rabah is cited in half of these consensus cases. to my knowledge.58 8. Malik. Consensus also furnishes Ibn al-Mundhir with answers to several very practical questions. and Ibn al-Mundhir states that there is not a single sound Prophetic hadith in its support. it is impossible to state with certainty that the names that Ibn al-Mundhir cites in support of many of these rulings are the only authorities whose views he considered.”52 If two free.Aziz. and the companions of ra y. 11. Sufyan al-Thawri. Although the scope of these topics provides insight into the general utility of consensus for a mujtahid in the early classical period. Meccan Amr b. 12. long-lost original book.Abu Bakr ibn al-Mundhir. according to Umar. although Ibn al-Mundhir does report opinions of fourteen successors at least once in this small section of al-Ishraf.” introduce mitigating circumstances to application of the h . Abu Hanifa. and the Art of Ijtih¯ ad 357 Ibn Hanbal. the requirement of two witnesses in the case of theft is nowhere specified in the Qur an or.54 al-Shafi i.59 Likewise.a . is an abridgement of an abridgement of a massive. the first two witnesses owe the blood-money (diya) for the hand of the thief and their testimony is no longer valid. I think that the names do indicate his methodology and preferences. The Meccan Ata b. male witnesses describe an act of theft that warrants amputation. such as what if a slave steals from her master? Does a thief whose hand is amputated have to return the stolen property? What if a Muslim steals something that Islamic law prohibits. al-Shafi i. Abu Yusuf. Abu Thawr. Ibn Hanbal. Medinan (and caliph) Umar b. Abd al. followed by the Medinan Ibn Shihab al-Zuhri in four of them.55 A slave who steals from his master is not subject to amputation. It is rather striking that only four different companions are invoked once or twice in a mere 25 percent of cases. like wine or swine? Moreover. successors (ta ¯ bi u post-Prophetic classes of companions (s . and the companions of ra y. The Kufan Amir b. according to Ata . Because the work under analysis. 10. Ibn Mas ud.53 If two witnesses testify against a thief whose hand is then amputated. The stipulation that stolen goods must be in a state of guarded custody (h . Ibn Shubrama. irz) for application of amputation is not even hinted at in the Qur an.56 A thief must return the stolen property to its rightful owner after his hand has been amputated. and al-Hasan al-Basri in three. Malik. what if witnesses err and a man’s hand is wrongly amputated? Altogether. Although our mujtahid draws on authorities from the three broad ¯ n).60 my findings show that he favors certain individuals “postsuccessor jurists” ( fuqaha over others and that the class of postsuccessor jurists clearly prevails in significance over their predecessors. and then additional witnesses prove that the original testimony is fallacious. add punishment of amputation. Amputation. Abu Hanifa “and those who agree with them. 66 The final trio of jurists did not become eponyms of durable legal schools. Abu Hanifa. Di ama all make two appearances.65 The inclusion of the eponyms of the remaining three long-lived Sunni legal schools. Khalid of Baghdad was. in the cases of Iyas b. we find two men from Wasit. collector of companion and successor reports.358 Scott C.68 Finally. Even the Prophetic hadith protecting pilferers and embezzlers from Qur anic punishment is strongly reinforced by the agreement of impressive lists of companions.64 Despite Ibn al-Mundhir’s willingness to consult a host of pre. are identified throughout al-Ishraf by the shorthand expression “companions of ra y” when they agree on an opinion and by their personal names when they disagree. lived several years in Yemen. In nearly every case of consensus for which he provides names. Idris al-Shafi i. al-Hasan al-Shaybani. was one of the founding pillars of hadith scholarship in Nishapur who contributed hundreds of hadiths to Muslim’s Sahih. Ibrahim. Anas.62 a Basran. as well as a jurist. Several agreement (ikhtila . Three of these jurists.” whereas his infrequent citation of companions and successors served largely as frosting on the cake ¯ . as the following case study shall demonstrate.Abbasid authorities in his quest to identify legal opinions upon which consensus exists. He hailed from Kufa. Ibn al-Mundhir endeavors to enlist the support of nine key postsuccessor jurists. successors.61 three Kufans.69 It is clear from my findings that Ibn al-Mundhir’s collection of consensus-based rulings ¯ d efforts than either pertaining to punishment for theft was much more useful to his ijtiha the Qur an or Prophetic hadiths. Among the solitary successors. compiler of one of the first books arranged according to legal topics. returned to Basra. and Ahmad Ibn Hanbal. and died purportedly on his way to make amends with the caliph. and the right of a slave to steal from his master without fear of amputation—are supported solely by consensus. it is clear from their limited appearances (and. Qadi Abu Yusuf. should come as little surprise to the modern reader of al-Ishraf and demonstrates that Ibn Hanbal’s legal opinions were taken very seriously by this mujtahid in the first quarter of the 10th century.63 and another Umayyad caliph. Lucas Basran Qatada b. D IS A G R E E M E N T Ibn al-Mundhir devotes the bulk of his attention in al-Ishraf to sorting out cases of dis¯ f ) among his predecessor jurists and piety-minded authorities. and postsuccessor jurists. both recognized as an independent legal scholar and claimed by later Shafi is as a member of their school. Abu Thawr Ibrahim b.67 Ishaq b. Sufyan al-Thawri was a highly respected hadith scholar. Muhammad b. like Ibn al-Mundhir. and ascetic. Mu