Islamic Legal Thought

A Compendium of Muslim Jurists

Edited by

Oussama Arabi, David S. Powers and

Susan A. Spectorsky

LEIDEN •• BOSTON
2013
© 2013 Koninklijke Brill NV ISBN 978-90-04-25452-7
 CONTENTS

Preface  ................................................................................................................. ix
List of Contributors  ......................................................................................... xi

Introduction  ...................................................................................................... 1
Oussama Arabi, David S. Powers, Susan A. Spectorsky

PART ONE
FORMATIVE PERIOD (150–261/767–874)

1. Abū Ḥanīfa (d. 150/767)  ........................................................................... 11

Hiroyuki Yanagihashi

2. Mālik b. Anas (d. 179/795)  ....................................................................... 27

Yossef Rapoport

3. al-Shāijiʿī (d. 204/820)  ................................................................................ 43

Joseph E. Lowry

4. Saḥnūn b. Saʿīd (d. 240/854)  ................................................................... 65

Jonathan E. Brockopp

5. Aḥmad b. Ḥanbal (d. 243/855)  ............................................................... 85

Susan A. Spectorsky

6. al-Khaṣṣāf (d. 261/874)  .............................................................................. 107

Peter C. Hennigan

PART TWO
CLASSICAL PERIOD (300–1213/912–1798)

7. Abū Jaʿfar al-Ṭaḥāwī (d. 321/933)  .......................................................... 123

Nurit Tsafrir

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vi contents

 8. al-Jaṣṣāṣ (d. 370/981)  ................................................................................ 147

Murteza Bedir

 9. al-Sharīf al-Murtaḍā (d. 436/1044) ....................................................... 167

Devin J. Stewart

10. Ibn Ḥazm al-Qurṭubī (d. 456/1064)  .................................................... 211

Samir Kaddouri

11. al-Sarakhsī (d. 483/1090)  ........................................................................ 239

Osman Taştan

12. Abū Ḥāmid al-Ghazālī (d. 505/1111) ..................................................... 261

Ebrahim Moosa

13. Ibn Rushd al-Jadd (d. 520/1126) ............................................................ 295

Delijina Serrano Ruano

14. Qāḍī ʿIyāḍ (d. 544/1149)  .......................................................................... 323

Camilo Gómez-Rivas

15. Sayf al-Dīn al-Āmidī (d. 631/1233)  ........................................................ 339

Bernard G. Weiss

16. Abū Isḥāq al-Shāṭibī (d. 790/1388)  ...................................................... 353

Muhammad Khalid Masud

17. Aḥmad al-Wansharīsī (d. 914/1509)  .................................................... 375

David S. Powers

18. Ebu’s-suʿud (d. 982/1574)  ....................................................................... 401

Colin Imber

19. Muḥammad Bāqir al-Bihbihānī (d. 1205/1791) ................................. 415

Robert Gleave

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 contents vii

PART THREE
MODERN PERIOD (1798–PRESENT)

20. al-Mahdī al-Wazzānī (d. 1342/1923) .................................................... 435

Etty Terem

21. Muḥammad Rashīd Riḍā (d. 1935)  ...................................................... 457

Mahmoud O. Haddad

22. ʿAbd al-Razzāq al-Sanhūrī Pasha (d. 1971) ........................................ 491

Oussama Arabi

23. Ḥasan al-Turābī (1932–)  ......................................................................... 513

Aharon Layish

References  .......................................................................................................... 533

Index of Qurʾānic verses  ................................................................................ 563
Index of Arabic terms  ..................................................................................... 564
General Index .................................................................................................... 570

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 CHAPTER FOURTEEN

QĀḌĪ ʿIYĀḌ (D. 544/1149)

Camilo Gómez-Rivas

ʿIyāḍ b. Mūsā—better known as Qāḍī ʿIyāḍ—was an eminent jurist whose

career coincided with the 6th/12th-century expansion and consolidation
of Mālikism into the Far Maghrib or Islamic West. This was especially
signiijicant in the region south of the historically more settled Mediter-
ranean coast. Until the end of his life, ʿIyāḍ remained ijiercely loyal to the
Almoravid dynasty (al-murābiṭūn, 445–544/1054–1149), a Berber tribal
confederation from the Saharan south, which, as the ijirst major non-Arab
Islamic power of the region, made use of Mālikī jurists as both legitimiz-
ing and administrative agents. A proliijic author, ʿIyāḍ’s most influential
surviving works include the ijirst major biographical dictionary of the
Mālikī school (the dominant legal school in al-Andalus, the Maghrib, and
West Africa), a bio-bibliographical work on his teachers and transmitters,
and a treatise—famous far beyond the boundaries of his legal school—
describing the life, attributes, miracles, and ritual and religious law sur-
rounding the ijigure of the Prophet Muḥammad.
ʿIyāḍ’s legal consultations and opinions produced on the occasion of
cases (pl. nawāzil, sing. nāzila) over which he presided also survive in a
collection compiled and annotated by his son, Muḥammad. These nawāzil
shed light on Andalusī/Maghribī legal practice, on ʿIyāḍ’s legal thought,
and on the socio-economic landscape of the period. The ijigure of ʿIyāḍ
that emerges from these nawāzil is that of the busy chief judge (qāḍī
al-jamāʿa) of Ceuta (Arabic: Sabta), a city undergoing rapid commercial
and demographic growth.1 ʿIyāḍ personally oversaw two expansions of
Ceuta’s congregational mosque as the city developed in its new role as the
main Almoravid port on the African coast of the Mediterranean. Legally
and intellectually, ʿIyāḍ can be seen as a vital link in the flow of knowl-
edge from al-Andalus, a land of established institutions and a long experi-
ence of government, to the Far Maghrib, where Marrakech—founded by

1 Located on the Mediterranean coast of Morocco, Ceuta was occupied by Spain in

1578.

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the Almoravids in the mid-5th/11th century—had recently inherited the

centralizing power that had once belonged to Cordoba.

