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Int. J. Middle East Stud. 39 (2007), 351368. Printed in the United States of America DOI: 10.

1017/S002074380707050X

Scott C. Lucas A B U B A K R I B N A L - M U N D H I R , A M P U TAT I O N ,


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A N D T H E A RT O F I J T I H AD

d: a total expenditure of effort in the seeking of an opinion as to what constitutes a ijtiha probable rule of divine law relative to a particular case under consideration.1 d: Islamic interpretation.2 ijtiha

Few Islamic concepts have undergone as radical a semantic shift over the past couple of d. This Arabic term, confined for centuries to sophisticated works of centuries as ijtiha l al-fiqh), has been liberated and transformed into the handmaiden legal theory (us .u of modern Muslim reformists throughout the world. Numerous Western scholars have d of the first definition above or the modern investigated either the classical legal ijtiha d among reformists encapsulated in the second, succinct gloss of employment of ijtiha this word. Valuable studies have been published on topics ranging from the relationship d and writing fatwas (ifta )3 to the so-called closure of the gate of ijtiha d 4 between ijtiha 5 d in 19th- and 20th-century reform movements. In short, ijtiha d is to the role of ijtiha ubiquitous in modern studies and formulations of Islam. This article introduces the legal methodology of Abu Bakr Muhammad ibn Ibrahim ibn al-Mundhir al-Naysaburi (d. 930), an independent mujtahid (legal scholar) of the early 10th century, whose writings have been essentially ignored in the West. The case study of Ibn al-Mundhirs investigation of laws concerning punishment for theft sheds fresh d on the eve of crystallization of the four Sunni legal schools light on the nature of ijtiha hib). Ibn al-Mundhirs writings indicate that the Qur an and prophetic hadith (madha played a modest role in early elaboration of Islamic law and that the bulk of his efforts were devoted to culling and evaluating legal opinions of the companions, successors, and, in particular, a small group of postsuccessor jurists. His steadfast reluctance to promote or expand the authority of Abu Hanifa, Malik, al-Shafi i, or Ibn Hanbal puts him at odds with major trends of 10th-century Islamic law that Wael Hallaq describes in a recent monograph. I conclude by locating Ibn al-Mundhir within the literature of juristic f ) and highlighting features that make his writings exceptional disagreement (ikhtila within this tradition.

Scott C. Lucas is Assistant Professor in the Department of Near Eastern Studies and the Religious Studies Program, University of Arizona, P.O. Box 210158B, Tucson, Ariz. 85721-0158, USA; e-mail: sclucas@email.arizona.edu. 2007 Cambridge University Press 0020-7438/07 $15.00

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IB N A L -M U N D H IR : A MUJ TA H ID A N D H IS B O O K S

Virtually nothing is known about Ibn al-Mundhirs life other than that it began in Nishapur and ended in his adopted home of Mecca, probably in the year 930.6 He appears less than a century after his death in the Fihrist of Ibn al-Nadim among the Shafi i school,7 and the early Shafi i biographer Abu Asim al- Abbadi (d. 1066) identifies him as the author of what has remained his most famous book, al-Ishraf ala Madhahib Ahl al- Ilm (The Noble Overview of the Scholars Opinions).8 Abu Ishaq al-Shirazi (d. 1083) puts Ibn al-Mundhir among the ten members of the second generation of Shafi i jurists, a group that includes the founder of the classical Shafi i school, Abu al- Abbas ibn Surayj.9 Abu Ishaq observes that Ibn al-Mundhir composed books on the scholars disagreements, the like of which had never been seen and notes that he did not know the identities of Ibn al-Mundhirs teachers. Later scholars provided lists of these teachers, as well as corrected the death date Abu Ishaq supplied in his biographical dictionary. Ibn al-Mundhirs fame and reputation as an independent mujtahid derive exclusively from his books, five of which have been published in fragments or in their entirety.10 According to a remarkable anecdote, the great Shafi i jurist Abu Bakr al-Qaffal alMarwazi (d. 1026) purchased one of Ibn al-Mundhirs books on juristic disagreements t for the sole purpose of answering a technical question he had concerning the qunu supplication in the witr prayer.11 Ibn Hazm (d. 1064), an independent mujtahid in his own right, had clearly heard of Ibn al-Mundhir in his homeland of al-Andalus because he identifies him as one of only five mujtahids who lived after the generation of Ibn Hanbal and Ibn Rahawayh.12 Ibn Khallikan (d. 1282) offers elevated praise of Ibn alMundhirs al-Ishraf,13 and al-Dhahabi (case 1348) declares that Ibn al-Mundhir had attained complete mastery of hadith and the disagreements [of the jurists] and was a mujtahid who did not bind himself to anyones opinions.14 Al-Subki (d. 1369) also speaks highly of Ibn al-Mundhir, identifies five of his useful books, and includes him d in his list of the four Muhammads who attained the skills of unrestricted ijtiha 15 Finally, Ibn al-Mulaqqin (d. 1401) reaffirms that Ibn al-Mundhir d al-mut (al-ijtiha laq ). . d ) and lists accurately his was above following a single master scholar or school (taql five surviving books, four of which are relevant to this study.16 Ibn al-Mundhirs four surviving legal works consist of abridgements of what must have been a massive source book that has perished without a trace. The editor of a portion of Ibn al-Mundhirs largest surviving abridgement, al-Awsat fi al-Sunan wa-lIjma wa-l-Ikhtilaf (The Intermediate Study of Laws, Consensus, and Disagreement), argues that the lost mother book from which it was based was called al-Mabsut (The Expansive Study).17 A major portion of al-Ishraf, Ibn al-Mundhirs famous abridgement of al-Awsat, has been published and a chapter of this work will be the primary source under discussion in this article.18 Ibn al-Mundhirs legal hornbook, al-Iqna (The Persuasive Argument), has also survived and is valuable for historians because it is one of the only legal digests from the premodern period that is independent from the four primary Sunni schools of law.19 Finally, his slender book al-Ijma (Consensus) consists of 765 rulings, clearly extracted from al-Ishraf, upon which early Muslim jurists purportedly agreed, and it appears to be a complete book, minus the final chapter or two.20

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FIGURE

1. A preliminary overview of Ibn al-Mundhirs influence.

Although we have seen that Ibn al-Mundhir was regularly identified by classical Muslim biographers as an independent mujtahid, it is important to stress that his primary legacy in the Muslim scholarly tradition has been that of a diligent and honest compiler of a nearly unparalleled array of early legal opinions rather than that of a dazzling or iconoclastic jurist. There are three ways in which later jurists employed his books, especially al-Ishraf (see Figure 1). The first group of jurists drew on Ibn al-Mundhirs presentation of juristic disagreements without openly citing him or his personal opinions.21 The second group openly cited Ibn al-Mundhirs presentations of his predecessors opinions but rarely mentioned his views.22 The third and final group of jurists regularly cited both Ibn al-Mundhirs research and his personal opinions; it includes the Maliki jurists Ibn Battal and al-Qurtubi, and the Hanbali Ibn Qudama.23 Even though most classical Muslim scholars appear to have paid scant attention to Ibn al-Mundhirs legal reasoning, this study takes advantage of the fact that the majority of them acknowledged that he was a genuinely independent mujtahid. Ibn al-Mundhirs lauded book, al-Ishraf, is not merely the fruit of extensive research and meticulous organization; it is also a work in which the reader can follow its authors legal reasoning on a case-by-case basis on hundreds of topics. Ibn al-Mundhirs books are late enough to have evaded the critical gaze of Western revisionist scholars, such as Norman Calder,24 whose penetrating questions about the authentic authorship of most 9th-century fiqh books render the analysis of their purported authors hermeneutics nearly impossible.25 It seems safe to ascribe al-Ishraf to Ibn al-Mundhir, and, given his personal independence

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and the enormous amount of time needed for its composition, it is difficult to fathom who would have had a vested interest in forging this text in his name. In short, we have in Ibn al-Mundhir a recognized author-mujtahid who walks us through his extensive research and provides insight into how an early Muslim jurist elaborated Islamic law.