awiya and possibly al-Hasan al-Basri. fled to Mecca after refusing to serve as a qadi for Caliph al-Mahdi. The conspicuous significance of these nine jurists in Ibn al-Mundhir’s analysis of ijma of consensus becomes even more pronounced in his corollary task as a mujtahid of adjudicating the multitude of cases in which they disagree. and Muhammad b. Major concepts and topics—such as “the state of guarded custody. known as Ibn Rahawayh. their actual disagreement with mainstream positions) that the primary criteria our mujtahid employs to demonstrate consensus is whether a small group of postsuccessor jurists are reported as having agreed upon the issue at hand.” the number of witnesses. Malik b. It is also evident that Ibn al-Mundhir felt perfectly comfortable labeling the agreed-upon position of the majority of an elite group of nine jurists as “consensus. according to the companions of ra y. unless it is taken from the fold and its value is greater that that of a round shield. ¯ sh) steals the burial shroud from the grave. and steals a garment. Abu Thawr. which I have translated as “a state of . al-Shafi i. Ibn Rahawayh. he cannot have his hand 8. If someone steals something from a bathhouse (h . 6. If someone steals a locked door or the door of a mosque. such as whether theft of a bird. according to al-Shafi i. Abu Yusuf. irz with the previously mentioned hadith. according to the companions of ra y. al-Sha bi. Ibn al-Mundhir ra y hold all of the thieves liable. a ¯ l) can result in the h copy of the Qur an. he is not subject to amputation. only the thief who entered the house is liable for amputation according to al-Shafi i. The companion Ibn al-Zubayr. Ibn al-Mundhir begins his discussion of h . 2. and makes off with the goods. Ibn Hanbal. If one thief enters a house and passes stolen goods to someone outside the house.” as the following summary will illustrate. Both opinions are attributed to Ibn Hanbal. and Sufyan al-Thawri. Abu Yusuf. Our mujtahid then proceeds to scrutinize the following twelve cases that relate to theft of something that is in a state of guarded custody72 : 1. children steal from parents. If a thief enters a house. according to Abu Hanifa. Abu Thawr. If a grave robber (nabba amputated as punishment. and the companions of ra y. and Hammad b. according to the companions of ra y. or goods from the public treasury (bayt al-ma . If a group of thieves enters a house and only one of them carries stolen property out of it. and Ibn al-Mundhir consider him liable for amputation.” and the declaration of consensus of his predecessors upon the stipulation of “a state of guarded custody” for the application of the h . sa reports that both opinions are attributed to Malik. . 4. Abu Thawr. Abu Thawr. Abu Thawr. and Ibn alMundhir all consider punishment of amputation valid for the grave robber. Abi Sulayman75 . neither person is subject to amputation. Amputation. he is not subject to amputation. and both of them carry it outside the house. only the carrier is liable for amputation. add punishment of amputation. al-Hasan al-Basri.71 A good case study of Ibn al-Mundhir’s time-consuming analysis of ikhtila his detailed discussion of what constitutes a h irz .73 Malik. The jurists Malik. according to al-Shafi i and Abu Thawr. The jurists Malik. If two thieves pierce a hole in the wall of a house. For example. guarded custody. 5. amma amputation. successors Umar II. Qatada.76 al-Shafi i. relatives who are prohibited from marrying each other due to consanguinity steal from one another. leaves the house. and the Art of Ijtih¯ ad 359 chapters in his section on theft concern a single issue.Abu Bakr ibn al-Mundhir. Ibn Rahawayh. and postsuccessor jurists Malik. add punishment of amputation. and Ibn al-Mundhir consider amputation valid in this case. “There is no amputation [in the case of a stolen] camel or sheep. al-Shaybani. al-Shafi i. Ibrahim al-Nakha i. The jurists Ibn al-Qasim. and Ibn al-Mundhir hold the individual who entered the house liable to amputation. the thief cannot be subject to 7. and Ibn al-Mundhir consider amputation appropriate in this case “because this is how people protect their doors.70 Most chapters in this section cover extremely precise topics over which some early jurists had disagreed. al-Shafi i. and the companions of ra y. the seventeenth chapter of the section on theft in al-Ishraf addresses the unhappy family scenarios in which parents steal from children. 3. Abu Thawr. his hand is to be amputated. reaches in from the outside. If a thief bores a hole in the wall of a house. Ibn al-Majishun.”74 ¯ m). The companions of ¯ n). but only one of them enters and takes something. Abu Thawr. on the basis of juristic preference (istih . according to Abu Hanifa. throws the stolen goods into a side street. The jurists Malik. and spouses steal from each ¯ f is other. add punishment of amputation. and only one of them involves authorities from among the companions or successors. the companions of ra y. The fact that he includes his own opinion in over half of the cases in this chapter strongly indicates that his self-image was high. The fact that he was one of the first and very few scholars in Islamic history to write an entire treatise on rulings for which consensus had been achieved is further ¯ testament to Ibn al-Mundhir’s concern for the practical results of the doctrine of ijma rather than its intrinsic theoretical problems. Jurists al-Shafi i and Abu Thawr hold the thief subject to amputation if a man is lying on the stolen goods under the canopy. 