Life

ʿIyāḍ was born into an established family of Arab origin in Ceuta, a city
where he spent most of his life and of which he became judge.2 He left
Ceuta only twice, to al-Andalus, for relatively brief periods of time: once,
as an advanced student, to meet the scholars of the peninsula and gather
teaching/transmitting licenses (ijāzāt); and a second time to assume the
judgeship of Granada. ʿIyāḍ’s career came to an end with the collapse
of the Almoravid dynasty; he led the city in open rebellion against the
Almohads, capitulated, and was exiled to Marrakech where he died under
uncertain circumstances.
ʿIyāḍ’s agnatic ancestors are said to have emigrated from the Yemen
and to have lived in Basta, al-Andalus, and Qayrawān before settling in
Ceuta. The ijirst family member about whom there are concrete details
is ‘Iyāḍ’s great-grandfather, ʿAmrūn, a prominent scholar reputed to have
had perfect knowledge of the Qurʾān, who moved his family from Fez to
Ceuta sometime after gaining wealth working in the service of al-Manṣūr
b. Abī ʿĀmir (d. 392/1002)3 and before his death in 397/1007. The family
became well-established among the notable families of Ceutan society.
ʿIyāḍ’s full name was Abū’l-Faḍl ʿIyāḍ b. Mūsā b. ʿIyāḍ b. ʿAmrūn b. Mūsā
b. ʿIyāḍ b. Muḥammad b. ʿAbd Allāh b. Mūsā b. ʿIyāḍ al-Yaḥsubī al-Sabtī.
He was born in Ceuta toward the middle of Shaʿbān 476/December 1083,
six months after the Almoravid takeover of the city. Shortly thereafter,
Yūsuf b. Tāshufīn, the great Almoravid leader, made the city the base of
operations for his military excursions into al-Andalus. Ceuta was thereby
turned into one of two principal ports of the growing empire (the other

2 See Delijina Serrano’s comprehensive “ ʿIyāḍ, Abū l-Faḍl,” 404–34 and the introductory
study to her translation of the Madhāhib al-ḥukkām fī nawāzil al-aḥkām, 13–141; EI2, s.v.
“ʿIyāḍ b. Mūsā”; M. José Hermosilla Llisterri, “En torno al-Qāḍī ʿIyāḍ I: Datos Biográijicos,”
149–74; Muḥammad b. ʿIyāḍ, Taʿrīf bi’l-qāḍī ʿIyāḍ; al-Maqqarī, Azhār al-riyāḍ fī akhbār ʿIyāḍ.
See Ḥasan al-Warāgilī, Abū al-Faḍl al-Qāḍī ʿIyāḍ al-Sabtī for a complete annotated bibli-
ography of Arabic works on ʿIyāḍ before 1994. For an updated bibliography, see Aḥmad
Mutafakkir, Abū al-Faḍl al-Qāḍī ʿIyāḍ: thabat bibliyūghrafī. Ḥalīma Ferhat, Sabta des Origi-
nes au XIV ième Siècle presents important information on ʿIyāḍ’s life in Ceuta.
3 Chamberlain (ḥājib) of the Umayyad caliphs and virtual ruler of the caliphate, 368–
392/978–1002.

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being Almeria). ʿIyāḍ grew up in a burgeoning center with signiijicant

commercial and intellectual trafijic.
As a scion of a notable scholarly family, ʿIyāḍ was able to learn from
the best teachers Ceuta had to offer. The qāḍī Abū ʿAbd Allāh Muḥammad
b. ʿĪsā al-Tamīmī (d. 505/1111) was ʿIyāḍ’s ijirst important teacher and is
credited with his basic academic formation. Growing up, ʿIyāḍ beneijit-
ted from the trafijic of scholars from al-Andalus, the Maghrib, and the
eastern Islamic world. ʿIyāḍ became a prestigious scholar in his own right
and appears to have won the support of the highest levels of society. The
Almoravid amīr, ʿAlī b. Tāshufīn, sponsored the later stages of ʿIyāḍ’s intel-
lectual formation by supporting his ijirst trip to al-Andalus. Thus it was
that at the age of thirty and as a fairly established scholar, ʿIyāḍ made his
riḥlat al-ṭalab fī’l-ʿilm or “journey in search of knowledge,” a traditional
requirement for Muslim scholars who sought employment in public func-
tions such as the judgeship.
Traditionally, the riḥla had been performed together with the pilgrim-
age to Mecca, and thus, from al-Andalus and the Maghrib, it had been an
eastward journey. The East, historically, was the source of all trends, intel-
lectual and otherwise, that swept through this part of the Islamic world.
The northward direction of ʿIyāḍ’s scholarly journey is novel, and its
novelty underscores a signiijicant historical development: the creation of
the ijirst large-scale bureaucratic structure in the Far Maghrib by import-
ing cultural and institutional know-how from the north. Al-Andalus was
especially attractive to the Almoravids for its established state institutions
and freedom from the Ismāʿīlī “heresy” of the Fatimids, against whom the
Andalusī Umayyads had fought a proxy war through Berber client tribes in
the Far and Middle Maghrib in the 4th/10th and 5th/11th centuries.4 ʿIyāḍ’s
riḥla and ensuing correspondence with the jurists he met in al-Andalus
marks the beginning of a process in which the cities of the Maghrib
absorbed the intellectual and artistic traditions of al-Andalus, which, for
their part, were coming under increasing military and economic pressure
from the Christian kingdoms to the north. Through ʿIyāḍ, and several
other lesser known jurists, the theoretical and practical application of

4 Earlier alliances to Fatimids and Andalusians and later rivalries among the three larg-
est Berber groups in the Maghrib played a crucial role in the history of the region. These
major groups are the Ṣanḥāja (associated with the Almoravids), the Maṣmūda (associated
with the Almohads), and the Zanāṭa (once allies of the Umayyads and later associated
with the Merinids).

