Bridging the Gap: Two Early Texts of Islamic Legal Theory

Abstract

This article presents two short but complete treatises on legal theory (uṣūl al-fiqh). The first was written by Ibn Surayj (d. 306/918) as an addendum to his compendium on Shāfiʿī law, al-Wadāʾiʿ, and the second by Abū Bakr al-Khaffāf (fl. early fourth/tenth century), who included it as an introduction to his legal text al-Aqsām wa-l-khiṣāl. An analysis of these texts reveals the existence of a self-conscious legal-theoretical discourse around the turn of the fourth/tenth century that connects al-Shāfiʿī's (d. 204/820) Risāla with the so-called mature uṣūl tradition known from the late fourth/tenth century onward. The analysis also sheds considerable light on developments in legal theory in this period, such as the emergence of the term ʿilla (cause), the parallel rise of legal dialectics (jadal), the consequences of adopting the idea of waḍʿ (linguistic coinage), and generally the inclusion of theological concerns in legal theory.