The American Journal of Islamic Social Sciences -1. 5, No. 2, 1988 181 Sarakhsi’s Doctrine of Juristic Preference (IstihsZln) as a Methodological Approach Toward Worldly Affairs (AhkZlm al=Dunya) Husain Kirssim In the present investigation, we shall develop systematically Sarakhsrs doctrine of Juristic preference from his Mabsii?, Usiil and Biib al-Muwiidah of Sharh al-Siyur a1 Kubir and demonstrate how Sarakhsi establishes its relevance as a methodological approach toward worldly affairs. The investigation is carried out in four parts: In the first part, we shall relate Sarakhsi’s doctrine of juristic preference (istihiin) with his concept of treaties (muwiidah). According to Sarakhsi muwSidah is an autonomous discipline and its main focus is worldly affairs as relations (mu5mht ) of Muslims with other nations. In the second part, it is investigated how Sarakhsi strives to see the justification for the application of the doctrine of juristic preference to it independently of the doctrine of systematic reasoning (qiyfis) by establishing the ’ilk2 (effective reasoning) of the doctrine of juristic preference on the basis of asl derived from the Qur’iin and Hadith. In the third part, we shall discuss how Sarakhsi systematizes the doctrine of juristic preference by analyzing the ’illa employed by it in various forms and shows that it is connected with asl. Finally, in the fourth part, we shall show how Sarakhsi justifies the employment of the doctrine of juristic preference as a methodological approach toward muwiidah and worldly affairs. Dr. Husain Kassim is Associate Professor of Philosophy at the University of Central Florida, Orlando, FL. 182 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 PART I SARAKHSf ' S DOCTRINE OF JURISTIC PREFERENCE (ISTIHSAN) AND THE CONCEPT OF TREATIES (MUWADAA) Section I: Sarakhsi's Doctrine of Juristic Preference and Its Relation with Treaties as Developed in His Bab al-Muwiida 'a of Sharh al-Siyar a1 Kabir Generally, scholars of Islamic jurisprudence assume that Sarakhsi (483 A.H./1090 A.D.) was a follower of Shaybani (189 A.H./804 A.D.) and, at most, an expounder and commentator of his works, although his stature is raised by some next to those who are in the ranks of associates of Abii J'afar al-Tahiiwi (239 A.H./767 A.D.)' It is said that he reached the status of Abii J'afar al-Tahiiwi (239 A.H./853 A.D.), Abii Bakr al-Khawssiif (291 A.H./903 A.D.), Abii Hasan al-Kar~- (340 A.H./951 A.D.), al-Pazdawi (482 A.H./1089 A.D.) and others;p however, such statements are not based upon any systematic analysis of his works. In fact, Sarakhsi derives his material from all these sources, even from Abii Yiisuf (182 A.H./798 A.D.) and Shsifi'i (204 A.H./820 A.D.). Shaybini does not like to refer to juristic preference in his works because of the enmity which took place,3 while others launched a great rebuttal against the upholders of the doctrine. Sarakhsi is not concerned with such matters at all. He states the opinion of Abii Yiisuf whenever he finds it necessary and brings him in support of his own opinion when it differs from the opinion of Shayb~ini,~ and albeit ShZifi't is opposed to the doctrine of juristic preference, Sarakhsi occasionally cites the opinions of ShiifiF in order to support his own opinion against Shaybw- or others. SarakhsTs main concern is how to deal with the issues and contents of rnuwiidab (treaties) from the point of view of the doctrine of juristic preference6 within the framework 'KhalIl Mays, Fahiiris al-Mabsit, (Beirut: Dir al-Ma'kif, 1980), p. 10. %id., p. 7. 3See Hsji Khalih, KashfaZ-Zumin (Istanbul: Maarif Mat-baasi, 1943), p. 46. 'See, for example Sarakhsi, Sharh al-Siyar al-khbir, Vol. V (Cairo: Dir al-Ma'irif, Wl), p. 1713, 1884, 1922,2074; Vol. IV (Hyderabad: D2iri al-Ma'kif, 1335-36 A.H.fl916-17 A.D.), p. 18, 129, 152, 245. 51bid., Vol. V, pp. 2151, 2232-33; Vol. IV, Ibid., pp. 294, 346: and also Sarakhsi, Usd a Z - S a W - ed. AbE Al-Wafs al-Afghh- (Cairo: Lejnat Ihyi al-Ma'grif al-Nubh-ya, 1954), %id., Vol. V, pp. 1813, 1816; Vol. IV, Ibid., p. 82, 84. In the latter case, he even asserts p. 254. that the doctrine of juristic preference is based upon tawassu'. Husain Kassim Sarakhsi's of Juristic Preference 183 of and on the basis of shari'ah law, providing formal unity to the subject matter of treaties. As a matter of fact, the main theme of Sarakhsi's Biib al-Muwiidab seem to establish the concept of treaties and expound it from the point of view of the doctrine of juristic preference as a methodological approach.s In the present investigation, we shall focus on these two main features as they emerge from the analysis of the text. It is appropriate to clarify at this point that Sarakhsi, in his Mabsit, follows Shayblni based upon the fact that we find parallels with the ordering of chapters and themes as dealt with by Shaybiini in his Jiirni' ul-Sughir and Kitiib al-Asl. But, upon closer investigation it becomes evident that in Shaybim7s KitGb al-Ad and Sarakhsi's Mabsiit the chapter on the doctrine of juristic preference is to be found in a different c~n tex t .~ The former is followed by discussions regarding laws dealing with religious matters (uhkiirn al-&n) while in the latter, in contrast to and in anticipation of what Sarakhsi has already laid down in his Usiil, we find the discussions followed not only by the laws related to religious affairs, but also by the laws regarding worldly affairs (ahkiirn al-dunyii) such as the laws related to apostates, dhirnrnis, unbelievers, rebels, etc?O In the earlier works, Sarakhsi has not yet brought out the concept of treaties as an autonomous discipline and in juxtaposition with the doctrine of juristic preference. But, in his Z3ub al-Muwiidab, Sarakhsi directly brings out his views according to the doctrine of juristic preference which is different from the doctrine of systematic reasoning!' From this, especially considering Shayblni's al- Siyur al-khbir is lost," it is understood that Sarakhsi, in his Biib al-Muwiidab, uses the doctrine of juristic preference as a methodological approach on the basis of its 'ilh which is of entirely different nature from that of the doctrine of systematic reasoning. Section 11: Basis and Justification of Sarakhsi's Concept of Muw& 'a (Treaties) 'For more elaboration see Hans Kruse, "The Foundation of Islamic International Jurisprudence (Muhammad al-Shaybini-Hugo Grotius of the Muslims) ," Pakistan Historical Society J o u m l Vol. I I I , Part iV, 1955, p. 20, 22, and 2% %See note 6 above. *See Muhammad bin Hasan al-Shaybhi, Kit& al-As1 (%b al-Zstih&), ed. A G al-Wafi loSarakhsI, W s L t Vol. X (Beirut: D& al-Ma'&if, 1324-31 A.H./1906 A.D.) pp. 2-3. ''See note 6 above. '*See Munajjid, the editorofsharh ul-Siyar u f - m i r , %l. I (Cairo: D& al-MaWf, 1971) (Cairo edition), p. l7. Munajjid states that Shaybkh text of Sharh al-Siyar ul-kizbir is lost. Thus, we have at hand only ShayWs J&' al-Saghir which is printed on the margin of AbU YusUfs Kitiib al-1Yharij' (Cairo: BUl%, 1302 A.H.Il884 A.D.). Al-Afghini, Vol. III. Part 11 (Hyderabad: Da'iri al-Ma'Crif Wl), p. 2. 184 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 In his Mabsiit, Sarakhsi makes it very explicit that muwiidab deals solely with matters concerning mutual relations (mu*mliit) between Muslims and other nations:3 although it is to be justified on the basis of s h d a h law and conducted within its framework. These other nations, according to Sarakhsi, are dhimmis, the inhabitants of enemy territory, apostates, rebels, Jews and Chri~tians.'