849) include almost exclusively opinions or rulings of the Prophet. ¯ and ikhtila ¯ f represents a significant step in the Ibn al-Mundhir’s presentation of ijma development of Sunni legal practice. . Malik. If someone steals a garment from saddlebags that are on a camel or another beast. transmitted by al-Rabi b.79 Even among the elite nine postsuccessor jurists identified in my discussion. Despite his frequent disagreement with legal positions of the companions of ra y. Al-Shafi i’s Umm. Ibn al-Mundhir states that the thief in both cases should receive the h . These twelve cases enhance our understanding of Ibn al-Mundhir’s legal reasoning and debates surrounding the invented condition of “guarded custody” as a prerequisite for amputation. 805). The theft of the actual canopy or saddlebags (jawa by amputation. and successors whereas books attributed to Muhammad b. and al-Muzani (d. he considered himself a mujtahid on a par with the postsuccessor jurists whom he regularly cites. according to Sufyan al-Thawri. Abu Thawr. al-Hasan al-Shaybani (d. Ibn Hanbal. then the thief faces punishment of amputation according to the companions of ra y. al-Shafi i. Ibn al-Mundhir felt obliged to cite their opinions diligently and. ¯ lı ¯q) from their place cannot be punished 10. Disagreement even exists between the companions of ra y in three cases78 and within positions attributed to a single jurist in two cases. if he steals the actual saddlebags. Ibn al-Mundhir appears to be concerned primarily with the opinions of Abu Hanifa. al-Shafi i. and Ibn al-Mundhir. resisted declaring consensus upon any topic in which they disagreed with the majority of early authorities. successors. There is consensus77 that theft from a canopy is punishable by amputation. companions. Sulayman (d. 848) version of Malik’s Muwatta ikhtila do cite opinions from members of all three classes of companions. according to the companions of ra y. 878) focus primarily on opinions of a few individual postsuccessor jurists. Abu Yusuf. there is no risk of amputation. Sahnun (d. according to the companions of ra y. and Abu Thawr. and al-Shaybani all consider amputation appropriate in this case. does include some of the earliest ¯ f treatises. Abu Hanifa. Abu Thawr. and both it and Yahya al-Laythi’s (d. each of which has a lock.360 Scott C. He appears to have been one of the earliest scholars to include opinions of a large pool of companions and successors alongside positions of at least a dozen postsuccessor jurists on a substantial number of legal topics. and postsuccessor jurists. If someone steals something from an apartment inside a building with multiple apartments. most significantly. Eight of them contain disagreements among elite postsuccessor jurists. without leaving the building. three of them appear to be actual cases of consensus. Ibn Rahawayh. Lucas 9. However. 854). and the owner is resting with or protecting them. 827) and Ibn Abi Shayba (d. al-Shafi i. 12. Malik. although not in as thorough a manner as Ibn al-Mundhir does. 884). 11. al-Shaybani.80 Abd al-Razzaq al-San ani (d. only Abu Yusuf considers him immune from amputation. al-Tabari (d. This effort required two processes: (1) erasure of the founder-imams’ debts to their earlier teachers and other authorities and (2) wholesale expansion of their purported rulings on the basis of their “putative methodology” through a process ¯j. and his uncompromising refusal to elevate any jurist’s authority above that of all other Muslim jurists earned him the title of “independent mujtahid ” in the eyes of later Sunni scholars. In Hallaq’s words. were contemporaries of Ibn al-Mundhir who composed original books in this genre. al-Shafi i. and the Art of Ijtih¯ ad 361 L O C AT IN G IB N A L -M U N D H IR W IT H IN T H E D E V E L O P M E N T O F IS L A M IC L A W Wael Hallaq. through his legal writings. 1122). hadiths. 933).”82 and he assembles an impressive list of seventeen jurists from the late 9th to the 12th century ¯j. in his recent monograph. Nasr al-Marwazi’s (d. Abu Hanifa.Abu Bakr ibn al-Mundhir. and definition of the “Sunna divorce. all of which are documented ¯ ds.”84 His reluctance to introduce a single new legal topic to the vast ¯ d to refine and harmonize this unruly mass of corpus of fiqh shows that he employed ijtiha legal opinions with the Qur an. 892) with isna al-Jami (or Sunan) and Muhammad b. al-Shafi i. Two significantly shorter works of this genre are al-Tirmidhi’s (d. his rich knowledge of early legal opinions. as did the later Shafi i scholars Abu Bakr al-Shashi al-Qaffal (d. 923) and al-Tahawi (d. Continuity and Change in Islamic Law. 907) Ikhtilaf al-Fuqaha .86 The two Abu Ja fars.87 . although he agrees consistently with Abu Thawr on topics pertaining to theft. both of which focus primarily on disagreements of postsuccessor jurists (including Ibn Hanbal and Ibn Rahawayh). rather than expand it into the virgin territory of minutia that his contemporary madhhab-constructing jurists were exploring. it is necessary that his work be placed in the minority literary ¯ f ).83 known for mastery of the art of takhrı Ibn al-Mundhir.85 It seems safe to assert that Ibn al-Mundhir’s insistence upon engaging directly in the two revealed sources of Islam. either ignores or is oblivious to contemporaries’ efforts to construct archetypical founder-imams out of the historical figures Abu Hanifa. These massive books consist almost exclusively of legal opinions of companions and successors. Ibn al-Mundhir displays no trace of promoting any single authority (other than himself). he freely disagrees with him in cases of punishment for adultery. Authority. and Ibn Hanbal. 