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Conditions for the Consideration of al-Ma?la?ah al-Mursalah


In order to properly regulate the use of al-ma?la?ah al-mursalah, scholars stipulated the following:


1. The ma?la?ah should be consistent with the intent of the Shari`ah, especially the principles identified as maqa?id.


2. It should not conflict with a specific text.


3. It should be rationally explicable.


4. The person wielding the instrument should be a qualified mujtahid. [1]


Conflict between a Ma?la?ah and a Shari`ah Text


It would seem at first glance that the second condition above would preclude any consideration of a ma?la?ah if it conflicts with a Shari`ah text; however, the matter is not that simple, for scholars did debate the matter. It should be remembered that, in contrast to the Malikis, the other madhhabs tended to categorize reasoning on the basis of al-ma?la?ah al-mursalah as a type of qiyas, so they discussed the issue in that context: What is to be done when a conflict arises between qiyas and a Shari`ah text? As for the Malikis, they explicitly discussed the issue in terms of a conflict between al-ma?la?ah al-mursalah and qiyas.


Contradiction between al-ma?la?ah al-mursalah and a text could logically occur on a number of levels. The contradiction could be total or partial. A total contradiction would be irreconcilable, in which case there is no alternative but to identify the stronger evidence and give it precedence over the weaker evidence. If the text is Qur’anic or a mutawa?ir ?adith, the precedence would go to the Qur’an or the ?adith, by the consensus of scholars. [2]


However, if a ma?la?ah has been identified by an inductive reading of the texts as an incontrovertible Shari`ah norm, it too would be definitive evidence. In that case, ash-Sha?ibi and those who agree with him would challenge the hypothesis that such a case actually exists, for it would require internal contradiction in the revelation, and that is a possibility denied by the Qur?an (4:82). [3]


Scholars differ, however, on the rule governing a total contradiction between an isolated report from the Sunnah and al-ma?la?ah al-mursalah (or what some scholars call qiyas in a more general sense). The first position, held by Imams ash-Shafi`i [4] and A?mad b. ?anbal [5] and most of the scholars of their madhhabs, was that precedence is given to an isolated report from the Sunnah in all cases. [6] That is no surprise, considering the positions of these Imams regarding the level of certainty associated with such reports. Although they did not claim that they reach the level of certainty, [7] they gave them greater epistemological weight than did the other madhhabs. [8] The same position has been attributed to Imam Abu ?anifah.[9]


However, the majority of ?anafi scholars made a distinction in such cases between the reports of those ?a?abah known for their fiqh acumen and those not known for it. On that basis, they rejected the reports of Abu Hurayrah (ra?iyallahu anahu) and Anas b. Malik (ra?iyallahu anahu) when they contradicted qiyas. On the other hand, they gave precedence to the reports of ?a?abah such as `Abd Allah b. `Abbas, `Abd Allah b. Mas`ud and `A’ishah (ra?iyallahu anahum) over qiyas. The rationale for this distinction is that paraphrasing was the norm in the transmissions of the ?a?abah. When one of them was renowned for his fiqh acumen, they gave his reports the benefit of the doubt even when they contradicted the qiyas derived from multiple texts. If the narrator was not known for that, the evidence derived from multiple texts was assumed to be more reliable.


It should be noted that all the madhhabs acknowledged that the authenticity of the Qur’an and the mutawa?ir Sunnah is more firmly established than that of isolated reports.


The Malikis used the same principle to give two other types of evidence precedence over isolated reports. The first is the manifest and continuous practice of the people of Madinah transmitted without interruption for the first three generations after the Prophet (?allallahu `alayhi wa-sallam). Imam Malik invoked this principle in a dispute with Abu Yusuf on the wording of the adhan. When Abu Yusuf quoted a ?adith, Imam Malik said, “Oh Sub?an Allah! I have never seen anything as amazing as this! The adhan is called out for everyone to hear five times every day. It has been handed down from parents to children from the era of Allah’s Messenger (?allallahu `alayhi wa-sallam) until our own era. Is there any need for so-and-so on the authority of so-and-so? This is more authentic in our opinion than a report.” [10]


The Malikis also gave precedence to qiyas when it is based on a comprehensive Shari`ah principle and the ?adith is anomalous, i.e. it lacks support from any Shari`ah principle or fiqh maxim. Their reasoning was that when al-ma?la?ah al-mursalah is derived from a wide variety of texts in a spectrum of fiqh issues, it represents definitive evidence.


