P RELUDIO : UN REPORTAJE DIFERIDO

Although al-Kawtharī‘s explanation of two different works is acceptable, it still implies that al-Jūzajānī was oblivious of al-Shaybānī‘s real work. al-Kawtharī tries to explains this by recalling that because Abū Ḥafṣ and al-Jūzajānī spent different times of their lives with al- Shaybānī, it is not necessary that both should have received the same works from him. Indeed al-Jūzajānī narrated the al-Siyar al-Kabīr, the last of al-Shaybānī‘s major works, which Abū Ḥafṣ did not, due to the latter‘s early return to Bukhāra.107

This, however, implies that it was Abū Ḥafṣ who returned to his native land before al-Jūzajānī, and if Abū Ḥafṣ had heard the book of ḥiyal from al-Shaybānī then it was clearly in existence while al-Jūzajānī was studying with al-Shaybānī. Considering this together with the fact that al-Jūzajānī was aware of the Baghdad copyists work on the egregious ḥiyal, which had clearly caused a stir in the scholarly community, it is unlikely that he would have been unaware of an earlier work by al-Shaybānī on the same topic.

In the al-Fatāwā al-Hindiyya a ḥīla is referenced to ‗Ḥiyal al-Aṣl‘, and the author notes that there is difference between the narration of Abū Ḥafṣ and that of al-Jūzajānī.108

This seems to imply that both Abū Ḥafṣ and al-Jūzajānī were transmitting a work known as Ḥiyal al-Aṣl and that the ḥiyal work was part and parcel of al-Shaybānī‘s al-Aṣl. This, Ḥiyal al-Aṣl is not a reference to the actual treatise narrated by Abū Ḥafṣ as we note that Ibn Māza, in his expansive doxographical compendium, quotes from both Abū Ḥafṣ‘ and al-Jūzajānī‘s

107

al-Kawtharī, Husn al-Taqāḍī, 70-1.

108 _{See Niẓām al-Dīn and a group of Indian scholars, al-Fatāwā al-ʿĀlamgīriyya (also known as al-Fatāwā al-} Hindiyya), (Queta: Maktaba Rashīdiyya, 1983), vol. 6, 407.

162 narrations of Ḥiyal al-Aṣl,109 and additionally refers to another work which he calls ‗The al-

Ḥiyal attributed to Muḥammad‘.110

The latter is no doubt the ḥiyal treatise as an individual text transmitted distinctly from the al-Aṣl. This implies that although al-Jūzajānī was unaware of the individual ḥiyal treatise, he was narrating a portion of al-Shaybānī‘s al-Aṣl which contained some ḥiyal. The question that needs to be addressed is whether there are any substantial differences between the individual treatise and the Ḥiyal al-Aṣl.

Having compared al-Shaybānī‘s ḥiyal treatise with the corresponding portion of al-Aṣl, it can be concluded that the substantive content of the two are the same, although in the treatise there is an additional chapter regarding ḥiyal in gifts.111 In the treatise the order of the chapters has been altered, but what is more significant however, is that in the al-Aṣl the word

ḥiyal is only sparsely employed: Whereas in the treatise the interlocutor asks for a ḥīla, in the al-Aṣl he asks for a way (wajh) or a sound and trustworthy method (thiqa). 112 These are words which clearly express the notion of an exit i.e. a makhraj, and correspond to the Ḥanafī view, as demonstrated in the previous chapter, of the ḥiyal as makhārij. In fact, it would not be surprising if the word ḥiyal was not employed at all in al-Shaybānī‘s original and the few times in which it now occurs in the al-Aṣl, may be regarded as posthumous accretions premised on the acceptance of the later ḥiyal treatises and the increased subsequent usage of the term itself. This means that al-Jūzajānī was narrating solutions which were referred to using the terms wajh or thiqa and not using the word ḥīla.

al-Jūzajānī narrations of the Ḥiyal al-Aṣl, therefore, refer to the chapters of al-Aṣl which deal with makhārij. It will be recalled that al-Jūzajānī‘s consternation was partly due to the use of

109 _{Ibn Māza, al-Muḥīṭ al-Burhānī, vol. 21, 175-76, 240.} 110

‗al-Ḥiyal al-manṣūb ilā Muḥammad‘ i.e. al-Shaybānī. See ibid, vol. 21, 242, 251.

111 _{See Appendix one for a comparative list of the chapters.}

163 the word ḥiyal in the title of the treatise as mentioned explicitly in the quote given by al- Sarakhsī. The only Kitāb al-Ḥiyal al-Jūzajānī was aware of, was that of the Baghdād copyists, and together with the fact that al-Shaybānī, himself, rejected that he had authored that work, explains al-Jūzajānī‘s antipathy to the idea that al-Shaybānī had authored a Kitāb al-Ḥiyal. This then raises the question of just who was responsible for the individual treatise on the al-

Ḥiyal which is attributed to al-Shaybānī and which purposely replaces the words wajh and thiqa with ḥīla.