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IDENTITY IN THE MARGINS: UNPUBLISHED ANAF COMMENTARIES ON THE MUKHTAAR OF AMAD B. MUAMMAD AL-QUDR
BRANNON M. WHEELER (University of Washington) Abstract
An examination of a number of unpublished commentaries on the Mukhtaar f al-fiqh al-anaf of Amad b. Muammad al-Qudr (d. 428/1037), shows that the anaf madhhab gains its authority and identity through a pedagogy focused on the conflict of opinions. anaf fiqh scholarship provides a case study of how commentary functions to define and perpetuate the institutional identity of individual scholars and the madhhab to which they are attached. Over time, the distinctions among the anaf authorities and between the anaf authorities and other non-anaf authorities were stressed and these distinctions multiplied rather than diminished. It is this conflict of opinions which seems to characterize anaf fiqh scholarship and serves as the primary means for the identification of individual scholarship and the authority of the madhhab as a whole. These unpublished commentaries show that being a anaf is not a matter of imitating earlier opinions, but rather suggest that anaf identity is linked to the authority of the members of the anaf madhhab who have learned to do fiqh through the medium of the ikhtilf displayed in anaf textbooks.

Recent scholarship has demonstrated the significance of

commentarial activity in establishing and preserving the authority of certain texts and the schools with which they are associated. On the one hand, scholars of Islamic law have examined the seminal role of certain hermeneutical and ontological issues in the development of ul al-fiqh scholarship.1 Similar conclusions have been reached by scholars working with the textual traditions of Hinduism, Buddhism, and
1 Bernard Weiss, The Search for Gods Law: Islamic Jurisprudence in the Writings of Sayf al-Dn al-mid (Salt Lake City: University of Utah Press, 1992); A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany: State University of New York Press, 1995); Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Oxford University Press, 1993); Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 2nd ed. (Cambridge: Islamic Texts Society, 1991).

Koninklijke Brill NV, Leiden, 2003 Also available online www.brill.nl

Islamic Law and Society 10, 2

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Judaism.2 On the other hand, historians, literary critics, and anthropologists have begun to uncover the central place of certain texts in the perpetuation of social and institutional authority.3 Rituals of reading and memorization, stipulated rules for the physical production and conveyance of certain books, and controlled learning environments are all ways by which certain texts were used to maintain highly regulated modes for the transmission of knowledge and inculcation of specific cultural norms. These various studies highlight the value of using commentaries as a source for discovering how the significance of authoritative texts was determined by the pedagogical sitz im leben in which they were received and to which they were appropriated. anaf fiqh scholarship provides a case study of how commentary functions to define and perpetuate the institutional identity of individual scholars and the madhhab to which they are attached. anaf fiqh is a particularly useful case in that it challenges the notion that madhhab identity derives from following the opinions of the founder of the madhhab, since anaf scholars appear to rely on not one but three different authorities whose opinions are often in conflict: Ab anfah, Ab Ysuf, and Muammad al-Shaybn. The focus of the standard anaf textbooks is not the synthesis or elimination but rather the highlighting of the conflict of these opinions. In addition, anaf texts often cite the opinions of Zufar and those of Ibn Ab Layl, as well as those associated with the other main madhhib and local authorities,
2 For Hinduism, see Laurie L. Patton, ed., Authority, Anxiety, and Canon: Essays in Vedic Interpretation (Albany: State University of New York Press, 1994) and Jeffery Timm, ed., Text in Context: Traditional Hermeneutics in South Asia (Albany: State University of New York Press, 1991). For Buddhism, see Paul J. Griffiths, Religious Reading: The Place of Reading in the Practice of Religion (Oxford: Oxford University Press, 1999) and Steven Collins, On the Very Idea of the Pali Canon, Journal of the Pali Text Society 15 (1990): 89-126. For Judaism, see Steven D. Fraade, From Tradition to Commentary: Torah and Its Interpretation in the Midrash Sifre to Deuteronomy (Albany: State University of New York Press, 1991) and Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Oxford University Press, 1985). 3 For some examples, see Michael Chamberlain, Knowledge and Social Practice in Medieval Damascus, 1190-1350, Cambridge Studies in Islamic Civilization (Cambridge: Cambridge University Press, 1994); Bruce Lincoln, Authority: Construction and Corrosion (Chicago: University of Chicago Press, 1994); Mary Carruthers, The Book of Memory: A Study of Memory in Medieval Culture(Cambridge: Cambridge University Press, 1990); Walter Ong, Orality and Literacy: The Technologizing of the Word(London, 1982); Jack Goody, The Interface between the Written and the Oral(Cambridge: Cambridge University Press, 1987).

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such as al-Shfi, Mlik b. Anas, Amad b. anbal, al-Awz, and Sufyn al-Thawr. As the anaf madhhab developed over time, the distinctions among the anaf authorities and between the anaf authorities and other non-anaf authorities were stressed and multiplied rather than diminished. It is this conflict of opinions which seems to characterize anaf fiqh and serves as the primary means for the identification of individual scholarship and the authority of the madhhab as a whole. The following pages examine a number of unpublished commentaries on the Mukhtaar f al-fiqh al-anaf of Amad b. Muammad alQudr (d. 428/1037).4 Section one introduces the ikhtilf in al-Qudrs Mukhtaar and indicates how this is central in later anaf texts. Section two provides an overview of selected unpublished commentaries on the Mukhtaar with brief descriptions of their contents. Section three analyzes the ways these commentaries emphasize and use the conflict of opinions in and related to the Mukhtaar of al-Qudr. From the commentaries consulted it appears that the anaf madhhab gains its authority and identity through a pedagogy focused on the conflict of opinions. Ikhtilf in the Mukhtaar of al-Qudr The Mukhtaar of al-Qudr is a foundational text for anaf fiqh scholarship. One of the earliest examples of its genre, the MukhFor information on the life of al-Qudr, see al-Khab al-Baghdd, Tarkh Baghdd aw madnat al-salm (Cairo, 1349/1931), 4:377; Ibn Khallikn, Kitb wafayt al-ayn wa anb abn al-zamn (Blq, 1299 AH), 1:26; Ab Said Abd al-Karm al-Samn, al-Ansb, facsimile by D.S. Margoliouth, E.J. Gibb Memorial Series 20 (Leiden/London, 1912), 44b; Ibn al-Athr, al-Lubb f tahdhb al-ansb (Cairo, 1357-1369), 2:247; Muammad al-Qurash, al-Jawhir almuyah f abaqt al-anafyah (Hyderabad, 1332), 1:93-4, 2:336-337; Ibn Qulbugh, Tj al-tarjim f abaqt al-anafyah, ed. G. Flgel (Leipzig, 1862), 5; Ibn Kathr, al-Bidyah wa al-nihyah f al-tarkh (Cairo, 1351-1358), 12:40; Ibn al-Imd, Shadharat al-dhahab f akhbr man dhahab (Cairo, 1350-1351), 3:233; Ab Muammad Abdallh al-Yfi, Mirt al-jann wa ibrat al-yaqn f marifat m yutabar min awdith al-zamn (Hyderabad, 1337-1339), 3:47; Gustav Flgel, Die Klassen der hanefitischen Rechtsgelehrten (Leipzig, 1861), 305; M. Ben Cheneb, al-udr, EI 2 5:1184; Khayr al-Dn al-Zirikl, al-Alm: qms tarjim li-ashar al-rijl wa al-nis min al-arab wa al-mustaribn wa almustashriqn, 2nd ed.(Cairo, 1954-1959), 1:206; Umar Ri Kala, Mujam al-muallifn: tarjim muannifi al-kutub al-arabyah (Damascus, 1957-61), 2:66; Fuat Sezgin, Geschichte des arabischen Schrifttums (Leiden: E.J. Brill, 1967), 1:451-455.
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taar,was designed as a textbook for the incipient legal curricula in Iraq and Syria. In subsequent centuries this text became the basic source for the teaching of anaf scholarship in the Fertile Crescent as well as Central Asia, India, and Africa. Many later anaf texts take the form of commentaries on this Mukhtaar,quoting the entire text verbatim, phrase by phrase, as a pedagogic device to epitomize the text-based epistemology and interpretive methods of fiqh scholarship. This later scholarship explains in detail how the opinions recorded in the Mukhtaarrepresent authoritative interpretations of the Qurn and Sunnah. Today, the Mukhtaarstill holds an important place in fiqh scholarship, in both anaf and non-anaf curricula, and it is often used as the primary textbook for the first year of madrasah study, especially in Egypt, Pakistan, Yemen, and Morocco. The centrality and continued authority of this text make it an excellent focus for close study of how different notions of textual authority were established and evolved. In the Mukhtaar,al-Qudr lists the opinions of the three main anaf authorities of the second/eighth century on all of the fundamental tenets of Islamic law, including practices relating to ritual, commerce, agriculture, crime, personal status, and inheritance. To these opinions, al-Qudr also contrasts the opinions of Zufar, a student of Ab anfah but not necessarily considered a anaf authority. In a large number of the cases, al-Qudr indicates that the opinions of these three or four authorities were in conflict, and that they often opposed one another on key issues. For example, in his discussion of the tithe on agricultural produce, al-Qudr lists a number of these authorities conflicting opinions.
Ab anfah says that for the small and the large things that the earth sprouts there is a tithe, regardless of whether it is irrigated or watered by the sky, excepting firewood, reed stalks, and grass. Ab Ysuf and Muammad say that the tithe is only required for perennial produce when it amounts to five loads, a load being sixty s according to a of the Prophet. According to Ab Ysuf and Muammad there is no tithe for non-perennial produce. For that which is watered by bucket, waterwheel, or waterscoop there is half a tithe according to the opinions of Ab Ysuf and Muammad. Ab Ysuf says: for that which is not measured in loads, like saffron and cotton, a tithe is required when its value reaches the value of five loads based on the minimum of what comes under the designation of a load. Muammad says that a tithe is required when the produce reaches five loads based on the maximum of that by which its type is evaluated. Five bales are considered equivalent for cotton, five bundles for saffron.