Certainty has been attained that the Shari`ah acknowledges that particular ma?la?ah as a recurring principle. On the other hand, the possibility of error is always present in the process of transmitting isolated reports. This possibility is normally not strong enough to be given consideration in fiqh issues. However, when an isolated report totally contradicts definitive evidence, the contradiction is an indicator that it must have been distorted somehow in the transmission process. Ash-Sha?ibi said, “When a comprehensive principle is definitive, it may be on a par with a particular text or it may exceed it, depending upon the strength or weakness of that particular text.” [11]


Their second argument in favor of their position is that the ?a?abah, on a number of occasions, rejected or challenged reports which conflicted with Shari`ah principles established on the basis of numerous texts. The ?anafis, too, relied upon these same examples to support their position. For example:


Fa?imah bint Qays (ra?iyallahu anha) reported that the Prophet (?allallahu `alayhi wa-sallam) turned down her request for housing and maintenance after her husband divorced her for a third time. She reported the ?adith as a general rule in all such cases. [12] `Umar b. al-Kha??ab (ra?iyallahu anhu) said, “We will not leave the Book of our Lord and the Sunnah of our Prophet (?allallahu `alayhi wa-sallam) for the statement of a woman when we don’t know whether she has remembered or forgotten. [A thrice-divorced woman] gets housing and maintenance. Allah, the Mighty and Glorious, said, “Do not send them out from their houses or let them leave unless they commit open immorality. [al-Qur’an, 65:1]” [13]


`A’ishah (ra?iyallahu anha) rejected the report attributed to the Prophet (?allallahu `alayhi wa-sallam): “Bad luck is only in three things: a horse, a wife and a house.” [14] She understood it to contradict the principle that all things are in the control of Allah and that things like bad luck do not have an objective existence. [15]


When `Abd Allah b. `Abbas (ra?iyallahu anhu) heard Abu Hurayrah (ra?iyallahu anha) narrate a ?adith that required wu?u’ from contact with anything touched by fire, he asked him, “Should we make wu?u’ from [contact with] heated water?” Abu Hurayrah (ra?iyallahu anha) rebuked him, “My nephew, when you hear a ?adith from Allah’s Messenger (?allallahu `alayhi wa-sallam), don’t oppose it with analogies.” [16] Ibn `Abbas’ reasoning was that, since water is the default means of purification, the ?adith would require purification from contact with the means of purification, which would be contradictory.


Of the three positions mentioned above, that of the Malikis is the most compelling, for error is not impossible in cases of isolated transmission. Definitively established principles of the Shari`ah are probably the best means available for discovering such error in reports that have passed the first-line criteria for authenticity developed by ?adith scholars, i.e. the reliability of the narrators and continuity of the chain of transmission. However, the perception of conflict between akhbar a?ad and definitive Shari`ah principles must be carefully examined, for some of the cases in which a ?a?abi rejected certain ?adiths due to their supposed conflict with Shari`ah principles have been shown by scholars to be more likely a misunderstanding on the part of the rejecter rather than the narrator.


Partial Conflict between a Ma?la?ah and a ?anni Text


This issue is frequently discussed within the framework of the broader issue of limiting a general text (takh?i? al-`Amm) by more specific evidence. The majority of scholars allow takh?i? al-`Amm by ?anni evidence because they consider the indication of general wordings to be ?anni. Thus they would also allow takh?i? al-`Amm by qiyas. [17]


The Malikis think of the issue in a different conceptual framework. The conflict is not so much between a general text and a specific qiyas as it is between two general Shari`ah principles, one derived from a particular text and one derived from inductive reading of a wide spectrum of Shari`ah texts. [18]


The Maliki arguments to allow restriction of an `Amm text by al-ma?la?ah al-mursalah are based upon the above-mentioned conceptual framework. Imam ash-Sha?ibi actually based his argument upon the principle of consequences, saying: “Considering the consequences of acts is a principle acknowledged and intended by the Shari`ah, whether the act in question is in accord with the Shari`ah or violates it.” [19] He bases this argument upon the proposal, which he considers incontestable, that the Shari`ah legislates rules for the benefit of humanity. If that is the case and if, in a particular situation, enforcement of a general obligation will result in harm that outweighs the intended benefit of the act, the goal of the legislation has been thwarted in the special situation in question. Likewise, if, in a specific situation, enforcement of a general prohibition leads to a manifestation of harm greater than the harm which the prohibition was legislated to prevent, then the intent of the Lawgiver has not been realized. [20] Ash-Sha?ibi also made use of the detailed examples from the Qur’an and Sunnah which show consideration of the principle of consequences to support this proposal.