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the science of jurisprudence flowed from Cordoba, Seville, and Granada,

through Ceuta, to Fez, Marrakech and points south. The contacts made
by ʿIyāḍ during his eight-month journey to the cities of al-Andalus, and
the sustained correspondence he would carry on with these jurists once
he returned, put him at the center of this flow of institutional, religious,
and legal knowledge, influencing the shape that would be taken by the
institutions of the Far Maghrib in later centuries.
ʿIyāḍ spent part of 507/1113 and 508/1114 visiting Cordoba, Murcia,
Almeria, and Granada. He received ijāzas from the most important tra-
ditionist of his time, Abū ʿAlī al-Ṣadafī (d. 514/1120) in Murcia, and met
with some of the most celebrated scholars of the moment, such as Ibn
al-Ḥājj (d. 529/1134),5 Ibn Rushd al-Jadd (d. 520/1126),6 and Ibn Ḥamdīn (d.
508/1114).7 Upon returning to Ceuta, ʿIyāḍ participated in a public debate
on Saḥnūn’s Mudawwana, a kind of rite of passage that was followed by
his appointment to the shūra.8 ʿIyāḍ was ijirst appointed judge of Ceuta
in 515/1121 and served in the position until 531/1136 (he served again from
539–543/1145–48).9 It was presumably during his double tenure as judge
of Ceuta that he was most proliijic. Most of the consultations and cases
compiled by his son are from this period, and his overall fame as a jurist
and as a writer of ijiqh (positive law) was most likely based on the work
he did in this city.
In 515/1136, ʿIyāḍ was appointed judge of Granada, where he was ini-
tially well received. After a little more than a year, however, he fell into
disfavor with the amīr of al-Andalus, Tāshufīn b. ʿAlī, who deposed him,
according to one source, on account of his excessive censoriousness. After
this episode, ʿIyāḍ stepped back from public life. He appears to have been
active only once and briefly, arbitrating in an ofijicial capacity in the
southern Iberian town of Algeciras. In 539/1145, after coming back into
favor with the Almoravid administration, ʿIyāḍ was again appointed judge
of Ceuta by the briefly-reigning Ibrāhīm b. Tāshufīn, second to last amīr
of the Almoravids.

5 Abū ʿAbd Allāh b. al-Ḥājj, qāḍī of Cordoba.

6 The celebrated Mālikī legal scholar and grandfather of the philosopher, Averroës.
7 Muḥammad b. Ḥamdīn, qāḍī of Cordoba.
8 In al-Andalus and the Maghrib, a consultative body at the service of the judge and, in
this period, often a preliminary position toward the judgeship.
9 ʿIyāḍ held the position of judge in Ceuta (515–531/1121–1136), Granada (531–532/1136–
1138), Ceuta (539–542/1144–1144), and possibly, while briefly exiled, in Dāy (543/1148).

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 qāḍī ʿiyāḍ 327

Two late eastern biographers of ʿIyāḍ, Ibn al-ʿImād (d. 1089/1679) and
al-Shaʿrānī (d. 973/1565), claim that ʿIyāḍ instigated the public burning of
al-Ghazālī’s (d. 505/1111) Iḥyāʾ ʿulūm al-dīn.10 The claim is doubtful as it is
found in no earlier western sources. It would appear, rather, as a gloss
on ʿIyāḍ’s perceived close ties to the pro-Mālikī Almoravid dynasty and
his subsequent fate at the hands of the anti-Mālikī Almohads, a conflict
that, at least on a symbolic level, involved al-Ghazālī’s famous work. This
conflict over the notion of the proper role of the Muslim jurist in society
pitted the members of a series of rebellious ṣūfī movements and other
discontents against the Mālikī jurists.11
The earliest source on ʿIyāḍ is al-Ta’rīf bi-l-Qāḍī ʿIyāḍ by his son
Muḥammad b. ʿIyāḍ. Muḥammad struggled with the problem of honoring
his father in a political environment that was hostile to the dynasty to
which the latter had remained steadfastly loyal. Filial piety and a desire
to make his father acceptable to an antagonistic generation (and per-
haps a lack of acquaintance with the man himself )12 may account for
Muḥammad’s stock description of ʿIyāḍ as the ideal jurist: a man of pleas-
ant appearance and smell, a smart dresser, an elegant rider, a tireless
worker who was quick to chastise leaders when they strayed from the
truth, and a man of self-abnegating magnanimity (Muḥammad reports
inheriting a debt of 500 dinars, money his father reportedly spent toward
the public interest out of his own pocket). This desire for acceptability may
also account for Muḥammad’s reticence about the events surrounding his
father’s rebellion, capitulation, and subsequent exile to Marrakech.13
The Almohads, a Berber confederation of Maṣmūda tribes from the
Atlas mountains who never entirely submitted to the Ṣanḥāja confed-
eration of the Almoravids, mounted a sustained military and ideological
attack against the latter starting in the 510s/1120s. The Almoravid govern-
ment crumbled precipitously with the death of Tāshufīn b. ʿAlī, the dynas-
ty’s last capable military leader. Marrakech, the Almoravid capital, fell in

10 Abū Ḥāmid Muḥammad b. Muḥammad b. Aḥmad, famous Shāijiʿī jurist, theologian,

and mystic (d. 505/1111).
11  Maribel Fierro, “La Religión,” El Retroceso Territorial de Al-Andalus, 439. For more
on the reception of the Iḥyāʾ in al-Andalus and the Maghrib and the role played therein
by Mālikī jurists and the growing Suiji movement, see Kenneth Garden, “Al-Ghazālī’s Con-
tested Revival: Iḥyāʾ ʿUlūm al-Dīn and its Critics in Khorasan and the Maghrib,” and Del-
ijina Serrano Ruano, “Why Did the Scholars of al-Andalus Distrust al-Ghazālī? Ibn Rushd
al-Jadd’s Fatwā on Awliyāʾ Allāh.”
12 ʿIyāḍ, Madhāhib al-ḥukkām (trans. Serrano), 22.
13 Ibid., 25.