1114) and al-Baghawi (d. Two foundational texts of this genre that tradition of juristic disagreement (ikhtila have survived are the Musannafs of Abd al-Razzaq al-San ani and the Kufan Abu Bakr Ibn Abi Shayba. along with opinions of a modest array of companions and successors. and. His frequent citation in al-Ishraf of companion and successor opinions alongside opinions of these and other postsuccessor jurists demonstrates that the founder-imams were hardly the first jurists to voice many of the opinions attributed to them in their emerging school textbooks and suggests that they may even have borrowed some of their predecessors’ positions. the four founder-imams “became disconnected from called takhrı previous generations of jurists as well as from a variety of historical processes. along with Prophetic hadiths. Malik. and Ibn Hanbal.81 He identifies the primary activities of 10th-century Sunni jurists as construction of “absolute mujtahids” out of the four founding imams. Because Ibn al-Mundhir was swimming against the strong current of mainstream Sunni legal tradition. Amputation. advances a fresh understanding of the development of Islamic law in the early classical period. rights of the triply-divorced woman. Malik. and consensus of the jurists. C O N C L U S IO N Ibn al-Mundhir’s analysis of the thirty-one topics pertaining to theft in al-Ishraf marks a significant advance in clarity and depth over legal books that most Western scholars believe were compiled during the 9th and early 10th centuries. 998) Ma alim al-Sunan and reaching new heights with the Andalusians Ibn Hazm (d. ¯ f genre by This practice was repeated in 13th-century commentaries within the ikhtila Ibn Qudama. and Abu Thawr.Ulama .Uqul in the Musannaf of Abd al-Razzaq and strewn throughout the 167 chapters of Kitab al-Hudud in Ibn Abi Shayba’s Musannaf.362 Scott C. They both drew heavily from the Musannafs of Abd al-Razzaq and Ibn Abi Shayba in their voluminous commentaries al-Muhalla and al-Istidhkar. Ibn al-Mundhir begins each section of al-Ishraf with a discussion of the pertinent Qur anic verses and evinces a critical approach to hadith. along with its conspicuous neglect of the opinions of Ibn Hanbal. and. He then turns to the laborious task of analyzing a large volume of legal opinions attributed to a host of companions. Hayy.90 and Sahnun’s al-Marwazi’s ikhtila Mudawwana reveals little interest in consensus or disagreement beyond Malik. Ibn al-Qasim. such as Uthman al-Batti. is on par with al-Ishraf with regard to breadth of topics and clarity of exposition. al-Tahawi’s Ikhtilaf al. Ibn al-Mundhir does not merely collate sections of earlier writings attributed to a few postsuccessor jurists but rather. starting with Commentaries also assumed an important place in the ikhtila the Shafi i scholar Abu Sulayman al-Khattabi’s (d. Lucas ¯ f literature. provides a roll call of supporters and detractors for most topics. and al-Shafi i’s Umm and al-Muzani’s Mukhtasar come across as rather sloppy and imprecise compared to Ibn al-Mundhir’s al-Ishraf. Ibn Rahawayh.93 al-Qaffal al-Shashi identifies as a critical component of the ijtiha One of the central purposes of this project was to discover where the most important authorities agree.91 Finally. Ibn Battal (d. 1071). cites many of the same authorities as Ibn al-Mundhir but covers only five legal topics related to theft that are derived from the Prophetic hadiths he is presenting.89 Muhammad ¯ f book also covers only five topics related to theft. the Zaydi al-Hasan b. al-Nawawi. because. 1064) and Ibn Abd al-Barr (d.88 The early Hanafi books and al-Muwatta of Malik provide little insight into juristic disagreements surrounding theft. which survives only in al-Jassas’ (d. respectively. and Zufar b. brings us full circle with Ibn al-Mundhir by openly citing al-Ishraf in numerous places throughout his commentary on al-Bukhari’s Sahih. however. al-Qurtubi. according to Ibn al-Mundhir. al-Hudhayl.92 Despite his status as an atypical 10th-century mujtahid. 981) abridgement. 1057). It differs from it. as my examples have shown. to a lesser degree. A third Andalusian. and al-Ashhab. Later Sunni jurists awarded Ibn al-Mundhir the title of “independent mujtahid ” because he investigates each topic of Islamic law in a systematic manner and refuses either to restrict himself to or adumbrate the accumulated corpus juris of any single one of his predecessors. and postsuccessor jurists. in his al-Jami . Topics of theft are buried deep in Kitab al. Ibn al-Mundhir’s legal methodology remains valuable for our general understanding of early Sunni jurisprudence. successors. Al-Tirmidhi. Despite his fidelity to textual . primarily in its more thorough presentation of Iraqi postsuccessor jurists. Unlike his contemporary al-Tabari. only consensus can restrict the literal meanings of the Qur an and Prophetic hadiths. a practice which the 12th-century ¯ d endeavor. 9 Abu Ishaq al-Shirazi. 7 Ibn al-Nadim. 683.Arabi. ed.). 1994). Rachel Codd. The Search for God’s Law (Salt Lake City. nor al-Khatib al-Baghdadi. al-Awsat fi al-Sunan wa-l-Ijma wa-l-Ikhtilaf. 4 Abdel-Magid Turki. 6 Al-Dhahabi bemoans the fact that neither al-Hakim al-Naysaburi. Liberal Islam: A Sourcebook (New York: Oxford University Press. n. 11 Taj al-Din al-Subki. Finland. nor Ibn ‘Asakir included an entry for Ibn al-Mundhir in their respective biographical dictionaries of Nishapur. ed. 19– 22 June 1995. Amputation. 5:59. Vikør. “Aggiornamento juridique: Continuit´ e et creativit´ e ou fiction de la fermeture de la porte de l’Ijtih¯ ad. Ibn al-Mundhir not only respects the legal authority of the companions of ¯ f. 108. Even though Ibn al-Mundhir’s personal legal opinions in myriad cases of juristic disagreement were largely ignored by ¯ hib later Muslim jurists. Ali-Karamali and Fiona Dunne.” Studia Islamica 94 (2002): 5–65. Weis. 2 vols. “On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad.” Mediterranean Politics 7. Ihsan Abbas (Beirut: Dar al-Ra id al. “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies 16 (1984): 3–41. See also the entire issue of Islamic Law and Society 3. 