The Relationship Between al-Ma?la?ah al-Mursalah and Isti?san


When al-ma?la?ah al-mursalah is used to override a conflicting item of evidence, it is called isti?san. This would make isti?san a subset of the broader category of al-ma?la?ah almursalah, which can also be invoked when there is no opposing evidence.” [21]


Isti?san (Juristic Preference)


Isti?san may be the most controversial legal principle in the whole field of u?ul al-fiqh. Imam Malik assessed it as representing nine-tenths of religious knowledge. [22] Imam ash-Shafi`i, on the other hand, was quoted as saying that anyone employing isti?san has taken it upon himself to legislate independently of the Shari`ah, and anyone who does so has left Islam. [23] In al-Risalah he identified it as taladhdhudh (preference on the basis of personal taste and whim). [24]




Isti?san is derived from the three-letter root ?-S-N (?asuna), meaning “to be good or beautiful.” [25] The verb ista?sana means “to deem something good.” [26] Those who oppose the use of isti?san define it in a Shari`ah context as “that which a mujtahid considers good based upon his personal opinion without supporting evidence.” [27] (Since isti?san is a process, this is more properly a definition of the object of isti?san.) Definitions of this type tend to be found in books written by Shafi`i scholars, who attributed it to Abu ?anifah, an attribution that ?anafi scholars vigorously deny. [28] Almost as bad as that is “evidence that occurs to a mujtahid which he finds difficult to articulate.” [29] After mentioning it, al-Ghazali dismissed it as foolishness, for what cannot be expressed is not subject to discussion, reason or any collective effort to distinguish truth from falsehood.


The most sweeping definition of isti?san, which is too general to be very useful, is that it is “acting on the basis of the stronger of two dalils.” [30] The ?anafi scholar al-Karkhi, [31] defined it as “departure from an established precedent in favour of a different ruling for a  reason stronger than the one obtained in that precedent.” [32] Al-Sarakhsi [33] explained that the established precedent is usually an obvious qiyas [34] that would seem to apply to a given situation at first glance. However, more penetrating consideration reveals that an opposing evidence is actually more appropriate. [35] In another place al-Sarakhsi defined it as “setting aside qiyas in favour of that which is more suitable for the people.” [36] His definition is almost identical in spirit to that of the Malikis; however, ash-Sha?ibi and Ibn al-`Arabi [37] both consider it to apply not only to qiyas but to the general wording of texts. [38]


Kamali affirmed that the Maliki approach to isti?san is wider in scope than the ?anafis’, closer to the way it was originally conceived, and more effective in dealing with new, unprecedented situations. [39] The rationale for its use is to ensure harmony between the letter and the spirit of the law. [40] This consideration can be seen clearly in Ibn al-`Arabi’s definition of it: “To abandon exceptionally what is required by the law because applying the existing law would lead to a departure from one of its own objectives.” [41] This is due to circumstantial anomalies found in particular cases. [42]


Controversy over the Legal Admissibility of Isti?san


Imam Abu ?anifah was the prominent scholar most famously linked to the practice of isti?san, but Imam Malik was, in reality, no less a practitioner on its basis, except that he emphasized the role of ma?la?ah as the evidence to which preference is given. Imam A?mad b. ?anbal also supported it, primarily because it was a salient feature of the ijtihad of the ?a?abah.

Imam ash-Shafi`i, as mentioned earlier, vehemently attacked its use. As would be expected, the ?ahiris and the Shi`ites also rejected it. [43]


Evidence for Isti?san


The ?anafis used a reconstitutive approach to u?ul al-fiqh, extracting the principles of their imams from their legal rulings. When confronted with al-Shafi`i’s criticism of isti?san they responded in two ways. They looked for support in the Shari`ah texts and the practice of the ?a?abah, and they tried to bring isti?san under the canopy of qiyas, which the Shafi`is recognized as a legitimate principle.


Appearance of the Root ? ? ? (?-S-N) in the Texts


The first place the ?anafis looked was Qur’anic verses containing the root verb ?asuna:


- “So give good tidings to My servants who listen to the word, then follow the best of it. Those are the ones Allah has guided, and those are people of

understanding.” [al-Qur’an, 39:18]


- “And follow the best of what was revealed to you from your Lord.” [al-Qur’an, 39:55]


The interpretation of these verses most relevant to isti?san is that one way to “follow the best of it” is to give precedence to a dalil which opposes a more obvious dalil; and careful consideration reveals that the less obvious dalil is actually stronger than the obvious one. [44]


The strength of these verses as evidence on the issue of isti?san is diluted by the numerous variant interpretations of it by scholars of tafsir. [45] The variant interpretations do not refute it, however, and the ?anafi explanation remains one of the possible valid meanings of the verses.


