Tuesday, April 14th, 2015 12:45 pm

Devin Stewart is a professor of Arabic and Islamic Studies at Emory College in Atlanta, where his research focuses on Islamic law and legal education, the text of the Qurʾan, Shiʿi Islam, and Islamic sectarian relations, among other things. He has recently translated al-Qāḍī al-Nuʿmān’s Disagreements of the Jurists, one of the foundational legal texts of Ismaili Islam.

In a conversation with M. Lynx Qualey, Stewart talked widely about al-Nuʿmān and his work, touching on why this book is important in understanding Islamic legal traditions and the Fatimid Empire, why medieval scholars thought it was classier not to cite their sources, and why a minority tradition would feel the need to conform to the shape of the majority.

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What brought you to al-Nuʿmān, and to translating this particular text? 

There are two stories here.

One is that, in Islamic history, the jurists came to claim authority and to exercise authority more and more over time. The result of this was the consolidation of four legal traditions in Sunni Islam. After a certain point in history, roughly 1000CE, religious scholars had to belong to one of these four traditions if they wanted their opinions to be taken into consideration for the elaboration of Islamic law. This created problems for people who were outside the established Sunni legal traditions, including Shiʿah, Kharijites, and others such as Muʿtazili theologians. At risk of being excluded and of being declared heretics, they had somehow to react to that system. They adjusted their own doctrines and educational institution in order to fit into that system.

The other story is one of a large gap in the history of legal thought in the ninth and tenth centuries.  This gap is similar to other gaps that exist in other fields of the Islamic sciences such as theology, Sufism, and so on: at the beginning of every tradition of scholarly literature in the Arabic and Islamic sciences, seminal works have been lost, obscuring the formation and early development of the science. The earliest books that are extant are not the earliest books that were written. The size of this temporal gap varies according to the particular field under consideration, but in the field of Islamic legal theory, it’s actually very large.

The book generally recognized as the foundational work in the field of legal theory is al-Shāfiʿī’s Epistle—also translated in the LAL series—which dates to before 820 C.E. After that, the next substantial work of legal theory is al-Fuṣūl fī l-uṣūl by Abū Bakr al-Jaṣṣāṣ al-Rāzī (d. 370/980), which dates from the mid-tenth century. Even that work is lacking a crucial section, the introduction, which may have provided information on the history of the genre up until that date.  It is not until eleventh-century works that a substantial number of manuals of legal hermeneutics have survived. In the intervening period, many crucial works were composed in this field, but they have been succumbed to the ravages of time. In this situation, the avenues to information about these works are primarily two: titles and descriptions of works in biographical and bibliographical works, such as the Fihrist of ibn al-Nadīm, and quotations and fragments of early works preserved in later manuals of legal theory and legal hermeneutics.

So, one of the goals of this project was to help explain how marginal groups adjusted to the hegemonic legal system that arose within Sunni Islam, and the other was to trace the history of legal hermeneutics embodied in a particular genre of writing, manuals of legal theory. Al-Qāḍī al-Nuʿmān’s work is very important for both of those reasons. It is the main reaction of the Ismailis to the Sunni legal schools. And, even though it is a refutation of the Sunni methods, it quotes many, many Sunni works on legal theory that aren’t extant.

Then this work also helps you see the landscape of some of the things that have disappeared?

One of the reasons this book is important is that it draws heavily on one particular work by Muḥammad ibn Dawud al-Iṣfahānī, the son of the founder of the Ẓāhirī madhhab, or legal school. He died in 297/910CE, and he wrote a manual called al-Wuṣūl ilā maʿrifat al-uṣūl, a major work of legal theory, in the late ninth century. Al-Qāḍī al-Nuʿmān refers to him by name, which is relatively unusual, and quotes from him extensively. He refers to a treatise by Ibn Dawud on legal analogy, but, because he evidently quotes Ibn Dawud on a number of other topics, he must be quoting from al-Wuṣūl ilā maʿrifat al-uṣūl as well.

Beyond this Disagreements of the Jurists, I have identified only two other sources that quote Ibn Dawud’s al-Wuṣūl: Ibn Ḥazm, a Ẓāhirī jurist writing in Spain in the eleventh century, and Badr al-Dīn al-Zarkashī, a fourteenth-century Egyptian scholar, both preserve quotations from the book, perhaps through intermediate sources.