~ In his Biib al-Muwiidab, Sarakhsi focuses on the basis of such a concept of muwiidab and asserts that the perspective of mutual relations between Muslims and other nations, such as the matten of promise of security, dhimma etc., is of a broad nature aimed at facilitating mattersJ5 Thus, in order to establish the concept of an autonomous discipline of m&b, Sarakhsi makes a clear distinction between religious a f h h (ahkiim al-din), which, strictly speaking are concerns only of Muslims and the mrldly affairs (izhkim al-dunyii),'6 which are not the sole concerns only of Muslims but of other nations as well. The muwiidab deals with and belongs to worldly affairs. Thus, the rnuwiidab, by its very nature, demands flexibility to be dealt with on its own accord. The religious affairs are, strictly spealung, meant only for those who are Muslims, wherein the strict enforcement of laws become obligatory, whereas muwiidab is pursued with a wider perspective in mind and thus needs to be conducted with flexibility. This is achieved by what Sarakhsi calls tawassu: which literally means extension. Sarakhsi is consistent in bringing out this concept both implicitly and explicitly in his discussions as well as by stating it as a premise for the establishment of muwiidab as an autonomous discipline. Since the nature of worldly affairs has a broader perspective, it needs to be conducted by extending the doctrine of systematic reasoning and thus, according to Sarakhsi, the need for the doctrine of juristic preference. But, nonetheless, the basis of such a doctrine as a methodological approach should be found within the framework of sharI'ah as is the case with the doctrine of systematic reasoning. Although in his Usiil Sarakhsi initially considers the doctrine of juristic preference as a kind of systematic reasoning and as such not different from it, he strives in his Mabszit and Biib al-Muwiidab of Sharh al-Siyar al-Khbir to find the basis of the doctrine of juristic principle not in the doctrine of systematic reasoning, but in the origins of law itself, namely, the Qur'iin, and Hadith. Thus, as we shall see later, in his Mabsiit, Sarakhsi sets forth the argument for the justification and validity of the doctrine of juristic prekrence. lsSarakhsi, MabsCt, Vol. XII (Beirut: D& al-Ma'irif, 1324-31 A.H./1906-12 A.D.) pp. 2-3. "Ibid., p. 2. W p . Cit., Sharh al-Siyar al-kkbir, Vol. V, p. 2210; Vol. IV, p. 332. lsIbid., Vol. V, p. 2282; Vol. IV p. 378: trans. 404. "See note 6. Husain Kassim Sarakhsi's of Juristic preference 185 Section III: Nature of the Treaties (Muwiida'u) and its Incorporation Within the Framework of Shari'ah Law In the chapters I, II, and V of Biib uZ-Muwiidab of Sharh al-Siyuzr al-mir, Sarakhsi discusses the nature of muwiidab as being the legal contract whose main purpose is to Edcilitate and maintain mutual relations between turo parties. The treaty should be signed by both parties specifically stating all the stipulations to be observed and executed during the specific time period before it is signed and sealed. It is conceived in the nature of a binding contract for both parties. Thus, Sarakhsi provides its formal unity and its legal structure and arrangement from the superstructure of shaxi'ah law as it emerges from the Qur'iin and Hadith?s In essence, the legal structure of muwiidab is incorporated into sharhh law. Sarakhsi shows how to extend and incorporate the rnuwiidab formally into shari'ah law in his Biib uZ-Muwiidab. As a methological approach, such matters can only be dealt with by the doctrine of juristic preference, since muwiidab is wider in its perspective and deals with other nations in worldly affairs rather than only in religious affairs. Thus, by necessity, we have to extend the doctrine of systematic reasoning by the doctrine of juristic preference. Sarakhsi does such with the notion of stipulations (shurt) of treaty (muwiidab). Kruse gives an example of it from Sarakhsi Biib AZ-Muwiidab, but does not relate it to the doctrine of systematic reasoning and the doctrine of juristic prefemce, thus not realizing its import and significance from that standpoint: The proposition b2u (on, against) indicates the stipulation for a certain condition. When e.g., the rnuwiidab is entered into for the period of three years izZu three thousand dinars, it is a proof that the fulfillment of the muwiidab is the condition for the payment of the tribute %,reed upon. There is full accord between the wonlugs of the treaty and the actual nature of the muwiidab so that in this case nothing would justify a deviation from the rules for the dissolution of a treaty as laid down by istihiin (the doctrine of juristic preference). On the other hand, however, the proposition bi (with) denotes that a consideration has been agreed upon. The conclusion of a muwiidab for the period of three years bi-hundred dinars for every year would mean that in this case the tribute is explicitly intended to be a consideration. The muwiidab is a barter contract on the strength of explicit agreement. It can be treated unhesitantingly in analogy (qiyiis) to a leaseJg IBee note 7 above. Hans Kruse elaborates on this aspect at great length, but he is not W i d . , p. 31. specific enough. 186 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 Kruse emphasizes the secondary nature of rnuwZldatz when it is to be considered a treaty, and when it is a simple barter contract. This is, no doubt, an important point in the treaty but a more significant aspect of the treaty is that as a part of rnuw6dad, the former case is dealt with according to the doctrine of juristic preference and the latter according to the doctrine of systematic reasoning. What Sarakhsi shows is that in the matters of rnuwatz, as we find it in the former case, the emphasis is upon the fulfillment of treaty and facilitation of mutual relations between the two nations and its basis should be widened and can only be dealt within the doctrine of juristic preference rather than the doctrine of systematic reasoning. What emerges from the treatment of this theme is that the rnuwiidab is to be approached methodologically by the doctrine of juristic preference, as the rnuwiidad by its very nature is wider and broader, which forces us to extend it to a different ‘illa not provided in the doctrine of systematic reasoning. PART I1 ‘ZLLA (EFFECTIVE REASONING) OF THE DOCTRINE OF JURISTIC PREFERENCE AND JUSTIFICATION FOR ITS EMPLOYMENT IN MUWADAA Section I: Sarakhsi’s Definition of the Doctrine of Juristic Preference and the Basis of its ‘Illu (Effective Reasoning) in the Origins In his Mubsiit Sarakhsi defines istihsiin (the doctrine of juristic preference) as the abandonment of the opinion to which reasoning, by the doctrine of qiyiis (the doctrine of systematic reasoning), would lead, in favor of a different opinion supported by stronger evidence and adapted to what is accommodating to the people.z0 Sarakhsi definitely argues for the use of the doctrine of juristic preference only in this sense and seeks support for it directly from the Qur’ln and Hadith. Thus, according to Sarakhsi, such a departure from the doctrine of systematic reasoning is only to be based upon evidence found in the Qur’ln and Hadith. In anticipation of his Biib ul-Muwiidub, we find that Sarakhsi argues for the doctrine of juristic preference on a different ‘illu (effective reasoning) rather than its employment to be based simply upon qiyiis (systematic reasoning) or ijmii ‘(general concensus) or dariim (necessity) though the latterz1 is not necessarily excluded in the use of the doctrine of juristic preference, as we shall see later. ZoOp. Cit., p. 145. Z’Ibid., Vol. V, pp. 1689, 1694, 1724; Vol. IV, pp. 2, 5, 24. Husain Kassim Sarakhsi’s of Juristic Prekrence 187 According to sarakhsi the FZla for its employment in the doctrine of juristic preference is convenience, facilitation and what is accommodating to the people. It strives and seeks for equanimity and flexibility. As a result, hardship is left behind.