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On honey there is a tithe when it is taken from ground upon which tithe is levied, whether a little or a lot. Ab Ysuf says that there is nothing due for it until it amounts to ten skins. Muammad says [there is nothing due for it until it amounts to] five parts, a part being thirty-six Iraq rals. There is no tithe for produce taken from ground upon which land tax [kharj] is levied.5

Later anaf scholarship, beginning with the Hidyahof al-Marghnn (d. 593/1197), appropriated al-Qudrs compendium as an authoritative collection of anaf opinions. The Hidyah,often referred to as a commentary on the Mukhtaar,contains al-Qudrs entire text word-for-word.6 This is important because it shows that the particular collection of opinions in the Mukhtaar,rather than the entire corpus of anaf opinions, became the focus of al-Marghnns scholarship. There were more extensive compilations of the anaf authorities opinions, collections which include opinions not found in the Mukhtaar. Some later scholarship, such as that represented by the Kitb al-mabsof Amad b. Muammad al-Sarakhs (d. 483/1090), covering 30 volumes in the modern printed editions, draws on more expansive collections of opinions.7 By relying upon the text of the
5 al-Qudr, Matn al-Qudr f al-fiqh madhhab al-Imm al-Aam Ab anfah al-Numn (Cairo: Mabaat al-Khayriyyah, 1324), 21-22. The opinions of Zufar, almost always at odds with the opinions of other authorities, are not often mentioned by al-Qudr, but are included by later scholarship for the pedagogical purposes discussed in what follows. On Zufars opinions, see al-Kawthar, Lamat alnaar f srat al-Imm Zufar(Cairo: Mabaat al-Anwr, 1368). 6 There are small variations between the text preserved in the Hidyah manuscripts and that in the Mukhtaar manuscripts. There are also variations among the manuscripts of both texts. Most of the Hidyahmanuscripts do, however, change the order of al-Qudrs contents, usually putting the sections on marriage and personal law before the sections on commercial law. This probably reflects the aims of the later commentator in using the Mukhtaarfor pedagogical ends. See the useful article of Y. Meron, The Development of Legal Thought in Hanafi Texts, Studia Islamica 30 (1969): 73-118. For the text of the Hidyah,see Ab Bakr b. Al al-Marghnn, al-Hidyah: shar bidyat al-mubtad,4 vols. (Cairo: Mabaah Muaf al-Bb al-alab, 1975) and al-idyah maa al-diryah f muntakhab takhrj adth al-Hidyah, 2 vols. (Multan: Maktabah-i Shrkat Ilmyah, 1980). For a partial listing of the manuscripts of the Mukhtaar,see Sezgin, 1:451. 7 On the claim of general agreement within the anaf school, perhaps originating at the end of the eleventh century, that the canonical corpus of anaf opinions was to be found in the so-called hir al-riwyahof al-Shaybn, see Muammad Izz al-Al, shiyah al-jallah al-mufdah al-musammh bi alib,published in the introduction and on the margins of al-Sharranbull, Nr al-(Multan: Maktabah-i Imdyah, 1979), 2-8.

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Mukhtaar,al-Marghnn makes the Mukhtaar into a sort of canonical text: it is through the medium of this text that readers of alMarghnn are taught how to interpret the opinions of the anaf authorities. The style of commentary found in the Hidyah is illustrated by the discussion of wetnursing [ri] and the prohibitions against a man having sex with a woman who nursed him or is related to him by nursing. In the following passage, al-Marghnn comments on a statement recorded by al-Qudr which defines a prohibition attached to a man having sexual intercourse with a woman who had nursed him. This example is significant because it shows how al-Marghnn frequently interprets the Mukhtaar,by explaining how the anaf opinions are linked to authoritative sources [ul]. The passage in parentheses is taken from al-Qudr.
(A little and a lot of nursing are equal in prohibition when it occurs during the period of nursing). al-Shfi says: its prohibition is not established except by five periods of nursing, on the authority of the word of the Prophet: A single nursing or two nursings does not cause prohibition. We rely upon the word of God: your mothers who nurse you... [Q 4:23] and the word of the Prophet: that which is forbidden on account of nursing is that which is forbidden on account of kinship.8

In this passage, al-Marghnn adds the opinion of al-Shfi to highlight the different anaf opinion. The opinion of al-Shfi, al-Marghnn explains, is based upon something the Prophet Muhammad reportedly said restricting the prohibition against sexual intercourse between a man and woman to cases in which the man was nursed five separate times (or more) by the woman. The anaf position is also based upon Sunnah, but, according to al-Marghnn, it is based upon a adth that reiterates what is found in Qurn 4:23.9 Although both the anaf and Shfi positions are based upon sources recognized by both madhhib as authoritative, the conclusions are different and not compatible. The
The concept of the opinions being limited to a certain collection of books is late. It is probable that these books, attributed to al-Shaybn, especially his Kitb al-al f al-fur,are the product of much later redaction. The Al,in particular, seems to be the result rather than the basis of al-Sarakhss Kitb al-mabs. For a brief overview of this argument, see Calder, 39-44. 8 al-Marghnn, 2:240-241. 9 This saying of the Prophet Muhammad can be found in al-Nas, Sunan alNas(Beirut: Dr al-Marifah, n.d.), 26:49 and Muslim, a,ed. Fud Abd al-Bq (Cairo: Mabaat al-Fajlat al-Jaddah, 1955-1956), 18:26.

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comment shows that it is not the use of a given source, but rather the way in which the common sources are used that accounts for the different conclusions. Beginning in the sixth/thirteenth century, anaf scholars focused on explaining the reasons for the interpretive choices represented by earlier anaf opinions. These later generations of scholarship were produced in the form of commentaries on the Hidyah, and thus include the entire text of the Hidyah and that of the Mukhtaaras well.10 By the seventh/thirteenth century, a given anaf text could contain several generations of commentaries: commentaries on commentaries on alMarghnns commentary on the Mukhtaar. This scholarship is exemplified in the discussion of the same issue of nursing, in Muammad b. Abd al-Wid b. al-Humms (d. 681/1276) commentary on the Hidyah.
Mlik agrees [viz., with the passage quoted by al-Marghnn]. If there is doubt that the breast entered the mouth of the child, then it is doubtful that the nursing took place, and the prohibition is not established because of the doubt. This is likewise the case if it is known that a woman from a particular village nursed a young girl but it is not known who she was, and subsequently a man from the people of this same village married the young girl. It [viz., allowing this practice] is sound because the prohibition of a particular woman has not been established. It is incumbent upon women that they not nurse every youth if it [viz., nursing] is not necessary. When they do nurse they should keep track of this and make it known so that it is written down.11

Ibn al-Humm cites the opinion of Mlik as consistent with that of the anafs, and adds the qualification that the breast of the nurse must enter the childs mouth in order for sexual intercourse between them to be forbidden. The principle behind the prohibition is taken by Ibn alHumm to be that the physical contact between the nurse and the child be clearly established, and that, once established, a single nursing is sufficient to cause the prohibition. This is further supported by Ibn alHumms citation of an analogous case in which doubt precludes
10 This sort of textual transmission, accomplished through commentary on, rather than through copying of, an earlier text is evinced in the manuscript traditions for the anaf and other schools. Earlier, authoritative texts were not often copied, but were included in toto in later commentarial works of scholarship. The original text is maintained, but only within the physical and interpretive confines of later scholarship. The same can be said for the commentaries written specifically on the Mukhtaar. For a sampling of this manuscript evidence, see Sezgin, 1:393516. 11 Ibn al-Humm, Shar fat al-qadr al al-Hidyah(Cairo: Muaf al-Bb al-alab, 1289; reprint, Beirut: Dr al-Fikr, n.d.), 3:439-440.