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Shawwāl 541/March 1147, when the dynasty’s last amīr, Isḥāq b. ʿAlī, was
slain. By then most of the cities of the Maghrib had capitulated, includ-
ing Tangier and Ceuta. But when the Almoravid governor of al-Andalus
managed to retake Algeciras, an Almoravid leader on the African side of
the strait, Yaḥyā b. Abī Bakr al-Ṣaḥrāwī, was moved to launch his own,
last ditch rebellion, starting from Ceuta and Tangier and eventually mov-
ing south, where he languished in the deserts of Mauritania. In what had
become a recurrent pattern in al-Andalus and the Far Maghrib in times
of political turmoil, ʿIyāḍ as chief judge of Ceuta, assumed leadership of
the city, which now stood in open rebellion against the Almohads as a
result of al-Ṣaḥrāwī’s doomed revolt. The armies of ʿAbd al-Muʾmin, how-
ever, were quick to surround Ceuta and, when defeat was imminent, ʿIyāḍ
sued for peace. The Almohads took the city without bloodshed, and ʿIyāḍ
was exiled to Marrakech. Muḥammad b. ʿIyāḍ casts a positive light on
subsequent events, in which, according to his version, his father submit-
ted docilely to the Almohads and ingratiated himself with the Almohad
leader upon arriving in Marrakesh. According to Muḥammad’s account,
ʿIyāḍ died after falling ill during a military campaign in which he was
ijighting alongside the Almohad amīr.
Other sources intimate a different reality, while later ones weave fan-
cifully sinister endings. Ibn Khaldūn (d. 808/1406) places ʿIyāḍ at the
time of his death in the province of Tādla, a region north of Marrakesh,
where ʿIyāḍ reportedly served as a rural judge in exile.14 Other biogra-
phers describe ʿIyāḍ dying dejectedly, murdered by orders of the Almo-
had amīr, either strangled (al-Bunnāhī, d. after 793/1391)15 or poisoned
by a Jew (Ibn Farḥūn, d. 799/1397).16 Further versions have ʿIyāḍ killed
by orders of the spiritual leader of the Almohads, the Mahdī b. Tūmart,
for secretly practicing Judaism, or dying suddenly in the baths of Mar-
rakech, felled by a malediction pronounced by al-Ghazālī himself. While
these latter scenarios present chronological impossibilities (Ibn Tūmart
and al-Ghazālī died before ʿIyāḍ), they point to the signiijicance these ijig-

14 Ibn Khaldūn, Kitāb al-῾Ibar, 6:230. This information is corroborated by Muḥammad

b. ῾Iyāḍ in the Ta῾rīf, where he quotes a poem by ῾Iyāḍ mentioning his exile in Dāy, a
town of the Tādla province. Muḥammad b. ῾Iyāḍ, Ta῾rīf bi al-qāḍī ῾Iyād, 98–9. See also
Hermosilla Llisterri, “En torno al-Qāḍī ῾Iyāḍ I: Datos Biográijicos,” 156.
15 Al-Bunnāhī, al-Marqaba al-ʿulyā (Cairo, 1948), 101.
16 Al-Dibāj (Cairo, 1932), 168–72.

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ures gained posthumously, especially for the Maghribī Suiji movement, for
whom al-Ghazālī’s Iḥyāʾ had special symbolic import.17
ʿIyāḍ’s prestige as a jurist and religious ijigure endured, however, in
spite of his clash with the Almohads. He is venerated today as one of the
seven patron saints of the city of Marrakech, where the university bears
his name.

Scholarship

ʿIyāḍ’s extant works include biographical dictionaries, a collection of

nawāzil, and various works of ijiqh (positive law). His two biographical
dictionaries are among the earliest examples of the genre in the region.
By identifying a network and genealogy of teachers, students, transmit-
ters, and texts, these works were influential in the formation of the Mālikī
identity in the Far Maghrib. ʿIyāḍ’s collection of nawāzil 18 presents ques-
tions and opinions regarding cases over which he and some of his contem-
poraries presided. It comprises a kind of correspondence between judges,
recording their attitudes and legal strategies for dealing with new reali-
ties and, signiijicantly, for allowing for the development and adaptation
of Mālikī jurisprudence to changing conditions. ʿIyāḍ’s most enduringly
popular work, al-Shifāʾ—also an early example of a genre—deals exclu-
sively with the Prophet Muḥammad.
The Tartīb al-madārik wa-taqrīb al-masālik li-maʿrifat aʿlām madhhab
Mālik (Organizing the faculties and revealing the methods for discovering
the signs of the school of Mālik) is the most influential of ʿIyāḍ’s biographi-
cal works. It traces the history, development, and diffusion of the Mālikī
legal tradition from Medina to the different regions of the Islamic world,
identifying and describing its main proponents and practitioners, from

17 These last two reports appear in al-Murtaḍā al-Zābīdī, Itḥāf al-sāda al-muttaqīn, 38,
quoted by Halima Ferhat, Sabta des Origines, 155, and in Garden, “Al-Ghazzālī’s Contested
Revival,” 206–7. Garden argues that the Iḥyāʾ was symbolically more than substantively
signiijicant to the Suiji movement of the Maghrib, a signiijicance with which Almoravids,
but more effectively so, the anti-Almoravid Almohads sought to align themselves.
18 Roughly synonymous with the term fatāwā (sing. fatwā) and of specialized use in the
Maghrib, the nawāzil are collections of questions and opinions that serve as references for
resolving legal cases. Unlike the term fatwā, which refers to the process of responding to a
question, nāzila refers to the case about which the question is asked. It would also appear,
as in the case of ʿIyāḍ’s nawāzil, to refer to the compilation process from the perspective
of the qāḍī (or at least not explicitly that of the muftī), including both opinions requested
and given. EI2, s.v. “Nāzila.”