3 Wael Hallaq. ed. Robert Gleave. Ifta and the Evolution of Substantive Law in Medieval Islam. 1970). J. 1233) definition of ijtiha 2 Charles Kurzman (ed. 2003). and the Art of Ijtih¯ ad 363 literalism. but he even ra y sufficiently to reproduce their opinions in countless cases of ikhtila grants them veto power over any declaration of consensus. This is Weiss’ reworking of Sayf al-Din al-Amidi’s (d. “Murder in Cordoba: Ijtihad. and Damascus.no/smi/paj/pajtoc. 1998). they do serve as eloquent testimony that the four Sunni madha had not achieved a total monopoly on legal discourse in the first quarter of the 10th century and that al-Tabari was not alone in constructing an independent school during this time.Abu Bakr ibn al-Mundhir. I think that Ibn al-Mundhir would be satisfied knowing that his reputation rests squarely upon his personal scholarly books rather than on a constructed superhuman founder-imam paradigm that has been in vogue in most of the Islamic world for over a millennium.” Arab Law Quarterly 9 (1994): 238–57. 2001). (Cairo: Isa al-Babi al-Halabi. 1964). Kitab al-Fihrist li-l-Nadim. ed. ed. http://www. 76–108. Brinkley Messick. MA: Harvard University Press. and David Powers (Cambridge.hf. Wael Hallaq. 8 Al. “Ifta and Ijtihad in Sunni Legal Theory: A Developmental Account. 5 K. 1992). 1996).Abbadi. 28 vols. “A Critical Analysis of the Role of Ijtihad in Legal Reforms in the Muslim World. Reza Tajaddod (Tehran Offprint. 1964–76). 14:490– 92. Baghdad. Bernard Haykel. “The Ijtihad Controversy. Tabaqat al-Fuqaha .” Acta Orientalia (Copenhagen) 55 (1994): 55–83. 329. 33–43.” Arab Law Quarterly 14 (1999): 112–31. idem.). (Beirut: Mu assasat al-Risala. no. Abd al-Fattah al-Hilu and Mahmud al-Tanahi. Shaista P. 3 (2002): 96–116. Siyar A lam al-Nubala . S. NOTES 1 Bernard G. .” Studia Islamica 63 (1986): 129–41. Given his clear unwillingness to play by the new rules of the 10th-century madhhab makers. al-Dhahabi. idem. no. (Riyadh: Dar al-Tayba. 10 vols. Brill. “Political Aspects of Modern Shi i Legal Discussions: Khumayni and Khu i on Ijtihad and Qada . Muhammad Masud.html (accessed 1 May 2007). G¨ osta Vitestam (Leiden: E. Kitab Tabaqat al-Fuqaha al-Shafi iyya. 2 (1996). 1985). Joensuu. 1750–1850. “The Development of Ijtihad and Islamic Reform. 1:19–39. ¯ d.uib. 67. Ayman Salih Sha ban (Cairo: Dar al-Hadith.” in Islamic Legal Interpretation: Muftis and Their Fatwas.d. 10 The most exhaustive study of Ibn al-Mundhir’s extant and lost works available to me is Abu Hammad Saghir Ahmad’s introduction to his edition of the first thirty-nine chapters of Ibn al-Mundhir. 269. ed. Utah: University of Utah Press.” Proceedings of the Third Nordic Conference on Middle East Studies: Ethnic encounter and culture change. Tabaqat al-Shafi iyya al-Kubra. Much of this introduction is plagiarized in the introduction to Ibn al-Mundhir’s al-Iqna . Revival and Reform: The Legacy of Muhammad al-Shawkani (New York: Cambridge University Press. 1993). 1980). 13 Ibn Khallikan. Ibn Daqiq al. Tabaqat al-Shafi iyya al-Kubra. (Beirut/Amman: Mu assasat al-Risala and Dar al-Arqam. 1967). 3 vols. 159. Ali. 24 Norman Calder. Ihsan Abbas (Beirut: Dar al-Thaqafa.. Al-Dhahabi declares Ibn al-Mundhir ¯ m of the same stature of al-Tabari and Ibn Surayj and praises his Qur anic commentary to be a shaykh al-Isla in Siyar A lam al-Nubala . Ibn Khuzayma. See also al-Dhahabi. ibid. 151. The edition of al-Ijma that I am using was edited by Fu ad Abd al-Mun im Ahmad (Doha: Dar al-Da wa. which diverges several times from the topical sequence of al-Ishraf or al-Ijma . 18 The edition I am using was edited by Abd Allah Umar al-Barudi and published by Dar al-Fikr (1993). 10:196. 237–40. Continuity. 59–61. al-Ihkam fi Usul al-Ahkam. 179. Tabaqat al-Shafi iyya al-Kubra. ed. (Cairo: Maktaba al-Qahira.Arabi. al-Majmu . Jonathan Brown for this reference. 9:240. 16 The fifth book. and al-Ijma . 4 vols. see Hilyat al. Nine substantial fragments of al-Awsat survive in manuscript. Ibn Qudama.Ilmiyya. 2:880. 568–69. and much of the unpublished first half of this important work survives in manuscript in Ankara. (Beirut: Dar al-Kutub al. 177. 23 See Ibn Battal’s Sharh Sahih al-Bukhari. Wael Hallaq has mentioned the significance of these four scholars as early as his article “Was the Gate of Ijtihad Closed?” p. Ibn al-Mundhir’s Qur anic commentary.Asqalani.” International Journal of Middle 12 Ibn . (Cairo: Maktaba Atif. 1994). 1978). see al-Subki. 22 This category includes al-Qaffal al-Shashi. 2:27. 1:28–30.Ilmiyya. I have included him in this group rather than the next one due to the overall paucity of references to Ibn al-Mundhir. Even though the Shafi i al-Qaffal al-Shashi relays Ibn al-Mundhir’s personal opinions in eight of his twenty-one citations of him in the long chapter on prayer. al-Majmu . Ibn Qudama cites Ibn al-Mundhir as an authority or quotes from al-Ishraf twentyfour times in just the short chapter on amputation of the thief’s hand. Two volumes of it have been published as Kitab Tafsir al-Qur an. 15 Al-Subki. respectively. Abu Sulayman al-Khattabi. 10 vols. 3:102. and al-Tabari. 2:104.Ulama fi Ma rifat Madhahib al-Fuqaha . 25 A couple of scholars have risen to the challenge posed by revisionists. 27 vols. 20 Al-Ishraf has one additional chapter after the final chapter of al-Ijma . 1968– 72). for example. Muhammad b. 21 This category is difficult to prove. 3:5. Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press. 14 Al-Dhahabi. 19 The printed version of al-Iqna is based on the unique manuscript in the library of al-Qarawiyin. al-Nawawi.Ilmiyya.Id. Al-Nawawi and Ibn Daqiq al. (Beirut: Dar al-Kutub al. al-Mughni li-Ibn Qudama. The other three Muhammads are al-Marwazi. and Change in Islamic Law (New York: Cambridge University Press. 