** Sarakhsi provides the evidence for this FZla (effective reasoning) first from the Qur’iin and then from the Hadith. From the Qur‘h he cites, “God intends every facility for you and not hardship,”P3 and narrates the following tradition: “it is better that there is an ease in your religion.”*l Thus, Sarakhsi seeks support for the basis of the doctrine of juristic preference and its independence from the doctrine of systematic reasoning directly from the Qur’iin and the Hadith. Section II: ZZh (Effective Reasoning) as The Basis for the Dif6erences Between the Doctrines of Systematic Reasoning and Juristic Preference In his Usid, Sarakhsi, while discussing the nature of $ZZu as employed in the doctrines of systematic reasoning and juristic preference, first subsumes both of them under the general category of ijtihid (exercise of legal reasoning) and brings out support for the use of qiyiis (systematic reasoning) and ray (opinion) or what he later calls it as istihun (juristic preference in the technical sense) from several traditions. For instance, “when the Prophet sent Mu‘iidh to Yemen, he asked: how would you rule the people? Mu‘iidh replied: by the book of God. The prophet asked him further: if you do not find any guidance in the book of God, what will you do? Mu‘Wh replied: by the Sunna of the prophet. Thereupon the prophet asked him, if you do not find it in the Sunna, then what will you do? Mu-hfh replied: I shall exercise my own individual opinion (zjtuhadu T U ) ~ ) . ” ‘ ~ Thus, when there are no precedents set forth in the Qur’in and Hadith, the exercise of individual opinion is allowed. In the section Qiyiis and Zstihsiin of USGZ,*~ Sarakhsi argues for the validity of the doctrine of systematic reasoning (qiyiis) on the ground of its FZla (effective reasoning) as being ziihir (apparent),” but raises a further point in terms of its being quwi (strong) or &‘if(weak). The effective reasoning employed in the doctrine of systematic reasoning may be apparent but not necessarily strong. When such is the case, Sarakhsi argues for the exercise of individual opinion (my) on the ground of the strength of its 'ills and concludes that W p . Cit., Mabsit, p. 145. s3The Holy Qur’h, Yusuf Ali, trans., (Brentwood, MD: Amana, 1983. P’BukhGri, him, 34. P5SarakhsI, Usil al-Sarakhsi Vol. II ed. Abii al-Waf; al-Afghk- (Cairo: Lajnat Ihyi P61bid., pp. 199-223. P’Ibid., pp. 200-201. al-Ma‘Grif al-Nu‘miIniya, 1954), p. 130. 188 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 the abandonment of qiyiis is allowed in favor of istihiin on the ground of stronger evidence athur) . La In his Mabsiit, Sarakhsi asserts that istihiin (juristic preference) is a kind of qiyiis (systematic reasoning) and both are, in fact, not different from each other except that the ‘illa (effective reasoning) employed in both of them is of a different nature; in the former it is apparent (julli) but weak (&‘@ in its evidence (uthr); in the latter it is concealed (khuj?) but strong (qawi) in its e~idence.2~ But, in Mabsiit, Sarakhsi goes further and tries to establish that such a nature of ’ilh of the doctrine of juristic preference consists in and is founded upon the notion of comfort, ease, equanimity and what is accommodating to the people.3o Thus, Flla employed in the doctrine of juristic preference is sometimes on stronger ground, and, as a matter of fact, when considered as that which is implicit or concealed from what is explicit or apparent, the course should take precedence according to the latter. Sarakhsi makes this clear by giving an example that “this world” is to be considered as an ‘ilk which is apparent but the “other world” is to be considered as an flla which is concealed in the sense of purity and perfe~tion.~’ Thus, when employed as an implicit ‘illa, it takes precedence and prominence over the ‘ilk which is apparent and hence, in such a case, when used as an ’illa, it is to be considered stronger and employed therewith. Thus, the doctrines of systematic reasoning and juristic preference both are similar in the respect that they both are based upon the concept of ’illa (effective reasoning), but are different in the nature of ‘illu they employ and thus different in their methodological approach. Section 111: Sarakhsi’s Defense Against S&fi‘iS Rebuttal of The Doctrine of Juristic Preference on the Basis of the Concept of Effective Reasoning and the Conditions for its Validity As already known in the history of Islamic jurisprudence, ShBfii (204 A.H./820 A.D.) was the greatest opponent of the doctrine of juristic pn&xnce (istihiin). In his Usiil, Sarakhsi, while discussing the nature of the doctrines of systematic reasoning and juristic preference, deals with the objections raised by Shafii in the Ibtiil al-lstihsiin (the Rebuttal of the Doctrine of Juristic *%id., p. 201. 2 9 0 p . Cit., Mabsiz, p. 145. ’@bid., p. 145. W p . Cit., Usiil al-Sarakhsi, p. 203. H u h Kassim Sarakhsi’s of Juristic preference 189 Preference) of his Kit& uZ-Ummsz and Risiiluss and shows by analyzing that istihiin, contrary to what S W i maintains, is based upon IZlu or what Sh5Ri terms as khubur (narrative be it the text of the Qur’in or S~nnah).~* perhaps that is one of the reasons that Sarakhsi asserts that the doctrine of juristic preference is, in fact, a kind of qiyiis or systematic reasoning as Shfi‘ himself maintains that various kinds of systematic reasoning are included under the term qiyiis. According to Shafi‘i, “they differ from one another in the antecedence of the analogy of either one of them, or its source or the source of both, or the circumstance that one is more clear than the Sarakhsi analyses all these aspects at great length in his Us12 and shows that what Shiifi‘i brings out as objections are really no objection^.^^ Shafi‘i maintains that “no one (other than the prophet) is allowed to make a decision except by istidlal.. . Nor should anyone make use of istihiin (the doctrine of juristic preference), for to decide by istihiin means initiating something himself without basing the decision upon a parallel example.37 It is not permissible for everyone to exercise istihiin, for only the scholars dfirqahii’) -not others - may give an opinion and the scholars hold that a narrative (whether it is a text of the Qur’iin or Sunna) must be followed. If narrative is not found, analogy might be applied on the strength of a narrative, for if analogy were abandoned, it would be permissible for any intelligent man, other than the scholars, to exercise istihsiin in the absence of a na r ra t i~e .~~ If the jurists were to give an opinion (my) based neither on a binding narrative nor on analogy, he is more liable to commit a sin than an ignorant person, if it were permissible for the latter to give an opinion. No one is permitted (after the death of the prophet) to give an opinion except on the strength of legal knowledge which includes the knowledge of the Qur’a, the Sunnah, general consensus, narrative and analogy based upon these (texts). . .39 32See Muhammad ibn Idrk S m i , Kit& al-Umm, Wl. W (Cairo: Biiliq, 1331 A.H./l%8 3 3 S e e Muhammad ibn Id& ShZi‘T, Risila, trans, Majid Khadduri, Islamic Jurisprudence, 34Ibid., 304. 35Ibid., p. 308. J 6 O p . Cit., Us2 al-Samkhsi, p. 140. 570p. Cit., IsIamic Jurispnrdence, p. 70. 3*Ibid., pp. 304-305 39Ibid., p. 306. A.D.), pp. 267-69. SkifiTs Risiila (Baltimore: The Johns Hopkins Press, 1961), pp. 304-332. 