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requiring prohibition on a woman whose specific relationship in nursing to a future husband is not established. Similar comments are made in the eighth/fourteenth-century work of al-Bbart (d. 782/1384), whose commentary on the Hidyah is often published together with the comments of Ibn al-Humm, concerning the interpretation of al-Marghnn on the statement of al-Qudr.
This [viz., the same passage quoted by al-Marghnn] is our opinion. alShfi says: prohibition is not established except by five periods of nursing in each one of which the child is satiated. This is based upon the words of the Prophet: A single nursing or two nursings [maah aw maatn wa imljah aw imljatn] does not cause prohibition. Maahis the action of the one being nursed. Imljahis the action of the nurse. It is nursing. On the face of it, this report seems to indicate that a little [nursing] is not prohibited. Yet that it [viz., the period of nursing] be restricted to five satiating periods of nursing is not indicated in this report. The madhhab agrees with this on the basis of another report. The first report is explained by the fact that among the Companions of the Prophet it was observed that they said three satiating periods of nursing. al-Shfi follows the saying of ishah: Once the Prophet received as a revelation that ten fixed periods of nursing cause the woman to be prohibited. This was subsequently abrogated [by the revelation stipulating that] five fixed periods of nursing cause the woman to be prohibited. This is what was followed after the death of the Prophet. This indicates what al-Shfi claims but her [viz., ishahs] report was that this [practice of five fixed periods] was what was followed only after the Prophets death. This weakens the authority of the report because there can be no abrogation after his death. We rely upon the word of God: Your mothers who nursed you... and the word of the Prophet: That which is forbidden on account of nursing is that which is forbidden on account of kinship. That is to say, [we rely upon] the Book and the Sunnah. This is better than relying upon the Book [as reported to have been revealed in the report from ishah] known from only a single transmission.12

In this case, al-Bbart discusses further the opinion of al-Shfi as reported by al-Marghnn, which was originally introduced to explain the opinion mentioned by al-Qudr. First, he explains the use of the two synonymous terms maah and imljah in the adth from which al-Shfis opinion is said to be deduced.13 Second, al-Bbart
12 al-Bbarts text is printed in Ibn al-Humm, Shar inyah al al-Hidyah (Cairo: Muaf al-Bb al-alab, 1289; reprint, Beirut: Dr al-Fikr, n.d.), 3:439440. 13 The report of ishah can be found in al-Nas, 26:51, Muslim, 18:24, Ab Dd, Sunan,ed. Muammad Muy al-Dn al-amd (Beirut: Dr al-Kutub al-

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states that this adth is not actually from the Prophet Muammad himself, but from his Companions. Third, al-Bbart writes that, in any case, al-Shfis opinion is not primarily based upon this adth, because in the first adth cited there is no mention of five separate periods of nursing, but only that one or two do not cause a prohibition. The opinion of al-Shfi is based on a adth by ishah that the Prophet Muammad received two separate revelations indicating that the number of nursings that cause a woman to be prohibited is ten or five.14 Both of these revelations were abrogated or removed from the text of the Qurn, but al-Shfi claims that the legal force of the second revelation, indicating five periods of nursing, is still binding. To counter the authority of this claim, al-Bbart highlights the fact that the practice of five periods causing prohibition was followed only after the death of the Prophet Muammad but not before, implying that the legal force of the abrogated revelation was not continuous, but only later reinstated after the Prophet Muammads death. Despite this, the opinion of alShfi is weaker authority than that of the anafs because the report used by al-Shfi is found only in a single adth, and the reported revelation cannot be verified by the extant text of the Qurn or in a separately related adth. Q Zdah (d. 988/1525) emphasizes this third point by discrediting the claim that ishahs report of the revelation to the Prophet Muammad and the people following it constitute two independent sources for al-Shfis opinion.15 Given that the anaf position is based on Qurn 4:23 and a adth that reiterates this verse, if the saying of ishah is valid, then there are
Ilmyah, 1980), 12:9, al-Tirmidh, al-Jmi al-a,ed. Muammad Shkir et al. (Delhi: Kutub Khnah Rashdyah, 1937-1965), 10:5, Ibn Mjah, Sunan,ed. Muammad Fud Abd al-Bq (Cairo: Mabaat al-Tazyah, 1952-1953), 9:35, Ibn Kathr, Tafsr al-Qurn al-am(Cairo: Mabaat Muaf Muammad, 1937), 1:739-49, in the context of Srat al-Nis 4:23. 14 On the classical theory of abrogation [naskh] and its association with the writings attributed to al-Shfi and his followers, see al-Shfi, al-Rislah,ed. Muammad Shkir (Cairo: Maktabat alab, 1358 AH), 105-17, 241-58 and Muammad b. Ms al-zim, al-Itibr f al-nsikh wa al-manskh min althr(Cairo: Idrat al-ibah al-Munryah, 1346 AH). On the development of the theory of naskh in general, see Ab Jafar al-Nas, Kitb al-nsikh wa almanskh (Cairo, 1323 AH). For an overview of the use of naskh in early fiqh scholarship, see John Burton, The Collection of the Qurn (Cambridge: Cambridge University Press, 1989) and idem, The Source of Islamic Law: Islamic Theories of Abrogation (Edinburgh: University of Edinburgh Press, 1990). 15 See Q Zdah, Natij al-afkr f kashf al-rumz wa al-asrr (Cairo: Muaf al-Bb al-alab, 1289 AH; reprint, Beirut: Dr al-Fikr, n.d.), 3:440.

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two possibilities: either it came before Qurn 4:23, in which case the earlier ten and five periods of nursing are both abrogated; or, it came after Qurn 4:23, in which case, being a report from ishah and not included in the text of the Qurn, it is not considered to be of equal authority.16 Unpublished Commentaries on the Mukhtaar of al-Qudr These few examples show how the text of the Mukhtaar was central to later anaf scholarship, and functioned to illustrate not only specific anaf interpretations but more general points of epistemology and methodology. In addition, anaf scholars produced a number of commentaries that focused directly upon the text of the Mukhtaar. Many of these commentaries incorporated issues found in other anaf texts although the relationship among them is still far from settled. Only two of the direct commentaries on the Mukhtaar have been published and none have been studied. To date, the most important of the published commentaries, the al-Jawharah al-nayyirahof Ab Bakr b. Al al-a (d. 800/1397), remains without a critical edition and annotation.17 The Lubb f shar al-kitb of Abd al-Ghan al-Maydn (d. 1298/1881) is a more recent commentary on the Mukhtaar, though of a different character than the commentary found in the Jawharah.18 Even a summary of the contents of the unpublished commentaries on the Mukhtaar has not been completed until now, and the relationship of these commentaries to other anaf fiqh scholarship therefore remains unknown. The following list includes the unpublished commentaries consulted in the holdings of the al-Maktabah al-Azharyah and Dr al-Kutub alMiryah in Cairo, the al-Maktabah al-Waanyah in Tunis, and the alMataf al-Waan in Kairouan. The commentaries are listed by author and title and arranged chronologically by date of composition. For each, I provide relevant bibliographical information, library holdings, multiple copies, and give a brief descriptive overview of the contents as they relate to the Mukhtaar and its pedagogical setting.
This is also discussed briefly in Ibn al-Humm, 3:443. For the published edition, see Ab Bakr b. Al al-addd, Jawharat alnayyirah(Cairo: Mamd Bey, 1301 AH). 18 For the published edition, see Abd al-Ghan al-Maydn, al-Lubb f shar al-kitb, 4 vols. (Cairo, n.d.; reprint, Beirut: al-Maktabat al-Ilmyah, 1413/1993).
16 17

