Disagreements of the Jurists. al-Qadi al-Nu'man

through submission to the divine mystery.

      The world’s wisdom is, of course, not limited to religious texts. One need only think of the Loeb Classical Library which was originally endowed in 1911 by James Loeb, a German-born American philanthropist, and which is presently administered by the Harvard University Press. The initial volumes, edited and translated by T. E. Page, W. H. D. Rouse, and Edward Capps, were followed by the addition of many more volumes to the series. These early translations have been justly critiqued for sometimes bowdlerizing the original texts, and in recent years, the deceptive reversal of gender and expurgation of references to sexuality in the early translations have been corrected to reflect the original texts’ true meaning. The Loeb Classical Library has also been faulted on the ground of its minimal critical apparatus. By presenting the original Greek or Latin text on each left-hand page and an English translation on the facing page, the Loeb Classical Library has nonetheless made the literature of Greek and Roman antiquity accessible to the broadest possible audience, often to the delight of students if not to their teachers! Students and teachers alike will rejoice in the publication of Disagreements of the Jurists. Like the titles in the Loeb Classical Library, the paperback publication of Stewart’s work is an attractive, user-friendly, and approachable presentation of a time-honored text to a wide spectrum of English readers. At the same time, Stewart’s translation represents a painstaking and fruitful undertaking to present a reliable critical edition of the classical text in fidelity to all of the text’s secular and religious wisdom.

      The significance of the publication of a paperback edition, such as that of al-Qādī al-Nuʿmān’s Disagreements of the Jurists, ought not to be underestimated. During the nineteenth century, a Catholic priest Jacque Paul Migne compiled three series of classical Christian texts known collectively as the Patrologiae cursus completus, consisting of the Patrologia Latina, 221 vols. (1844–55); the Patrologia Graeca, first published only in Latin (85 vols., 1856–57); and subsequently published with Greek text and Latin translation (165 vols., 1857–58). Fr. Migne founded a press, the Imprimerie Catholique, at Petit-Montrouge, in Paris’ 14th arrondissement in order to make the sacred texts available at affordable prices for clergy. In 1868, a devastating fire burned the Migne publishing enterprise to the ground, and following that disaster, Migne found his efforts condemned by the Archbishop of Paris, a censure that was approved by a Vatican decree expressly denouncing Migne for encouraging the clergy to spend their Mass stipends for the purchase of books. Despite these natural and hierarchical impediments, Migne’s contribution was consummated. Although critical and more accurate texts have supplanted the original cursus completus, Migne’s inexpensive and widely distributed texts initiated a scholarly and popular renaissance in the understanding of the Christian tradition. In contrast to the unsuccessful attempt to thwart Minge by the abuse of religious authority, the sponsorship of the NYU Abu Dhabi Institute and of its Library of Arabic Literature project epitomizes the enlightened dedication of resources in the dissemination of the Islamic intellectual tradition.

      Prior to any pragmatic purpose, the paperback publication of Disagreements of the Jurists as a volume in Library of Arabic Literature advances the fundamental good of knowledge. To paraphrase Aristotle, owing to their wonder, human persons began to philosophize in order to escape from ignorance and not for any utilitarian end. Along with advancing a fundamental good, the publication of this classical Islamic text contributes to the development of legal theory that respects both unity and diversity in human experience, and it dispenses a healthy dose of sacred wisdom as a therapeutic cue of the spiritual sense of what it means to be fully human.