190 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 Shlfi‘i objects very strongly to the doctrine of juristic preference and pronounces its complete rejection on the very basis which the upholders of the doctrine maintain as its justification, as he maintains that it is not valid for the jurists to rule or adjudicate by exercising i s t i h ~ i i n ; ~ ~ for it is solely to be done on the basis of the textual support and istihiin cannot be considered as being included in it. It is in order to deal with this issue systematically that Sarakhsi first establishes in his Mubsiit that the ‘illu of the doctrine of istihsiin is based upon and derived from the Qur’ln and Hadith. Secondly, in order to do away with all the objections which were later raised in very developed form from Shlfi‘i and Miliki schools of thought, Sarakhsi in his Usiil explains that the principle, the circumstances or necessity involved in any decision, whether exercised by qiyiis, ru), or istihsiin, is already accompanied in the command itself and provided in the Qur’ln or the Sunnah and are already inclusive with it,41 especially in the matters of prayers and religious sanctions (‘ibiidiit). Thus, here the Flla, whether based upon circumstances or necessity, is already included and as such it is the part of the qiyiis, ray or istihsiin. Sarakhsi further analyses the case that, if there is a difference of opinion with regard to the matter, one has to refer to God and his Prophet. Sarakhsi says that in those sources it is already implied that the exercise of qiyiis is valid, since the difference of opinion itself is with regard to and in relation to the command or shari’ah law and takes place in the process of considering whether its textual interpretation is based on the Qur’ln or the Sunna. The condition or the circumstances in which the difference of opinion arises is already inclusive and accompanied in qiyiis; thus, the exercise of it is recognized and necessarily requires that it is inclusive in the qiyiis itself.42 Sarakhsi makes this point more explicit when he comes to discuss the validity of the doctrine of vmii‘ (general consensus) as opposed to my. It is said, Sarakhsi argues, “wherever general consensus exists, it is sufficient and there is no further need for any exercise of opinion (my), qiy6.s or istihiin, as the former implies certainty whereas the latter does not nq3 Sarakhsi defends istihiin on the basis of FlZa and the distinction which he has made of apparent and latent Flh. According to Sarakhsi, the claim that the general consensus is certain, whereas ray, qiyiis or istihsiin is not, is merely a claim without any evidence. There is no evidence found against ruy, qiyiis or istihsiin (in the book of God),” as the establishment of it is found in consideration with ‘%id., p. 305. ‘lop. Cit., Usiil al-Samkhsi, pp. 1-129. ‘*bid., pp. 127-129. ‘%id., P. 132. “bid., p. 138. Husain Kassim Sarakhsi's of Juristic Preference 191 the meaning (muZni) based on textual interpretation. He continues that there are two kinds of 'ilk; namely, apparent and concealed; for the understanding of the apparent 'ilk, one depends upon the concealed 'ilk, as the understanding of it depends upon its meaning. For example in the case of gambling, the apparent 'illa is provided by its form, but the concealed 'illa depends upon the meaning.45 Thus, the question of certainty itself is meaningless. It is rather the evidence or the binding proof of the doctrine of ijmii'or the kind of qiyiis which is the heart of the matter. Thus, it is the 'ilk (apparent) of the qiyiis or the 'illa (concealed) of the istihsiin which provides the binding proof (evidence) even if they do not provide the certainty: their exercise is valid and also permitted as we find it also with the doctrine of general consensus, such as, the cases of traveling for the purpose of business or fighting against the enemy, but such things are not matters of knowledge with certainty. With this it becomes evident that any kind of qiyiis is based upon the binding proof from the origin (ad) and derives its laws based upon 'ilk (effective reasoning). In short, Sarakhsi employs the concept of 'illa for the doctrine of qiyiis over the certainty of the doctrine of ijmiiygeneral consensus) and the same can be applied for the validity and employment of the doctrine of juristic preference, since it is one kind of qiyiis, or to put it in other words, an extension of qiyiis and the sole ground of its 'illa, which is different in its nature from that of the proper and technical concept of the doctrine of systematic reasoning, and which lies in facilitation, laxity, ease and comfort. Thus, Sarakhsi quite successfully clears the way against Shiifi'rs position, as once it is established that the 'ilk (effective reasoning) employed in the doctrine of juristic preference is based upon the evidence from the origin (ad) and in no case is it arbitrary, contrary to what Shiifi'i maintains against the doctrine of juristic preference. Additionally, Sarakhsi specifies the following necessary conditions for the validity of the doctrine of systematic reasoning, which are equally applicable to the doctrine of juristic preference. The first four conditions are specified by Sarakhsi in his U ~ i i l ~ ~ and the last one in his Biib al-Muwiidaiz of Sharh al-Siyar al-fibir." I . That the decision (hukm) reached by origin (asl), namely, the Qur'in, itself is not determined on the basis of any other nas (namely, the Sunnah, ijmii' or qiyiis). That the effective reasoning ('illa) employed to arrive at any kind of qiyiis is not established in the same measure that 11. '%id., pp. 138-139. '%id., pp. 149-150. "Op. Cit., Sharh al-Siyar al-Kabir, p. 225. 192 III. Iv. V. The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 can be transcend in itsfurii: (the branches of laws) the origin (id) itself. That after the use of effective reasoning, the laws based upon textual interpretation remain the same as they were before. That effective reasoning is not applied to reject the wordings of the text, as the text itself remains prior in its wordings and meanings. There is no further deduction of systematic reasoning from the previous one, but it should be based upon and derived from the origin (ud). In other words, the 'ilk of any kind of qiyiis can never become the basis (nus) of another decision and, hence, under no circumstances can it take the place of the origin. Section IV Constitutive Elements of Treaties (Mu&'u) as the 7Zla for the Employment of the Doctrine of Jursitic Preference: Discussions with regard to the doctrine of systematic reasoning (qiyiis) and the doctrine of juristic preference (istihiin) as based upon apparent and concealed notions of 'iZZu (effective reasoning) respectively are found in the history of Islamic jurisprudence for the purpose of broadening the scope of Islamic jurisprudence, but they are generally found within the scope of ahkiim ul-din (religious affairs). In Sarakhsrs Biib ul-Muwiiu2zb, we find its analysis and application upon relations (mu'iimuliit) of Muslim territories with other non-Muslim territories. Here Sarakhsi tries to establish the autonomy of mu"amaliit (relations) using the concept of tawa~su'(extension),~~ as the nature of mu"amaliii demands it and thus in order to broaden the scope of Islamic jurisprudence we deal with it by the doctrine of juristic preference rather than with the doctrine of systematic reasoning. Sarakhsi, in his treatment of the subject matter, employs the constitutive elements of flla of the doctrine of juristic preference which enables him to deal with the treaties (muwiidatz). Sarakhsi bases this upon the considerations of the nature of treaties and constitutive elements which form them. It is not a single element or the elements themselves of the treaties in isolation which are of significance such as necessity (duriirn or ~ J u ) or welfare