1981). Sa d ibn Muhammad al-Sa d (Medina: Dar al-Ma’athir.Id’s introduction. 2001). Abu Ja far al-Tahawi. but my examination of Ibn Abd al-Barr’s al-Istidhkar and al-Khattabi’s Ma alim al-Sunan suggests that both scholars were using Ibn al-Mundhir’s al-Ishraf because they occasionally cite the same early authorities in the identical order as they are listed in al-Ishraf. from marriage to usurpation. see Jonathan Brockopp. Tadhkirat al-Huffaz. Umar Abd al-Salam Tadmuri (Beirut: Dar al-Kitab al. Nasr al-Marwazi. Tarikh al-Islam wa-Wafayat al-Mashahir wa-l-A lam. Al-Khattabi actually mentions Ibn al-Mundhir by name in Kitab al-Diya. Wafayat al-A yan wa-Anba’ al-Zaman. 2002). contains a few more chapters found in neither of these two books.Id both inform their readers that they are using Ibn al-Mundhir’s books for the early Muslims’ opinions in their introductions to al-Majmu and an unfinished commentary on the Mukhtasar of Ibn Hajib. 1:495–96. 311–320 AH. 228–32. Brill. The remaining four mujtahids are Dawud b. and more recently in Authority. al-Nawawi. 14:490–2. is cited regularly in al-Suyuti’s al-Durr alManthur. 176.364 Scott C. al-Bukhari. and Ibn Qudama’s al-Mughni. 2002). ed. are covered in this published edition. 5 vols. 173. (I am grateful to Dr. 207. Lucas Hazm. ed. Norman Calder does not mention Ibn al-Mundhir in his book although he does have some critical comments about his Egyptian contemporary. 4:207 (case 580). For example. The three books he mentions are al-Mabsut. 8 vols. see Fuat ¯ d of Sezgin. 9:103–43. al-Iqna . Fifty-two chapters (kutub). see al-Nawawi. al-Ishraf. 1:538. and Ibn Hajar al. “Early Islamic Jurisprudence in Egypt: Two Scholars and their Mukhtasars. The opening isna this book states that Ibn al-Mundhir dictated it in Mecca in Muharram 315 (March 927). J. 10. 1991). for Ibn Daqiq al. and al-Tabari. Ma alim al-Sunan. 301–310 AH.) Al-Nawawi also provides an intriguing quote in which he says that al-Khattabi transmits an opinion of Abu Hanifa from one of Ibn al-Mundhir’s books. 1969). Geschichte des arabischen Schrifttums (Leiden: E. 1998). al-Awsat. 17 Ibn al-Mundhir. (Beirut: Dar al-Kutub al. al-Qurtubi’s al-Jami li-Ahkam al-Qur an. Ibn al-Mundhir acknowledges that Ibn Hanbal and Ibn Rahawayh cite an alternative version of this hadith that lacks the explicit clause. This hadith is found in all six canonical Sunni books. 2:300–1. Ibn al-Mundhir. 39 Ibid. A. al-Dhahabi. of the fornicator Ma iz b. 40 Ibid. Bearman et al. 32 Ibid. who was one of the original . Ibn al-Mundhir... see Ibn Sa d. ibid. J. and (3) all Islamic obligations apply only to girls upon the onset of menstruation. which case consensus [ijma 29 These two verses are 24:59 and 4:6. This hadith is found in the Sunans of al-Tirmidhi.kun. Abdel Haleem. Ibn al-Mundhir’s opinion concerning the role of the rulers in executing h . “and then she stole [them]. Abd Allah and taught both Ibn Jurayj and Sufyan b. He was a grandson of the companion Qurra b. 2:306. 8:40. This hadith is found in the Sunans of al-Tirmidhi. and the Art of Ijtih¯ ad 365 East Studies 30 (1998): 167–82. 2:312–14. Malik who confessed his act of fornication to the Prophet and was subsequently stoned. 2004). unless they [the jurists?] agree on something. The Qur an (Oxford: Oxford University Press. al-Ishraf. This hadith is found in the books of Muslim.. 42 Ibn al-Mundhir. Ibn al-Mundhir mentions this hadith in this chapter because he informs us that some jurists use it as proof that the Prophet gave Ma iz the chance to escape the terrible h . 110–11 (cases 614–28). 36 Ibid. 26 M. 41 The three cases of consensus that do not relate directly to theft are (1) the prohibition of wine. 30 Ibn al-Mundhir. editor of al-Ishraf. and virtually everything by Harald Motzki since the early 1990s. Uyayna. http:// webdoc.. 65. Kitab al-Tabaqat al-Kabir. 2:315. 744) was a highly respected successor in Mecca who heard hadith from Jabir b. eds. ed. This is a fragment of the famous story. 2001). al-Dhahabi. 35 Ibid. 2:303. 2:316. 1960–2005). J. 2:300. Peters notes that neither the Hanafis nor Shi a consider apostasy to be a h . (2) all Islamic obligations apply only to sane males who have reached puberty. and with two exceptions.Abu Bakr ibn al-Mundhir. Note that all fifteen cases of consensus are found in identical order in Ibn al-Mundhir’s short book. al-Ishraf. Abu Dawud. although they both condemn to death male apostates who refuse to return to Islam. This opinion is nearly ila identical to that of Abu Thawr (d. Siyar A lam al-Nubala . al-Ijma . trans. Brill. Ibn al-Mundhir clearly considers this hadith to be Prophetic ¯ h qa ¯ l. 38 Ibid. ¯ d laws. 2:316. ibid. 2005). Ali Muhammad Umar. Iyas... 2:295–96.. 34 Ibn al-Mundhir. which Ibn al-Mundhir records as follows: “The hand of every thief who steals that which necessitates amputation must be amputated. 5:300–7. This hadith is found only in noncanonical collections. Encyclopaedia of Islam. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York: Cambridge University Press. 45 Ibid. 2:297. al-Nasa i. the most easily accessible of his works is an English translation of an earlier German article on al-Zuhri’s fiqh. al-Ishraf. ibid. 46 Ibid. 71. Mu awiya was known for his sharp intellect and died in middle age in 739.. 44 Ibn al-Mundhir. see Rudolph Peters.a ¯ hir al-kita ¯ b [ibid.” but he prefers this version because it agrees with the opinion of most scholars.nl/mono/m/motzki h/juriofibs. Amputation. 2:302–3. illa ¯ an ¯ kull sa ¯ riq saraqa ma ¯ tuqt ¯hi al-yad al-qat ¯ z . al-Ishraf. 