I believe that al-Qāḍī al-Nuʿmān quotes Ibn Dawud’s al-Wuṣūl many, many times, and in some ways I think his book is modeled on that earlier work.

Does Disagreements of the Jurists reflect other missing texts?

Ibn Dawud’s is the most important source, but there are other, smaller ones. There are quotations in this book from Ibn Surayj, a Baghdadi Shāfiʿī jurist who died in 918. Al-Nuʿmān doesn’t mention him by name, and he doesn’t mention the text, but there is at least one passage where it’s clear that he’s quoting him. He also refers to “a certain Baghdadi,” referring to Muḥammad ibn Jarīr al-Ṭabarī, a scholar whose legal works have mostly been lost, but who can be identified by reference to his distinctive doctrine, according to which legal consensus still exists even when there are one or two dissenting voices.

Al-Nuʿmān’s text seems very clear and straightforwardly written.

It seems, yes.

One of the interesting aspects of his legal theory is that little room is allowed for ambiguity. Any apparent ambiguity can be resolved by the imam himself, at least in theory. This formalist approach is found in other types of Islamic legal theory, such as in the Ẓāhirī legal school, as well as among other the Twelver Shiʿah.

But al-Nuʿmān’s use of dialectic was not unique to him. Ibn Dawud, the Ẓāhirī scholar that he was relying on, was also a skilled dialectician, which was one of the main reasons that al-Nuʿmān drew on his book so heavily. Ibn Dawud’s al-Wuṣūl provided ready-made arguments against many of the principles the Sunnis were using in their own legal hermeneutics.

Al-Qāḍī al-Nuʿmān’s dialectical skill makes his conclusions sound obvious, but that does not necessarily mean that all problems are really resolved.

How much of Disagreements of the Jurists is al-Nuʿmān’s original work?

I could tell you how much of it can’t come from Ibn Dawud. The introductory sections that address the history of law and legal conflict don’t come from Ibn Dawud. The discussion of the authority of the imams doesn’t come from Ibn Dawud. The refutation of the claim that the Shiʿah’s recourse to the imams could also be called an “arbitrary submission to authority” doesn’t come from Ibn Dawud. Many of the other chapters could be based to a certain extent on Ibn Dawud’s work, but there are two in particular that can’t. One is the chapter against inference, because the Ẓāhirīs themselves used this rubric to describe their legal hermeneutics, and al-Nuʿmān accuses them of going against their own principles. He refutes them on that, so certainly that is not based on them.

Another chapter that doesn’t appear in other works of jurisprudence, at least that we know of, is the chapter against speculation. Theologians used the Arabic word naẓar, rational speculation, to describe their rational investigation of theological and related topics, such as epistemology and language. Jurists tended to use the term ijtihād or legal interpretation instead to describe their specific type of investigation, or qiyās, comparison or analogy. So the fact that al-Qāḍī al-Nuʿmān has a chapter devoted to speculation shows that he’s reacting to works by theologians, presumably Muʿtazili theologians, perhaps in manuals devoted to jurisprudence that are no longer extant and that differed in form from extant manuals of legal theory. In any case, it seems unlikely that this particular chapter draws on Ibn Dawud’s work.

In sum, then, in my view at least half of the frame of the work derives from Ibn Dawud in some way, which makes this book one of the main sources for Ẓāhirī legal theory. We only have one extant manual of Ẓāhirī legal theory, al-Iḥkām fī uṣūl al-aḥkām by Ibn Ḥazm. Quotations from Ẓāhirī works appear in al-Baḥr al-Muḥīṭ, Badr al-Dīn al-Zarkashī’s major work on jurisprudence. Al-Qāḍī al-Nuʿmān’s work is the third main sources for Ẓāhirī legal theory.

And it’s usual not to name where you’re borrowing from.

It’s very common, though different authors have different habits in this regard. Al-Zarkashī, for example, is really fantastic, because he always cites the author and many times the book’s title. In many other medieval sources, that’s not the case. Often writers just cite an author without mentioning a particular book, and in many cases they don’t even mention the author.