of the community (maslaha), but rather any or all elements constituting the fZla as a justification for the employment of the doctrine of juristic preference. In the text of SarakhsTs Biib uZ-Muwiidaiz the following elements can be shown as constituting the flla of the doctrine of juristic preference: '*hid., (Cairo edition), p. 1816; (Hyderabad edition), p. 84. Husain Kassim Sarakhsi's of Juristic preference I . The most essential, and, as a matter of kt, the central aspect of treaties as a constitutive element of Wu and the basis for the doctrine of juristic prekrence as it emerges in SarakhsZs Biib al-MuwZidaSz is the disparity of territories (tabiiyun al- diimyn). In the thirty second chapter of Biib al-MuwadaSz, Sarakhsi does not discuss simply shari'ah laws applicable within the territory of Islam, we find Sarakhsi dealing with it in conjunction with the idea of disparity of territories from the considerations of treaties (mwiu2zl.z) between two territories. Sarakhsi demonstrates with all subtleties the complex problems which arise due to the peculiar circumstances because of treaties (muw&la'a) between two territories, such as, for example, the debt incurred by a dying person is to be paid first to the claimer in the territory of Islam and then to the one who is in the enemy territory, because, as Sarakhsi words it, "the payment of the debt in the territory of Islam carries more weight."4g Again, according to Sarakhsi, all mutual relations (m*Zmaliit) between two territories are to be handled according to their own laws and rules and they vary from one territory to another, as the different territories have their own sovereignty and sovereign power and thus are to be ruled according to their laws.50 According to Sarakhsi, such mutual relations arising due to treaties belong to worldly afliirs (&him al&nyii)5* and their main purpose and especially that of dhimma (protection)5x is to create Edcilitation between two territories in their mutual relations and thus are employed as an 'ills by the doctrine of juristic preference. III. Again the idea of reciprocity (mjiiziit) constitutes a very integral aspect of mutual relations between two territories, as the nature of such relations arising due to treaties demands that both territories take into account that they deal with each other reciprocally and equally. For example, the amount of one-tenth (Irshr) to be taken from a passerby to the territory of Islam is determined in the amount equal to what the authorities in his territory take from the inhabitant of the territory of Islam when he passes their territory.55 II. 193 49Ibid., (Cairo edition), p. 2052; (Hyderabad edition), p. 232. 5OIbid., (Cairo edition), p. 1900; (Hyderabad edition), p. 139. 51Ibid., (Cairo edition), p. 2282; (Hyderabad edition), p. 322. 5*Ibid., (Cairo edition), p. 2210; (Hyderabad edition), p. 322. 55Ibid., (Cairo edition), p. 2134; (Hyderabad edition), p. 283. 194 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 IV. Also, according to Sarakhsi, customs and habits @&t) of the different territories play a great role in determining the mutual relations between t w territories, and they should be given due consideration in treatie~.5~ Lastly, the concept of necessity (dariim or hiijjat as Sarakhsi calls it) can also become a determining factor in mutual relations and can determine the mutual agreements in the treaties between two temtories. For example, if Muslims are in a weaker position, they are forced to make a treaty rather than annihilate themselves.55 V. Thus,Sarakhsi expounds on these various factors throughout his Biib al-Muwiidafi of Sharh al-Siyar al-Kabir as constituting the ‘illa (effective reasoning) for the employment of the doctrine of juristic preference and shows in his systematic analyses how they are employed in mutual relations arising due to treaties between the territory of Muslims and other territories. PART I11 SARAKHSI’S SYSTEMIZATION OF THE DOCTRINE OF JURISTIC PREFERENCE AND JUSTIFICATION FOR ITS EMPLOYMENT TOWARD MUWADA ‘A AND WORLDLY AFFAIRS In this concluding part, we shall discuss the systematic development of Sarakhsi’s doctrine of juristic preference from his Usiil and Mabsiit and its relation to muwiidasl from Sharh al-Siyar al-Kabir so that the real significance of SarakhsTs contention as developed in the first and second parts become clear. It can be said from what has been discussed in the second part that it is Abii Hansfa who introduced the notion of istihsiin, but not as a doctrine which is different from qiyk. Abii Yfisuf brought it further and initiated it by calling it preferred qiyiis. Shaybw- makes use of it, but he uses it in the sense of ray (opinion or personal discretion) as seen from his Kitiib al- As1 and Jiimi6al-Saghir. In these works ShaybSinI neither defines it nor does he discuss the nature of the doctrine itself, much less relates it to the subject matter of m ~ w i k f a f i . ~ ~ It is Sarakhsi who first defines it. In his Usiil, Sarakhsi 54Ibid., (Cairo edition), p. 1900; (Hyderabad edition), p. 131. 551bid., (Cairo edition), p. 1689; (Hyderabad edition), p. 1. 5 6 0 p . Cit., Kit& al-Asl, p. 2. Husain Kassim Sarakhsi's of Juristic Preferem 195 first deals with the nature of qiyiis5' and then once again discusses the nature of qiyiis and istihiin in the following section separately,58 while not yet conceiving of it as a doctrine different from qiyiis. It is in his Mubszit that he discusses istihiin separately as a doctrine and provides its definition and the grounds for the justification of its employment on the basis of the shar'i sources (asl) . The point to be especially noted is that it is discussed in Mubsiit in connection with the subject mamr of muwiidatz. Initially, Samlchsi considers in his Usiil Istihiin as a kind of qiyiis but develops the concept of ' i h in terms of its being strong although concealed and shows that the nature of Wu which istihiin empluys is different from that of qiyiis. Sarakhsi establishes here that the ground for employment of istihiin is its 'iUa which is stronger although concealed than the FlZu used in qiyiis which is apparent but weak. It is on the basis of this distinction of 'ilk that Sarakhsi develops the doctrine of istihsiin in his Uszil and analyses the 7lZu employed by it in the form of w j h (aspect), tu'tzl (inference) and tarjih (preference) and shows that the 'illu used in these cases is connected with usl. Sarakhsi states that w j h (aspect) in any hukm (judgment), whether negative or affirmative, does not become binding unless the evidence is provided. 59 The evidence in the affirmative judgment is kept binding because there is no evidence found which nullifies it. So if the claim for its continuing to be held is made, then it is like a claim in which there is no evidence known to be established, wherein the evidence equals its negation in the sense (m'sini) that each of them does not carry the force of binding because of the lack of evidence. Sarakhsi examines the case of an evidence in testimony on the ground of which a slave is considered free: a person testifies that he purchased the slave in lieu of price and set him free and, thereafter, the original owner comes and wants to purchase him (the slave). Although the original owner has prior right to purchase the slave before the second owner can sell him to anyone else, the slave is considered free and cannot be given in the clientage of the original owner, when viewed from the aspect (wjh) of the evidence provided in this testimony. Here, as described by Sarakhsi, the evidence that provides the right of ownership to its owner is not the evidence which keeps his ownership but an evidence which nullifies the keeping of his ownership. 