2nd ed. u ala .ilm ala .. and Ibn Majah. In the interest of space. This hadith is found in the Sunans of Abu Dawud and al-Nasa i.a ¯ an yaruddu ¯ ma ¯hi fa-mardu ¯d ila ¯ al-kita ¯ b li-ann Alla ¯ h azza wa-jalla amarahum idha ¯ tana ¯ za u ¯ fı ¯hi ¯ tana ¯ za u fı ¯ kita ¯ b Alla ¯ h azza wa-jalla wa-sunnat rasu ¯ lih. al-Ishraf. Abu Dawud. 28 Fa. I will not be providing biographical details and references for those authorities with entries in P. (Leiden: E. 27 For a useful introduction to hudu . 2:298. and Ibn Majah. 5:155. and Abu Dawud. 2:289–90. (All references to the books in which these when he prefaces it with the words. This hadith is found in the Sunan of al-Nasa i.ala ¯ hir kita ¯ b Alla ¯ h azza wa-jalla. Siyar A lam al-Nubala . This report is attributed to the Prophet in the Sunans of al-Tirmidhi and Abu Dawud but to Ali in al-Bukhari’s Sahih. 11 vols. al-Ishraf. 2:313. al-Tirmidhi. 854). 2:294. in ¯ ] prevails”. 43 Amr b. Dinar (d.ubn.a u f ı . add punishments can be found in al-Ishraf. al-Ishraf. 2:303] wa-kull mukhtalaf ¯ shay fa-yajibu istithna ¯ u dha ¯ lika min z yujmi a ahlu al. add punishment by suggesting that he merely say that he kissed the woman rather than confessing to having had unlawful intercourse with her. S.) 31 Ibn al-Mundhir. add crime.. This is the gist of a hadith that appears in all six canonical Sunni books.pdf (accessed 1 May 2007)... 37 Ibid. al-Nasa i. thabata anna rasul Alla hadiths are found are courtesy of Abd Allah al-Barudi.. found in all six canonical Sunni books. 2:313. (Cairo: Maktabat al-Khanji. 47 Iyas b. 2:301. 33 Ibid.. 2002). The Muwatta of Imam Muhammad (London: Turath Publishing. 4:193–94. 60 The “successors of the successors” (atba ¯ al-ta ¯ bi ı ¯n) also fall in this group. r. 61 Abu Hashim al-Rummani and Mansur b. 6:152. and his practice of spending most of the day in prayer. 58 Ibid. al-Umm. He is a successor whose hadiths are found in all six canonical books. 4 vols. see “Sufyan al-Thawri. See also “Iyas b. al-Jami li-Ahkam al-Qur an. He was also a poet and served as qadi for Kufa during the reign of al-Mansur until he had to flee to Khurasan. Siyar A lam al-Nubala . Kitab al-Tabaqat al-Kabir. For more on him. 6:347–49. add cases that have been brought to the attention of political authorities. Zadhan was a companion of al-Hasan al-Basri who was remembered for his reliability as a transmitter. 9:111 and al-Qurtubi. and Ibn Shubrama. 1991). J. trans. al-Mukhtasar. and al-Dhahabi mentions that “his grave is visible in Wasit. al-Awza i. His hadiths are found in all six canonical books. 2:304. That most versions of this hadith have defective ¯ ds may be the reason behind Ibn al-Mundhir’s reluctance to cite it. Lucas.). Abd al-Malik. and al-Muzani’s alMukhtasar. al-Ishraf. 57 Ibid. found in al-Shafi i. al-Muzani. 2:301. (Beirut: Dar al-Kutub al. . like Abu Hanifa (whom some consider a successor). al-Zurqani. who lived in Wasit.. al-Umm. 2:310. 9:31 (Qurra) and 232–33 (Iyas). Kitab al-Tabaqat al-Kabir. where it is regularly visited. 2:312. 9:312. n. 2004). Ibn Sa d.Ilmiyya. 2:298. 9:313. Umayya’s cloak from under him while he was sleeping in the mosque in Medina. al-Shafi i. Shubrama al-Dabbi was classified by Ibn Sa d and Ibn Hanbal as a jurist ( faqı ¯h) who was a reliable transmitter of a small number of hadiths. where he died in 761–62. 140–43. 59 Laysa f ı ¯ ha ¯ dha ¯ al-ba ¯ b khabar tha ¯ bit la ¯ maqa ¯l f ı ¯hi li-ahl al. Yahya b. Zadhan. 9 vols. near Wasit. 67 For more on Sufyan al-Thawri. 350. Dinar.. 65 It is interesting that Ibn al-Mundhir usually refers to Abu Hanifa and Abu Yusuf by their isms. see Ibn Sa d. As a student of several senior companions and a teacher of Sufyan al-Thawri.” Siyar A lam al-Nubala . 2:311. 2:305. 55 Ibn al-Mundhir. and al-Dhahabi. Scott C. also quoted in Ibn Qudama. 54 Abd Allah b. Lucas settlers of Basra and was later murdered. al-Ishraf. 64 Al-Walid b. Brill. 51 Ibn al-Mundhir. Ibn Sa d. It is somewhat surprising that Ibn al-Mundhir neither cites nor alludes to the hadith found in notable 9th-century fiqh books.. Kitab al-Tabaqat al-Kabir. 56 Ibid.” Encyclopaedia of Islam. 7:229–79. see Al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law. 2004). whereas al-Muzani uses it as proof for the necessity of the stolen good to have been in a state of “guarded custody” (h . and the Articulation of Sunni Islam (Leiden: E.Ilmiyya. Siyar a lam al-nubala . al-Nu man and Ya qub. respectively. 48 Ibn al-Mundhir. a reliable transmitter. 63 Iyas b. according to Ibn Sa d. al-Dhahabi. (Beirut: Dar al-Kutub al. and died in 748–49. 2:302.366 Scott C. 2:304. al-Ishraf. 52 Ibid.. (Beirut: Dar al-Kutub al. 9:278. and Sufyan al-Thawri.. Sharh al-Zurqani ala Muwatta al-Imam Malik. and perhaps he is alluding to it in his isna statement at the beginning of this note. al-Shaybani. 6:173. He settled in the village of al-Mubarak. 8:469–70. al-Ishraf. Aisha Bewley (Inverness. al-Mughni. Siyar A lam al-Nubala . al-Dhahabi. al-Umm. 10:106. 1993). Kitab al-Tabaqat al-Kabir. Scotland: Madina Press. 49 Abu Hashim probably refers to the successor Abu Hashim al-Rummani. and “Ibn Shubrama. Mu awiya.” Encyclopaedia of Islam. such as al-Muwatta . and al-Dhahabi reports that he died in 749–50. irz) in order for the thief to be liable for amputation. 62 Ibrahim al-Nakha i. Ibn Shubrama can be classified as a successor. 50 Mansur b. Mu awiya. For more on this hadith. Shurayh.ilm.” Encyclopaedia of Islam. Both Malik and al-Shafi i are reported to have used this hadith as proof against the mitigating power of intercession in h . 299–300. 5:441–42. about the theft of Safwan b. Ibn al-Mundhir.Ilmiyya. 66 The Hanafis and al-Tabari are notorious for ignoring Ibn Hanbal’s legal opinions in their fiqh books. Constructive Critics. 