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Mālik b. Anas, through nine generations or ṭabaqāt. The book opens with
a brief apology for the school’s legal epistemology and method (a section
of which is translated below) and is followed by a detailed biography of
Mālik, after which the jurists of the school are presented chronologically,
according to generations and regions. ʿIyāḍ’s second biographical work,
al-Ghunya (The Riches), is, in a sense, more autobiographical, describing
his recent contemporaries in the Mālikī school, placing special emphasis
on his own teachers and on those from whom he garnered licenses or
ijāzas.19
Muḥammad b. ʿIyāḍ compiled and annotated a collection of his father’s
papers that record cases over which ʿIyāḍ presided and for which he
sought opinions from muftīs or jurisconsults; several entries include cases
for which ʿIyāḍ wrote opinions in answer to consultations. The Madhāhib
al-ḥukkām fī nawāzil al-aḥkām (The procedures of judges in judicial prac-
tices), which did not become as well-known or widespread as ʿIyāḍ’s other
works, provides important information of a unique sort about the practice
and contemporary impact of ʿIyāḍ’s legal work and thought, as well as that
of a few of his most distinguished contemporaries. It shows how ʿIyāḍ cor-
responded with jurists of al-Andalus, such as Ibn Rushd and Ibn Ḥamdīn,
and acted as a link in the transmission of ideas into the Maghrib.
The Madhāhib al-ḥukkām also presents a wealth of legal-historical and
socio-historical information, concerning, for example, the court prac-
tice of Ceuta (which was closer to Andalusī than Maghribī practice), the
composition of Ceutan courts, the qualities of witnesses, the use of docu-
ments, the jurisdiction of judges, the nature of the cases tried, the power
of recourse to the law demonstrated by jurists and laymen, and the pro-
cess of judicial review.
The most popular work by ʿIyāḍ—with a large number of extant man-
uscripts and commentaries found throughout the Islamic world—is his
al-Shifāʾ bi-taʿrīf ḥuqūq al-Muṣṭafā (The healing in knowing the truths of the
Chosen One). It is, properly, a work of ijiqh on the Prophet Muḥammad,
including the traditions which describe his character, elevated status,
and miracles associated with his prophethood, as well as topics such as
how to pray for him, or what judgments and punishments are incurred
by those who disparage him. This work’s success and diffusion point to
the phenomenon of the emergence of the Prophet Muḥammad as a ijigure

19 An ijāza (plural ijāzāt) is a certiijicate granting the right to teach transmissions of
ḥadīth and other authoritative texts. See EI2, s.v. “Idjāza.”

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 qāḍī ʿiyāḍ 331

of veneration from popular religion into mainstream Islamic society,20 a

phenomenon that in the Far Maghrib is manifest in the mystical or Suiji
tradition, as well as in the political and social institution of Sharīijism,
whereby descendants of the “House of Muḥammad”—through ʿAlī b. Abī
Ṭālib and Fāṭima—garnered special political status. Sharīijism became
prominent after the appearance of the Berber dynasties in the 5th/11th
century.21 The book became so famous that it was accorded a kind of
sacredness of its own, reputedly bestowing the gift of protection upon
any house in which it was found. ʿIyāḍ’s intention, however, was orthodox
and aimed at fulijilling what he saw as a growing need. As he explains in
the introduction:
You have repeatedly asked me to write something which gathers together all
that is necessary to acquaint the reader with the true stature of the Prophet,
peace and blessings be upon him, with the esteem and respect which is due
to him, and with the verdict regarding anyone who does not fulijill what his
stature demands or who attempts to denigrate his supreme status—even by
as much as a nail-paring. I have been asked to compile what our forebears
and Imams have said on this subject and I will amplify it with ayās from the
Qurʾān and other examples. . . . Writing about this calls for the evaluation of
the primary sources, examination of secondary sources and investigation of
the depths and details of the science of what is necessary for the Prophet,
what should be attributed to him, and what is forbidden or permissible in
respect of him; and deep knowledge of messengership and prophethood
and of the love, intimate friendship and the special qualities of the sublime
rank.22
In addition to the works mentioned above, ʿIyāḍ composed many others,
some of which exist in printed editions and none of which, to my knowl-
edge, have been translated into English or studied in any depth in the
western academy. They include two ḥadīth works (Sharḥ ṣaḥīḥ Muslim
and Mashāriq al-anwār), one on ḥadīth terminology (al-Ilmāʿ ilā maʿrifat
uṣūl al-riwāya wa-taqyīd al-samāʿ), a commentary on Saḥnūn’s Mudaw-
wana (al-Tanbīhāt al-mustanbaṭa ʿalā’l-kutub al-mudawwana), and a work
of law (al-Iʿlām bi-ḥudūd qawāʿid al-Islām). ʿIyāḍ also wrote poetry, of
which some verses survive. The eventual edition and study of all of these
will be important in the effort to reveal a more complete picture of the

20 Schimmel, And Muhammad is His Messenger, 33.

21  Powers, Law, Society, and Culture in the Maghrib, 1300–1500, 13.
22 Iyad b. Musa, Muhammad: Messenger of Allah (Ash-Shifa of Qadi ʿIyad), translated by
Aisha Abdarrahman Bewley, vi.

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impact and signiijicance of this great scholar of the ijirst Berber empire of
Islam.