6o Sarakhsi deals with taEZ (inference), wherein apparent (ziihir) Wu is used as concealed @&in) and the concealed one is used as apparent, formulating them in terms of effect (maliil), which is taken as cause (‘ills) 57%. cit., Us13 al-Sarakhsi, pp. 118-199. "bid., pp. 199-245. 5gIbid., p. 221. 6oIbid., pp. 220-221. 1% The American Journal of Islamic Social sciences k l . 5, No. 2, 1988 and cause which is taken as efkct, when there occurs any change in the judgment. Here, in inference, change occurs by way of evidence, as in the case of prayers such that what is an apparent UZu in the judgment in the first bowing (&9 is taken in the second bowi i as concealed 'illit, which was (in the first bowing) effect (ma7iiZ), provided that the cases in which the effect (maiW) used as FZZu and the cases in which the tZZu (cause) was used to arrive at ta%Z (inference) are equivalent. Another example given by Sarakhsi is that of fasting. If fasting is considered as obligatory ( t M ) , so it should be considered in the case of pilgrimage. There is no change, but rather one infers here applying what is PZZu in one judgment and using what is iaferred (ma7fil) as FZh in the second.61 Sarakhsi also brings out the wasf (characteristic) in the cases of taEZ (inference), wherein there is a change from one judgment, in which the apparent S'Ua used is taken as concealed 'illa, and another judgment as wasf (characteristic).6* For example, fasting is to be accompanied by intention and that is equally applicable when one observes the fasting which is missed (qadii'), since both of them carry the same characteristic (i.e., fasting), which is employed as an FlZu in the second case as it was in the first case. There is nothing extra added to it. Such an addition, if it is provided, is in explanation of the judgment on the ground of the acceptance of evidence and not due to any change made the1~in.6~ It is the strength due to the similarity and equality of wasf in two judgments which is inference (istidliil) unlike the %lZu which Shiiji'i brings out between the cases of whipping and stoning. Here, there is no equality of characteristics found between two cases.64 Another example which Sarakhsi cites is the case of performing the ritual of ablution before the prayer in which one does mash (cleaning around the head with water) and if one takes a bath, it becomes included in what is required in the ritual of ablution (4') and thus masha is not necessary after taking a bath. This characteristic is used as an Wu in both of the cases; in the former it is apparent, but in the latter it is ~oncea led .~~ The cases of opposite t'lh in judgments is dealt by Sarakhsi in terms of their being strong though concealed or apparent but weak. According to Sarakhsi, it is done in two ways: one of them is to reject a judgment which mandates change because of tZh so that the opposite of it becomes established. Thus, in this sense (m"ani)the opposite is rejected and is in no way invented by zan (speculation) as as1 in Z'lZu. For example, in the case of superrogatory 611bid., p. 238. c*Ibid., p. 239. 631bid., p. 240. C'Ibid., p. 239. 651bid., p. 240. Husain Kassim Sarakhsi's of Juristic Preference 197 fasting, if one takes vows that he shall do it, it becomes obligatory by shari'ah law and its opposite is that if anyone does not take a vow for it, it does not become obligatory. In this sense the rejection of the opposite results, and is not invented as as1 in Flla by speculation, but is valid as preference for this kind of 'illa in comparison to the Flla which is rejected and is not opposite to the Flla as such.66 The other kind of opposite is that which forces the judgment not on what it mandates but the opposite of an original judgment and that is such as what Shiiji'i justifies by Flla in fasting, that it is a form of worship (Fbiduh), which is not disputed and its 'illa does not become mandatory by shari'hh law as in the case of ablution; but the case of pilgrimage is opposite and its tazil is mandatory in comparison to the previous case. Thus, if we say whatever becomes obligatory by vow concerning worship ( I M ) , it is to be abided by shari'i law as in the case of hajj (pilgrimage). Here, the law of shari'ah is considered equivalent to the case of intention of superrogatory acts and the judgment is not based upon speculation such as when one says he is going to pilgrimage. In this kind of opposite, there is a form of rejection of F U a , wherein the dqutor is able to establish the judgment which contradicts the previous judgment but, according to Sarakhsi, the 'illa on which it is here argued is not strong.67 With the cases of contraries, Sarakhsi again bases his discussion on the 'ilh which is concealed. He classifies contraries into two categories: one regarding the judgments in which there is an 'illa from usl and other with regard to the judgment concerning f i r i i : There are three kinds of contraries with regard to the 'illa from asl. First is the contrary when an 'illa is mentioned from as1 which transcendsfirii: The second contrary occurs when Flla is mentioned which transcends judgments concerningfirii: Lastly there is the contrary by mentioning an 'illa which transcends judgment regarding firii' but is different from u s l . 6 8 Sarakhsi does not expound further on this aspect, since it is obvious that the 'illa based upon usl transcends all the cases of firii: There are five kinds of judgments concerning firii' in which contrary can occur.69 First, contrary which is based upon textual evidence against an 'illa of judgment in a specific case. For example, the case of repeating of masha (three times washing around head by hands) which one performs in the pillar of ablution (wudfit), but it is not so in the major ritual ablution, namely, in ghusl (washing of the body) and this contrary is valid and therein @%id., p. 241. 67Ibid., p. 241. sobid., p. 242. S'Ibid., pp. 242-245. 198 The American Journal of Islamic Social Sciences VoI. 5, No. 2, 1988 the textual evidence is contrary to the 'ilk of the judgment in the specific case. The second kind of contrary is where there is a change which is the explanation of that judgment on the ground of which it was acknowledged. Sarakhsi explains this again with the example of ablution where the three times washing around head by hands is considered a pillar of ablution, and its completion in the required measure is not mandatory in the major ritual of washing the body. This contrary is an explanation for the change in the acknowledged judgment. These two arguments given above necessitate the contrary for its preference, for with the validity of it (contrary) comes the preference. The third kind is a contrary with a change in which a disorder exists in the posited case. For example, the case of a minor without a father or grandfather in the appointment of patron and whether he could be given in the clientage of his brother. Here the issue is that an orphan is not given in clientage of a relative and is a contrary Z'Zh which rejects the clientage by the specific person (i.e., the brother). But Sarakhsi maintains that in this posited case, the establishment of clientage by any relative whether father, grandfather or any relative like the brother is considered the same. This contrary is valid, although Sarakhsi says it is not strong. The fourth contrary is that which contains a rejection of what was established or not established by the one who made the Ilh, but is connected in the posited tu'EZ. This kind of contrary is opposite to what we had in the second kind. For example, if an unbeliever buys a slave who is Muslim, then he is the unbeliever's property by the conclusion of the contract of purchase and upon