Abu Bakr Ibn Al-Mundhir, amputation, and the art ijtihād

International Journal of Middle East Studies

Volumn 39, Issue 3, 2007, Pages 351-368

  Lucas, Scott C ^a  

^a UNIVERSITY OF ARIZONA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARAB WORLD; CULTURAL INFLUENCE; CULTURAL TRADITION; ISLAMISM; LIBERALIZATION; NINETEENTH CENTURY; TWENTIETH CENTURY;

EID: 34547811408     PISSN: 00207438     EISSN: 14716380     Source Type: Journal    
DOI: 10.1017/S002074380707050X     Document Type: Article

References (134)

1. Bernard G. Weis, The Search for God's Law (Salt Lake City, Utah: University of Utah Press, 1992), 683. This is Weiss' reworking of Sayf al-Din al-Amidi's (d. 1233) definition of ijtihād.
2. Charles Kurzman (ed.), Liberal Islam: A Sourcebook (New York: Oxford University Press, 1998), 329.
3. Wael Hallaq, "Ifta' and Ijtihad in Sunni Legal Theory: A Developmental Account," in Islamic Legal Interpretation: Muftis and Their Fatwas, ed. Muhammad Masud, Brinkley Messick, and David Powers (Cambridge, MA: Harvard University Press, 1996), 33-43
4. idem, "Murder in Cordoba: Ijtihad, Ifta' and the Evolution of Substantive Law in Medieval Islam," Acta Orientalia (Copenhagen 55 (1994): 55-83.
5. Abdel-Magid Turki, "Aggiornamento juridique: Continuité et creativité ou fiction de la fermeture de la porte de l'Ijtihād," Studia Islamica 94 (2002): 5-65
6. Shaista P. Ali-Karamali and Fiona Dunne, "The Ijtihad Controversy," Arab Law Quarterly 9 (1994): 238-57
7. Wael Hallaq, "On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad," Studia Islamica 63 (1986): 129-41
8. idem, "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies 16 (1984): 3-41.
9. See also the entire issue of Islamic Law and Society 3, no. 2 (1996).
10. K. S. Vikør, "The Development of Ijtihad and Islamic Reform, 1750-1850," Proceedings of the Third Nordic Conference on Middle East Studies: Ethnic encounter and culture change, Joensuu, Finland, 19-22 June 1995, http://www.hf.uib.no/smi/paj/pajtoc.html (accessed 1 May 2007)
11. Bernard Haykel, Revival and Reform: The Legacy of Muhammad al-Shawkani (New York: Cambridge University Press, 2003), 76-108
12. Robert Gleave, "Political Aspects of Modern Shi'i Legal Discussions: Khumayni and Khu'i on Ijtihad and Qada'," Mediterranean Politics 7, no. 3 (2002): 96-116
13. Rachel Codd, "A Critical Analysis of the Role of Ijtihad in Legal Reforms in the Muslim World," Arab Law Quarterly 14 (1999): 112-31.
14. Al-Dhahabi bemoans the fact that neither al-Hakim al-Naysaburi, nor al-Khatib al-Baghdadi, nor Ibn 'Asakir included an entry for Ibn al-Mundhir in their respective biographical dictionaries of Nishapur, Baghdad, and Damascus; al-Dhahabi, Siyar A'lam al-Nubala', 28 vols. (Beirut: Mu'assasat al-Risala, 2001), 14:490-92.
15. Ibn al-Nadim, Kitab al-Fihrist li-l-Nadim, ed. Reza Tajaddod (Tehran Offprint, n.d.), 269.
16. Al-'Abbadi, Kitab Tabaqat al-Fuqaha' al-Shafi'iyya, ed. Gösta Vitestam (Leiden: E. J. Brill, 1964), 67.
17. Abu Ishaq al-Shirazi, Tabaqat al-Fuqaha', ed. Ihsan 'Abbas (Beirut: Dar al-Ra'id al-'Arabi, 1970), 108.
18. 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, al-Awsat fi al-Sunan wa-l-Ijma' wa-l-Ikhtilaf, 2 vols. (Riyadh: Dar al-Tayba, 1985), 1:19-39.