53 Ibid. 20 vols. Hadith Literature. his rapid Qur anic recitation.d. 705–15. Ibn Sa d. ” 75 Hammad b. al-Jami al-Sahih wa Huwa Sunan al-Tirmidhi. although it is possible that he may surface elsewhere in this book. see Ali b. 1050) massive commentary al-Hawi al-kabir. 85 An excellent vantage point for the dramatic growth and increased sophistication of substantive Islamic law in the 10th century is al-Mawardi’s (d.” in Studies in Islamic Legal Theory. 2000). pilferer. Abd al.” 74 Ibn al-Mundhir. ed.Ilmiyya.. al-Kitab al-Musannaf fi al-Ahadith wa-l-Athar. 839). see Brockopp. “I have not memorized anything that differs with this position.Aziz Ibn al-Majishun (d. 2 vols. Authority. of course. 2:300. add punishment in the case of theft from the public treasury. al-Tirmidhi. and twelve. 2002). Continuity and Change. 2:302–3. al-Dhahabi. One notable absence is the founder of the Zahiri school. 77 The printed text oddly has “they disagree” (ikhtalafu ¯ ) instead of “they agree. Ahmad Shakir et al.. and looter (muntahib). 80 In addition to the nine elite jurists mentioned above. n.Abbadi (Kitab Tabaqat al-Fuqaha al-Shafi iyya. according to a recent study. 2:74–80). 12 vols. 83 Hallaq. 828) was a mufti of Medina and pupil of Malik. (4) theft of fruits and edible tubers growing at the upper end of the palm trunk. 806). and lbn al-Qasim. and (5) amputation while campaigning. (Beirut: Dar al-Kutub al. Al-Qaffal al-Shashi’s Hilyat al. 1994). Brill. Authority. (Beirut: Dar al-Kutub al. Al-Baghawi’s Sharh al-Sunna routinely incorporates ikhtila much of this information comes from al-Khattabi’s Ma alim al-Sunan. 2:294 (public treasury). 88 Abd al-Razzaq. 24–56. 2:690–96. see Jonathan Brockopp. he includes some opinions from Abu Ubayd (d. 89 See chapters 16–20 of Kitab al-Hudud in al-Tirmidhi’s al-Jami . 2:298–300. 70 Ibn al-Mundhir.Ulama fi Ma rifat Madhahib al-Fuqaha appears to be more concerned with intra-madhhab juristic disagreements than that of companions and successors. 265). In other places in al-Ishraf. 81 This paragraph summarizes the second chapter of Hallaq. al. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (Austin. Abi Sulayman (d.” al-Ishraf.Ilmiyya. ed. Ibn Abi Shayba. 9 vols. (2) hanging the thief’s severed hand around his neck. This is the only case in this section in which Ibn al-Mundhir appeals to something resembling “custom.Arabi. 22–23). 5:231–9. 1995).Abu Bakr ibn al-Mundhir. 69 Abu Thawr is counted among the Shafi iyya by al-Nadim (al-Fihrist. 3–22. 4:50–54. and Susan Spectorsky. occasionally. “Early Islamic Jurisprudence in Egypt. al-Dhahabi. 10:359–60. It is interesting that Ibn al-Mundhir breaks with al-Shafi i. Sa d. Ibn al-Mundhir cites a least one opinion from Ibn Abi Layla.d. al-Qasim (d. (3) the cases of the embezzler. whereas Abu Hanifa considers them mitigating circumstances. 2:296 (bird). Prophetic hadiths. 5 vols. al-Awza i. and the Art of Ijtih¯ ad 367 “Ibn Rahwayh. to ikhtila 87 More will be said about al-Tabari and al-Tahawi in the following section. 72 Ibid. 76 Abd al-Malik b.: University of Texas Press. “Competing Theories of Authority in Early Maliki Texts. Authority. 82 Hallaq.” Encyclopaedia of Islam. 68 See . In all three cases. 86 Al-Tirmidhi’s overall primary focus is. 25. Umar Badahdah. Abu Ishaq al-Shirazi (Tabaqat al-Fuqaha . 1:141 (Sunna divorce). 9:481–530. al-Madkhal ila Sharh al-Sunna li-l-Imam al-Baghawi. but he does devote substantial space ¯ f in his canonical book. and 3:7 (adultery). and al-Subki (Tabaqat al-Shafi iyya al-Kubra. 73 For more on the Egyptian pupil of Malik and jurist Abd al-Rahman b. 79 Malik in case five and Ibn Hanbal in case seven. Siyar A lam al-Nubala . (Beirut: Dar Ihya al-Turath al. 1993). al-Ishraf. 49–50. The topics covered are (1) the minimal value of the stolen good. 5:470–559. Siyar A lam al-Nubala . 78 Cases three. al-Musannaf. 738) of Kufa was a student of Ibrahim al-Nakha i and the primary teacher of Abu Hanifa. Tex. 2:297 (copy of the Qur an). al-Layth b. 1:253 (waiting period). (Jedda: Dar al-Andalus al-Khadra . al-Ishraf. al-Ishraf. J. 84 Ibn al-Mundhir. Amputation. Ibn al-Majishun.). Ibn al-Mundhir and Abu Thawr consider amputation a valid punishment. who agrees with the “companions of ra y” and three Kufan successors that one cannot receive the h . al-Ishraf. 2:299. 101–2).” Ibn al-Mundhir concludes the topic with the observation. 71 Ibn al-Mundhir. but its author does cite Ibn al-Mundhir and al-Tahawi ¯ f and. This development appears to have started early in the 9th century in North Africa among the nascent Maliki school. eight. Bernard Weiss (Leiden: E. Dawud al-Isbahani. although the h . 1933). Lucas five topics covered are (1) the minimal value of the stolen good.ulama ¯ . al-Qaffal al-Shashi. Mukhtasar Ikhtilaf al. J. Muhammad Tahir Hakim (Riyadh: Adwa al-Salaf. of which only two small fragments survive. Muhammad al-Marwazi. (Beirut: Dar Basha ir al-Islamiyya. 1996). Abu Hanifa and his companions. add crimes of fornication and qadhf are discussed in 3:277– 330. 93 Wa-min sha n al-mujtahid an yaku ¯ rifan bi-madha ¯ hib al. 92 The published edition of al-Tahawi/al-Jassas. Joseph Schacht (Leiden: E. 493–99. 90 The . add cases. unfortunately appears to be missing the chapter on amputating the thief’s hand. 5 vols. al-Shafi i. Ikhtilaf al-Fuqaha .368 Scott C. ed. Abd Allah Nadhir Ahmad. al-Awza i. and Abu Thawr. in this sequence. Brill. Ikhtilaf al-Fuqaha . ed. 91 Tabari’s ikhtila ¯f book. 1:53. Hilyat al¯n a Ulama . al-Thawri. and (5) women’s testimony in h . ed. See al-Tabari. consists almost exclusively of transmissions from earlier works containing opinions of Malik. (3) theft from blood relatives.Ulama . 2000). (4) theft of perishable foodstuffs. (2) replacing or returning stolen property after amputation.