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(1) Ab Nar Amad b. Muammad b. al-Aqa (d. 474/1081), Shar al-Aqa [Dr al-Kutub al-Miryah: Fiqh anaf 737, dated to 1192]. According to Sezgin, the only other copy available is in the commentary on the work of Ab Nar al-Aqa by Ibn Qulbugh (d. 879/1474), entitled Gharb al-adth al-madhkrah f shar Mukhtaar al-Qudr al-Aqa, available in an autograph copy in the Laleli holdings of the Sleymaniye Ktphanesi in Istanbul.19 The only copy available in Egypt is incomplete. Manuscript Fiqh anaf 737 begins with Kitb al-Ijrah and only goes through anbah. This suggests that the entire text would be quite large, since the small portion available here is already 234 folia in length. This commentary is remarkable for the way in which it lists systematically all the authoritative sources [ul] from which the opinions found in the Mukhtaar are thought to be derived. (2) Khwharzdeh Muammad b. al-usayn (d. 483/1090), Shar mushkilt al-Qudr. According to Sezgin, this manuscript was originally housed in the al-Maktabat al-Baladyah in Alexandria.20 It is now catalogued as: (a) Fiqh anaf 21 in the Dr al-Kutub al-Miryah. There is another copy available in microfilm, catalogued as : (b) Fiqh Taymur 377, also available at the Dr al-Kutub al-Miryah. This commentary focuses upon the explanations behind the conflict of opinions among the anaf authorities in the Mukhtaar. Some attention is given to the citation of the opinions of earlier anaf authorities about the conflict of opinions, but most of the comments are dedicated to explaining the reasons for the conflicts. Khwharzdeh himself often gives direct explanation. The citations of earlier anaf texts are primarily references to sources preceding the Mukhtaar, rather than citations from texts produced after, and influenced by, the Mukhtaar, as is common in other anaf compendia. (3) Jaml al-Dn Ab Sad al-Muahhar b. al-usayn al-Yazd (d. 591/ 1195), Lubab.21 Catalogued at the al-Maktabah al-Azharyah as (a) Fiqh anaf 1656 (391ff [3 additional folios at end with notes]).22 There
19 See Sezgin, 1:452. Also see the entry in Fihrist al-kutub al-arabyah almawjdah bil-Dr li-ghyat sanat 1932,ed. Fuad Sayyid (Cairo: Mabaat Dr al-Kutub, 1924-1933), s.v. On Ab Nar al-Aqa, see Kala, 2:148. 20 See Sezgin, 1:452. On Khwharzdeh, see al-Qurash, 1:236, 2:49. 21 See Sezgin, 1:453. On al-Yazd, see al-Qurash, 2:175. 22 For this reference, see Fihrist al-kutub al-mawjdah bil-Maktabat alAzharyah, 7 vols. (Cairo: Mabaat al-Azhar, 1365-1382), s.v.

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is another copy (b) available on microfilm in the Dr al-Kutub alMiryah, with the title Khulat al-nawdir, catalogued as Fiqh anaf alat 864. A third copy (c) is in the al-Maktabah al-Waanyah in Tunis, entitled al-Lubb, catalogued as Abdalyah 1616. The al-Azhar manuscript is written in a Maghrb hand and includes two different tables of contents with paginations, in two different Maghrb hands. It includes two main types of comments: citation of adth to support the opinions in the Mukhtaar (usually providing the matn but not the isnd), and references to the opinions of al-Shfi. The manuscript from the al-Maktabah al-Waanyah is of different organization and content, more closely paralleling the structure of the Tajrd of al-Qudr and the Tass al-naar of Al b. Umar al-Dabs.23 The end of this manuscript has several sections devoted exclusively to listing the ikhtilf among the various anaf authorities and between them and the opinions of Mlik and al-Shfi (esp. 81a-240a). (4) usm al-Dn Al b. Amad b. Makk (d. 598/1201), Khulat aldalil f tanq al-masil.According to Sezgin, this manuscript was originally housed in the al-Maktabat al-Baladyah 1215 (251ff), and is dated to 978 AH.24 There are seven copies available on microfilm in the Dr al-Kutub al-Miryah, catalogued as: (a) Fiqh anaf 651, 653, (b) b 20712, (c) Fiqh anaf Khall Agha 39, (d) Fiqh anaf alat 543, 846, 883. Fiqh anaf 651 has 118 folia and is dated to 15 Rajab 1192 AH. This commentary focuses primarily on the conflict of opinion among the anaf authorities and between them and al-Shfi. This attention to the conflict of opinion with al-Shfi is shared with the Lubb, with the Tajrd of al-Qudr, and with the Hidyah of alMarghnn but not with many of the other commentaries on the Mukhtaar. The opinion of Ibn Ab Layl is often mentioned as well. The text is relatively brief and the manuscript identified as Fiqh anaf 651 includes some interesting later marginalia.
23 See Al b. Umar al-Dabs, Tass al-naar(Cairo: Zakary Al Ysuf, 1320). On the Tajrd, see Sezgin, 1:455. A microfilm of the Tajrd is available at the Dr al-Kutub al-Miryah, Fiqh anaf 290. The text is primarily a listing of the ikhtilf between Ab anfah and al-Shfi. Portions of the Tajrd are also quoted by Ibn Qulbugh in his Ta, mentioned below. There is also Al b. Muammad al-Jurjn (d. 887/1482), Hshiyat al shar al-Tajrd, located in the Maktabah l Ibn shr, 1678, in Tunis. 24 See Sezgin, 1:453. On usm al-Dn b. Makk, see Carl Brockelman, Geschichte der arabischen Litteratur (Leiden: E.J. Brill, 1937), Suppl. 1:649.

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(5) Mukhtr b. Mamd al-Zhid al-Ghazmin (d. 658/1260), alMujtab.25 Available at al-Maktabat al-Azharyah 193. Catalogued as: (a) Fiqh anaf 287, 7589, 148ff. Manuscript dated to 1127 AH. Sezgin lists a manuscript as Fiqh anaf 1262 (427ff) but this was not found.26 There are three additional manuscript copies available at the Dr alMaktabah al-Miryah: (a) Fiqh anaf 475 (217ff) dated to 849 AH, (b) b 23421, (c) Fiqh anaf alat 1015. This commentary pays attention to explanatory and linguistic matters, references to adth (with citations of isnds and transmitters), references to ikhtilf among the anafs, between the anafs and Shfis, and even Companions in some cases (as a form of adth criticism). In reporting the disagreements with al-Shfi, al-Zhids work most closely resembles the Khulat of usm al-Dn. al-Zhid also specifies if an opinion has been reached on the basis of the Qurn, Sunnah, Qiys, or Istisn, particularly in cases of disagreement. He also adduces a number of ikhtilf cases not mentioned in the Mukhtaar. (6) Rashd al-Dn Ab Abdallh Muammad b. Abdallh Raman al-Shibl (d. 769/1367), al-Yanb f marifat al-ul wa al-tafr.27 According to Sezgin, this text is available at the Maktabah al-Baladyah in Alexanderia, catalogued as 1232b (262ff) and dated to 723 AH.28 There do not seem to be any copies of this text available at the Dr alKutub al-Miryah, though copious citations exist in many of the commentaries consulted. (7) Ysuf b. Umar b. Ysuf al-f al-Kdr (d. 832/1429), Jmi almumart wa al-mushkilt.29 Available at the al-Maktabah al-Azharyah, catalogued as: (a) Fiqh anaf 2829 (421ff), dated to 1194 AH. There are two additional microfilm copies available at the Dr al-Kutub al-Miryah: (a) Makhut Zakyah 30, (b) Fiqh anaf Khall Agha 6. The end of the al-Azhar manuscript lists 1194 AH as the copy date but two comments on the title page list 1229 as the date of the copy in the same hand as the text. The fact that there are numerous marginal corrections to the text done in the same hand suggests, along with the
On al-Zhid, see Brockelmann, 1:382. See Sezgin, 1:453. 27 On al-Shibl, see Kala, 10:219. 28 See Sezgin, 1:453. 29 See Sezgin, 1:454. On al-Kdr, see Ktib Celeb, Kashf al-unn (Istanbul, 1941-43), 1632-33, 1838.
25 26

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different dates, that this is a thirteenth century copy of the twelfth century copy. The commentary itself includes long explanations of the content and division of the chapters, linguistic explanations, explanations of the reasons for ikhtilf, additional adduction of ikhtilf, including references to ikhtilf with al-Shfi and Mlik, and copious citations of earlier scholarship and authoritative sources, with careful attention to specific ul terminology. (8) al-Qsim b. Abdallh b. Qulbugh (d. 879/1474), Ta Mukhtaar al-Qudror al-Tarj wa al-tanq al al-Qudr.30 Two microfilm copies of this are available at the Dr al-Kutub al-Miryah: (a) Ta: Fiqh anaf 801, 1370, (b) Tarj: Fiqh anaf 124, b 33591. This is an important commentary, incorporating information from much of the earlier scholarship, and close in character to the commentary of al-Maydn. It focuses primarily on the ikhtilf among the anaf authorities, with special attention to what earlier authorities say about this: whether there are variant opinions not mentioned in the Mukhtaar, which opinion is considered most sound and by whom, and reports of what earlier scholars have given as the reasons behind the ikhtilf. Ibn Qulbugh references about thirty earlier commentaries and texts related to the Mukhtaar, including many which are not known to be extant in manuscript. (9) Ysuf b. Muammad b. Sulaymn al-Zaghwn (d. 1144/1731), alMinan al Mukhtaar al-Qudr. Sezgin lists this as al-Maktabah alZaytnah 4:257, 2421-2422 but many of the holdings of the Zaytnah have been moved to the al-Maktabah al-Waanyah. This manuscript is part of the Abdalyah collection, H. 29/18, Q. 418, S. 31 (vol. 1), H. 29/18, Q. 417, S. 31 (vol. 2) copied by a Muammad b. Hshim alalab, with no date. This commentary includes a wide spectrum of references: citations of adth, scholars before al-Qudr such as alaw and al-Karkh, scholars after al-Qudr such as al-Marghnn, Ab al-Layth al-Samarqand, and Ibn Nujaym (d. 970/1563), and references to other unpublished commentaries such as the Sirj alwahhj and that of al-Isbjb (c. 7th/13th century). This manuscript is bound and many of the pages in the second volume are stuck together and cannot be read without restoration of the manuscript.

