Harmonizing Similarities by Elias G. Saba

Author:Elias G. Saba
Language: eng
Format: epub
Publisher: De Gruyter
Published: 2019-10-08T10:19:31.182000+00:00

The Fourth/Tenth Century

Identifying the first work of legal distinctions is not easy. There are several candidates that could have written the first work of legal distinctions: Ibn Surayj (d. 306/918),33 al-Zubayr ibn Aḥmad al-Zubayrī (d. 317/929 – 30),34 al-Ḥakīm al-Tirmidhī (d. ca. 298/910),35 Abū l-Ḥasan ʿAlī ibn Aḥmad al-Nasawī (d. ca 320/932),36 and Muḥammad ibn Ṣāliḥ al-Karābīsī (d. 322/933 – 34).37 This early period is further complicated by later inter-madhhab polemics. Did Shāfiʿīs first discover the usefulness of thinking through distinctions and therefore write the earliest works in this genre? Or was it Ḥanafī scholars who have pride of place in developing this new style?

None of these works can be easily categorized as an early work of legal distinctions. In spite of its title, Kitāb al-furūq, Ibn Surayj’s book seems only to be a commentary on al-Muzanī’s Mukhtaṣar.38 The surviving selections of al-Zubayrī’s book do not talk about legal distinctions.39 Al-Nasawī is mentioned only in the al-Fihrist and not remembered by any other premodern author.40 Al-Tirmidhī’s book of distinctions is about lexicography.41 The book attributed to al-Karābīsī’s survives, but this attribution is almost certainly spurious and the text itself is highly corrupt and riddled with lacunae.42 Finally, the lack of discussion of these works in the earliest extant sources also throw their veracity in doubt.

A more critical evaluation of the evidence suggests that the origins of this genre should be interrogated as a construction of self-justifying narratives about the past. Why did it become important to claim in the Mamluk and early Ottoman periods that so many fourth/tenth-century jurists were the first to have written these works? These claims often also reflected competition among the different Sunni legal schools, with a desire to claim primacy in different areas of legal development. Indeed, it is only in the ninth/sixteenth century that Muḥammad ibn Ṣāliḥ al-Karābīsī becomes credited with his book, an attribution that not only appears suddenly in several bibliographic sources, but also on several manuscripts.43

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