Scholars who did this thought that it was classier to do it that way. The idea was that the readers who were informed would know which author was intended without having to be told. Especially when authors were criticizing contemporaries or scholars of recent memory, oblique criticism was considered to show more finesse.

For example, al-Qāḍī al-Nuʿmān says several times, “A certain Baghdadi.” That’s hinting to the reader as to who that could be, and if the reader were living in al-Nuʿmān’s time and knew the debates on legal theory, he would be able to identify the author. But now of course, a thousand years later, it’s tough to say whom al-Qāḍī al-Nuʿmān had in mind.

So who was reading him in his time?

He reports in Disagreements of the Jurists that he wrote this originally as part of a debate with a Ḥanafī jurist in Tunisia, about ijtihād, specifically.

So this was a debate that happened in person.

Yes, a real debate. He debated this Ḥanafī jurist about ijtihād and thought that he’d won, and then he heard afterwards that the man had written a fascicle still arguing his point against al-Qāḍī al-Nuʿmān. So then he thought: I really need to write a serious refutation to put an end to this. He also decided to include in the refutation all the other principles the Sunnis use. That made the book what it is.

Certainly, he wrote the work on the one hand for Sunni scholars, in order to show them why their principles are wrong and why his principles are right. It also proves to the Ismailis that their legal system had a legitimate basis with serious hermeneutics behind it and was not just an ad hoc construction.

And did those Sunni scholars read him?

Essentially, we don’t know. As far as I know, we don’t have any pre-modern Sunni reaction to this work. An eleventh-century Twelver scholar named Abū l-Fatḥ al-Karājikī wrote an abridgement of this work and an abridgement of al-Qāḍī al-Nuʿmān’s other legal work, The Pillars of Islam. So the work was certainly known outside Ismaili circles. Apparently other Twelver Shiʿah read al-Qāḍī al-Nuʿmān’s works in later centuries.

You mentioned in your introduction that Disagreements of the Jurists is still read today.

In the Ismaili tradition, al-Qāḍī al-Nuʿmān is the most famous author. His legal books, especially The Pillars of Islam, became standard texts. In Ismaili communities, The Pillars of Islam is the main legal text, from his time until today. But to people outside the community, it was mostly unknown.

Stewart_FRONTYou differentiate this work, in the introduction, from his specifically teaching texts. What makes it different?

There are anecdotes that show The Pillars of Islam being taught in later Fatimid times. It’s not that this wasn’t taught as a textbook, but this is a larger, bigger, more serious textbook. The other works to which you are referring are short treatises that students are supposed to memorize, like a catechism.

Generally, in didactic texts like these, medieval Muslim scholars tried to condense an entire field into a fairly short poem. Al-Qāḍī al-Nuʿmān has two of them: one about theology and one about law. The theological one has been published, the law one hasn’t.

Why among all Ismaili works have al-Nuʿmān’s been the ones to persist?

First, because he’s the most famous author in the tradition. He is like Thomas Aquinas in Catholicism. He’s the guy. The other reason is that this is the book on legal theory in the Ismaili tradition. I’m not aware of anything similar being written in later centuries.

In other Islamic traditions, such as the Twelver Shiʿi tradition and in various Sunni legal traditions, manuals of legal theory constitute a large collection of works. The genre includes dozens and dozens of works, the later one drawing on earlier ones. Perhaps because of that, the early manuals have often been lost, since they were superseded by later works. In this case of Disagreements of the Jurists, it was really the first work, but because later Ismaili jurists didn’t write new, improved manuals, this one was preserved.

Why do you think they didn’t write new and improved versions?

Probably because their legal system didn’t work in the same way. Because the recourse to the imam was actually functional, the Ismailis were in a quite different position from that of other jurists who had to figure out all legal questions on their own and had to justify their decisions by recourse to what they considered correct legal hermeneutics. Because other jurists’ authority as jurists rested on completing their legal education—not on anything else—they needed to keep writing books on this topic in order to gain recognized status. They had to keep writing more and more sophisticated legal hermeneutics. In the Ismaili system, that was not apparently the case. Scholars continued to study this text, but they didn’t need to justify their authority through their legal education as much as by being recognized by the imam as competent.