19. Much of this introduction is plagiarized in the introduction to Ibn al-Mundhir's al-Iqna', ed. Ayman Salih Sha'ban (Cairo: Dar al-Hadith, 1994).
20. Taj al-Din al-Subki, Tabaqat al-Shafi'iyya al-Kubra, ed. 'Abd al-Fattah al-Hilu and Mahmud al-Tanahi, 10 vols. (Cairo: 'Isa al-Babi al-Halabi, 1964-76), 5:59.
21. Ibn Hazm, al-Ihkam fi Usul al-Ahkam, 8 vols. (Cairo: Maktaba 'Atif, 1978), 2:880. The remaining four mujtahids are Dawud b. 'Ali, Muhammad b. Nasr al-Marwazi, al-Bukhari, and al-Tabari.
22. Ibn Khallikan, Wafayat al-A'yan wa-Anba' al-Zaman, ed. Ihsan 'Abbas (Beirut: Dar al-Thaqafa, 1968-72), 4:207 (case 580).
23. Al-Dhahabi, Tarikh al-Islam wa-Wafayat al-Mashahir wa-l-A'lam, 301-310 AH, 311-320 AH, ed. 'Umar 'Abd al-Salam Tadmuri (Beirut: Dar al-Kitab Arabi, 1994), 568-69.
24. Al-Dhahabi declares Ibn al-Mundhir to be a shaykh al-Islām of the same stature of al-Tabari and Ibn Surayj and praises his Qur'anic commentary in Siyar A'lam al-Nabula', 14:490-2.
25. See also al-Dhahabi, Tadhkirat al-Huffaz, 5 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1998), 3:5. The three books he mentions are al-Mabsut, al-Ishraf, and al-Ijma'.
26. Al-Subki, Tabaqat al-Shafi'iyya al-Kubra, 3:102.
27. The other three Muhammads are al-Marwazi, Ibn Khuzayma, and al-Tabari. Wael Hallaq has mentioned the significance of these four scholars as early as his article "Was the Gate of Ijtihad Closed?" p. 10
28. and more recently in Authority, Continuity, and Change in Islamic Law (New York: Cambridge University Press, 2001), 59-61.
29. The fifth book, Ibn al-Mundhir's Qur'anic commentary, is cited regularly in al-Suyuti's al-Durr al-Manthur. Two volumes of it have been published as Kitab Tafsir al-Qur'an, ed. Sa'd ibn Muhammad al-Sa'd (Medina: Dar al-Ma'athir, 2002).
30. Ibn al-Mundhir, al-Awsat, 1:28-30. Nine substantial fragments of al-Awsat survive in manuscript.
31. The edition I am using was edited by 'Abd Allah 'Umar al-Barudi and published by Dar al-Fikr (1993). Fifty-two chapters (kutub), from marriage to usurpation, are covered in this published edition, and much of the unpublished first half of this important work survives in manuscript in Ankara.
32. The printed version of al-Iqna' is based on the unique manuscript in the library of al-Qarawiyin; see Fuat Sezgin, Geschichte des arabischen Schrifttums (Leiden: E. J. Brill, 1967), 1:495-96. The opening isn ād of this book states that Ibn al-Mundhir dictated it in Mecca in Muharram 315 (March 927).
33. Al-Ishraf has one additional chapter after the final chapter of al-Ijma'; al-Iqna', which diverges several times from the topical sequence of al-Ishraf or al-Ijma', contains a few more chapters found in neither of these two books. The edition of al-Ijma' that I am using was edited by Fu'ad 'Abd al-Mun'im Ahmad (Doha: Dar al-Da'wa, 1981).
