If statisticians among you forgive this dotty averment, I would suggest that 80% of the pre-modern Islamic legal corpus is probably an exploration, preservation and explanation of the remaining 20% textual source. The hypothesis does not mean to undervalue the creativity or question the originality of classical legal texts but merely purports that what is chiefly believed to be a tradition of Islamic law may alternatively be understood as a tradition of literature, transmitting Islamic legal philosophy as a distinguishable part of the conversation.
The notion has more dynamism because contrary to an allegedly stagnant tradition of pre-modern law, a rich tradition of literature contains in itself the possibilities to explore various traditions of thoughts, actions and historical aspirations for social control. Most importantly, this kind of slant makes the writings of pre-modern Muslim jurists more accessible by making a contemporary reader intellectually accomodative towards seemingly extravagant explorations, complex variations, apparant absurdities and endless citations of authorities. That however, is a different point which I am not prepared to expand upon in the present entry.
My present contention is simple: covering breadth of traditional Islamic law may not seem an unsurmountable undertaking if one remains riveted to dig out legal value from a vast tradition of literature. This legal value is to be looked initially into a comparatively smaller portion of the corpus.
A quick examplary look at some of the classical Hanafi works would elucidate the point I am trying to bring across.
The proverbial 20% includes 4 to 6 juridic works of Muhammad bin Hasan al-Shaibani, the famous student of Abu Hanifa who recorded
his teacher’s opinions, decisions and writings which are now extinct. These books are 1) Jama’a Kabeer 2) Jama’a Sagheer 3) Kitab al-Asl or Mabsut 4) Ziyaad’at 5) Sayr Kabeer and 6) Sayr Sagheer. The condensed version of all six works was first prepared by another Hanafi jurist Hakim Marwazi who titled it as al-Kafi fi Furu’u al-Hanafia’a. The complete three volumes of al-Kafi were expanded into a 30 volume commentary by Shams al-Din Sarakhasi. Burhanuddin Murghainaani carried out a comparative study of Quduri’s Mukhtasar (a precise text of Hanafi fiqh produced long after Shaibani’s works) and Shaibani’s Jama’a Sagheer producing another work by the name of Hidayaat al-Mubtadi. Murghainani than wrote a 60 volume exegesis of his own work which was titled as Kifayaat al-Muntahi. The famous Hidayaa which is still taught as a Hanafi text in most of the religious shools is a condensed readable version of this Kifaayah; also prepared by the same author for students. More than 100 years later, an exegesis of Hidayaah was carried out by Mhammad ibn Sadr generally famous as Waqayaah; condensed explanation of which is still included in the current curriculum.
It seems a tad too complex to discover and disentangle different layers of these texts as these are extended on overlapping periods of history. Just a cursory analysis of any school’s (Hanafi, for instance) textual history would reveal that we are dealing with piles of texts with innumerable commentaries, interpretations and elucidations. The more famous ones by Nasafi, Kassani, Mosali, Ibn Najm and Ibn Abideen can be analysed with some effort, but just to investigate the chains of origins.
The complexity, like the genre itself, is multidimensional and its theological character has to be explored in search of meaningfullness. A modern reader can easily loose interest and question the priorities of traditional writers. Syed Qutb’s remark is perhaps a good showcase for this kind of growing unease:
The Shariah has been revealed in order to be implemented, not to be known, studied and changed into culture in books and treatises.
In my view, the genre available to us as Fiqh may principally be experienced as a literary discourse rather than a legal one. A contemporary mind dwelling into it should understand that classical jurists might not have a sensible and workable corpus of law in their minds all the times. The aim varies according to a particular jurist’s inclination, keeping in view the end he wanted to achieve. The purpose is sometimes to produce a concise text for swift committal to memory, a commentary to explicate a condensed text or a super-commentary to elaborate an exisiting commentary. Rather than getting repulsed by the exhorbitant quantity of seemingly outdated written word, it is more objective and feasible for students of knowledge to classify the texts according to their degree of originality and concentrate first on the most original ones for exploration of traditional Islamic law.