Contrastación con los referentes bibliográficos

(1) See footnote No.56,page 14. (2) See footnote No.62,page 16.

(3) Schacht; The Origins of Muliammadan Jurisprudence .page 98. According to Schacht,the actual fo u n d atio n s of Islamic law were established not by the prophet and his followers,but by the early Qadis,appointed by the Umayyad governors,who gave judgement according to their own discretion(Ra’y ) and transformed the popular and administrative practice of the

Umayyads in to the religious law of Islam.

See Schacht;An introduction to Islamic Law.page 23 - 26.

Later on,he gave several examples of th is statement,see op.cit. page 100 - 102.

(4) Ibn Qayyinijop.cit. ,v.l,page 23.

(5) ib id ,v .l,p a g e 81 - 85,63,204 - 205.

al~Ghazali;al-Mustasfa fi ’ilm al-Usul.v.ll.page 53 - 59. Ibn al-Rushd;al-Muqaddimat.page 19 - 20.

(6) Ahmad Hasan;Early development of Islamic jurisprudence, page 117 - 118.

(7) ^Umar's decision not to distribute the lands of Iraq and Syria among the companions.His decision apparently departed

frm n the Q u r'a n ic verses 59:6 - 10,which e n t it le d the

M u h ajirg tn ,th e Ansar,and the coming generations to receive the

share from the Ghanimah.See Abu Yusuf ; K i t%b al-IChar a j. page 13 - 15.

According to Shafi*i,the difference of opinions among the companions exists even on points on which there are e x p li c i t

rules in the Qur'an or the Sunnah.He then recounts a number of Qur*anic verses and traditions on which the companions and early jurists differed because of t h e ir interpretation.

See Shafi'ijAl-UmmjV.Vll,page 245.

(8a) According to Schacht,this term Ihtihsan was first introduced by Abu Yusuf.Sea Schacht,op.cit.,page 112.

(8b) Shafi * i ,al-Risalah,page 71.

(9) There had existed the opposition between Ahl al-Hadith and Ahl al-Ra*y,see S c h a c h t,An Introduction to....page 28 - 36'.

(10) The scholars of Hadith were not free in exercising Ra'y in

t h e ir reasoning and vice versa,Malik frequently uses R a 'y in

h is al-Muwatta'.For example,they employ their Ra'y and

reasoning in accepting the tradition of the prophet.Malik

n a rra te s a hadith that the prophet had said his Zuhr and 'Asr

p ra y ers to g e th e r,a n d s im ila r ly he had combined M aqrib and

'Isha' prayers in the absence of any fear of attack.Concluding,he remarks:! th in k (ara)it happened on a

r a in y day.

See Malik;Al-Muwatta',v.1,page 144.

(11) Shafi'i,op.cit,v.VII,page 146 -257.

Ibn al-Muqaf f a ' ; Risalah fi ' 1-sahabah ; Rasa ' i l al-Bulaglia '. Cairo. 1954,page 126,

(1 7 2 )

(1 2 ) ibid,page 121,122,125 and 127.

(13) We first meet with a semi-technical use of the term Qiyas in the alleged letter of 'Umar,to Abu Musa al-Ash'ari.

See Al-Mubarrad ;al-Kami1 , C a ir o ,1 9 3 6 ,v . l ,page 14. (14) Ahmad Hasan,op.citpage 53 - 54.

(15) The following example will show its character.Abu Hanifah maintains that if a m other of the child (umm al-Walad) embraces Islam in enemy territory and migrates to Muslim territory,then in case she is not pregnant she can marry i f she desires,and no 'Iddah is binding on her.Abu Hanifah,according to Abu Yusuf,argues on the basis of a hadith from the prophet.But al- Awza'i differs from him on this point and remarks that if a woman leaves her country for the sake of God to protect her religion,her case is parallel to that of the women who migrated from Mecca to Medina in the prophet's time,She cannot marry until the expiry of her 'Iddah.He elaborates his argument that the female emigrants had gone to the prophet at Medina while their husbands,who were in f i d e l s , l i v e d on at Mecca,The prophet returned the w ives of those persons who became Muslims and found them passing 'Iddah.See Abu Yusuf;al-Radd 'a la Siyar

al-Awza'i.Cairo.n.d..naee 99 - 100.

(1 6 ) A s u ita b le example o f th is k in d o f Qiyas by the Medinese

can found :ui a l-M u w a tta '.T h e Medinese fix e d Uus minimum

amount of dower of a woman at one-fourth of a d in a r by Qiyas with the minimum v a lu e of stolen goods for applying

hadd punishment.Malik says that the dower of a woman should not be lass than one-fourth of a dinar,the minimum value for a hand

to be amputated .See Malik,op.cit.,v.11,page 5.

(17) Al-Shaybani,for example,holds that if an article or a slave-girl is mortgaged or given in donation by the purchaser,or he had sexual intercouse with her or kissed her in the case of slave-girl, all such acts, according to Qiyas indicate the purchaser’s assent,Hence the article or the slave- girl cannot be returned to the seller on the grounds of defect. See Al-Shaybani;al-Asl.cairo.1954,v.l.page 131.

(18) In the course of conflict between the schools,there emerged the tendency of attributing the doctrine of each school

to the generation who knew the prophet and even to the authority of the prophet.See Schacht.An introduction.

page 31 - 33.

See also note 5 above.

(19) The Qadis rendered judgement according to their own discretion taking into consideration customary practice.They also took into account the letter or the spirit of the Qur’anic regulations and religious norms as they thought fit.

Sea Al-KindiîKltab al-Wulat Wal-Qudat.page 334f,311f. See also Schacht,op.cit.,page 26.