34. This category is difficult to prove, 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. Al-Khattabi actually mentions Ibn al-Mundhir by name in Kitab al-Diya; Abu Sulayman al-Khattabi, Ma'alim al-Sunan, 4 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1991), 2:27. (I am grateful to Dr. Jonathan Brown for this reference.) 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
35. al-Nawawi, al-Majmu', 27 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 2002), 10:196.
36. This category includes al-Qaffal al-Shashi, al-Nawawi, Ibn Daqiq al-'Id, and Ibn Hajar al-'Asqalani. Al-Nawawi and Ibn Daqiq al-'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, respectively; see al-Nawawi, al-Majmu', 1:538
37. for Ibn Daqiq al-'Id's introduction, see al-Subki, Tabaqat al-Shafi'iyya al-Kubra, 9:240. 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, I have included him in this group rather than the next one due to the overall paucity of references to Ibn al-Mundhir
38. see Hilyat al- 'Ulama' fi Ma'rifat Madhahib al-Fuqaha', 3 vols. (Beirut/Amman: Mu'assasat al-Risala and Dar al-Arqam, 1980), 2:104, 151, 159, 173, 176, 177, 179, 207.
39. See Ibn Battal's Sharh Sahih al-Bukhari, al-Qurtubi's al-Jami' li-Ahkam al-Qur'an, and Ibn Qudama's al-Mughni. For example, Ibn Qudama cites Ibn al-Mundhir as an authority or quotes from al-Ishraf twenty-four times in just the short chapter on amputation of the thief's hand; Ibn Qudama, al-Mughni li-Ibn Qudama, 10 vols. (Cairo: Maktaba al-Qahira, 1969), 9:103-43.
40. Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993). Norman Calder does not mention Ibn al-Mundhir in his book although he does have some critical comments about his Egyptian contemporary, Abu Ja'far al-Tahawi
41. ibid., 228-32, 237-40.
42. Acouple of scholars have risen to the challenge posed by revisionists; for example, see Jonathan Brockopp, "Early Islamic Jurisprudence in Egypt: Two Scholars and their Mukhtasars," International Journal of Middle East Studies 30 (1998): 167-82, and virtually everything by Harald Motzki since the early 1990s; the most easily accessible of his works is an English translation of an earlier German article on al-Zuhri's fiqh, http://webdoc.ubn.kun.nl/mono/m/motzki h/ juriofibs.pdf (accessed 1 May 2007).
43. M. A. S. Abdel Haleem, trans., The Qur'an (Oxford: Oxford University Press, 2004), 71.
44. For a useful introduction to hudūd laws, see Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York: Cambridge University Press, 2005).
45. Peters notes that neither the Hanafis nor Shi'a consider apostasy to be a hadd crime, although they both condemn to death male apostates who refuse to return to Islam, ibid., 65.
46. Ibn al-Mundhir's opinion concerning the role of the rulers in executing hadd punishments can be found in al-Ishraf, 2:316.
47. Fa-'alā kull sāriq saraqa mā tuqta'u fīhi al-yad al-qat'u 'alā zāhir kitāb Allāh 'azza wa-jalla, illā an yujmi'a ahlu al-'ilm 'alā' shay' fa-yajibu istithnā' u dhālika min zāhir al-kitāb [ibid., 2:303] wa-kull mukhtalaf fīhi fa-mardūd ilā al-kitāb li-ann Allāh 'azza wa-jalla amarahum idhā tanāza'mau an yaruddū mā tanāza' ū fīhi ilā kitāb Allāh 'azza wa-jalla wa-sunnat rasūlih
48. Ibn al-Mundhir, al-Ishraf, 2:302-3. This opinion is nearly identical to that of Abu Thawr (d. 854), which Ibn al-Mundhir records as follows: "The hand of every thief who steals that which necessitates amputation must be amputated, unless they [the jurists?] agree on something, in which case consensus [ijmā'] prevails"
49. ibid., 2:303.