Translation of a Passage from Tartīb al-madārik

The following excerpt from the Tartīb al-madārik (1:47–54) highlights one
of the distinguishing features of Mālikism: the prominence of the Medi-
nese tradition as a source of law. ʿIyāḍ argues that the tradition of Medina,
in the form of the consensus of Mālikī jurists and the Medinese commu-
nity, has positive value as a source of law that can be stronger than pro-
phetic traditions transmitted by single or very few individuals, in the form
of the khabar wāḥid or lone report. This is especially signiijicant when the
khabar wāḥid contradicts the Medinese tradition, which is understood to
be stronger or have preponderance, tarjīḥ, precisely because it was trans-
mitted by the Medinese community as a whole, enjoying tawātur, that
is to say, it was transmitted by numerous individuals at all points of its
transmission.
The Medinese tradition includes prophetic Sunna as well as non-pro-
phetic ʿamal, or the practice of the people of Medina. ʿIyāḍ describes what
the relative weight of these traditions is as sources of law, especially when
in conflict with other sources. In doing so he provides examples of Medi-
nese, and therefore Mālikī-speciijic, practice. He describes disagreements
within Mālikism over the relative juristic weight of practice that is not of
prophetic origin. And he refutes jurists who have criticized Mālikī excep-
tionalism as misinterpretation. To this end he addresses the debate over
the Islamic sale with option, or al-bayʿ bi’l-khiyār, which grants buyer and
seller the right to rescind a sale’s contract within a speciijied time limit.
Muslim jurists disagreed over this limit, which the Mālikīs made depen-
dent on the nature of the commodity and local custom.
Explanation of the consensus of the people of Medina as an authoritative
source, what it is, and the veriijication of the school (or doctrine) of Mālik—
may God have mercy on him—concerning this.
You should know—may God bestow honor upon you—that the authori-
ties of the other schools—their jurists, theologians, traditionists, and legal
thinkers—are uniijied against our companions on this question and claim
we are mistaken. They remonstrate against us, arguing by whatever means
occurs to them, thus overstepping the boundaries of fanaticism and slander,
to the point of defaming Medina and listing its shortcomings, all the while
arguing points about which there has been no disagreement to begin with.

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 qāḍī ʿiyāḍ 333

Many have neither thought the question through nor investigated the
truth of our doctrine. They have spoken, as a result, based on conjecture
and speculation. Others have learned about our doctrine from people who
have not studied it from us. Yet others have stretched the words they heard,
attributing to us what we have not said, as al-Ṣayrafī,23 al-Muḥāmilī,24 and
al-Ghazālī25 have done. They ascribed answers to questions that we have
not asked and have protested against us as one would against slanderers of
the consensus (which we are not).
Therefore, I set forth in detail here concerning what is said about the
school of Mālik, in a way that, once established, the righteous will ijind incon-
trovertible. I will thereby distinguish the areas in which there is agreement
from those in which there is disagreement—if God, may He be exalted,
so wills.
You should begin by knowing that the consensus of the people of Medina
is of two sorts: one that comes by way of the account and tradition that the
people honor and transmit collectively, following it through their actions
openly, which the community has passed down from the community of the
time of the Prophet—may God bless and save him. This kind of consensus
is divided into four types: the ijirst is comprised of transmitted law, by means
of the words or actions of the Prophet—may God bless and save him—
containing information such as [the values of the units of measurement of]
the ṣāʿ and the mudd, according to which he—blessings and peace be upon
him—collected charity (ṣadaqāt) and end-of-Ramadan alms ( ijiṭrāt); the call
to and initiation of congregational prayer (iqāma); the omission of publicly
pronouncing the phrase “In the Name of God, the Compassionate, the Mer-
ciful” during prayer; the act of standing in prayer (wuqūf ); or the formation
of endowments (aḥbās).
The transmitted tradition of the people of Medina originates from the
Prophet’s words and actions, such as their tradition concerning the loca-
tion of the Prophet’s grave, his mosque, his minbar (raised pulpit), and his
city, among other things, for which knowledge of his circumstances and life
stories is necessary, along with knowledge of the manner of his prayer [the
number of bowings and prostrations and the like].
[There is also] the transmitted tradition (naql) of his—peace and bless-
ings be upon him—acceptance of actions of theirs [viz., the people of Med-
ina] that he witnessed and of which no disavowal of his was handed down,
such as the ownership of slaves, and the like; or of his abstention from cer-
tain matters and decisions which he did not impose upon them as a duty,
with the prevalence and conspicuousness of the practice among them, such

23 Abū Bakr Muḥammad b. ʿAbd Allāh (d. 329/941 or 330/942), famous Shāijiʿī jurist.
24 Abū ʿAbd Allāh al-Ḥusayn al-Muḥāmilī (d. 330/942), Shāijiʿī judge.
25 Whose al-Wajīz fī ijiqh al-imām al-Shāijiʿī, for example, contains sections refuting
Mālik.

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as his declining to take vegetables for alms (zakāt), even while knowing—
peace be upon him—that these were plentiful among them.26
Taking these aspects into account, this kind of consensus of [the peo-
ple of Medina] constitutes an authoritative source, the heeding of which
is an obligation, as is rejecting what contradicts it based on a lone report
(khabar wāḥid) or analogy (qiyās). This transmitted tradition (naql) is
established and well known, leading to certain knowledge (al-ʿilm al-qaṭʿī).
And it should, therefore, not be rejected for what is based on preponder-
ant likelihood. This is what Abū Yūsuf 27 and other detractors resorted to
when opposing Mālik and other people of Medina concerning the question
of endowments (awqāf ), and the mudd and the ṣāʿ, even while witnessing
himself the transmitted tradition and its authenticity.
The righteous cannot disavow the authority of this [consensus], which
is that described by Mālik and transmitted by the majority of our scholars.
There is no disagreement regarding the soundness of this method (ṭarīq)
and of its authority—on the part of the discerning (ʿuqalāʾ)—or [regarding
the fact] that it conveys knowledge that attains certainty. Detractors con-
cerning these questions who are not from Medina are simply those to whom
the tradition of Medina has not been transmitted.
The qāḍī Abū Muḥammad ʿAbd al-Wahhāb28 said there was no disagree-
ment concerning this issue among our adherents or from al-Ṣayrafī and other
adherents of al-Shāijiʿī, who all agreed with him, as al-Āmidī has related.
Some Shāijiʿīs, however, disagreed obdurately. And there will be no com-
fort for the detractor who believes this is not so. For these [detractors] are
[comprised of] the people of the distant provinces, such as Basra, Kufa,
and Mecca, alike. This is because, [they argue, the tradition] came to these
places while there was a group of Companions there and they passed down
the Prophetic Tradition. It is an obligation to betake oneself to the report
that is uninterruptedly transmitted by numerous sources (mutawātir) of
whatever nature, and establish knowledge by it. The authoritative source
of law has come to reside in the transmitted tradition, of which Medina is
not in exclusive possession. And so the question was dropped. This [notion,
viz., that Medina is not in exclusive possession of authoritative traditions]
constitutes one of their strongest arguments.
We say to them, however, that we would agree, were the question to
be conceived in favor of someone other than [the people of Medina], but
there is no such transmitted tradition in possession of others. For one of
the conditions for a consecutively and widely transmitted tradition (naql
al-tawātur) is the consistency of the number of sources in its beginning,
middle, and end. This [consistency] is present with the people of Medina