the slave being taken into possession. Thus, the slave is considered as the property of the unbeliever, as the judgment remains the same from the very beginning of the contract of purchase and afterward when the salve is taken into possession. But accordmg to Samkhsi, there is contrary established so long as the contrary negates the ta'tzZ that is, the sameness between the original purchase (of contract) and the slave being in his possession does not become connected in the posited case. Thus, this contrary is not valid as seen from this point of view, even if it is shown that the validity was established on the ground or sense of equality between the two judgments. Lastly, the case of contrary in establishing judgment by FZh which is not suitable by the one who establishes the judgment by Z'Zh. The example is as Abii Yiisuf says, that if a woman intends to divorce her husband and she observes the waiting period from him and then marries another person and begets a child and then the first husband appears, then the lineage of the child becomes established from him. The wasf (characteristic) of the presence of the second husband is in dispute and thus the marriage with him (the second husband) is not acknowledged, as the condition without the 'ilk does not necessitate the judgment to be established. But, as Abii Hanifa Husain Kassim Sarakhsi's of Juristic F'reference 199 considers, the acknowledgment of the marriqge (with the second husband as without being 'illa) has nothing to do with the issue under discussion. In this case, the llh as contrary is not connected with usl in the judgment. Thus, in two different cases of furii: the 'illu are determined differently connected with ml. The tu'ZiZ (inference) in which 'illa is not connected with the asl is ilghii' (null and void). Thus, as seen here according to Sarakhsi, the condition of a valid inference is that its 'ilh is not contrary to usl. With regard to turjih, Sarakhsi first discusses it in relation to qiyzis and maintains that the wsf when used as an 'illu is to be directed to what is intended by asl and thus to be preferred. It is not something added by speculation, as for example in the case of donation. If something is given as a donation, then it is to be considered in terms of its wasf used as an 'illu what is intended by the usl, unlike the cases of giving ten darhams for one out of the goodness of one's heart which can be considered as wasf but it has no resemblance to the previous case. If a wusfis preferred, it is not because of its being simply wusf, but rather it is being wsfwhich is directed to what is intended in the judgment by usl. With this Sarakhsi also maintains that from the very beginning what is valid as an 'illu for a judgment is not valid for tarjih, as it does not have the validity of an 'illa which makes judgment obligatory. For example, the case of testimony. If one of the claimers brings two witnesses in a dispute and the other four, then the latter is not preferred because he has four witnesses, as the judgment is established by two witnesses and is binding by usl. However, turjih is given to the cases in which one brings two witnesses who are (positively known to be) of good and veracious character (Wl) and the other brings the witnesses who have (simply) blameless records (mastfir). The former is preferred, because it strengthens the ' i l Z 4 ~ . ~ O After this general discussion of turjih (preference) in relation to qiyiis, Sarakhsi proceeds to relate the notion of tarjih to istihsiin as a doctrine. There are four grounds on which turjih can be made: (i) the strength of evidence (ii) the strength of evidence in a judgment which is acknowledged (iii) when there are numerous usfil (principles), and (iv) judgment is not made when 'illu is not found. As to the first ground, turjih is made when the wusfbecomes a binding evidence. No matter how strong the evidence is to justify it, priority is given to the wusfof certainty which provides the binding of a judgment, like in the case of evidence by istihsiin accompanied by qiyiis; or when there is a conflict in the case of narrations, the priority is given to the narration according to how the narrator of it is reliable and known and not simply how far the narration reaches closer to the Prophet. Sh5fi'i explains the case 'OIbid., p. 250. 200 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 of wasf by giving an example that when one lets the slave mother (of his children) free, it is forbidden to marry her because in the contract of marriage there is a part of slavery (from him) and thus he is not allowed to marry her as if she is free. This wasfis among the evidences, because slavery is considered as equivalent to killing. So in this case it would be considered that he is forbidden to kill his own legitimate son or kill his own son (from a slave mother). This is based upon the strength of evidence derived from the sources of law ( ~ u i i l ) . ~ ~ The second case of turjih is the assumption that the strength of the acknowledged judgment is established on the ground of its as1 based upon textual evidence (nas) or ijmii'. Thus, whatever becomes established by textual evidence or ijmii' is considered f d y established, and so from that aspect whatever appears as having more strength in evidence on the basis of Usiil becomes preferable, and, on that consideration, preference becomes binding. Sarakhsi provides here several examples. One of them is fasting and the other pillars in relation to the intention and states that the exact wasf by specification is considered strong as an 'ilh to nullify the condition of (exact) intention. For example, if one gives the alms (sudqu) to the poor, then it is not considered as alms tax ( z ~ f i t ) . ~ ~ The third case of turjih is when it is accompanied by numerous Usiil, because in this sense it becomes wusfand therewith binding as in the case of the narration which is well-known and hence it becomes obligatory to accept it. The fourth case of turjih is that when 'illu is not found, the judgment is not made. It is the weakest kind of preference, because it is possible that the 'illu which is absent could have served as an evidence to establish the link between the judgment and 'illu and thus provided the certainty.74 Sarakhsi describes the general procedure for the above-mentioned cases to avoid any conflicts in establishing the evidence for the preference in the following manner. Every occurrence exists in a certain form and in its meaning ( m h i ) . The circmtances occur and if the evidence of preference contradicts a certain meaning, then the preference is given to the meaning itself. This is because of two reasons: (i) the meaning is more readily available than the circumstances or conditions, so that after preference has occurred for one of them, then meaning does not change necessarily by what has happened, as there is a connection between the judgment and ijtihiid (exercise of legal reasoning) "bid., p. 254. '*bid., p. 259. '%id., p. 261. ''bid., p. 261. Husain Kassim Sarakhsi's of Juristic Mnmce 201 and is to be abided by. (ii) The occurrence takes place with the meaning, and the meaning is as1 and what takes place with it is simply circumstances or condition which are viewed as subordinated to asl. The asl does not change by subordination to any circumstance^.