What about al-Nuʿmān? He didn’t need to write these texts in order to be recognized?

He was already recognized. I think he was not concerned with his own position, he was concerned with bolstering the legitimacy of the Fatimid caliphate. In order to rule as legitimate caliphs, the Fatimids needed to have a number of institutions that went along with rule and supported their claims to rule over the Islamic community.

Al-Qāḍī al-Nuʿmān provided the ground work for Ismaili law in particular. The three main pieces of this project were the Kitāb al-Īḍāḥ, a large collection of hadith reports from earlier Shi’ite sources, this book on legal theory, and his book on the law, The Pillars of Islam.

Al-Qāḍī al-Nuʿmān already held high office and was already close to the caliph. He didn’t need to write these books to keep his job. But he was acting as the chief architect of the Ismaili legal system, and it was his duty to erect this institution.

Whose opinion would he have most been coveting? His Sunni peers, in recognizing what he was doing? 

I suppose, ideally, he would’ve liked to have convinced Sunni jurists that their way was wrong and that they needed to convert. I don’t know whether he thought he could accomplish that goal very easily, but he certainly wanted to show that many of the principles of interpretation that Sunnis took for granted were illegitimate and did not work.

If you asked him, of course, he would say that his concern was about the approval of the Caliph/Imam. The Imam’s opinion was everything, the highest criterion. But he obviously also had a wider audience in mind.

To what extent would educated people of al-Nuʿmān’s time have been following the “great legal debates” of their day, and also debating them (consensus, analogy, legal interpretation) among themselves? Were these drawing-room topics?

I think so, at least to a certain extent. Even today, for example, the general educated public in the Islamic world is aware of debate about the value of hadith as scripture, or as the basis of Islamic law and theology. This is a popular topic as well as an area of specialists’ investigation.

So I would guess that, at least to a certain extent, the issues of interpretation discussed in al-Qāḍī al-Nuʿmān’s work, such as consensus or legal analogy, would have resonated with the educated pubic as large, general topics directly related to the definition of Islam.

You mentioned in your introduction that, when translating legal terminology, Joe Lowry provided some assistance. Was this because Joe was trained as a lawyer?

Joe has studied this topic, medieval Islamic legal theory, a great deal, as I have, so he provides another voice of experience. He does have an extra advantage in having studied law in our system, so he has a better idea of how concepts would translate into modern legal language. For example, because of his input I decided to translate ijtihād as legal interpretation. The usual procedure in our field is to leave such technical terms un-translated. Here, I tried not to leave all the technical terms in Arabic, because in a way that’s giving up, admitting that one does not in fact know what the term means. Moroever, Joe translated al-Shāfiʿī’s manual of legal theory, a text that raises many similar issues, so he was an ideal consultant.

Who should read this now, outside of specialists working directly on uṣūl al-fiqh? 

Disagreements of the Jurists is important for readers who are interested in the Fatimid Empire; who are interested in the Islamic legal theory in general; and who are interested in legal hermeneutics in general, and not just Islamic legal hermeneutics. It is also important for people who are interested in minority traditions, sectarian traditions, and the relationships of minority groups with the majority.

Yes, it’s interesting how being in dialogue with Sunni tradition seems to have changed and shaped the Ismaili tradition.

Not just in this one—the hegemony of the Sunni legal tradition had a tremendous impact on all of the Islamic traditions. Minority traditions had to react somehow to the Sunni legal system because of its dominance in society.

Because that was the expectation of how legal theory had to work?

Because the jurists had power. They were the ones who were in charge.

For example, in Christian societies, the ones who were in charge are theologians. They don’t really study law. Both in Catholicism and in all of the Protestant denominations, theology becomes the main field one must study in order to be recognized as a religious authority. So, because of that, when Jewish religious authorities try to fit in to Christian society, they end up stressing theology, even though in their tradition, law is the focus of study. This explains the name of the Jewish Theological Seminary in New York. The traditional yeshiva was an institution devoted to the teaching of law, but the modern institution was called a Theological Seminary to be parallel with Christian theological seminaries. Similar processes have occurred among Shiʿah, Kharijites, and other Islamic groups throughout the medieval period in reaction to the dominant, Sunni paradigm.