50. These two verses are 24:59 and 4:6; Ibn al-Mundhir, al-Ishraf, 2:313.
51. Ibn al-Mundhir, al-Ishraf, 2:313. This report is attributed to the Prophet in the Sunans of al-Tirmidhi and Abu Dawud but to 'Ali in al-Bukhari's Sahih. Ibn al-Mundhir clearly considers this hadith to be Prophetic when he prefaces it with the words, thabata anna rasul Allāh qāl. (All references to the books in which these hadiths are found are courtesy of 'Abd Allah al-Barudi, editor of al-Ishraf.)
52. Ibn al-Mundhir, al-Ishraf, 2:315. This is a fragment of the famous story, found in all six canonical Sunni books, of the fornicator Ma'iz b. Malik who confessed his act of fornication to the Prophet and was subsequently stoned. 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 hadd punishment by suggesting that he merely say that he kissed the woman rather than confessing to having had unlawful intercourse with her.
53. Ibid. This hadith is found in the books of Muslim, al-Tirmidhi, and Abu Dawud.
54. Ibid. This hadith is found in the Sunans of Abu Dawud and al-Nasa'i.
55. Ibn al-Mundhir, al-Ishraf, 2:316. This is the gist of a hadith that appears in all six canonical Sunni books.
56. Ibid., 2:289-90. This hadith is found in all six canonical Sunni books.
57. Ibid., 2:297. This hadith is found in the Sunan of al-Nasa'i.
58. Ibid., 2:301. Ibn al-Mundhir acknowledges that Ibn Hanbal and Ibn Rahawayh cite an alternative version of this hadith that lacks the explicit clause, "and then she stole [them]," but he prefers this version because it agrees with the opinion of most scholars.
59. Ibid. This hadith is found in the Sunans of al-Tirmidhi, Abu Dawud, al-Nasa'i, and Ibn Majah.
60. Ibid., 2:295-96. This hadith is found in the Sunans of al-Tirmidhi, Abu Dawud, al-Nasa'i, and Ibn Majah.
61. Ibid., 2:306. This hadith is found only in noncanonical collections.
62. The three cases of consensus that do not relate directly to theft are (1) the prohibition of wine, (2) all Islamic obligations apply only to sane males who have reached puberty, and (3) all Islamic obligations apply only to girls upon the onset of menstruation, ibid., 2:312-14. Note that all fifteen cases of consensus are found in identical order in Ibn al-Mundhir's short book, al-Ijma', 110-11 (cases 614-28).
63. Ibn al-Mundhir, al-Ishraf, 2:294.
64. In the interest of space, and with two exceptions, I will not be providing biographical details and references for those authorities with entries in P. J. Bearman et al., eds., Encyclopaedia of Islam, 2nd ed. (Leiden: E. J. Brill, 1960-2005).
65. 'Amr b. Dinar (d. 744) was a highly respected successor in Mecca who heard hadith from Jabir b. 'Abd Allah and taught both Ibn Jurayj and Sufyan b. 'Uyayna; see Ibn Sa'd, Kitab al-Tabaqat al-Kabir, ed. 'Ali Muhammad 'Umar, 11 vols. (Cairo: Maktabat al-Khanji, 2001), 8:40
66. al-Dhahabi, Siyar A'lam al-Nubala', 5:300-7.
67. Ibn al-Mundhir, al-Ishraf, 2:298.
68. Ibid., 2:300.
69. Ibid., 2:300-1.
70. Iyas b. Mu'awiya was known for his sharp intellect and died in middle age in 739; al-Dhahabi, Siyar A'lam al-Nubala', 5:155. He was a grandson of the companion Qurra b. Iyas, who was one of the original settlers of Basra and was later murdered
71. Ibn Sa'd, Kitab al-Tabaqat al-Kabir, 9:31 (Qurra) and 232-33 (Iyas).
72. See also "Iyas b. Mu'awiya," Encyclopaedia of Islam.
73. Ibn al-Mundhir, al-Ishraf, 2:301.
74. Abu Hashim probably refers to the successor Abu Hashim al-Rummani, Yahya b. Dinar, a reliable transmitter, according to Ibn Sa'd, who lived in Wasit; Ibn Sa'd, Kitab al-Tabaqat al-Kabir, 9:312. His hadiths are found in all six canonical books, and al-Dhahabi reports that he died in 749-50
75. al-Dhahabi, Siyar a'lam al-nubala', 6:152.