IB N A L -M U N D H IR A N D R U L E S C O N C E R N IN G P U N IS H M E N T FOR THEFT

The punishment for theft ordained in the Qur an may be second in notoriety only to the Sunnaic punishment of stoning the adulterer. Verse 38 of the fifth sura (al-Ma ida), reads, Cut off the hands of thieves, whether they are male or female, as punishment for what they have donea deterrent from God: God is almighty and wise.26 This draconian punishment led early jurists to categorize theft among the distinctive h . add ), crimes. Punishments for h . add crimes of theft (sariqa), illicit sexual intercourse (zina ba), consumption false accusation of illicit sexual intercourse (qadhf ), brigandage (h . ira d ) are all corporeal in nature and, according to of wine (khamr), and apostasy (irtida Ibn al-Mundhir and many other jurists, executed solely by the state or its deputies.27 Despite the Qur ans seemingly unequivocal prescription for appropriate punishment of a thief, numerous Muslim jurists from an early date constructed a dynamic legal discourse that revolved around definitions of the precise meaning of thief. These jurists identified potentially mitigating factors to the punishment of amputation, established proper procedure for prosecuting theft, designed proper means of amputation, and, finally, engaged in broader ethical questions concerning the desirability of concealing h . add crimes from political authorities. Ibn al-Mundhir navigates all these topics surrounding punishment for theft and h . add crimes in general in al-Ishraf. His investigation focuses on three sources: (1) the Qur an, (2) prophetic hadith, and (3) his predecessors opinions. He lays out his legal principles very clearly:
Every thief who steals something which is above the minimum value for which the hand must hir) of the book of God, must have his hand be amputated, according to the literal meaning (z .a amputated unless the scholars (ahl al- ilm) agree upon something. If they agree upon something, then it is necessary to make an exception to the literal meaning of the Qur an. Furthermore, every topic for which there is disagreement [among the scholars] must be referred back to the Qur an because God ordered them to refer the topics which they dispute to the book of God and the Sunna of his messenger [paraphrase of sura 4:59].28

As the following analysis will show, our mujtahid Ibn al-Mundhir devotes the lions share of his time to the study of earlier scholars opinions, largely to ascertain whether consensus exists on an issue, or, in the absence of consensus, which position is preferable. d in this Far from being the art of extracting rulings from the Qur an and hadith, ijtiha book emerges as the practice of researching and taking sides in two and a half centuries of quarrels over minute legal details that lie on the outer periphery of rulings mentioned in the revealed Islamic texts.

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QUR AN AND SUNNA

Neither the Qur an nor prophetic hadiths provide much assistance for Ibn al-Mundhirs articulation of theft laws in al-Ishraf. It is true that Ibn al-Mundhir repeatedly wields the literal meaning of the sole Qur anic verse concerning theft (5:38) against those jurists with whom he disagrees (especially Abu Hanifa), but he is reluctant to enlist any d on this topic. The only other Qur anic verses he cites in additional verses in his ijtiha this section on theft merely reaffirm the widespread consensus that Muslim boys and girls must reach maturity prior to the applicability of Islamic law to their conduct and that maturity means being capable of sexual intercourse.29 Ibn al-Mundhir cites a total of eleven prophetic hadiths in his treatment of theft in al-Ishraf. Five of these hadiths cover broad principles related to h . add crimes that are not specific to theft, and Ibn al-Mundhir considers authentic only four of the remaining six hadiths. The five general hadiths found in this section of al-Ishraf are the following:
The pen [recording bad deeds] has been raised in the case of a youth until he hits puberty.30 The Prophet said to Ma iz, Perhaps you only kissed her or winked at her? He replied, No.31 Whoever covers up [a fault of] a Muslim, God will cover up [his fault] in the Hereafter.32 You should exempt one another from the h . add penalties, since whatever h . add crime comes to my attention, [its penalty] must be executed.33 5. The Prophet said to Usama [b. Zayd], concerning his role in the affair of the Makhzumi woman who stole, How dare you intercede [on behalf of someone] in a case that is among the crimes d Alla h)?34 against God (h . udu 1. 2. 3. 4.

Ibn al-Mundhir allows the following four prophetic hadiths to restrict the scope of the Qur anic verse requiring amputation of the thiefs hand:
1. The hand of the thief is not to be amputated unless the [value of the stolen property] is one quarter of a dinar or greater.35 shiya) unless it is taken 2. There is no amputation [in the case of a stolen] camel or sheep (ma from the fold and its value is greater that that of a round shield (mijann).36 3. A Makhzumi woman borrowed some goods, refused to return them, and then stole [them], so the Prophet ordered that her hand be amputated.37 in) and the pilferer 4. Amputation is not a valid punishment for the embezzler (kha (mukhtalis).38

Finally, Ibn al-Mundhir declares his skepticism that the following two Prophetic hadiths are authentic, although he professes that the practice advanced by the second one is preferable to any alternatives:
1. There is no amputation [for the theft of] fruit or the edible tubers growing at the upper end of the palm trunk (kathar).39 ha ).40 2. The Prophet ordered that a mans hand be amputated and then said, Cauterize it (ih . simu

The three Qur anic verses and nine hadiths that meet Ibn al-Mundhirs (unspecified) criteria for authenticity do place substantial restrictions on application of the h . add punishment of amputation. They prohibit amputation for prepubescent thieves, thieves who steal less that a quarter dinar worth of goods, thieves who steal a free-ranging camel, and embezzlers. These hadiths also lend support to the interesting ethical position that Muslims who are not part of the ruling administration should endeavor to keep h . add crimes

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concealed from rulers and judges in order to reduce the number of public executions, floggings, and amputations. Although these nine hadiths, along with verse 5:38, provide a firm foundation for legal and ethical discourses concerning the h . add punishment of amputation, it is clear that they offer limited guidance to a judge on the definition of theft and absolutely no help with procedural issues. It is little wonder that our Abbasid-era mujtahid felt compelled to devote so much energy to analyzing opinions of his predecessor jurists in order to identify upon which legal topics they agreed and upon which they disagreed. The following two sections of this article demonstrate how consensus and ikhtila f, were Ibn al-Mundhirs primary preoccupations. and disagreement, ijma
CONSENSUS

The idea that the consensus of (Sunni) Muslim scholars constitutes a solid legal proof appears regularly in every work on legal theory. We have already seen that Ibn al-Mundhir declares scholarly consensus one of the only means by which a Qur anic injunction can be mitigated in a specific case. Our tireless mujtahid invokes consensus in fifteen cases in this section of al-Ishraf, and all but three of them pertain specifically to theft.41 My goal in the following pages is to identify the twelve cases of consensus that are intimately linked to the h . add punishment for theft and then to analyze which scholars legal opinions are most frequently considered in Ibn al-Mundhirs research on this topic. The following twelve cases of consensus are cited by Ibn al-Mundhir in both al-Ishraf and al-Ijma . An analysis of the authorities whom he cites, when he does so, follows this list:
1. The theft of a very young slave in a state of guarded custody (h . irz) is grounds for amputation, according to Malik, Sufyan al-Thawri, al-Shafi i, Ibn Hanbal, Ibn Rahawayh, Abu Thawr, al-Sha bi, al-Hasan al-Basri, Abu Hanifa, and al-Shaybani.42 2. The theft of something greater than the minimum value for amputation that is in a state of guarded custody is grounds for amputation, according to Ata b. Abi Rabah, Amr b. Dinar,43 Umar b. Abd al- Aziz ( Umar II), al-Zuhri, Malik, Sufyan al-Thawri, al-Shafi i, Ibn Hanbal, Ibn Rahawayh, Abu Thawr, the companions of ra y (Abu Hanifa, Abu Yusuf, al-Shaybani), and possibly al-Hasan al-Basri.44 . 3. Theft of an item from a canopy (fust t) is grounds for amputation, according to Sufyan .a al-Thawri, al-Shafi i, Ibn Hanbal, Ibn Rahawayh, Abu Thawr, and the companions of ra y.45 4. One who refuses to return a loaned item is not subject to amputation, according to Malik, the Medinans, Sufyan al-Thawri, Abu Hanifa, the Kufans, al-Shafi i and his companions, and Ata . (This consensus is opposed by Ibn Hanbal and Ibn Rahawayh on the basis of a Prophetic hadith, the implications of which Ibn al-Mundhir explains away by means of a variant version.46 ) 5. One who pilfers (ikhtalasa, khilsa) is not subject to amputation, according to the Prophet Muhammad, Umar, Ali, Ata , Umar II, al-Hasan al-Basri, al-Sha bi, Amr b. Dinar, Qatada, Ibrahim al-Nakha i, al-Zuhri, Malik, al-Shafi i, Ibn Hanbal, Ibn Rahawayh, Abu Thawr, and the companions of ra y. Only the Basran qadi Iyas b. Mu awiya47 disagreed with this position.48 in) is not subject to amputation, according to the Prophet 6. One who embezzles (kha Muhammad, Abu Bakr, Qadi Shurayh, al-Walid b. Abd al-Malik, Abu Hashim,49 Mansur b. Zadhan,50 Qatada, Ata , al-Zuhri, Malik, Abu Thawr, and the companions of ra y.51 7. Only one hand is to be amputated in the case of a thief who has stolen many times but is convicted only after his most recent theft, according to Ata , al-Zuhri, Malik, Ibn Rahawayh,