30

See Sezgin, 1:455. On Ibn Qulbugh, see Brockelmann, 2:82.

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(10) al-Shihb f ta al-kitb: al-taaliqt al-mufdah al matn alQudr. Commentary by Abdallh Musaf al-Haragh and Abdallh Hamzah. First printing: Cairo: al-Bb al-alab, 1371/1952. Three volumes. Dr al-Kutub al-Miryah bound and printed books: b25227. Only volume three was available for examination. The other two volumes were reported lost. Although not a manuscript, this printed volume is unknown outside of Egypt, and may have received little distribution outside of the Religious Institute of al-Azhar, for which it was used in the fourth year of the beginning section. The contents include a complete text of the Mukhtaar printed at the top of the page, with footnotes at the bottom. Comments are limited to short remarks. Most of these remarks are explanations of unusual phrases but also include: linguistic explanations, authorizing commentary referring to the Qurn or Sunnah, extra-textual conditions, and ikhtilf found in the Mukhtaar. Comparable to this is the Taysr al-Qudr f al-fiqh alanaf of Muammad Muaf aba and Rajab al-yad (Cairo: alAzhar, 1402). These ten commentaries exhibit several distinct types of commentarial activity, all of which can be related to pedagogical settings. 31 They are valuable for the insight they provide on the interpretation, reception and teaching of the Mukhtaar in anaf scholarship. In so far as the Mukhtaar continued to be used as a central authoritative text in anaf pedagogical contexts, these commentaries may be seen as a window onto the way in which anaf students learned the precedents and interpretive strategies to be used later in their scholarship. The most salient feature of these commentaries is their focus on anaf ikhtilf. It is noteworthy that the commentaries do not downplay the ikhtilf but highlight and exacerbate the differences of opinion. This is at odds with the conclusions of some scholars of Islamic law who have argued that, as the schools developed, the distinctions between and among them disappeared, and the use of independent reasoning and
31 In addition to these separate commentaries, I was also able to consult numerous manuscripts of the Mukhtaar, many of which had marginal comments. These marginalia also attest to the way in which the Mukhtaar was interpreted. From the holdings of the Dr al-Kutub al-Miryah, the following manuscripts of the Mukhtaar were consulted: Fiqh anaf: 365, 366, 367, 601, 633, 705, 706, 1151, 1215, 1216, 1319, 1363, 1510 1545, 1671, 1785, 1901; b: 21701, 24686, 32522; Fiqh Taymur: 39, 376; Fiqh anaf Khall Agha: 52; Fiqh anaf alat: 389, 400, 401, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 639, 769, 770, 798, 1106; Fiqh anaf Qf: 127, 128, 129, 130, 131, 132; Fiqh anaf Mm: 118.

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divergence of opinion also lessened. Historians of anaf fiqh in particular have argued that, especially with the Ottoman adoption of anaf fiqh, the school became standardized and the divergence of opinions was removed.32 Use of Ikhtilf in the Commentaries The focus of the commentaries on ikhtilf is directly related to the prominence of ikhtilf in the Mukhtaar of al-Qudr. There are approximately 200 occurrences of ikhtilf cited in the Mukhtaar among Ab anfah, Ab Ysuf, Muammad al-Shaybn, and Zufar. The following list provides the frequencies and locations of this ikhtilf:
Ab anfah Ab Ysuf and al-Shaybn (83 occurrences),33 Ab anfah (36 occurrences),34 Ab anfah and Ab Ysuf al-Shaybn (16 occurrences),35 Ab anfah and al-Shaybn Ab Ysuf (12 occurrences),36 Ab Ysuf al-Shaybn (9 occurrences),37 Ab Ysuf and al-Shaybn (7 occurrences),38 Ab Ysuf (7 occurrences),39 al32 See the critical analysis of this position in some of the articles collected in Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Studies in Islamic Law and Society 7 (Leiden: E.J. Brill, 1999), esp. his Legal Literature and the Problem of Change: The Case of the Land Rent, 446-464 where he critiques Schacht, Coulson, and Chehata with reference to Rudolph Peters, Idjtihd and taqld in 18th and 19th century Islam, Die Welt des Islams 20 (1980): 131-45 and Wael Hallaq, Was the Gate of Ijtihd Closed? International Journal of Middle East Studies 16 (1984): 3-41. Also see Bernard Weiss, Ul-related Madhhab Differences Reflected in mids Ikm, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: E.J. Brill, 2002), 293-313 and Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 86-120. A fuller critique of how these theoretical and pedagogical practices mitigated against the formulation of a legal code, especially in anaf law, is a major desideratum. 33 See al-Qudr, 4, 5, 7, 7, 9, 10, 11, 12, 12, 14, 14-15, 15, 15, 16, 16, 16, 18, 20, 21, 21, 22, 26, 28, 29, 31, 34, 34, 35, 39, 40, 42, 44, 46, 47, 47, 47-48, 54, 55, 55, 56, 56, 57, 58, 60, 63, 65, 65, 66, 67, 67, 67, 69, 73, 83, 86, 86, 86, 90, 92, 97, 101, 104, 105, 106, 107, 108, 108, 109, 109, 111, 111, 113, 114, 114, 116, 117, 117, 121, 123, 123, 124, 126, 127. Duplicate page numbers indicate multiple references on the same pages. 34 See al-Qudr, 27, 27, 30, 30, 33, 36, 42, 42, 44, 44, 47, 55, 56, 62, 67, 69, 70, 70, 72, 73, 76, 79, 79, 80, 85, 89, 89, 94, 104, 104, 105, 118, 121, 123, 123, 123. 35 See al-Qudr, 15, 15, 29, 30, 37, 37, 44, 62, 68, 70, 71, 73, 74, 77, 108. 36 See al-Qudr, 4, 5, 9, 20, 23, 56, 59, 60, 61, 61, 72, 81. 37 See al-Qudr, 21, 22, 50, 55, 61, 61, 65, 106-107, 119. 38 See al-Qudr, 20, 21, 22, 28, 38, 43, 81. 39 See al-Qudr, 22, 45, 61, 61, 88, 98, 108.

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Shaybn (6 occurrences),40 Ab anfah Ab Ysuf al-Shaybn (6 occurrences),41 Ab anfah and al-Shaybn (5 occurrences),42 Ab anfah Ab Ysuf (3 occurrences),43 Ab anfah and Ab Ysuf and al-Shaybn Zufar (2 occurrences),44 Ab anfah and Ab Ysuf (1 occurrence),45 Ab anfah al-Shaybn (1 occurrence),46 Ab anfah and Ab Ysuf al-Shaybn and Zufar (1 occurrence).47

The commentaries often adduce additional ikhtilf among these anaf authorities, and also between anaf authorities and figures associated with other schools, such as Ibn Ab Layl, al-Shfi, and Mlik. This adduction serves to exacerbate rather than resolve the ikhtilf mentioned in the Mukhtaar. The Ta of Ibn Qulbugh, one of the longest of the unpublished commentaries, exemplifies the compounding of ikhtilf. Ibn Qulbugh lists five different opinions on the issue of whether it is necessary to reperform wu and wash a cloth when it is affected by a small amount of najsah. 48 The comments come on a single line found in the Mukhtaar which does not contain an indication of ikhtilf.
Whoever comes into contact with a gross physical impurity [najsah] like blood, feces, urine, and wine, as small as or smaller than a dirhemsized spot, prayer is permitted with it. If it exceeds the size of a dirhem, prayer is not permitted.49