They also quoted what was purported to be a ?adith:


- “Whatever the Muslims consider to be good is good in the sight of Allah.”


There are two critiques of this dalil. The first is that it is not a statement of the Prophet (?allallahu `alayhi wa-sallam); rather it is a statement of `Abd Allah b. Mas`ud. [46] The second and more compelling criticism is that it is more indicative as a support for ijma` than isti?san.


The Theme of Facilitation in the Texts


A second line of reasoning from the texts was employment of the texts which affirm the principle of facilitation in the Qur’an and Sunnah. [47]


- “Allah intends for you ease and does not intend for you hardship.” [al-Qur’an, 2:185]


Allah’s Messenger (?allallahu `alayhi wa-sallam) said:


- “The best part of your religion is that which is easiest.” [48]


- “This religion is firm, so penetrate into it with gentleness.” [49] Ibn ?ajar [50] quoted it with an addition: “This religion is firm, so penetrate into it with gentleness, and do not make worship hateful to yourselves, for one who rides his horse too hard will neither reach his destination nor have a horse left to ride.” [51]


A third line of reasoning from the texts was finding precedents in them for exceptions to general rules on the basis of facilitation, such as salam sales, rental contracts, and other dispensations. [52]


A similar, but more general, line of reasoning is based on the oft-mentioned premise that the Lawgiver has legislated laws to secure benefit for humanity and repel harm from them. When, in certain cases, general rules lead to results that frustrate these objectives, a pattern can be discerned of Shari`ah laws that take these exceptional circumstances into account. In fact, the evidence presented in Chapter Two [53] represents a survey of such legislation. If the Shari`ah takes consequences into consideration in legislation, in general, and takes the manifestation of unintended negative consequences into consideration for the legislation of exceptional rules, it indicates that we, too, should take them into consideration in applying general Shari`ah laws in each specific situation. [54]




[1] Burikab, 201-202.


[2] Ibid., 401.


[3] See ash-Sha?ibi, al-Muwafaqat, 1:29, 4:122 passim.


[4] Mu?ammad ibn Idris ash-Shafi`i (150-204 AH); one of the leading scholars of all time; born in Makkah to the Mu??allib clan; studied with Imam Malik and the leading students of Abu ?anifah but went on to found his own madhhab, which he spread in al-?ijaz and later in Egypt, where he died. He was the first scholar to compose a work on u?ul al-fiqh, ar-Risalah, in which he elevated the authority of isolated legal traditions to a status greater than that accorded it by Abu ?anifah and Malik and restricted the bases of legal argument to the Qur’an, Sunnah, ijma` and qiyas. Murad, 165; Encyclopaedia of Islam, 9:181 passim.


[5] A?mad b. Mu?ammad b. ?anbal ash-Shaybani (164-240 AH), founder of the ?anbali madhhab, although he considered himself primarily a scholar of ?adith and prohibited his students from writing down his legal opinions in his presence. He achieved a mythic stature due to his steadfast refusal to acknowledge the Mu`tazilite view on the created nature of the Qur’an, despite imprisonment and lashing. Encyclopaedia of Islam, 1:272, passim.


[6] Abu Is?aq al-Shirazi, al-Tab?irah fi u?ul al-fiqh, ed. Dr. Mu?ammad ?asan Hitu. (Beirut: Dar al-Fikr, 2nd edn., 1403 AH/1983 CE), 316; Najm al-Din al-Aufi, Shar? mukhta?ar al-Raw?ah, ed. Dr. `Abd Allah b. `Abd al-Mu?sin at-TurkI (Beirut: Mu’assasah al-Risalah, 1410 AH/1990 CE), 2:237-243.


[7] Ma?mud A?mad al-Zayn, ?adith al-A?ad al-?a?i? bayn al-`ilm al-qa?i` wa al-?ann, al-A?madiyyah. no. 3 (Mu?arram 1420 AH/April 1999 CE), 134-152.


[8] Imran Nyazee, Theories of Islamic law: The methodology of ijtihad (Delhi: Adam Publishers and Distributers, 1996), 166 passim.