76. Mansur b. Zadhan was a companion of al-Hasan al-Basri who was remembered for his reliability as a transmitter, his rapid anic recitation, and his practice of spending most of the day in prayer. He settled in the village of al-Mubarak, near Wasit, and died in 748-49; Ibn Sa'd, Kitab al-Tabaqat al-Kabir, 9:313.
77. He is a successor whose hadiths are found in all six canonical books, and al-Dhahabi mentions that "his grave is visible in Wasit, where it is regularly visited;" Siyar A'lam al-Nubala', 5:441-42.
78. Ibn al-Mundhir, al-Ishraf, 2:302.
79. Ibid., 2:304.
80. Ibid., 2:304.
81. 'Abd Allah b. Shubrama al-Dabbi was classified by Ibn Sa'd and Ibn Hanbal as a jurist (faqīh) who was a reliable transmitter of a small number of hadiths. He was also a poet and served as qadi for Kufa during the reign of al-Mansur until he had to flee to Khurasan, where he died in 761-62. As a student of several senior companions and a teacher of Sufyan al-Thawri, Ibn Shubrama can be classified as a successor. For more on him, see Ibn Sa'd, Kitab al-Tabaqat al-Kabir, 8:469-70
82. al-Dhahabi, Siyar A'lam al-Nubala', 6:347-49
83. and "Ibn Shubrama," Encyclopaedia of Islam.
84. Ibn al-Mundhir, al-Ishraf, 2:305.
85. Ibid., 2:310.
86. Ibid., 2:311.
87. Ibid., 2:312.
88. Laysa fī hādhā al-bāb khabar thābit lā maqāl fīhi li-ahl al-'ilm; Ibn al-Mundhir, al-Ishraf, 2:298
89. also quoted in Ibn Qudama, al-Mughni, 9:111
90. and al-Qurtubi, al-Jami' li-Ahkam al-Qur'an, 20 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), 10:106.
91. It is somewhat surprising that Ibn al-Mundhir neither cites nor alludes to the hadith found in notable 9th-century fiqh books, such as al-Muwatta', al-Umm, and al-Muzani's al-Mukhtasar, about the theft of Safwan b. Umayya's cloak from under him while he was sleeping in the mosque in Medina. Both Malik and al-Shafi'i are reported to have used this hadith as proof against the mitigating power of intercession in hadd cases that have been brought to the attention of political authorities, whereas al-Muzani uses it as proof for the necessity of the stolen good to have been in a state of "guarded custody" (hirz) in order for the thief to be liable for amputation. That most versions of this hadith have defective isnāds may be the reason behind Ibn al-Mundhir's reluctance to cite it, and perhaps he is alluding to it in his statement at the beginning of this note. For more on this hadith, see Al-Muwatta' of Imam Malik ibn Anas: The First Formulation of Islamic Law, trans. Aisha Bewley (Inverness, Scotland: Madina Press, 1991), 350
92. al-Shaybani, The Muwatta' of Imam Muhammad (London: Turath Publishing, 2004), 299-300
93. al-Zurqani, Sharh al-Zurqani 'ala Muwatta' al-Imam Malik, 4 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, n.d.), 4:193-94
94. al-Shafi'i, al-Umm, 9 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 2002), 6:173
95. al-Muzani, al-Mukhtasar, found in al-Shafi'i, al-Umm, 9:278.