Ibn Qulbugh first cites the opinion of al-ad in the Jawharah, according to which if the small-sized spot of najsah is dry and leaves no trace then it is not considered polluting. Second, Ibn Qulbugh reports al-Zhids opinion in the Mujtab, which holds that the allowance is only made when the najsah is the size of a dirhem or less. This is contrasted with the opinion reported by al-Marghnn in the Hidyah, by Ab Jafar al-Hind, and in the Yanb of al-Shibl, that the najsah can be up to the size of the palm of the hand. Ibn
See al-Qudr, 68, 78, 82, 84, 103. See al-Qudr, 36-37, 39, 48, 61, 61, 93. 42 See al-Qudr, 27, 41, 43, 50, 123. 43 See al-Qudr, 24, 68, 115. 44 See al-Qudr, 2, 56. On the first reference, also see the text in al-Qudr, alMukhtaar al-Qudr(Multn, 1980), 2-3 and al-Qudr, Qudr arab fris afghn(Baluchistn, n.d.), 3. 45 See al-Qudr, 91. 46 See al-Qudr, 49. 47 See al-Qudr, 6. 48 For this section, see Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 6b-7a. 49 al-Qudr, 5.
40 41

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Qulbugh concludes with Only God knows [Allhu alam] and gives a further instance of ikhtilf between Ab anfah and Ab Ysuf, on the one hand, who argue that if the area is larger than a dirhem or palm then it must be wiped, and Muammad al-Shaybn, on the other, who says that it must be washed with water. Another example of the emphasis upon ikhtilf comes from the Khulah of usm al-Dn b. Makk.50 He reports ikhtilf between the anafs, on the one hand, and the Mliks and Shfis, on the other. The anafs hold that a little najsah, when it is ones own bodily waste, does not invalidate wu. He proceeds to give a catalogue of the types of najsah that qualify for this category, based on the text of the Mukhtaar: blood, urine, feces, and wine, all of which are allowed up to the size of a dirhem. usm al-Dn then adduces a contradictory opinion regarding blood: According to Ab anfah, if the najsah is blood of any amount which dries in the sun and loses its color, then it loses its character as najsah. Ab Ysuf states that if the spot of blood is mixed with thick najsah, then it retains its character as najsah. Muammad al-Shaybn holds that any najsah bigger than a dirhem must be washed with water regardless of whether it is dried blood or not. And Zufar is reported to have said that najsah of dirhem size is always non-polluting, regardless of the type of najsah, blood or otherwise, and that this is the opinion of Mlik and al-Shfi. Several commentaries also emphasize the ikhtilf surrounding the discussion of the timing of the Maghrib and Ish prayers, which is related to the length of the shadows and the red and the white of the sky. The passage taken from the Mukhtaar comes at the beginning of al-Qudrs discussion of alt.
The earliest time [to perform] the sunset [maghrib] prayer is when the sun sets. The latest time [to perform] it is as long as the twilight dusk has not disappeared. The twilight dusk is the white which is in the horizon after the red, according to Ab anfah. Ab Ysuf and Muammad say it is the red. The earliest time [to perform] the evening [ish] prayer is when the twilight dusk disappears. The latest time [to perform] it is as long as the dawn has not broken.51

Ibn Qulbugh mentions a number of conflicting adth reports supporting the opinions of both Ab anfah, and Ab Ysuf and Muammad al-Shaybn.52 On the one hand, Ab Bakr, Mudh b. Jabal,
50 51 52

See usm al-Dn, Khulat al-dalil fi tanq al-masil, Fiqh anaf 651. al-Qudr, 10. See Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 8a-b.

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and ishah all report that the twilight dusk is the white which is in the horizon after the red, as Ab anfah holds.53 This is also reported on the authority of Ab Hurayrah in the a of al-Tirmidh.54 On the other hand, Abd al-Razzq reports, on the authority of Ab Hurayrah, on the authority of Umar b. Abd al-Azz, that the twilight dusk is the red which is in the horizon, as Ab Ysuf and Muammad al-Shaybn hold.55 The red is also reported by Ibn Umar and others, according to Ibn Qulbugh, though he adds that the white is established using qiys on the authority of the Companions.56 Ibn Qulbugh reports additional ikhtilf over the requirement of Zakt for horses, as stated in the Mukhtaar.57 In addition to the general requirement of Zakt for horses, al-Qudr adds the opinion of Ab Ysuf and Muammad al-Shaybn specifying that Zakt is due only in the case of horses used for commercial purposes.
Ab Ysuf and Muammad say there is no Zakt for horses nor for anything such as mules or donkeys unless they are for commerce. According to Ab Ysuf and Muammad there is no almsgiving for suckling camels, lambs still carried by their mother, or calves under a year old, unless older ones are with them.58

According to Ibn Qulbugh, Qakhn and al-a cite the opinion of Ab Ysuf and Muammad al-Shaybn that no Zakt is required for horses, and generalize this to mean that horses are subject to Zakt only in so far as they, like donkeys and mules, fall under the category of commercial items. In the Mabs of al-Sarakhs, the Yanb of al53 For these and related reports, see al-kim al-Nsbr, al-Mustadrak al al-aayn, ed. Muaf Abd al-Qdir A (Beirut: Dr al-Kutub al-Ilmyah, 1990), 300-12. Also see the discussion in Ibn al-Humm, Shar fat al-qadr (Beirut: Dr al-Fikr, n.d.), 1:222-23. 54 For this report, see al-Tirmidh, al-Jmi al-a (Beirut: Iy al-Turth al-Arab, n.d.), 1:283-85. 55 For this report, see Abd al-Razzq, Muannaf, ed. abb al-Ramn alAam (Beirut, 1970-1971), 12-15. Also see the discussion in Ibn al-Humm, Shar fat al-qadr, 1:223. Ibn al-Humm also cites al-Awz, al-Muzan, and Ibn al-Mundhir as holding this opinion, on the basis of the report given on the authority of Umar b. Abd al-Azz. 56 For the adth given on the authority of Ibn Umar, see Mlik b. Anas, Muwa, ed. Muammad Fud Abd al-Bq (Beirut: Dr al-Kutub al-Ilmyah, n.d.), 1:6-7. Also see the discussion of these adth reports in al-Bbart, Shar alinyah al al-Hidyah, 1:221-22. 57 For the discussion of these opinions, see Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 17b. 58 al-Qudr, 25.

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Shibl, the Kanz al-daqiq of al-Nasaf, and the Khulah of usm al-Dn, however, it is the opinion of Ab anfah, i.e., that Zakt is required for horses, that is taken to set the general precedent.59 Ibn Qulbugh further reports that the opinion of Ab anfah is preferred for legal decisions, and he follows this with a lengthy commentary on the relevant passage in al-Nasaf. A similar overview of the ikhtilf concerning Zakt for horses is found in the al-Minan of al-Zaghwn, where al-aw is cited as reporting conflicting opinions and several different, diametrically opposed evaluations of the opinions of the anaf authorities are given.60 In many cases, the commentaries use ikhtilf to disclose, from the opinions listed in the Mukhtaar, some of the epistemological and methodological considerations often associated with ul al-fiqh scholarship. Of all the commentaries, that of Ab Nar al-Aqa, written within 50 years of al-Qudrs death, exemplifies the outright citation of authoritative sources. In the treatment of the section on Hibah in the Mukhtaar, for example, Ab Nar al-Aqa refers to a number of authoritative sources.
The basis [al] for permitting Hibah is the word of God and the adth of the Prophet. al-Qudr says there is no Hibah without an offer and acceptance because it is a contract. Mlik says Hibah is allowed without an acceptance based on a adth of the Prophet. This is in contradiction with the Qurn and other adth transmitted on the authority of Ab Bakr and ishah.61

Ab Nar al-Aqa discusses how the specific anaf definition of Hibah is derived using qiys and istisn. He cites the opinions given in the Mukhtaar to demonstrate the authoritative sources of anaf fiqh. He also indicates the anaf use of the sources in comparison with the interpretations of other madhhib. In other cases where there is no basis in the Qurn, such as the section on Waqf and Hermaphrodite [khunth], Ab Nar al-Aqa cites and evaluates numerous adth reports. He also explains the bases [ul] for divergent opinions among the anafs (including Zufar) and the opinions of others such as Ibn Ab Layl, Mlik, and al-Shfi.62 Along these same lines, the copy of
59 For these passages, see al-Sarakhs, Kitb al-mabs (Beirut: Dr al-Marifah, 1993), 2:186-188; al-Nasaf, Kanz al-daqiq (Multan: Maktabah Amddyah, n.d.), 58-59. A similar discussion can be found in al-Maydn, Lubb f shar alkitb, 1:143-45. 60 See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 154a. 61 Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 59b. 62 For another example of discussing the relative value of the ul, see the