[9] Nu`man b. Thabit b. Zu?a (80-150 AH), of Persian origin, born and lived most of his life in Kufah; founder of the ?anafi madhhab, which was fundamentally a collective effort, developed through discussion with his learned students and colleagues. He is noted for his systematic approach to fiqh and his caution in accepting isolated traditions. Although he left no surviving writings, his students wrote extensively, and it is through them that his opinions have been preserved. Murad, 100; Encyclopaedia of Islam, 1:123-124.


See al-Shirazi, at-Tab?irah, 316, for a discussion of this issue. One support for this attribution is Abu ?anifah’s acceptance of Abu Hurayrah’s ?adith, “If anyone forgets that he is fasting, and eats or drinks, he should complete his fast, for it is only Allah who has fed him and given him drink.” ?a?i? al-Bukhari, 3:85, no. 154; ?a?i? Muslim, 2:561, no. 2575. See Abu Bakr Mu?ammad b. A?mad as-Sarakhsi, U?ul al-Sarakhsi, ed. Abu al-Wafa’ al-Afghani (Beirut: Dar al-Kutub al-`Ilmiyah, 1414 AH/1993), 2:202.


[10] Qa?i `Iyya? b. Musa b. `Iyya? al-Sabti, Tartib al-madarik wa taqrib al-masalik li ma`rifat a`lam madhhab Malik, ed. Mu?ammad Tawit al-Abkhi (Rabat: Ma?ba`at al-Shumal al-Afriqi, 1383 AH/1965 CE), 1:224, in Mu?ammad al-Madani Busaq, al-Masa’il allati banaha al-Imam Malik `ala `amal Ahl al-Madinah (Dubai: Dar al-Bu?uth li al-Dirasat al-Islamiyyah wa I?ya’ at-Turath, 2nd edn. 1423 AH/2002 CE), 92.


[11] Ash-Sha?ibi, al-Muwafaqat, 1:40.


[12] ?a?i? Muslim, 2:769-772, nos. 3512 passim.


[13] ?a?i? Muslim, 2:772, no. 3524; see also Sunan ad-Darimi, 2:218, nos. 2274, 2276.


[14] ?a?i? al-Bukhari, 4:74, no. 110.


[15] Ash-Sha?ibi, al-Muwafaqat, 3:20. See ?a?i? al-Bukhari, no. 4:74, no. 110; ?a?i? Muslim, 4:1206-1207, nos. 5507-5516.


[16] Sunan at-Tirmidhi, 1:114-115, no. 79; Sunan Ibn Majah, 1:163, no. 485.


[17] Burikab, 450.


[18] Burikab, 468.


[19] Ash-Sha?ibi, al-Muwafaqat, 4:194.


[20] Ibid., 4:194-195.


[21] Al-Qarafi, Nafa’is al-u?ul, 4:704-705.


[22] Al-Sha?ibi, al-Muwafaqat, 2:307.


[23] Al-Ghazali, al-Musta?fa, 171.


[24] Mu?ammad b. Idris ash-Shafi`i, al-Risalah, ed. A?mad Mu?ammad Shakir (Cairo: Mu??afa al-Babi al-?alabi wa Awladuhu, 1358 AH/1939 CE), 507.


[25] Hans Wehr, A Dictionary of modern written Arabic, trans. and ed. Milton Cowan (Beirut: Librairie du Liban, and London: Macdonald and Evans, 3rd edn., 1980), 177.


[26] Ibid., 178.


[27] Al-Ghazali, al-Musta?fa, 173.


[28] Ibid., 2:14-29. See ash-Shafi`i, al-Risalah, 503 passim; al-Shirazi, at-Tab?irah, 493, passim; Ibn ?azm, al-I?kam, 6:192 passim; al-Razi, al-Ma??ul, 6:166, passim; as-Sarakhsi, U?ul al-Sarakhsi, 2:200 passim; Abu al-?usayn al-Ba?ri, al-Mu`tamad fi u?ul al-fiqh, ed. Khalil al-Mis. (Beirut: Dar al-Kutub al-`Ilmiyyah, 1403 AH/1983 CE), 2:295 passim.


[29] Al-Ghazali, al-Musta?fa, 173.


[30] Abu Bakr Mu?ammad b. `Abd Allah Ibn al-`Arabi, A?kam al-Qur’an (Beirut: Dar I?ya’ al-Turath al-`Arabi, 1421 AH/2001 CE), 2:237; ash-Sha?ibi, al-Muwafaqat, 4:208.