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Ibn Hanbal, Abu Thawr, Abu Hanifa, Abu Yusuf. Ibn al-Mundhir says also that this position is similar to the position of al-Shafi i.52 If two free, upright, male witnesses describe an act of theft that warrants amputation, the thiefs hand must be amputated.53 If two witnesses testify against a thief whose hand is then amputated, and then additional witnesses prove that the original testimony is fallacious, the first two witnesses owe the blood-money (diya) for the hand of the thief and their testimony is no longer valid, according to Ali, Ibn Shubrama,54 al-Shafi i, Abu Thawr, and the companions of ra y.55 A slave who steals from his master is not subject to amputation, according to Umar, Ibn Mas ud, Malik, Sufyan al-Thawri, Abu Hanifa and those who agree with them, al-Shafi i, Ibn Hanbal, and Ibn Rahawayh.56 A thief must return the stolen property to its rightful owner after his hand has been amputated.57 A Muslim who steals wine from another Muslim is not subject to amputation, according to Ata , Malik, al-Shafi i, Abu Thawr, and the companions of ra y.58

8. 9.

10.

11. 12.

These twelve rulings derived from consensus compensate somewhat for the limited guidance that the Prophetic Sunna provided for elucidation of rules concerning punishment for theft. The stipulation that stolen goods must be in a state of guarded custody (h . irz) for application of amputation is not even hinted at in the Qur an, and Ibn al-Mundhir states that there is not a single sound Prophetic hadith in its support.59 Likewise, the requirement of two witnesses in the case of theft is nowhere specified in the Qur an or, to my knowledge, in the canonical hadith collections. Consensus also furnishes Ibn al-Mundhir with answers to several very practical questions, such as what if a slave steals from her master? Does a thief whose hand is amputated have to return the stolen property? What if a Muslim steals something that Islamic law prohibits, like wine or swine? Moreover, what if witnesses err and a mans hand is wrongly amputated? Altogether, these rulings partially clarify the requirement and nature of the state of guarded custody, introduce mitigating circumstances to application of the h . add punishment of amputation, and articulate correct procedure for prosecuting theft. Although the scope of these topics provides insight into the general utility of consensus for a mujtahid in the early classical period, it also sheds valuable light on whose legal opinions count in determining consensus on any given topic. Because the work under analysis, al-Ishraf, is an abridgement of an abridgement of a massive, long-lost original book, it is impossible to state with certainty that the names that Ibn al-Mundhir cites in support of many of these rulings are the only authorities whose views he considered. Despite this uncertainty, I think that the names do indicate his methodology and preferences. Although our mujtahid draws on authorities from the three broad n), and what I call ba), successors (ta bi u post-Prophetic classes of companions (s .a . ah ),60 my findings show that he favors certain individuals postsuccessor jurists ( fuqaha over others and that the class of postsuccessor jurists clearly prevails in significance over their predecessors. It is rather striking that only four different companions are invoked once or twice in a mere 25 percent of cases, although Ibn al-Mundhir does report opinions of fourteen successors at least once in this small section of al-Ishraf. The Meccan Ata b. Abi Rabah is cited in half of these consensus cases, followed by the Medinan Ibn Shihab al-Zuhri in four of them, and al-Hasan al-Basri in three. The Kufan Amir b. Sharahil al-Sha bi, Medinan (and caliph) Umar b. Abd al- Aziz, Meccan Amr b. Dinar, and

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Basran Qatada b. Di ama all make two appearances. Among the solitary successors, we find two men from Wasit,61 three Kufans,62 a Basran,63 and another Umayyad caliph.64 Despite Ibn al-Mundhirs willingness to consult a host of pre- Abbasid authorities in his quest to identify legal opinions upon which consensus exists, it is clear from their limited appearances (and, in the cases of Iyas b. Mu awiya and possibly al-Hasan al-Basri, their actual disagreement with mainstream positions) that the primary criteria our mujtahid employs to demonstrate consensus is whether a small group of postsuccessor jurists are reported as having agreed upon the issue at hand. In nearly every case of consensus for which he provides names, Ibn al-Mundhir endeavors to enlist the support of nine key postsuccessor jurists. Three of these jurists, Abu Hanifa, Qadi Abu Yusuf, and Muhammad b. al-Hasan al-Shaybani, are identified throughout al-Ishraf by the shorthand expression companions of ra y when they agree on an opinion and by their personal names when they disagree.65 The inclusion of the eponyms of the remaining three long-lived Sunni legal schools, Malik b. Anas, Muhammad b. Idris al-Shafi i, and Ahmad Ibn Hanbal, should come as little surprise to the modern reader of al-Ishraf and demonstrates that Ibn Hanbals legal opinions were taken very seriously by this mujtahid in the first quarter of the 10th century.66 The final trio of jurists did not become eponyms of durable legal schools. Sufyan al-Thawri was a highly respected hadith scholar, collector of companion and successor reports, compiler of one of the first books arranged according to legal topics, and ascetic, as well as a jurist. He hailed from Kufa, fled to Mecca after refusing to serve as a qadi for Caliph al-Mahdi, lived several years in Yemen, returned to Basra, and died purportedly on his way to make amends with the caliph.67 Ishaq b. Ibrahim, known as Ibn Rahawayh, was one of the founding pillars of hadith scholarship in Nishapur who contributed hundreds of hadiths to Muslims Sahih.68 Finally, Abu Thawr Ibrahim b. Khalid of Baghdad was, like Ibn al-Mundhir, both recognized as an independent legal scholar and claimed by later Shafi is as a member of their school.69 It is clear from my findings that Ibn al-Mundhirs collection of consensus-based rulings d efforts than either pertaining to punishment for theft was much more useful to his ijtiha the Qur an or Prophetic hadiths. Major concepts and topicssuch as the state of guarded custody, the number of witnesses, and the right of a slave to steal from his master without fear of amputationare supported solely by consensus. Even the Prophetic hadith protecting pilferers and embezzlers from Qur anic punishment is strongly reinforced by the agreement of impressive lists of companions, successors, and postsuccessor jurists. It is also evident that Ibn al-Mundhir felt perfectly comfortable labeling the agreed-upon position of the majority of an elite group of nine jurists as consensus, whereas his infrequent citation of companions and successors served largely as frosting on the cake . The conspicuous significance of these nine jurists in Ibn al-Mundhirs analysis of ijma of consensus becomes even more pronounced in his corollary task as a mujtahid of adjudicating the multitude of cases in which they disagree, as the following case study shall demonstrate.
D IS A G R E E M E N T

Ibn al-Mundhir devotes the bulk of his attention in al-Ishraf to sorting out cases of dis f ) among his predecessor jurists and piety-minded authorities. Several agreement (ikhtila