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the al-Lubb from the al-Maktabah al-Waanyah includes a special section devoted to defining istisn and its use in the opinions represented in the Mukhtaar.63 Other commentaries, such as the Khulah of usm al-Dn, also use the ikhtilf of the anaf authorities to underline and illustrate certain sources and types of reasoning. For example, usm al-Dn cites the practice of the Companions as precedent for ikhtilf over the wiping of dried najsah. In the al-Minan of al-Zaghwn, additional adth reports are cited to support certain positions, such as the type of water to be used for purification or the minimum dry measure [] of produce which requires a tithe.64 Also, the reason for the ikhtilf between the anafs and other schools is explained in terms of using different authoritative sources, such as in the discussion of ri found in the al-Lubb of al-Yazd or the Shar mushkilt al-Qudr of Khwharzdeh.65 In another context, al-Zaghwn provides biographical details about al-Mughrah b. Shubah (d. 50/671), whom al-Qudr cites as support for the wiping of the forelock in wu.66 Ibn Qulbugh also cites by name and isnd the adth basis for certain anaf positions, and he commonly refers to textual criticism and specific collections of adth reports.67 Some commentaries do not identify the authoritative sources directly but make evident the basic principle or source [al] underlying the ikhtilf through the multiplication of examples that illustrate the ul. For example, several of the commentaries discuss the ikhtilf surrounding the issue of al-Qudrs statement that vomit filling the mouth
discussion of Qurn versus qiys in Jaml al-Dn Muammad al-anaf, al-Irshd: majmah fiqh madhhab al-Imm Ab anfah. Abdalyah library, 1454/8872 number, 95a. Although not strictly a commentary on the Mukhtaar, the extant version of this text (only through the section on alt) closely parallels the text of al-Qudr. 63 See al-Yazd, al-Lubb, al-Maktabah al-Waanyah, 225b. The four or so lines define istisn as when a person does something without knowing the source of the precedent because the transmitter has died but it is assumed that the precedent goes back to the Prophet Muammad. 64 See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 17b, 158b. 65 See al-Yazd, al-Lubb, Abdalyah 1616, 215b-216b. A similar discussion can be found in Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 143. Note that the discussion in Khwharzdeh, Shar mushkilt al-Qudr, Fiqh anaf 21, 56b mentions the Qurn as the source for the anaf position but does not mention the ikhtilf with al-Shfi. 66 See al-Zaghwn, al-Minan al Mukhtaar al-Qudr, 6b. 67 See, for example, Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 8a-b, 17a, and 18a.

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invalidates wu. The original statement is listed as one of several conditions that invalidate wu and no ikhtilf is given in the Mukhtaar for the opinion.
That which invalidates wu is everything that comes out of the two apertures, blood, pus, and purulent matter, when it comes out of the body and comes into contact with a place attached to the area of purity, vomit if it fills the mouth, and sleep while in a bed, reclining, or leaning against something that if it were moved away from the sleeper he would fall, and the mind being overcome by unconsciousness, madness, and a guffaw during any prayer in which there is bowing and prostration.68

The commentaries introduce the ikhtilf among the anaf authorities, stating that Ab Ysuf argues that vomit comes down from the head while Ab anfah and Muammad al-Shaybn say vomit comes up from the stomach.69 According to Ibn Qulbugh, if the vomit is considered to have come down from the head, like phlegm (which does not invalidate wu), then one might suppose that vomit also does not invalidate wu.70 By defining the issue in this fashion, Ibn Qulbugh provides a partial explanation for the ikhtilf among the three authorities. There is also a discussion in the commentaries about the disagreement over the definition in the Mukhtaarof vomit filling the mouth like that found in the Jmi al-mumart wa al-mushkilt of al-Kdr. One interpretation is that this phrase refers to one single vomiting of mouthsized volume, but another interpretation is that it refers to reaching the volume of a mouth-full of vomit over a more extended time period, like the course of a day.71 According to other commentaries, like that of Khwharzdeh, al-Yazd, and al-Zhid, the ikhtilf is misleading, for the principle behind the statement in the Mukhtaar is that the person vomiting is not able to control the vomit, thus making the vomiting analogous to urination, menstruation and other natural bodily functions over which a person has no control.72 The issue is not how much vomit
68 69

al-Qudr, 3. This distinction is made in al-Zaghwn, al-Minan al Mukhtaar al-Qudr,

11a.

See Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 3a-b. See al-Kdr, Jmi al-mumart wa al-mushkilt, Fiqh anaf 2829 (421ff). al-Maydn, Lubb f shar al-kitb, 1:12-13 cites al-Zhid as saying that it is the opinion of Ab Ysuf that filling the mouth can consist of several separate incidents of vomitting, while Muammad al-Shaybn ties the vomitting to nausea. 72 See Khwharzdeh, Shar mushkilt al-Qudr, Fiqh anaf 21, 44a; alYazd, Lubb, Fiqh anaf 1656, 12a-b; al-Zhid, al-Mujtab, Fiqh anaf 287, 7589, 14a-15b. Also see the various opinions in Ibn Qulbugh, Ta Mukhtaar al-Qudr, Fiqh anaf 801, 3a-b and al-a, Jawharah al-nayyirah, 1:45.
70 71

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but whether or not the person was able to control the vomit from exiting his body. According to these commentaries, the range of difference illustrated in the ikhtilf serves to define the parameters of the basic principle of non-control involved in the adjudication of the action. This type of comment, which makes explicit the underlying principle in the ikhtilf, may also be seen in a variety of other cases. Referring to al-Qudrs definition of the hermaphrodite [khunth], Ab Nar alAqa reports that urine is the principle in determining the gender despite the disagreement among the anaf authorities over this issue.73
When a first-born has a vagina and a penis, then it is a hermaphrodite [khunth]. If it urinates from the penis, then it is a boy, and if it urinates from the vagina, then it is a female. If it urinates from both of them and the urination of one of them precedes the other, the [gender of the] hermaphrodite is ascribed to what precedes. If both of them precede equally, then there is no taking into account of that which urinates more, according to Ab anfah. Ab Ysuf and Muammad say, the [gender of the] hermaphrodite is ascribed to that which urinates more.74

Several of the other commentaries report that according to Ab anfah, the quantity of urine indicates only that the urinary passage in one of the two genitals is larger than the other, whereas Ab Ysuf and Muammad maintain that the relative quantity of urine indicates the precedence of one of the two genitals over the other.75 A similar case is made of the ikhtilf over how to slaughter animals. Ab anfah says that the two jugulars, larynx and esophagus, must be cut while Ab Ysuf and Muammad al-Shaybn say that only one of the two jugulars must be cut.
Slaughtering [dhab] is performed on the throat [alq] and the neck [labbah]. The veins which are cut in the slaughter are four: the alqm, the mar, and the two jugular veins. When the slaughterer cuts these four things, the eating of the [meat of the] animal is permitted. If he cuts more than these four, it is likewise the case [that the eating is permitted], according to Ab anfah. Ab Ysuf and Muammad say that the cutting of the alqm, the mar, and one of the two jugular veins is necessary.76

73 See Ab Nar al-Aqa, Shar al-Aqa, Fiqh anaf 737, 111b. The same point is made by al-Maydn, Lubb f shar al-kitb, 2:212, citing the Hidyah, al-Mabb, al-Nasaf, and adr al-Sharah. 74 al-Qudr, 54. 75 See, for example, Khwharzdeh, Shar mushkilt al-Qudr, 54a and the discussion in al-a, Jawharah al-nayyirah, 2:15. 76 al-Qudr, 75.

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Despite the apparent disagreement, the commentaries specify that the principle here is the same, namely that the animal must be killed by spilling its blood, and cutting one jugular will accomplish the same as cutting two.77 In some cases the principle is not made explicit by the commentaries, but instead the interpretive reasoning used by the different authorities is disclosed through their conflict of opinions. Consider the discussion on the status of the Witr prayer. Although the Mukhtaar does not mention the ikhtilf here, several of the commentaries state that Ab anfahs opinion is at odds with that of Ab Ysuf and Muammad al-Shaybn over whether it is allowed to combine the Witr prayer with the Ish prayer. The passage from the Mukhtaar mentions the timing of the prayers.
The earliest time [to perform] the Ish prayer is when the twilight dusk disappears. The latest time [to perform] it is as long as the dawn has not broken. The earliest time [to perform] the Witr prayer is after the evening prayer. The latest time [to perform] it is as long as the dawn has not broken.78

Several of the commentaries explain that the statement in the Mukhtaar about allowing the Witr prayer to begin immediately after the Ish prayer is the opinion only of Ab anfah.79 The ikhtilf is explained as being due to Ab anfahs considering the Witr prayer to be required [wjib] whereas Ab Ysuf and Muammad al-Shaybn consider it to be a sunnah muakkidah. In the al-Sirj al-wahhj, it is explained that when the Witr prayer is considered required, it is allowed, according to Ab anfahs opinion, to be performed along with the Ish prayer, like performing the prayer of that time along with a make-up prayer. When the Witr is considered sunnah muakkidah, according to the opinion of Ab Ysuf and Muammad al-Shaybn, it is performed after the evening prayer as two sets of bowings and prostrations. 80 Another example of this indirect disclosure of the principle through the ikhtilf is found in the citation and interpretation of Q 9:60 in the
77 For these comments, see al-Lubb, Abdalyah 1616, 43a. Also see the discussion of slaughtering in Ibn al-Humm, Shar fat al-qadr and al-Bbart, al-Inyah al al-Hidyah, 9:484-98 and in Ibn bidn, Hshiyat radd al-mutr al al-durr al-mukhtr (Beirut: Dr al-Fikr, 1992), 6:293-310. 78 al-Qudr, 11. 79 See the discussion of the various positions in al-Maydn, al-Lubb f shar al-kitb, 1:57. 80 See al-Sirj al-wahhj, Dr al-Kutub al-Miryah, Fiqh anaf 216, 82b83a.