26 Here, the Prophet Muḥammad is understood to establish a practice by omission:

zakāt is taken only in wheat, not green vegetables.
27 Abū Yūsuf Yaʿqūb (d. 182/798), Ḥanafī legal scholar, student of Abū Ḥanīfa, and chief
judge (qāḍī al-quḍāt) under Hārūn al-Rashīd.
28 ʿAbd al-Wahhāb al-Baghdādī (d. 422/1031 or 423/1032), Egyptian Mālikī scholar.

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 qāḍī ʿiyāḍ 335

and their tradition, [passed down] by the community as a whole from the
Prophet—may God bless and save him—or from the practice (ʿamal) of his
time. The people from other provinces, on the other hand, transmit in their
community only what can be traced back to one or two Companions. The
question thus goes back to a lone report (khabar al-āḥād).
A good example to consider [for the elucidation of this problem] is
the practice of the people of Mecca, regarding the call to prayer and their
mutawātir transmission of the call to prayer, performed in the presence of
the Prophet—peace be upon him. This tradition is contradicted, however,
by another tradition of the Messenger of God—may God bless and save
him—which is the one according to which he acted at the time of his death
in Medina.
This is why Mālik said to his detractors concerning this question: “I do
not know of a day call and a night call to prayer. This is the mosque of the
Messenger of God—may God bless and save him—where the call has been
performed from his time, and where the disavowal of the caller’s practice
has been recorded by no one.”29
The second type of consensus is the consensus of there being a legal prac-
tice (ʿamal) whose validity can be proven by means of independent rea-
soning (ijtihād) and deduction (istidlāl). The adherents of our school have,
however, disagreed amongst themselves in this regard. Most of them believed
that it did not constitute an authoritative source or that it had no prepon-
derance (tarjīḥ). This is the doctrine of the great scholars of Baghdad, among
whom were Ibn Bukayr, Abū Yaʿqūb al-Rāzī, Abū al-Ḥasan b. al-Muntāb,
Abū al-ʿAbbās al-Ṭayālisī, Abū al-Faraj al-Qāḍī, Abū Bakr al-Abḥārī, Abū
al-Tammām, and Abū al-Ḥasan b. al-Qaṣṣār.30 They said that because they
formed part of the Muslim community (al-umma), an authoritative source
(al-ḥujja) could only be one for and from the whole of the community. This
constitutes the doctrine of the detractors in its entirety.
This [doctrine] is what the qāḍī Abū Bakr b. al-Ṭayyib and others
embraced. They denied that Mālik believed in this kind of consensus or
that this was his doctrine or that of the leaders among his adherents. Some,
moreover, believed that this kind of consensus did not constitute an author-
itative source but had preponderance over the independent legal reason-
ing (ijtihād) of others. This is the belief of a group of their jurisprudents
(mutafaqqihūn) as well as some Shāijiʿīs. The qāḍī Abū Bakr [b. al-Ṭayyib]
did not abide it, nor did the leaders of our school establish it.
Some of the Mālikīs, on the other hand, believed that this kind of consen-
sus constituted an authoritative source much as that of the ijirst kind. And

29 The Meccan call to prayer, later taken up by the Shāijiʿīs, differs from the Mālikī prac-
tice, based on the practice of Medina. ʿIyāḍ argues here that the Medinese tradition is the
only one that is both mutawātir and genuine, by contrasting it to another mutawātir tradi-
tion that, regardless of how well attested it is, according to Mālik, happens to be wrong.
30 These Mālikī scholars were active in Baghdad between the 3rd/9th and early 5th/11th
centuries.

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they taught it as coming from Mālik. The qāḍī Ibn Naṣr said: “The words
of Aḥmad b. al-Muʿadhdhal and Abū Muṣʿib suggest this.” The qāḍī Abū
al-Ḥasan b. Abī ʿUmar, among the Baghdādīs, believed it, as did a group of
the Maghribīs among our fellow [Mālikīs]. They considered it to have pre-
ponderance over the lone report (khabar al-wāḥid) and analogical reasoning
(qiyās). The detractors agreed that this was the doctrine of Mālik. But this
does not follow from him in the absolute.
The qāḍī Abū al-Faḍl—God, may He be exalted, have mercy on him—
said that the legal practice (ʿamal) of the people of Medina concerning lone
reports (akhbār al-āḥād) is approached in one of three manners: either the
practice is in conformity with the report, for it provides more certainty when
it comes by means of transmission; or the lone report is given preponder-
ance if it was [implemented] by means of unchallenged, independent rea-
soning (ijtihād), since nothing opposes it here except the ijtihād and qiyās
of others who give precedence to qiyās over the lone report.
If the practice is in conformity with a lone report but in opposition to
another, the practice [of the people of Medina] gives preponderance to
the report [that belongs to their tradition], which is the strongest [way]
in which reports may be given preponderance [over one another] when
incompatible. The master, Abū Isḥāq al-Asfarāyaynī,31 and those glossators
(or veriijiers [muḥaqqiqūn]), legal theorists (uṣūliyyūn), jurists, and others of
the school of Mālik who followed him believed this.
If, on the other hand, the practice is in disagreement with the lone
reports as a whole (mukhālifan li’l-akhbār jumlatan), then, if the consensus
(ijmāʿ) resulted from a transmitted tradition, the report can be relinquished
without objection on our part or by the glossators of other persuasions, as
mentioned above. There is no need for glossators to imagine an objection
concerning this, or pay attention to it, since positive and certain reports are
not relinquished on the basis of preponderant likelihood. There is no agree-
ment about this due to the existing dispute. Likewise, were this made clear
to the righteous dissenter, he would reconsider. This is the point (nukta) of
the question, such as that of the [values of the units of measurement of]
the ṣāʿ and the mudd, the act of standing in prayer (wuqūf ), the zakāt of
vegetables, and others.
If their consensus resulted from ijthād, the report is given preference for
the general public (al-jumhūr). There is disagreement among our adherents
over this.
In the case in which there is no legal practice in disagreement or confor-
mity [with a given report], the question is null. It becomes obligatory to go
back to accepting the lone report, be it from the transmission [of the people
of Medina] or from others, if the report is sound and uncontested. If, on the
other hand, this Medinese report is contested by a report transmitted by
people of remote regions (ahl al-āfāq), the Medinese tradition is given pre-