Abu Bakr ibn al-Mundhir, Amputation, and the Art of Ijtih ad 359 chapters in his section on theft concern a single issue, such as whether theft of a bird, a l) can result in the h copy of the Qur an, or goods from the public treasury (bayt al-ma . add punishment of amputation.70 Most chapters in this section cover extremely precise topics over which some early jurists had disagreed. For example, the seventeenth chapter of the section on theft in al-Ishraf addresses the unhappy family scenarios in which parents steal from children, children steal from parents, relatives who are prohibited from marrying each other due to consanguinity steal from one another, and spouses steal from each f is other.71 A good case study of Ibn al-Mundhirs time-consuming analysis of ikhtila his detailed discussion of what constitutes a h irz , which I have translated as a state of . guarded custody, as the following summary will illustrate. Ibn al-Mundhir begins his discussion of h . irz with the previously mentioned hadith, There is no amputation [in the case of a stolen] camel or sheep, unless it is taken from the fold and its value is greater that that of a round shield, and the declaration of consensus of his predecessors upon the stipulation of a state of guarded custody for the application of the h . add punishment of amputation. Our mujtahid then proceeds to scrutinize the following twelve cases that relate to theft of something that is in a state of guarded custody72 :
1. If a thief enters a house, throws the stolen goods into a side street, leaves the house, and makes off with the goods, his hand is to be amputated, according to al-Shafi i, Abu Thawr, and the companions of ra y. 2. If one thief enters a house and passes stolen goods to someone outside the house, neither person is subject to amputation, according to the companions of ra y. The jurists Malik, al-Shafi i, Abu Thawr, and Ibn al-Mundhir hold the individual who entered the house liable to amputation. 3. If a thief bores a hole in the wall of a house, reaches in from the outside, and steals a garment, he is not subject to amputation, according to Abu Hanifa. The jurists Malik, Abu Thawr, al-Shafi i, Abu Yusuf, and Ibn al-Mundhir consider him liable for amputation. 4. If two thieves pierce a hole in the wall of a house, but only one of them enters and takes something, and both of them carry it outside the house, only the thief who entered the house is liable for amputation according to al-Shafi i, Abu Thawr, and the companions of ra y. 5. If a group of thieves enters a house and only one of them carries stolen property out of it, only the carrier is liable for amputation, according to al-Shafi i and Abu Thawr. The companions of n). Ibn al-Mundhir ra y hold all of the thieves liable, on the basis of juristic preference (istih . sa reports that both opinions are attributed to Malik. 6. If someone steals a locked door or the door of a mosque, he is not subject to amputation, according to the companions of ra y. The jurists Ibn al-Qasim,73 Malik, Abu Thawr, al-Shafi i, and Ibn al-Mundhir consider amputation appropriate in this case because this is how people protect their doors.74 m), the thief cannot be subject to 7. If someone steals something from a bathhouse (h . amma amputation, according to the companions of ra y. The jurists Malik, Ibn Rahawayh, Abu Thawr, and Ibn al-Mundhir consider amputation valid in this case. Both opinions are attributed to Ibn Hanbal. sh) steals the burial shroud from the grave, he cannot have his hand 8. If a grave robber (nabba amputated as punishment, according to Abu Hanifa, al-Shaybani, and Sufyan al-Thawri. The companion Ibn al-Zubayr; successors Umar II, al-Hasan al-Basri, al-Sha bi, Qatada, Ibrahim al-Nakha i, and Hammad b. Abi Sulayman75 ; and postsuccessor jurists Malik, Ibn al-Majishun,76 al-Shafi i, Ibn Rahawayh, Abu Thawr, Abu Yusuf, Ibn Hanbal, and Ibn alMundhir all consider punishment of amputation valid for the grave robber.

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9. There is consensus77 that theft from a canopy is punishable by amputation, according to Sufyan al-Thawri, al-Shafi i, Ibn Hanbal, Ibn Rahawayh, Abu Thawr, the companions of ra y, and Ibn al-Mundhir. l q) from their place cannot be punished 10. The theft of the actual canopy or saddlebags (jawa by amputation, according to the companions of ra y. Jurists al-Shafi i and Abu Thawr hold the thief subject to amputation if a man is lying on the stolen goods under the canopy. 11. If someone steals a garment from saddlebags that are on a camel or another beast, and the owner is resting with or protecting them, then the thief faces punishment of amputation according to the companions of ra y. However, if he steals the actual saddlebags, there is no risk of amputation, according to the companions of ra y. Ibn al-Mundhir states that the thief in both cases should receive the h . add punishment of amputation. 12. If someone steals something from an apartment inside a building with multiple apartments, each of which has a lock, without leaving the building, only Abu Yusuf considers him immune from amputation. Malik, al-Shafi i, Abu Thawr, Abu Hanifa, and al-Shaybani all consider amputation appropriate in this case.

These twelve cases enhance our understanding of Ibn al-Mundhirs legal reasoning and debates surrounding the invented condition of guarded custody as a prerequisite for amputation. Eight of them contain disagreements among elite postsuccessor jurists, three of them appear to be actual cases of consensus, and only one of them involves authorities from among the companions or successors. Disagreement even exists between the companions of ra y in three cases78 and within positions attributed to a single jurist in two cases.79 Even among the elite nine postsuccessor jurists identified in my discussion, Ibn al-Mundhir appears to be concerned primarily with the opinions of Abu Hanifa, Abu Yusuf, al-Shaybani, Malik, al-Shafi i, and Abu Thawr. The fact that he includes his own opinion in over half of the cases in this chapter strongly indicates that his self-image was high; he considered himself a mujtahid on a par with the postsuccessor jurists whom he regularly cites. and ikhtila f represents a significant step in the Ibn al-Mundhirs presentation of ijma development of Sunni legal practice. He appears to have been one of the earliest scholars to include opinions of a large pool of companions and successors alongside positions of at least a dozen postsuccessor jurists on a substantial number of legal topics.80 Abd al-Razzaq al-San ani (d. 827) and Ibn Abi Shayba (d. 849) include almost exclusively opinions or rulings of the Prophet, companions, and successors whereas books attributed to Muhammad b. al-Hasan al-Shaybani (d. 805), Sahnun (d. 854), and al-Muzani (d. 878) focus primarily on opinions of a few individual postsuccessor jurists. Al-Shafi is Umm, transmitted by al-Rabi b. Sulayman (d. 884), does include some of the earliest f treatises, and both it and Yahya al-Laythis (d. 848) version of Maliks Muwatta ikhtila do cite opinions from members of all three classes of companions, successors, and postsuccessor jurists, although not in as thorough a manner as Ibn al-Mundhir does. Despite his frequent disagreement with legal positions of the companions of ra y, Ibn al-Mundhir felt obliged to cite their opinions diligently and, most significantly, resisted declaring consensus upon any topic in which they disagreed with the majority of early authorities. The fact that he was one of the first and very few scholars in Islamic history to write an entire treatise on rulings for which consensus had been achieved is further testament to Ibn al-Mundhirs concern for the practical results of the doctrine of ijma rather than its intrinsic theoretical problems.

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L O C AT IN G IB N A L -M U N D H IR W IT H IN T H E D E V E L O P M E N T O F IS L A M IC L A W