According to the adherents of the ancient schools,the Sumia was

(174)

traditions of authorities subsequent to the prophet and in the established practice of the community.

See Schacht,Origin,page 61. ;Malilc,op.cit, ,v.ll,page 713 - 714. (20) The a n c ie n t scholars also based their legal doctrines on customary local practice which was often described as 'A m al.

The Iraqian scholar, as explained by Shafi*i,had rejected a doctrine expressed in a tradition and said that the doctrine was rejected because "everyone" had abandoned it.

He explained that what he meant by "everyone" was the Muftis of his time or immediately before,but the generation of the

successors.See Shafi’i,Ikhtilaf al-Hadith,page 336f.

Shafi'i says that a Basran opponent has taken "practice" as the basis of legal doctrine.See Shafi'i ,Ikhtilaf M a lik ,page 243. The Medinese likewise took customary practice as a basis for reasoning out the law but clearly showed that they limited it to the practice of Medina.For example,Malik rejected the legal doctrine of Khiyar al-Majlis,which gives the parties to a contract,duly completed by offer and acceptance,the right to repudiate it during the formal concluding of the agreement, although the rival Meccan school,which adopted the doctrine,ascribed it to the prophet.Malik said:"here we have no such specific rule and no established practice for this".

See M a l i k , o p . c i t . , v . 1 1 ,page 671.

(22) Al-Razi;Manaqib al-Shafi'i,Cairo,1301,page 55. (23) Schacht,Origin,page 136 - 137.;Ahmad H a s a n ,o p .c i t . ,

page 179.

(24) Goldziher in The Zahiris: their doctrine and their

history,Schacht in both of his famous books,The origins,and An introduction and Ahmad Hasan in The early development of Islamic jurisprudence.

(25) Schacht,Origin,page 56.(26) ibid,page 77.

(27) ibid,page 134.See also Goldziher,op.cit.,page 20 - 21. (28) The birth of al-Risalah appears to have occurred some time

p r io r to the death of ’Abd ar-Rahman ibn Mahdi in 198 of hijra.

Ibn Mahdi is said to have written to Shafi’i asking him to

compose a work dealing with the legal statements of the Qur'an,the accepted historical reports relating to them,the probative value of the consensus,and to clarify the repealing and repealed doctrines of the Qur'an and the prophet's Suiina. Shafi'i's Risalah is said to have been written in answer to this request.See Khatib al-Baghdadi; Ta'rikh Baghdad.Cairo.1931. v.Xjpage 240 - 248.;Ibn al-Imad;Shadhard al-Dhahab fi akhbar man dhahab.Cairo.1931.v.l.page 355,v.11,page 10,

(29) See G o ld z ih e r,o p .c i t . , page 23 - 24.

(3 0 ) G .M ak d i8 i;"T h e j u r i d i c a l th eo lo g y o f S h a f i'i; O r ig in s auKl

significance of Usui al-Fiqh",in Stvdia Islamica.1984. page 13 - 18.

(1 7 6 )

(31) See note 11 and 12 above. (32) Ahmad Hasan,op.cit.,page 178.

( 33 ) ib id .

( 3 4 ) Schacht.An introduction,page 46.

( 3 5) ibid,page 56.

(36) G.Makdisi,op.cit.,page 7 - 8.;Ahmad Hasan,op.cit., page 168,

(37) Ibn Madim ;Al-Fihr1st.Cairo,1348,page 288,286. (38) Abu Zahra.Usul a l- F iq h .C a ir o.1957.page 14 - 15. (39) Ahmad Hasan,op.cit.,page 179.

(40) A suitable example is the term of Sumia of the prophet.He distinguishes s h a rp ly between the tradition of the prophet and the tradition of the companions.Further information see

Schacht,Origin.page 16 - 18.

(4 1 ) Ahmad Hasan;Analogical reasoning in Islamic jurisprudence.

Islamabad,1986,page 27.

(42) Shafi*i,op.cit.,page 67 - 69. (43) ibid.

(44) ibid.

( 4 5 ) S h a f i ' i . Al-Umm.v .V ll.p a g e 2 7 3, 2 7 5 .

This tradition has been reported by several authorities. See Ibn Hanbal;Musnad.Cairo,n.d ..v .V.page 230.;Ibn Sa 'd,

Tabaqat al-Kubra.Beirut.1376.v.Ill.page 584. (46) Shafi * i .Kitab Jima' al-'Ilm.page 274 .

(47) ibid,page 261,274.

(48) Risalah.page 1328f. (49) ibid,page 69.

( 50 ) It is only God who knows things implicitly;men are asked

to make judgement on the basis of explicit evidence. See Kitâb Ibtal al-Istihsan.page 268.

(51) Kitab Jima* al-*Ilm,page 272.

(52) Ahmad Hasan.The early development.page 194 - 195, (53) See note 15.

(54) K.Ibtal al-Istihsan,page 271. (55) Risalah,page 1495.

(56) K.Ikhtilaf Malik,page 198;K.Ikhtilaf al-Iragiyin,page 125. |

(57) k.Ikhtilaf Malik,page 204. } (58) Risalah,page 1483ff. j (59) ibid,page 1495. | (60) K.Ibtal al-Istlhsan,page 101 - 102. | (61) ibid,page 274. j (62) ibid.;Risalah,page 1469ff. j (63) K.Ibtal al-Istihsan,page 274. |

See also Goldziher,The Zahiris.page 20f.

I

(64) K.Ikhtilaf al-Hadith,page 148. j

(65) Gha2a1i ; Hus tasfa.V .1,page 5. |

(66) The Ikhtilaf Malik,Ikhtilaf al-Iraqiyin,Siyar al-Awza'i | are the best examples of the surviving ancient works dedicated 'i