[31] `Ubayd Allah b. al-?usayn al-Karkhi (260-340); the leading ?anafi scholar of his era in Baghdad; the principle teacher of Abu Bakr al-Ja??a?. Murad, 285.


[32] Quoted by ar-Razi, al-Ma??ul, 6:169.


[33] Abu Bakr Mu?ammad b. A?mad as-Sarakhsi (d. ca. 490 AH) the leading ?anafi scholar of his era in Transoxiana; author of U?ul as-Sarakhsi as well as al-Mabsu?, a major book of jurisprudence, which he dictated while in prison. The reason for his imprisonment is unclear, but he was eventually released and ended his life in Farghana, under the protection of its ruler. Encyclopaedia of Islam, 9:35-36.


[34] He refers to it as qiyas ?ahir. Others refer to it as qiyas jali.


[35] As-Sarakhsi, U?ul al-Sarakhsi, 2:200


[36] Abu Bakr Mu?ammad b. A?mad as-Sarakhsi, al-Mabsu? (Beirut: Dar al-Ma`rifah, 1406 AH), 10:145.


[37] Abu Bakr Mu?ammad b. `Abd Allah Ibn al-`Arabi (468-543); a mujtahid in the Maliki madhhab. Born in Morocco, he traveled to the east in search of knowledge, where he studied with al-Ghazali. He eventually returned to Marrakesh. Among his famous students was Qa?i `Iyya?. In addition to A?kam al-Qur’an, he is famous for `Ari?at al-A?wadhi, his commentary on Sunan al-Tirmidhi, and less well-known for al-Ma??ul fi `ilm al-u?ul. MurAd, 228.


[38] Ash-Sha?ibi, al-Muwafaqat, 4:205; Ibn al-`Arabi, A?kam al-Qur’an, 2:237; Mu?ammad al-Nur, 2:121, 141.


[39] Kamali, Principles of Islamic jurisprudence (Petaling Jaya, Malaysia: Pelanduk Publications, 2nd revised edn.), 332-333.


[40] Ibid., 15.


[41] Ash-Sha?ibi, al-Muwafaqat, 4:207-208.


[42] Mu?ammad Hashim Kamali, Isti?san (juristic preference) and its application to contemporary issues. Jeddah: Islamic Research and Training Institute, Islamic Development Bank, 1417 AH/1997 CE), 15.


[43] Ibn ?azm, al-I?kam fi u?ul al-a?kam, 2:167-168; al-Mu?affar, U?ul al-fiqh, 4:205.


[44] As-Sarakhsi, U?ul as-Sarakhsi, 2:201-202.


[45] See Mu?ammad b. Jarir a?-?abari, Jami` al-bayan fi ta’wil al-Qur’an (Beirut: Dar al-Kutub al-`Ilmiyyah, 1420 AH/1999 CE), 10:625; ar-Razi, al-Tafsir al-kabir, vol. 13, part 26, p. 227-228; Ibn `Ashur, at-Ta?rir wa at-tanwir, 24:51; Muhammad b. `Abd ar-Ra?man al-Iji, Jami` al-bayan fi tafsir al-Qur’an, ed. `Abd ar-Ra?man al-Handawi (Beirut: Dar al-Kutub al-`Ilmiyyah, 1424 AH/2004 CE), 3:497-498.


[46] Musnad A?mad, 1:379, no. 3600.


[47] Kamali, Isti?san, 32 passim.


[48] Musnad A?mad, 3:479, 4:338, 5:32.


[49] Musnad A?mad, 3:198, no. 13074.


[50] A?mad b. `Ali al-`Asqalani Ibn ?ajar (773-852); born and died in Egypt, although he traveled to Syria in search of knowledge. One of the most famous and prolific ?adith scholars in all of Islamic history; a judge, orator, teacher and author of more than 150 works, the most famous being Fat? al-Bari, his commentary on ?a?i? al-Bukhari. Murad, 79.


[51] A?mad b. `Ali Ibn ?ajar al-`Asqalani, Fat? al-Bari’, ed. Mu?ammad Fu’ad `Abd al-Baqi and Mu?ibb al-Din al-Kha?ib (Beirut: Dar al-Ma`rifah, 1379 AH), 11:297.


[52] As-Sarakhsi, U?ul al-Sarakhsi, 2:203.


[53] See pp. 41-52.


[54] See ash-Sha?ibi, al-Muwafaqat, 4:197-198, 207.


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