Wael Hallaq, in his recent monograph, Authority, Continuity and Change in Islamic Law, advances a fresh understanding of the development of Islamic law in the early classical period.81 He identifies the primary activities of 10th-century Sunni jurists as construction of absolute mujtahids out of the four founding imams, Abu Hanifa, Malik, al-Shafi i, and Ibn Hanbal. This effort required two processes: (1) erasure of the founder-imams debts to their earlier teachers and other authorities and (2) wholesale expansion of their purported rulings on the basis of their putative methodology through a process j. In Hallaqs words, the four founder-imams became disconnected from called takhr previous generations of jurists as well as from a variety of historical processes,82 and he assembles an impressive list of seventeen jurists from the late 9th to the 12th century j.83 known for mastery of the art of takhr Ibn al-Mundhir, through his legal writings, either ignores or is oblivious to contemporaries efforts to construct archetypical founder-imams out of the historical figures Abu Hanifa, Malik, al-Shafi i, and Ibn Hanbal. His frequent citation in al-Ishraf of companion and successor opinions alongside opinions of these and other postsuccessor jurists demonstrates that the founder-imams were hardly the first jurists to voice many of the opinions attributed to them in their emerging school textbooks and suggests that they may even have borrowed some of their predecessors positions. Ibn al-Mundhir displays no trace of promoting any single authority (other than himself), and, although he agrees consistently with Abu Thawr on topics pertaining to theft, he freely disagrees with him in cases of punishment for adultery, rights of the triply-divorced woman, and definition of the Sunna divorce.84 His reluctance to introduce a single new legal topic to the vast d to refine and harmonize this unruly mass of corpus of fiqh shows that he employed ijtiha legal opinions with the Qur an, hadiths, and consensus of the jurists, rather than expand it into the virgin territory of minutia that his contemporary madhhab-constructing jurists were exploring.85 It seems safe to assert that Ibn al-Mundhirs insistence upon engaging directly in the two revealed sources of Islam, his rich knowledge of early legal opinions, and his uncompromising refusal to elevate any jurists authority above that of all other Muslim jurists earned him the title of independent mujtahid in the eyes of later Sunni scholars. Because Ibn al-Mundhir was swimming against the strong current of mainstream Sunni legal tradition, it is necessary that his work be placed in the minority literary f ). Two foundational texts of this genre that tradition of juristic disagreement (ikhtila have survived are the Musannafs of Abd al-Razzaq al-San ani and the Kufan Abu Bakr Ibn Abi Shayba. These massive books consist almost exclusively of legal opinions of companions and successors, along with Prophetic hadiths, all of which are documented ds. Two significantly shorter works of this genre are al-Tirmidhis (d. 892) with isna al-Jami (or Sunan) and Muhammad b. Nasr al-Marwazis (d. 907) Ikhtilaf al-Fuqaha , both of which focus primarily on disagreements of postsuccessor jurists (including Ibn Hanbal and Ibn Rahawayh), along with opinions of a modest array of companions and successors.86 The two Abu Ja fars, al-Tabari (d. 923) and al-Tahawi (d. 933), were contemporaries of Ibn al-Mundhir who composed original books in this genre, as did the later Shafi i scholars Abu Bakr al-Shashi al-Qaffal (d. 1114) and al-Baghawi (d. 1122).87

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f literature, starting with Commentaries also assumed an important place in the ikhtila the Shafi i scholar Abu Sulayman al-Khattabis (d. 998) Ma alim al-Sunan and reaching new heights with the Andalusians Ibn Hazm (d. 1064) and Ibn Abd al-Barr (d. 1071). They both drew heavily from the Musannafs of Abd al-Razzaq and Ibn Abi Shayba in their voluminous commentaries al-Muhalla and al-Istidhkar, respectively. A third Andalusian, Ibn Battal (d. 1057), brings us full circle with Ibn al-Mundhir by openly citing al-Ishraf in numerous places throughout his commentary on al-Bukharis Sahih. f genre by This practice was repeated in 13th-century commentaries within the ikhtila Ibn Qudama, al-Qurtubi, and, to a lesser degree, al-Nawawi.
C O N C L U S IO N

Ibn al-Mundhirs analysis of the thirty-one topics pertaining to theft in al-Ishraf marks a significant advance in clarity and depth over legal books that most Western scholars believe were compiled during the 9th and early 10th centuries. Topics of theft are buried deep in Kitab al- Uqul in the Musannaf of Abd al-Razzaq and strewn throughout the 167 chapters of Kitab al-Hudud in Ibn Abi Shaybas Musannaf.88 The early Hanafi books and al-Muwatta of Malik provide little insight into juristic disagreements surrounding theft, and al-Shafi is Umm and al-Muzanis Mukhtasar come across as rather sloppy and imprecise compared to Ibn al-Mundhirs al-Ishraf. Al-Tirmidhi, in his al-Jami , cites many of the same authorities as Ibn al-Mundhir but covers only five legal topics related to theft that are derived from the Prophetic hadiths he is presenting.89 Muhammad f book also covers only five topics related to theft,90 and Sahnuns al-Marwazis ikhtila Mudawwana reveals little interest in consensus or disagreement beyond Malik, Ibn al-Qasim, and al-Ashhab. Unlike his contemporary al-Tabari, Ibn al-Mundhir does not merely collate sections of earlier writings attributed to a few postsuccessor jurists but rather, as my examples have shown, provides a roll call of supporters and detractors for most topics.91 Finally, al-Tahawis Ikhtilaf al- Ulama , which survives only in al-Jassas (d. 981) abridgement, is on par with al-Ishraf with regard to breadth of topics and clarity of exposition. It differs from it, however, primarily in its more thorough presentation of Iraqi postsuccessor jurists, such as Uthman al-Batti, the Zaydi al-Hasan b. Hayy, and Zufar b. al-Hudhayl, along with its conspicuous neglect of the opinions of Ibn Hanbal, Ibn Rahawayh, and Abu Thawr.92 Despite his status as an atypical 10th-century mujtahid, Ibn al-Mundhirs legal methodology remains valuable for our general understanding of early Sunni jurisprudence. Later Sunni jurists awarded Ibn al-Mundhir the title of independent mujtahid because he investigates each topic of Islamic law in a systematic manner and refuses either to restrict himself to or adumbrate the accumulated corpus juris of any single one of his predecessors. Ibn al-Mundhir begins each section of al-Ishraf with a discussion of the pertinent Qur anic verses and evinces a critical approach to hadith. He then turns to the laborious task of analyzing a large volume of legal opinions attributed to a host of companions, successors, and postsuccessor jurists, a practice which the 12th-century d endeavor.93 al-Qaffal al-Shashi identifies as a critical component of the ijtiha One of the central purposes of this project was to discover where the most important authorities agree, because, according to Ibn al-Mundhir, only consensus can restrict the literal meanings of the Qur an and Prophetic hadiths. Despite his fidelity to textual

Abu Bakr ibn al-Mundhir, Amputation, and the Art of Ijtih ad 363 literalism, Ibn al-Mundhir not only respects the legal authority of the companions of f, but he even ra y sufficiently to reproduce their opinions in countless cases of ikhtila grants them veto power over any declaration of consensus. Even though Ibn al-Mundhirs personal legal opinions in myriad cases of juristic disagreement were largely ignored by hib later Muslim jurists, they do serve as eloquent testimony that the four Sunni madha had not achieved a total monopoly on legal discourse in the first quarter of the 10th century and that al-Tabari was not alone in constructing an independent school during this time. Given his clear unwillingness to play by the new rules of the 10th-century madhhab makers, I think that Ibn al-Mundhir would be satisfied knowing that his reputation rests squarely upon his personal scholarly books rather than on a constructed superhuman founder-imam paradigm that has been in vogue in most of the Islamic world for over a millennium.
NOTES
1 Bernard G. Weis, The Search for Gods Law (Salt Lake City, Utah: University of Utah Press, 1992), 683. d. This is Weiss reworking of Sayf al-Din al-Amidis (d. 1233) definition of ijtiha 2 Charles Kurzman (ed.), Liberal Islam: A Sourcebook (New York: Oxford University Press, 1998), 329. 3 Wael Hallaq, Ifta and Ijtihad in Sunni Legal Theory: A Developmental Account, in Islamic Legal Interpretation: Muftis and Their Fatwas, ed. Muhammad Masud, Brinkley Messick, and David Powers (Cambridge, MA: Harvard University Press, 1996), 3343; idem, Murder in Cordoba: Ijtihad, Ifta and the Evolution of Substantive Law in Medieval Islam, Acta Orientalia (Copenhagen) 55 (1994): 5583. 4 Abdel-Magid Turki, Aggiornamento juridique: Continuit e et creativit e ou fiction de la fermeture de la porte de lIjtih ad, Studia Islamica 94 (2002): 565; Shaista P. Ali-Karamali and Fiona Dunne, The Ijtihad Controversy, Arab Law Quarterly 9 (1994): 23857; Wael Hallaq, On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad, Studia Islamica 63 (1986): 12941; idem, Was the Gate of Ijtihad Closed? International Journal of Middle East Studies 16 (1984): 341. See also the entire issue of Islamic Law and Society 3, no. 2 (1996). 5 K. S. Vikr, The Development of Ijtihad and Islamic Reform, 17501850, Proceedings of the Third Nordic Conference on Middle East Studies: Ethnic encounter and culture change, Joensuu, Finland, 19 22 June 1995, http://www.hf.uib.no/smi/paj/pajtoc.html (accessed 1 May 2007); Bernard Haykel, Revival and Reform: The Legacy of Muhammad al-Shawkani (New York: Cambridge University Press, 2003), 76108; Robert Gleave, Political Aspects of Modern Shi i Legal Discussions: Khumayni and Khu i on Ijtihad and Qada , Mediterranean Politics 7, no. 3 (2002): 96116; Rachel Codd, A Critical Analysis of the Role of Ijtihad in Legal Reforms in the Muslim World, Arab Law Quarterly 14 (1999): 11231. 6 Al-Dhahabi bemoans the fact that neither al-Hakim al-Naysaburi, nor al-Khatib al-Baghdadi, nor Ibn Asakir included an entry for Ibn al-Mundhir in their respective biographical dictionaries of Nishapur, Baghdad, and Damascus; al-Dhahabi, Siyar A lam al-Nubala , 28 vols. (Beirut: Mu assasat al-Risala, 2001), 14:490 92. 7 Ibn al-Nadim, Kitab al-Fihrist li-l-Nadim, ed. Reza Tajaddod (Tehran Offprint, n.d.), 269. 8 Al- Abbadi, Kitab Tabaqat al-Fuqaha al-Shafi iyya, ed. G osta Vitestam (Leiden: E. J. Brill, 1964), 67. 9 Abu Ishaq al-Shirazi, Tabaqat al-Fuqaha , ed. Ihsan Abbas (Beirut: Dar al-Ra id al- Arabi, 1970), 108. 10 The most exhaustive study of Ibn al-Mundhirs extant and lost works available to me is Abu Hammad Saghir Ahmads introduction to his edition of the first thirty-nine chapters of Ibn al-Mundhir, al-Awsat fi al-Sunan wa-l-Ijma wa-l-Ikhtilaf, 2 vols. (Riyadh: Dar al-Tayba, 1985), 1:1939. Much of this introduction is plagiarized in the introduction to Ibn al-Mundhirs al-Iqna , ed. Ayman Salih Sha ban (Cairo: Dar al-Hadith, 1994). 11 Taj al-Din al-Subki, Tabaqat al-Shafi iyya al-Kubra, ed. Abd al-Fattah al-Hilu and Mahmud al-Tanahi, 10 vols. (Cairo: Isa al-Babi al-Halabi, 196476), 5:59.