96. The "successors of the successors" (atbā' al-tābi'īn) also fall in this group, like Abu Hanifa (whom some consider a successor), al-Awza'i, and Sufyan al-Thawri.
97. Abu Hashim al-Rummani and Mansur b. Zadhan.
98. Ibrahim al-Nakha'i, Shurayh, and Ibn Shubrama.
99. Iyas b. Mu'awiya.
100. Al-Walid b. 'Abd al-Malik, r. 705-15.
101. It is interesting that Ibn al-Mundhir usually refers to Abu Hanifa and Abu Yusuf by their isms, al-Nu'man and Ya'qub, respectively.
102. The Hanafis and al-Tabari are notorious for ignoring Ibn Hanbal's legal opinions in their fiqh books.
103. For more on Sufyan al-Thawri, see "Sufyan al-Thawri," Encyclopaedia of Islam
104. Scott C. Lucas, Constructive Critics, Hadith Literature, and the Articulation of Sunni Islam (Leiden: E. J. Brill, 2004), 140-43
105. and al-Dhahabi, Siyar A'lam al-Nubala', 7:229-79.
106. See "Ibn Rahwayh," Encyclopaedia of Islam, and Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (Austin, Tex.: University of Texas Press, 1993).
107. Abu Thawr is counted among the Shafi'iyya by al-Nadim (al-Fihrist, 265), al-'Abbadi (Kitab Tabaqat al-Fuquha' al-Shafi'iyya, 22-23), Abu Ishaq al-Shirazi (Tabaqat al-Fuqaha', 101-2),
108. and al-Subki (Tabaqat al-Shafi'iyya al-Kubra, 2:74-80).
109. Ibn al-Mundhir, al-Ishraf, 2:296 (bird); 2:297 (copy of the Qur'an); 2:294 (public treasury). In all three cases, Ibn al-Mundhir and Abu Thawr consider amputation a valid punishment, whereas Abu Hanifa considers them mitigating circumstances. It is interesting that Ibn al-Mundhir breaks with al-Shafi'i, who agrees with the "companions of ra'y" and three Kufan successors that one cannot receive the hadd punishment in the case of theft from the public treasury.
110. Ibn al-Mundhir, al-Ishraf, 2:302-3.
111. Ibid., 2:298-300.
112. For more on the Egyptian pupil of Malik and jurist 'Abd al-Rahman b. al-Qasim (d. 806), see Brockopp, "Early Islamic Jurisprudence in Egypt."
113. Ibn al-Mundhir, al-Ishraf, 2:299. This is the only case in this section in which Ibn al-Mundhir appeals to something resembling "custom."
114. Hammad b. Abi Sulayman (d. 738) of Kufa was a student of Ibrahim al-Nakha'i and the primary teacher of Abu Hanifa; al-Dhahabi, Siyar A'lam al-Nubala', 5:231-9.
115. 'Abd al-Malik b. 'Abd al-'Aziz Ibn al-Majishun (d. 828) was a mufti of Medina and pupil of Malik; al-Dhahabi, Siyar A'lam al-Nubala', 10:359-60.
116. The printed text oddly has "they disagree" (ikhtalafū) instead of "they agree." Ibn al-Mundhir concludes the topic with the observation, "I have not memorized anything that differs with this position;" al-Ishraf, 2:300.
117. Cases three, eight, and twelve.
118. Malik in case five and Ibn Hanbal in case seven.
119. In addition to the nine elite jurists mentioned above, Ibn al-Mundhir cites a least one opinion from Ibn Abi Layla, al-Awza'i, al-Layth b. Sa'd, Ibn al-Majishun, and lbn al-Qasim. In other places in al-Ishraf he includes some opinions from Abu 'Ubayd (d. 839). One notable absence is the founder of the Zahiri school, Dawud al-Isbahani, although it is possible that he may surface elsewhere in this book.