^^ After this, Sarakhsi concludes that the following kinds of tarjih are null and void:76 The first (a) preference of one qiyiis over the other, for each one of them is based upon valid IZh, (b) the prekrence of one qiyiis Over the other on the basis of invalid narration, for if one qiyiis is abandoned in favor of the other, then it is not binding to prefer the latter because the contradiction has occurred between them, (c) the preference of one of the two narrations based upon textual evidence (nas), for narration is not binding when it is contradictory. The second is when the preference is accompanied by several resemblances. The example of such a resemblance is that if a bmther resembles his father in relation of c o w t y precluding marriage and this mmblance is compared to the case wherein he resembles the nephew and, thereby, one concludes the validity of requital from both sides and the acceptance to testimony by each for one another and the permissibility of giving alms tax to each other. The third invalid case of prekrence is when the IUu is too general. For example, the ruling with regard to interest (ribii) in the following cases: (a) primarily in food, because it is too general, as it (ribii) can be too much or too little. (b) when the inference is concerned with the specific and if the priority is given to the general, then it is invalid, because establishmg a judgment by Ilk is a part of establishing judgment with nas. Accordrng to Sarakhsi, preference in nas is invalid in reference to general or specific, as the specific in this case would nullify the general. Moreover, the meaning of specific and general is dependent and given only in the context of MS and the IZZa therein is considered in reference to its effectiveness or non- effectiveness and it has nothing to do with its being general or specific. (c) The tarjih used with insufficiency of aUsif(p1. -of wasf). For example, in the ruling of interest the IZZa has one wJ namely, fbod, but the sameness of things (jinsiyu) is a condition and here the wfmade as an FZla of interest has two qualities. This is invalid, because, as already mentioned before, the establishing of a judgment with an IZZa is a part of connecting thefitrii' with nas and if that MS contains any figurative interpretation or abridged representation, it is not preferred against that which contains an exact and detailed description. Thus, fh has priority, because it establishes the judgment '5Ibid., p. 262. '%id., pp. 264-265 202 The American Journal of Islamic Social Sciences Vol. 5, No. 2, 1988 with the context of nas and thus achieves the effectiveness which figurative interpretation and abridged representation does not. After these clarifications concerning wujh, ta%Z and tarjih as used in qiyiis and istihsiin, Sarakhsi proceeds in his Mabsiit to deal with the doctrine of istihsin independently and seeks justification for its employment by showii that its FZla is derived from ad and based upon textual evidence (nus) as already discussed. Thus, Sarakhsi in his Mabsiit defines the doctrine of istihsh from the view that its 'illa is strong and on the ground of which istihsiin is employed abandoning qiyiis. Here Sarakhsi seems to make a shift, but what he has done in Usiil in relation to the subject matter of muwiidah to be followed in Mabsiit, then it becomes perfectly clear that he is here concerned with the relations (mu'iimakit) of Muslims with other nations and they belong to ahkiim al-dunyii (worldly affairs) as in contrast to ahkiim al-din (religious affairs) which he first deals with in Usid and previous volumes of Mabsiit. It is true that Sarakhsi in his Mabsiit follows Shaybini and most of his discussions are parallel with what we find in ShaybWs Kitiib al-As1 and also the discussions with regard to tabiiyun al-diirayn (disparity of territories) in Shaybini's As1 are followed by Sarakhsi in his Mabsiit. PART IV SARAKHSr'S DOCTRINE OF JURISTIC PREFERENCE AND JUSTIFICATION FOR ITS EMPLOYMENT IN MUWADA'A AND WORLDLY AFFAIRS It is in Eib al-Muw&Mz of Sharh al-Siyar al-Kabir, Sarakhsi vigorously subjects muwiidaiz and worldly affairs to the welldefined doctrine of juristic preference and claims for the first time, though modestly in the name of Shaybh-, that the promise of security (cwniin), the subject matter o f m u W b , is ruled by the doctrine of juristic preferen~e.~~ The peace agreement is given on the ground of the doctrine of juristic preference although such is not the case by the doctrine of systematic reasoning.78 The muwirdab is to be based upon the notion of extension ( tawa~su' ) .~~ Sarakhsi asserts here that the reason for such an extension is the disparity of territories (kzbiiyun al-diirayn). It is true that the notion of 770p. Cit., Shrh nl-siyar at-ikbir, pp. 82, 84. Ybid., (Cairo edition), p. 1a3; (Myderabad edition), p. 82. 7sIbid. Husain Kassim Sarakhsi's of Juristic preference 203 disparity of territories was first introduced as Schacht observes,80 by Abii Hanlfa and it can be said of Abii Yiisuf and Shaybiini that they used it in their Kitiib al-Kharij and Kitiib al-As1 respectively, but it is Sarakhsi in his muwiidab who establishes and pronounces that the disparity of territory has the efficacy of going beyond the disparity of religion with regard to the matters of amiin (protection)81 and muwiidab in general. Even the rulings with regard to marriage and inheritance are to be dealt with not by the congruity of religion, but based upon the contract. The inviolability of religion becomes established only for the one who believes in it; not for the one who does not.8* The laws of Islam are not applicable to other te r r i t~r ies ,~~ and equally, they are not under obligation to them, as in the first place they make the treaty with Muslims on the condition that the laws of Islam do not apply to them.84 The "dhimma" is designed for worldly affairsn5 and here the sole concern is the treaty and to abide what is agreed upon. It is incumbent upon Muslims to abide by the treaty and not breach the contract when they enter the other territories; nor are they allowed to take their properties without their consent.86 Even envoys are under absolute protection unconditionally. 87 With the acceptance of disparity of territories, their laws are also recognized. If there is a dispute between the two parties from those territories in the territory of Islam, then their laws are recognized and it is ruled not according to the laws of Islam, but according to their laws.88 Thus, to achieve the purpose of muwiidab one has to abandon the usual doctrine of systematic reasoning, as the affairs of muwiidab are broader and we have to extend it by the doctrine of juristic preference as it is demanded by the very nature of muwaab. Sarakhsi does this by employing what we have previously called constitutive elements of muwiidah such as: (i) necessity89 (ii) political authority of the other territories and their lawsgo (iii) customs and habits of the people in different territoriesg1 (iv) ruling of mutual exchange and reciprocity92 and (v) reconciliati~n.~~ According to Sarakhsi, this is due 80Joseph Schacht, Origins of Muhammadan Jurispdence (London Oxford University Press 1950), p. 298. slop. Cit., Sharh al-Siyar al-Kabir, p. 138. 8%id., (Cairo edition), p. 1885; (Hyderabad edition), p. 129. asbid., (Cairo edition), p. 1725; (Hyderabad edition), p. 25. 84Ibid., (Cairo edition), p. 1857; (Hyderabad edition), p. 322. 85Ibid., (Cairo edition), p. 2196; (Hyderabad edition), p. 322. 861bid., (Cairo edition), p 1861; (Hyderabad edition), p. 113. 871bid., (Cairo edition), p. 1788; (Hyderabad edition), p. 66. eelbid., (Cairo edition), p. 1739, 1741; (Hyderabad edition), p. 35, 36. Wid. , (Cairo edition), p. 1689, 1694, 1724; (Hyderabad edition), p. 2, 5, 24. 9OIbid., (Cairo edition), p. 1996, 1702, 1725; (Hyderabad edition), p. 6, 10, 25. %id., (Cairo edition), p. 1713, 1721, 1724, 1803; (Hyderabad edition), p. 17, 22, 25, 75. 9%d., (Cairo edition), p. 1790, 1867, 2139; (Hyderabad edition), p. 68, 117, 285. 93Ibid., (Cairo edition), p. 224; (Hyderabad edition), p. 341. I *.