      John Coughlin

       Global Distinguished Professor of Religious Studies and Law, NYU Abu Dhabi, and Affiliated Faculty, NYU Law School

      John Sexton

       President Emeritus, New York University, and Benjamin Butler Professor of Law, NYU Law School

      ACKNOWLEDGMENTS

      In completing this work I have accumulated a large number of debts that I hope I will be able to repay. I would like to thank the Institute of Ismaili Studies, London, for providing copies of the two manuscripts of Ikhtilāf uṣūl al-madhāhib in their collections, and especially to Dr. Omar Alí-de-Unzaga, the academic coordinator of the Qurʾanic Studies Unit at the Institute of Ismaili Studies, for his invaluable assistance on this and many other occasions. I would like to thank my colleagues on the editorial board of the Library of Arabic Literature and the staff of NYU Press for their hard work, support, and camaraderie, without which this project would not have come to fruition. I particularly would like to thank Shawkat Toorawa and Joseph Lowry for their continual advice and assistance over many years. As the volume editor, Joseph Lowry provided crucial input regarding the translation of terms related to legal hermeneutics as well as invaluable help in rendering al-Qāḍī al-Nuʿmān’s dialectical style in Arabic into intelligible English. He saved me on several occasions from making serious blunders in translation; without his indefatigable attention, the translation would certainly have suffered. Finally, I would like to thank my dear wife, Marmar, and my children, Noor and Ali, for enduring patiently the labor that preparing this volume has entailed. Support for research was provided in part by the Bill and Carol Fox Center for Humanistic Inquiry of Emory University and by the University Research Council of Emory University.

      INTRODUCTION

      Al-Qāḍī Abū Ḥanīfah al-Nuʿmān ibn Muḥammad ibn Aḥmad ibn Ḥayyūn al-Tamīmī was a prominent judge, jurist, and author of the Fatimid Empire (296–567/909–1171), in many ways the young Fatimid state’s chief ideologue for nearly half a century. He, more than any other scholar, founded Ismaʿili law as a discipline, in addition to writing extensively on history, theology, law, legal theory, Prophetic reports, and commentary on the Qurʾan. His legal writings remained the main references in this field throughout the Fatimid period and after; they are still widely recognized as authoritative by both the Bohra and Nizari Ismaʿili communities.¹ The present work is a translation of one of al-Qāḍī al-Nuʿmān’s most important legal works, Ikhtilāf uṣūl al-madhāhib, a title which may be literally rendered “The Islamic Legal Schools’ Conflicting Principles of Interpretation.” The work ranks among the most important extant discussions of Islamic legal theory from the fourth/tenth century.

      Since the early twentieth century, a small number of scholars have investigated al-Qāḍī al-Nuʿmān’s life, establishing the main outlines of his career and his bibliography.² Al-Qāḍī al-Nuʿmān’s father Muḥammad, who was born in 259/872–73 and died in Rajab 351/August–September 962, had been a jurist in the Sunni Mālikī legal tradition, living in Qayrawān. Poonawala argues that the father converted to Ismaʿili Shiʿism before the establishment of the Fatimid state in 296/909 and suggests that al-Nuʿmān was raised as an Ismaʿili. Al-Qāḍī al-Nuʿmān’s birthdate is not known but has been estimated to be in the last decade of the ninth century. He was certainly an Ismaʿili when he entered the service of the Fatimids at a relatively young age in 313/925, serving for nine years during the reign of the first Fatimid caliph, al-Mahdī (296–322/909–34).

      One premodern author, the Egyptian historian Ibn Taghrībirdī (d. 815/1412), reports that al-Qāḍī al-Nuʿmān had been a Ḥanafī jurist before he converted to Ismaʿili Islam. He reports, erroneously, that the Ḥanafī legal school (madhhab, pl. madhāhib) had been dominant in North Africa until the Zirid ruler al-Muʿizz ibn Bādīs (1016–62) imposed the Mālikī legal school.³ The Ḥanafī legal school was certainly represented in Tunisia, but the main population had been Mālikī from early on in the third/ninth century. Ḥanafī influence came from the Abbasid capital, Baghdad, partly through the patronage of the local dynasty, the Aghlabids (184–296/800–909). Ibn Taghrībirdī appears to have his facts wrong, and the suggestion is usually dismissed as unfounded.⁴

      However, modern scholars overlook an important piece of evidence that may have been behind Ibn Taghrībirdī’s assertion but which he assumed was too obvious to mention: the fact that the judge’s name, Abū Ḥanīfah al-Nuʿmān, matches exactly that