120. This paragraph summarizes the second chapter of Hallaq, Authority, Continuity and Change, 24-56. This development appears to have started early in the 9th century in North Africa among the nascent Maliki school
121. see Jonathan Brockopp, "Competing Theories of Authority in Early Maliki Texts," in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: E. J. Brill, 2002), 3-22.
122. Hallaq, Authority, 25.
123. Hallaq, Authority, 49-50.
124. Ibn al-Mundhir, al-Ishraf, 1:141 (Sunna divorce), 1:253 (waiting period), and 3:7 (adultery).
125. An excellent vantage point for the dramatic growth and increased sophistication of substantive Islamic law in the 10th century is al-Mawardi's (d. 1050) massive commentary al-Hawi al-kabir.
126. Al-Tirmidhi's overall primary focus is, of course, Prophetic hadiths, but he does devote substantial space to ikhtilāf in his canonical book.
127. More will be said about al-Tabari and al-Tahawi in the following section. Al-Qaffal al-Shashi's Hilyat al-'Ulama' fi Ma'rifat Madhahib al-Fuqaha' appears to be more concerned with intra-madhhab juristic disagreements than that of companions and successors, but its author does cite Ibn al-Mundhir and al-Tahawi occasionally. Al-Baghawi's Sharh al-Sunna routinely incorporates ikhtilāf and, according to a recent study, much of this information comes from al-Khattabi's Ma'alim al-Sunan; see 'Alib. 'Umar Badahdah, al-Madkhal ila Sharh al-Sunna li-l-Imam al-Baghawi, 2 vols. (Jedda: Dar al-Andalus al-Khadra, 1994), 2:690-96.
128. 'Abd al-Razzaq, al-Musannaf, 12 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 2000), 9:481-530
129. Ibn Abi Shayba, al-Kitab al-Musannaf fi al-Ahadith wa-l-Athar, 9 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1995), 5:470-559.
130. See chapters 16-20 of Kitab al-Hudud in al-Tirmidhi's al-Jami' The topics covered are (1) the minimal value of the stolen good; (2) hanging the thief's severed hand around his neck; (3) the cases of the embezzler, pilferer, and looter (muntahib); (4) theft of fruits and edible tubers growing at the upper end of the palm trunk; and (5) amputation while campaigning; al-Tirmidhi, al-Jami' al-Sahih wa Huwa Sunan al-Tirmidhi, ed. Ahmad Shakir et al., 5 vols. (Beirut: Dar al-Turath al-'Arabi, n.d.), 4:50-54.
131. The five topics covered are (1) the minimal value of the stolen good, (2) replacing or returning stolen property after amputation, (3) theft from blood relatives, (4) theft of perishable foodstuffs, and (5) women's testimony in hadd cases; Muhammad al-Marwazi, Ikhtilaf al-Fuqaha', ed. Muhammad Tahir Hakim (Riyadh: Adwa' al-Salaf, 2000), 493-99.
132. Tabari's ikhtilāf book, of which only two small fragments survive, consists almost exclusively of transmissions from earlier works containing opinions of Malik, al-Awza'i, al-Thawri, al-Shafi'i, Abu Hanifa and his companions, and Abu Thawr, in this sequence. See al-Tabari, Ikhtilaf al-Fuqaha, ed. Joseph Schacht (Leiden: E. J. Brill, 1933).
133. The published edition of al-Tahawi/al-Jassas, Mukhtasar Ikhtilaf al-'Ulama', ed. 'Abd Allah Nadhir Ahmad, 5 vols. (Beirut: Dar Basha'ir al-Islamiyya, 1996), unfortunately appears to be missing the chapter on amputating the thief's hand, although the hadd crimes of fornication and qadhf are discussed in 3:277-330.
134. Wa-min sha'n al-mujtahid an yakūn 'ārifan bi-madhāhib al-'ulamā; al-Qaffal al-Shashi, Hilyat al-'Ulama', 1:53.