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Hazm, al-Ihkam fi Usul al-Ahkam, 8 vols. (Cairo: Maktaba Atif, 1978), 2:880. The remaining four mujtahids are Dawud b. Ali, Muhammad b. Nasr al-Marwazi, al-Bukhari, and al-Tabari. 13 Ibn Khallikan, Wafayat al-A yan wa-Anba al-Zaman, ed. Ihsan Abbas (Beirut: Dar al-Thaqafa, 1968 72), 4:207 (case 580). 14 Al-Dhahabi, Tarikh al-Islam wa-Wafayat al-Mashahir wa-l-A lam, 301310 AH, 311320 AH, ed. Umar Abd al-Salam Tadmuri (Beirut: Dar al-Kitab al- Arabi, 1994), 56869. Al-Dhahabi declares Ibn al-Mundhir m of the same stature of al-Tabari and Ibn Surayj and praises his Qur anic commentary to be a shaykh al-Isla in Siyar A lam al-Nubala , 14:4902. See also al-Dhahabi, Tadhkirat al-Huffaz, 5 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 1998), 3:5. The three books he mentions are al-Mabsut, al-Ishraf, and al-Ijma . 15 Al-Subki, Tabaqat al-Shafi iyya al-Kubra, 3:102. The other three Muhammads are al-Marwazi, Ibn Khuzayma, and al-Tabari. Wael Hallaq has mentioned the significance of these four scholars as early as his article Was the Gate of Ijtihad Closed? p. 10, and more recently in Authority, Continuity, and Change in Islamic Law (New York: Cambridge University Press, 2001), 5961. 16 The fifth book, Ibn al-Mundhirs Qur anic commentary, is cited regularly in al-Suyutis al-Durr alManthur. Two volumes of it have been published as Kitab Tafsir al-Qur an, ed. Sa d ibn Muhammad al-Sa d (Medina: Dar al-Maathir, 2002). 17 Ibn al-Mundhir, al-Awsat, 1:2830. Nine substantial fragments of al-Awsat survive in manuscript. 18 The edition I am using was edited by Abd Allah Umar al-Barudi and published by Dar al-Fikr (1993). Fifty-two chapters (kutub), from marriage to usurpation, are covered in this published edition, and much of the unpublished first half of this important work survives in manuscript in Ankara. 19 The printed version of al-Iqna is based on the unique manuscript in the library of al-Qarawiyin; see Fuat d of Sezgin, Geschichte des arabischen Schrifttums (Leiden: E. J. Brill, 1967), 1:49596. The opening isna this book states that Ibn al-Mundhir dictated it in Mecca in Muharram 315 (March 927). 20 Al-Ishraf has one additional chapter after the final chapter of al-Ijma ; al-Iqna , which diverges several times from the topical sequence of al-Ishraf or al-Ijma , contains a few more chapters found in neither of these two books. The edition of al-Ijma that I am using was edited by Fu ad Abd al-Mun im Ahmad (Doha: Dar al-Da wa, 1981). 21 This category is difficult to prove, but my examination of Ibn Abd al-Barrs al-Istidhkar and al-Khattabis Ma alim al-Sunan suggests that both scholars were using Ibn al-Mundhirs al-Ishraf because they occasionally cite the same early authorities in the identical order as they are listed in al-Ishraf. Al-Khattabi actually mentions Ibn al-Mundhir by name in Kitab al-Diya; Abu Sulayman al-Khattabi, Ma alim al-Sunan, 4 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 1991), 2:27. (I am grateful to Dr. Jonathan Brown for this reference.) Al-Nawawi also provides an intriguing quote in which he says that al-Khattabi transmits an opinion of Abu Hanifa from one of Ibn al-Mundhirs books; al-Nawawi, al-Majmu , 27 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 2002), 10:196. 22 This category includes al-Qaffal al-Shashi, al-Nawawi, Ibn Daqiq al- Id, and Ibn Hajar al- Asqalani. Al-Nawawi and Ibn Daqiq al- Id both inform their readers that they are using Ibn al-Mundhirs books for the early Muslims opinions in their introductions to al-Majmu and an unfinished commentary on the Mukhtasar of Ibn Hajib, respectively; see al-Nawawi, al-Majmu , 1:538; for Ibn Daqiq al- Ids introduction, see al-Subki, Tabaqat al-Shafi iyya al-Kubra, 9:240. Even though the Shafi i al-Qaffal al-Shashi relays Ibn al-Mundhirs personal opinions in eight of his twenty-one citations of him in the long chapter on prayer, I have included him in this group rather than the next one due to the overall paucity of references to Ibn al-Mundhir; see Hilyat al- Ulama fi Ma rifat Madhahib al-Fuqaha , 3 vols. (Beirut/Amman: Mu assasat al-Risala and Dar al-Arqam, 1980), 2:104, 151, 159, 173, 176, 177, 179, 207. 23 See Ibn Battals Sharh Sahih al-Bukhari, al-Qurtubis al-Jami li-Ahkam al-Qur an, and Ibn Qudamas al-Mughni. For example, Ibn Qudama cites Ibn al-Mundhir as an authority or quotes from al-Ishraf twentyfour times in just the short chapter on amputation of the thiefs hand; Ibn Qudama, al-Mughni li-Ibn Qudama, 10 vols. (Cairo: Maktaba al-Qahira, 1969), 9:10343. 24 Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993). Norman Calder does not mention Ibn al-Mundhir in his book although he does have some critical comments about his Egyptian contemporary, Abu Ja far al-Tahawi; ibid., 22832, 23740. 25 A couple of scholars have risen to the challenge posed by revisionists; for example, see Jonathan Brockopp, Early Islamic Jurisprudence in Egypt: Two Scholars and their Mukhtasars, International Journal of Middle