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discussion in the Mukhtaar of things that are permitted and not permitted in the giving of Zakt.
God the exalted said: Alms are only for the poor and the destitute...[the worker, those whose hearts are reconciled, slaves, debtors, those in the way of God, and the wayfarerit is an obligatory duty from God. God is Knowing and Just] [Q 9:60]. From these eight types [the category of] those whose hearts are reconciled is dropped, because God the exalted empowered Islam and did not require them.

The commentaries provide differing interpretations of the phrase f sabl Allh in this verse though the principle said to be illustrated in this verse is agreed upon by all of the authorities as referring to soldiers, travellers, or scholars. Other commentators remark that the reason for deleting those whose hearts are reconciled from the obligation of receiving Zakt is consensus [ijm].81 Conclusions: Authority and Identity By and large, the commentaries, within the pedagogical settings in which they were produced and used, seemed to have functioned to provide props for individual [shaykh] and institutional [madhhab] authority. The actual physical settings in which these texts were used is not always apparent from the texts themselves. Others scholars have reconstructed, from abaqt works, the cultural and social milieux in which the transmission, display, and storage of texts allowed for the construction of authority structures.82 Some recovery of such settings can also be gleaned from the physical character of the texts themselves, but a fuller picture of the relationship between teacher and students remains to be investigated.83 What these manuscript commentaries do
81 An analogous case can be found in al-Zaghwn, al-Minan, 257a where it is explained that the ruling that bad breath is a defect in a slave girl is based upon the principle that the slave girl is to be used for singing. A similar example is found in a comment on the opinion of Ab anfah that a woman with braids must wash her hair to its roots, adding that according to Muammad al-Shaybn a woman must wash her fingernails more carefully than a man, pointing to the principle that womens bodies require extra washing for ahrah. See al-anaf, al-Irshd, 20a. 82 See, for example, the analysis of abaqt works in Chamberlain, Knowledge and Social Practice in Medieval Damascus, 1190-1350, and the related work of Louise Marlow, Hierarchy and Egalitarianism in Islamic Thought, Cambridge Studies in Islamic Civilization (Cambridge: Cambridge University Press, 1997). 83 See, for example, the analysis of texts in Brinkley Messick, The Calligraphic

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disclose, however, is part of the interpretive context of anaf scholarship, and how authority is generated through the use of commentary. At times this authority takes the form of simple explanations of the Mukhtaar, using phrases like because of... [li-anna dhlik] or straightforward definitions such as it is ... such and such [huwa kadh wa kadh...]. Other times the commentaries provide linguistic explanations of unusual or key terms, and sometimes the commentaries criticize the received text of the Mukhtaar by making reference to manuscript variants. The citations of authoritative sources, which also includes citing the ul, criticism of adth, references to particular adth collections, and cataloguing of earlier scholarship on a given issue, allows the commentaries to establish their necessary critical rle vis-vis the text upon which they comment. Many of the commentaries purposefully build links among themselves, and between themselves and the Mukhtaar and other authoritative anaf texts.84 The application of other fur and ul works to the Mukhtaar by the commentaries is often made explicit. Ibn Qulbugh and al-Maydn each cite more than 30 different anaf texts and authorities in their interpretation of the Mukhtaar. As texts in the margins of the Mukhtaar, all of these various types of comments allow the teacher (who has access to the commentary) to demonstrate his authority and knowledge of anaf fiqh and its bases. In this sense, the commentaries might be seen to resemble a teachers manual (with the answers in the back, for example), allowing the teacher to establish his authority vis--vis the text and vice-versa. The recent Shihb f ta al-kitb is a particularly good, modern example of this pedagogical approach to commentary use. It provides, in a footnote type format, simple references for use by instructors in the teaching of the Mukhtaar. This form of commentary results, in part, in delineation of the content and outline of a Hanafi madhhab: the history of the madhhab, the positions of earlier scholars, the relation of later scholarship to the opinions of the early authorities, and the relation of the early authorities to the authoritative sources. Commentaries like that of Ibn Qulbugh provide a full spectrum
State: Textual Domination and History in a Muslim Society, Comparative Studies on Muslim Societies (Berkeley: University of California Press, 1993), esp. 23150. 84 On the relationship among these texts, see the beginnings of critical analysis in Abd al-akm al-Afghn, Kashf al-aqiq shar kanz al-daqiq (Cairo: alMabaat al-Adabyah, 1318).

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of anaf authorities. But the mere act of interpretation and teaching with anaf examples is a de facto definition, relative to the teacher and students, of anaf fiqh. Other commentaries, like that of Ab Nar al-Aqa, demonstrate how the Mukhtaar epitomizes the proper use of authoritative sources and reasoning. By explaining the ikhtilf, the commentaries use the Mukhtaar to exemplify anaf jurisprudence. They display how to reason like a anaf. They illustrate how the differing opinions can be seen to represent conflicting but equally authoritative or anaf examples of inducing principles [tall] from the canonical sources [ul]. The commentaries teach by example, showing how the ikhtilf of Ab anfah, Ab Ysuf, and Muammad al-Shaybn epitomize the anaf epistemology and methodology of reasoning. Authority generated by the commentaries is equivalent to identity: what gives the opinions authority is that they are identified as being consistent with and belonging to a particular madhhab. The pedagogical focus of the commentaries and their emphasis on ikhtilf can also be seen in other anaf works. On the one hand, the small but important theoretical work of al-Dabs is roughly contemporary with the work of al-Qudr and also focuses exclusively on the ikhtilf among the anafs, and between the anafs and other authorities. In a more systematic fashion, al-Dabs details the epistemological and methodological reasons for the specific identity of anaf opinions vis--vis those of other schools and authorities.85 On the other hand, roughly contemporary with al-Qudr is the much larger alMabs of al-Sarakhs with its possible but tenuous and underexamined relationship to the Al attributed to Muammad al-Shaybn. The more discursive fur style of al-Mabs might be compared productively to the Mukhtaar of al-Qudr and its treatment by the later commentaries. As well, the use of ikhtilf can be seen at work within the anaf madhhab, allowing students to discern the epistemology and methodology of anaf scholarship through the conflict of Ab anfah, Ab Ysuf and al-Shaybns opinions.86
85 This is based on a reading of al-Dabss Tass al-naar, and more solid conclusions might be based upon an examination of three longer but unpublished works by al-Dabs: his Kitb al-asrr wa al-taqdm lil-adillah f al-fur, his Kitb al-taliqah f masil al-khilf bayn al-aimmah, and his Taqwm al-adillah f ul al-fiqh. See Sezgin, 1:456 for information on manuscript holdings of these texts. 86 This position was argued in my al-Qudr al-Ul, presented at the annual meeting of the American Oriental Society, Madison, March 1994 and is discussed

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From the commentaries on the Mukhtaar, it seems that being a anaf is not a matter of imitating earlier opinions, and certainly not those of a single founder. Nor does the focus on ikhtilf in the commentaries seem to be a matter of resolution, synthesizing, or showing which position is most correct. Instead, the commentaries give clues and indications that to be a anaf means, in part, to be trained in fiqh through the medium of the anaf canon, which, in large part, includes and consists of these conflicting opinions. Insofar as identity is linked to authority, the notion of a anaf madhhab is delineated by its members, those who have gained authority and identity (whether in the texts, in a present pedagogical setting, or in an application of the law), who have learned to do fiqh with others acknowledged as anaf.

in preliminary terms in my Applying the Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in anaf Scholarship (Albany: State University of New York Press, 1996), 132-150. Further work remains to be done on the manuscripts and unpublished commentaries on the works of al-Dabs and al-Sarakhs.