31 Abū Ishāq Ibrāhīm b. Muḥammad b. Ibrāhīm b. Mahrān, Shāijiʿī jurist, legal theorist,
and theologian (d. 418/1027).

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 qāḍī ʿiyāḍ 337

ponderance, according to the opinion of the master, Abū Isḥāq, and other
glossators, on account of the greater entitlement owed to the observation of
those [acquainted] with the local context (qarāʾin al-aḥwāl), basing them-
selves on the transmission of the traditions of the Prophet—peace be upon
him, and on the fact that the people of Medina constitute a large group of
people (al-jamm al-ghafīr) transmitting from a large group of people who
transmitted from the Prophet.
On issues other than those we have presented above, the distortions of
the dissenters concerning what has been transmitted from Mālik have mul-
tiplied. Abū Bakr al-Ṣayrafī and Abū Ḥamīd al-Ghazālī, for example, have
recounted Mālik as saying: “Only the consensus of the people of Medina and
none other is to be taken into account.” This is something that neither Mālik
nor any of his followers has said. Some legal theorists (uṣūlīyyūn) among the
dissenters have said that Mālik considered the consensus of the seven jurists
of Medina to constitute a formal consensus, and that he elevated [them] and
said that perhaps they were the only people qualiijied for ijthād in that time.
This is something Mālik never said, nor was this transmitted from him.
Furthermore, some have said that we do not accept reports unless they
are associated with the people of Medina. This is ignorance or fabrication.
[Those who say this] have not made the distinction between our rejection
of reports contravening Medinese practice and between what we do accept,
when it agrees with Medinese practice. They thus argue, concerning this dis-
tinction, by raising Mālik’s rejection of the ḥadīth concerning both parties
to a sale with an option (or with the right of withdrawal: al-bayyiʿayn bi’l-
khiyār), which he himself and the people of Medina transmitted with their
best chain of authorities. The words of Mālik, concerning this ḥadīth in his
Muwaṭṭa⁠ʾ are: “There is no speciijied limit nor any matter which is applied
in this case, according to us.”32 Their point about this contradiction is one
of their greatest exaggerations and ugliest calumnies. They said: “This is a
rejection of a sound report since the practice of the people of Medina does
not proceed according to it; they have thus renounced the report.” Ibn Abī
Dhiʾb33 made a well-known and harsh pronouncement concerning this.

32 “Option” here concerns the right of both parties to a sale transaction to buy or sell
(i.e., conclude or withdraw from the transaction) within a speciijied period of time (three
days in the Shāijiʿī and Ḥanafī traditions). As Qāḍī ʿIyāḍ explains below, this period, accord-
ing to Mālik, has no speciijic limit and depends, rather, on local custom and the item in
question. Debates among jurists over the right to an option involved specifying the time
frame for it to be invoked, assigning liability to buyer or seller, and questions over whether
such a right is inheritable and applicable to delegated parties. See Ibn Rushd al-Ḥafīḍ,
Bidāyat al-Mujtahid (The Distinguished Jurist’s Primer), transl. Imran Ahsan Khan Nyazee
(Reading, 1994), Vol. II, 250–5. See also Muwaṭṭa⁠ʾ, 2:79, chapter on “bayʿ al-khiyār.” For an
English translation, see Aisha Abdurrahman Bewley, al-Muwatta of Imam Malik ibn Anas:
the First Formulation of Islamic Law (Inverness, 1991), 272. Bewley translates khiyār as “right
of withdrawal,” others render it as “sale with an option.”
33 Muḥammad b. ʿAbd al-Raḥmān b. al-Maghīra (d. 158 or 159/775 or 776), Medinese
jurist and traditionist.

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Our response to this is that [these critics of Mālikism] have been afflicted
by the worst possible interpretation. Indeed, by these words, Mālik did not
intend to reject [granting] an option to the two parties in a sale. What he
intended by his words was what he referred to in the rest of the ḥadīth,
namely: “except the sale with option.” Thus he related that the sale with
option has no determined limit in Medinese practice, except for the amount
considered a commodity (al-silʿa [i.e., the nature of the commodity deter-
mines the time limit for concluding a sales transaction. It is brief for inex-
pensive items and relatively long for more expensive ones, such as a house]).
This changes with the different kinds of sales, to which ijtihād, the local
custom of the community in question, and the conditions of the sale and its
intention are brought to bear.
This was the way in which the glossators of our masters—may God have
mercy on them—interpreted his words. The practice is abandoned in favor
of the ḥadīth only with another interpretation that separates the words from
the contract of sale. In fact the option remains [for the buyers and sellers] as
long as they are bargaining and negotiating. This is the meaning understood
by the two of them, while they are undertaking the matter with which they
are engaged, and this is what points to the fact that the transaction is incom-
plete, an interpretation which is supported by Mālik’s words: “There is no
sale for either of you over the sale of his brother.” This is likewise the case for
bargainers. Mālik termed this: “sale before its completion or conclusion.”34

34 ʿIyāḍ b. Mūsā, Tartīb al-madārik (Rabat, 1970), 1:47–54.

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