12 Ibn

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East Studies 30 (1998): 16782, and virtually everything by Harald Motzki since the early 1990s; the most easily accessible of his works is an English translation of an earlier German article on al-Zuhris fiqh, http:// webdoc.ubn.kun.nl/mono/m/motzki h/juriofibs.pdf (accessed 1 May 2007). 26 M. A. S. Abdel Haleem, trans., The Qur an (Oxford: Oxford University Press, 2004), 71. 27 For a useful introduction to hudu . d laws, see Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York: Cambridge University Press, 2005). Peters notes that neither the Hanafis nor Shi a consider apostasy to be a h . add crime, although they both condemn to death male apostates who refuse to return to Islam, ibid., 65. Ibn al-Mundhirs opinion concerning the role of the rulers in executing h . add punishments can be found in al-Ishraf, 2:316. 28 Fa- ala hir kita b Alla h azza wa-jalla, illa an kull sa riq saraqa ma tuqt hi al-yad al-qat z .a u f . u ala .a hir al-kita b [ibid., 2:303] wa-kull mukhtalaf shay fa-yajibu istithna u dha lika min z yujmi a ahlu al- ilm ala .a an yaruddu ma hi fa-mardu d ila al-kita b li-ann Alla h azza wa-jalla amarahum idha tana za u f hi tana za u f kita b Alla h azza wa-jalla wa-sunnat rasu lih; Ibn al-Mundhir, al-Ishraf, 2:3023. This opinion is nearly ila identical to that of Abu Thawr (d. 854), which Ibn al-Mundhir records as follows: The hand of every thief who steals that which necessitates amputation must be amputated, unless they [the jurists?] agree on something, in ] prevails; ibid., 2:303. which case consensus [ijma 29 These two verses are 24:59 and 4:6; Ibn al-Mundhir, al-Ishraf, 2:313. 30 Ibn al-Mundhir, al-Ishraf, 2:313. This report is attributed to the Prophet in the Sunans of al-Tirmidhi and Abu Dawud but to Ali in al-Bukharis Sahih. Ibn al-Mundhir clearly considers this hadith to be Prophetic h qa l. (All references to the books in which these when he prefaces it with the words, thabata anna rasul Alla hadiths are found are courtesy of Abd Allah al-Barudi, editor of al-Ishraf.) 31 Ibn al-Mundhir, al-Ishraf, 2:315. This is a fragment of the famous story, found in all six canonical Sunni books, of the fornicator Ma iz b. Malik who confessed his act of fornication to the Prophet and was subsequently stoned. Ibn al-Mundhir mentions this hadith in this chapter because he informs us that some jurists use it as proof that the Prophet gave Ma iz the chance to escape the terrible h . add punishment by suggesting that he merely say that he kissed the woman rather than confessing to having had unlawful intercourse with her. 32 Ibid. This hadith is found in the books of Muslim, al-Tirmidhi, and Abu Dawud. 33 Ibid. This hadith is found in the Sunans of Abu Dawud and al-Nasa i. 34 Ibn al-Mundhir, al-Ishraf, 2:316. This is the gist of a hadith that appears in all six canonical Sunni books. 35 Ibid., 2:28990. This hadith is found in all six canonical Sunni books. 36 Ibid., 2:297. This hadith is found in the Sunan of al-Nasa i. 37 Ibid., 2:301. Ibn al-Mundhir acknowledges that Ibn Hanbal and Ibn Rahawayh cite an alternative version of this hadith that lacks the explicit clause, and then she stole [them], but he prefers this version because it agrees with the opinion of most scholars. 38 Ibid. This hadith is found in the Sunans of al-Tirmidhi, Abu Dawud, al-Nasa i, and Ibn Majah. 39 Ibid., 2:29596. This hadith is found in the Sunans of al-Tirmidhi, Abu Dawud, al-Nasa i, and Ibn Majah. 40 Ibid., 2:306. This hadith is found only in noncanonical collections. 41 The three cases of consensus that do not relate directly to theft are (1) the prohibition of wine, (2) all Islamic obligations apply only to sane males who have reached puberty, and (3) all Islamic obligations apply only to girls upon the onset of menstruation, ibid., 2:31214. Note that all fifteen cases of consensus are found in identical order in Ibn al-Mundhirs short book, al-Ijma , 11011 (cases 61428). 42 Ibn al-Mundhir, al-Ishraf, 2:294. In the interest of space, and with two exceptions, I will not be providing biographical details and references for those authorities with entries in P. J. Bearman et al., eds., Encyclopaedia of Islam, 2nd ed. (Leiden: E. J. Brill, 19602005). 43 Amr b. Dinar (d. 744) was a highly respected successor in Mecca who heard hadith from Jabir b. Abd Allah and taught both Ibn Jurayj and Sufyan b. Uyayna; see Ibn Sa d, Kitab al-Tabaqat al-Kabir, ed. Ali Muhammad Umar, 11 vols. (Cairo: Maktabat al-Khanji, 2001), 8:40; al-Dhahabi, Siyar A lam al-Nubala , 5:3007. 44 Ibn al-Mundhir, al-Ishraf, 2:298. 45 Ibid., 2:300. 46 Ibid., 2:3001. 47 Iyas b. Mu awiya was known for his sharp intellect and died in middle age in 739; al-Dhahabi, Siyar A lam al-Nubala , 5:155. He was a grandson of the companion Qurra b. Iyas, who was one of the original

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settlers of Basra and was later murdered; Ibn Sa d, Kitab al-Tabaqat al-Kabir, 9:31 (Qurra) and 23233 (Iyas). See also Iyas b. Mu awiya, Encyclopaedia of Islam. 48 Ibn al-Mundhir, al-Ishraf, 2:301. 49 Abu Hashim probably refers to the successor Abu Hashim al-Rummani, Yahya b. Dinar, a reliable transmitter, according to Ibn Sa d, who lived in Wasit; Ibn Sa d, Kitab al-Tabaqat al-Kabir, 9:312. His hadiths are found in all six canonical books, and al-Dhahabi reports that he died in 74950; al-Dhahabi, Siyar a lam al-nubala , 6:152. 50 Mansur b. Zadhan was a companion of al-Hasan al-Basri who was remembered for his reliability as a transmitter, his rapid Qur anic recitation, and his practice of spending most of the day in prayer. He settled in the village of al-Mubarak, near Wasit, and died in 74849; Ibn Sa d, Kitab al-Tabaqat al-Kabir, 9:313. He is a successor whose hadiths are found in all six canonical books, and al-Dhahabi mentions that his grave is visible in Wasit, where it is regularly visited; Siyar A lam al-Nubala , 5:44142. 51 Ibn al-Mundhir, al-Ishraf, 2:302. 52 Ibid., 2:304. 53 Ibid., 2:304. 54 Abd Allah b. Shubrama al-Dabbi was classified by Ibn Sa d and Ibn Hanbal as a jurist ( faq h) who was a reliable transmitter of a small number of hadiths. He was also a poet and served as qadi for Kufa during the reign of al-Mansur until he had to flee to Khurasan, where he died in 76162. As a student of several senior companions and a teacher of Sufyan al-Thawri, Ibn Shubrama can be classified as a successor. For more on him, see Ibn Sa d, Kitab al-Tabaqat al-Kabir, 8:46970; al-Dhahabi, Siyar A lam al-Nubala , 6:34749; and Ibn Shubrama, Encyclopaedia of Islam. 55 Ibn al-Mundhir, al-Ishraf, 2:305. 56 Ibid., 2:310. 57 Ibid., 2:311. 58 Ibid., 2:312. 59 Laysa f ha dha al-ba b khabar tha bit la maqa l f hi li-ahl al- ilm; Ibn al-Mundhir, al-Ishraf, 2:298; also quoted in Ibn Qudama, al-Mughni, 9:111 and al-Qurtubi, al-Jami li-Ahkam al-Qur an, 20 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 1993), 10:106. It is somewhat surprising that Ibn al-Mundhir neither cites nor alludes to the hadith found in notable 9th-century fiqh books, such as al-Muwatta , al-Umm, and al-Muzanis alMukhtasar, about the theft of Safwan b. Umayyas cloak from under him while he was sleeping in the mosque in Medina. Both Malik and al-Shafi i are reported to have used this hadith as proof against the mitigating power of intercession in h . add cases that have been brought to the attention of political authorities, whereas al-Muzani uses it as proof for the necessity of the stolen good to have been in a state of guarded custody (h . irz) in order for the thief to be liable for amputation. That most versions of this hadith have defective ds may be the reason behind Ibn al-Mundhirs reluctance to cite it, and perhaps he is alluding to it in his isna statement at the beginning of this note. For more on this hadith, see Al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law, trans. Aisha Bewley (Inverness, Scotland: Madina Press, 1991), 350; al-Shaybani, The Muwatta of Imam Muhammad (London: Turath Publishing, 2004), 299300; al-Zurqani, Sharh al-Zurqani ala Muwatta al-Imam Malik, 4 vols. (Beirut: Dar al-Kutub al- Ilmiyya, n.d.), 4:19394; al-Shafi i, al-Umm, 9 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 2002), 6:173; al-Muzani, al-Mukhtasar, found in al-Shafi i, al-Umm, 9:278. 60 The successors of the successors (atba al-ta bi n) also fall in this group, like Abu Hanifa (whom some consider a successor), al-Awza i, and Sufyan al-Thawri. 61 Abu Hashim al-Rummani and Mansur b. Zadhan. 62 Ibrahim al-Nakha i, Shurayh, and Ibn Shubrama. 63 Iyas b. Mu awiya. 64 Al-Walid b. Abd al-Malik, r. 70515. 65 It is interesting that Ibn al-Mundhir usually refers to Abu Hanifa and Abu Yusuf by their isms, al-Nu man and Ya qub, respectively. 66 The Hanafis and al-Tabari are notorious for ignoring Ibn Hanbals legal opinions in their fiqh books. 67 For more on Sufyan al-Thawri, see Sufyan al-Thawri, Encyclopaedia of Islam; Scott C. Lucas, Constructive Critics, Hadith Literature, and the Articulation of Sunni Islam (Leiden: E. J. Brill, 2004), 14043; and al-Dhahabi, Siyar A lam al-Nubala , 7:22979.

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Ibn Rahwayh, Encyclopaedia of Islam, and Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (Austin, Tex.: University of Texas Press, 1993). 69 Abu Thawr is counted among the Shafi iyya by al-Nadim (al-Fihrist, 265), al- Abbadi (Kitab Tabaqat al-Fuqaha al-Shafi iyya, 2223), Abu Ishaq al-Shirazi (Tabaqat al-Fuqaha , 1012), and al-Subki (Tabaqat al-Shafi iyya al-Kubra, 2:7480). 70 Ibn al-Mundhir, al-Ishraf, 2:296 (bird); 2:297 (copy of the Qur an); 2:294 (public treasury). In all three cases, Ibn al-Mundhir and Abu Thawr consider amputation a valid punishment, whereas Abu Hanifa considers them mitigating circumstances. It is interesting that Ibn al-Mundhir breaks with al-Shafi i, who agrees with the companions of ra y and three Kufan successors that one cannot receive the h . add punishment in the case of theft from the public treasury. 71 Ibn al-Mundhir, al-Ishraf, 2:3023. 72 Ibid., 2:298300. 73 For more on the Egyptian pupil of Malik and jurist Abd al-Rahman b. al-Qasim (d. 806), see Brockopp, Early Islamic Jurisprudence in Egypt. 74 Ibn al-Mundhir, al-Ishraf, 2:299. This is the only case in this section in which Ibn al-Mundhir appeals to something resembling custom. 75 Hammad b. Abi Sulayman (d. 738) of Kufa was a student of Ibrahim al-Nakha i and the primary teacher of Abu Hanifa; al-Dhahabi, Siyar A lam al-Nubala , 5:2319. 76 Abd al-Malik b. Abd al- Aziz Ibn al-Majishun (d. 828) was a mufti of Medina and pupil of Malik; al-Dhahabi, Siyar A lam al-Nubala , 10:35960. 77 The printed text oddly has they disagree (ikhtalafu ) instead of they agree. Ibn al-Mundhir concludes the topic with the observation, I have not memorized anything that differs with this position; al-Ishraf, 2:300. 78 Cases three, eight, and twelve. 79 Malik in case five and Ibn Hanbal in case seven. 80 In addition to the nine elite jurists mentioned above, Ibn al-Mundhir cites a least one opinion from Ibn Abi Layla, al-Awza i, al-Layth b. Sa d, Ibn al-Majishun, and lbn al-Qasim. In other places in al-Ishraf, he includes some opinions from Abu Ubayd (d. 839). One notable absence is the founder of the Zahiri school, Dawud al-Isbahani, although it is possible that he may surface elsewhere in this book. 81 This paragraph summarizes the second chapter of Hallaq, Authority, Continuity and Change, 2456. This development appears to have started early in the 9th century in North Africa among the nascent Maliki school; see Jonathan Brockopp, Competing Theories of Authority in Early Maliki Texts, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: E. J. Brill, 2002), 322. 82 Hallaq, Authority, 25. 83 Hallaq, Authority, 4950. 84 Ibn al-Mundhir, al-Ishraf, 1:141 (Sunna divorce), 1:253 (waiting period), and 3:7 (adultery). 85 An excellent vantage point for the dramatic growth and increased sophistication of substantive Islamic law in the 10th century is al-Mawardis (d. 1050) massive commentary al-Hawi al-kabir. 86 Al-Tirmidhis overall primary focus is, of course, Prophetic hadiths, but he does devote substantial space f in his canonical book. to ikhtila 87 More will be said about al-Tabari and al-Tahawi in the following section. Al-Qaffal al-Shashis Hilyat al- Ulama fi Ma rifat Madhahib al-Fuqaha appears to be more concerned with intra-madhhab juristic disagreements than that of companions and successors, but its author does cite Ibn al-Mundhir and al-Tahawi f and, according to a recent study, occasionally. Al-Baghawis Sharh al-Sunna routinely incorporates ikhtila much of this information comes from al-Khattabis Ma alim al-Sunan; see Ali b. Umar Badahdah, al-Madkhal ila Sharh al-Sunna li-l-Imam al-Baghawi, 2 vols. (Jedda: Dar al-Andalus al-Khadra , 1994), 2:69096. 88 Abd al-Razzaq, al-Musannaf, 12 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 2000), 9:481530; Ibn Abi Shayba, al-Kitab al-Musannaf fi al-Ahadith wa-l-Athar, 9 vols. (Beirut: Dar al-Kutub al- Ilmiyya, 1995), 5:470559. 89 See chapters 1620 of Kitab al-Hudud in al-Tirmidhis al-Jami . The topics covered are (1) the minimal value of the stolen good; (2) hanging the thiefs severed hand around his neck; (3) the cases of the embezzler, pilferer, and looter (muntahib); (4) theft of fruits and edible tubers growing at the upper end of the palm trunk; and (5) amputation while campaigning; al-Tirmidhi, al-Jami al-Sahih wa Huwa Sunan al-Tirmidhi, ed. Ahmad Shakir et al., 5 vols. (Beirut: Dar Ihya al-Turath al- Arabi, n.d.), 4:5054.
68 See

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five topics covered are (1) the minimal value of the stolen good, (2) replacing or returning stolen property after amputation, (3) theft from blood relatives, (4) theft of perishable foodstuffs, and (5) womens testimony in h . add cases; Muhammad al-Marwazi, Ikhtilaf al-Fuqaha , ed. Muhammad Tahir Hakim (Riyadh: Adwa al-Salaf, 2000), 49399. 91 Tabaris ikhtila f book, of which only two small fragments survive, consists almost exclusively of transmissions from earlier works containing opinions of Malik, al-Awza i, al-Thawri, al-Shafi i, Abu Hanifa and his companions, and Abu Thawr, in this sequence. See al-Tabari, Ikhtilaf al-Fuqaha , ed. Joseph Schacht (Leiden: E. J. Brill, 1933). 92 The published edition of al-Tahawi/al-Jassas, Mukhtasar Ikhtilaf al- Ulama , ed. Abd Allah Nadhir Ahmad, 5 vols. (Beirut: Dar Basha ir al-Islamiyya, 1996), unfortunately appears to be missing the chapter on amputating the thiefs hand, although the h . add crimes of fornication and qadhf are discussed in 3:277 330. 93 Wa-min sha n al-mujtahid an yaku rifan bi-madha hib al- ulama ; al-Qaffal al-Shashi, Hilyat aln a Ulama , 1:53.

90 The