Using known fiqh issues to solve the unknown

One of the fiqh books I am working on is Ibn Daqīq al-‘Eid’s Tuḥfat al-Labīb, which appears to be the earliest commentary on Abū Shujā‘ al-Aṣfahānī’s Ghāyat al-Taqrīb (translated as The Ultimate Conspectus). His commentary provides evidence for most of the issues given in the book. He frequently presents alternative opinions within the school, differentiating between the opinions of Imam al-Shāfi‘ī (a “qaul”), and the opinions of the “colleagues” (the “aṣḥāb”) – early major Shāfi‘ī scholars (a “wajh”). Occasionally, he presents parallel paths of transmitted alternative opinions within the school (each path is a “ṭarīq,” which combine to form “ṭuruq”). There are even a few places where Imam al-Shāfi‘ī gives different answers to similar issues, and each of those answers will be transferred to the other and an additional opinion will then be extracted. The following examples show many of these things in action.

Example #1

The first example comes from the section on collateral, section 7.6 in The Ultimate Conspectus and The Accessible Conspectus. The example shows how Shafi’i scholars tried to reason through an issue for which there is no textual evidence and a few of the techniques they used while solving this problem.

If the item put up for collateral is in the hand of the one guaranteeing it, al-Shāfi‘ī said in the chapter on collateral that transfer of possession does not occur except with permission. He said in the chapter on gifts that if someone gifts him an item which is in his hand, it becomes within his possession without permission. The colleagues [aṣḥāb] disagreed along two paths [ṭuruq].

The first [path] is that there are two qauls via transfer and extraction for each issue. The first [qaul] is that neither one is in need of permission to take possession since it is a contract that does not need a new action. The second [qaul] is that it is in need [of permission]. (It is the sound opinion.) This is because it is a contract that needs permission to become binding, so permission is needed for taking possession – just as though the item were not in his hand.

The second path is affirming Imam al-Shāfi‘ī’s two opinions according to their apparent meanings. The difference between the two is that a gift is a contract which transfers ownership, so it is not in need of permission due to its strength; while putting collateral does not remove ownership, so it is in need of permission due to its [inherent] weakness.

Example 2.

The second sample comes from the section concerning assignment of debt, section 7.9. This particular example concerns the fourth condition (d). I have reworded it here to simplify things.

Suppose that A & B owe 1000 dirhams to C.

A & B owe an equal portion, and each one has guaranteed the other’s debt.

C decides to assign the debt of 1000 dirhams to them both so that he can demand the 1000 dirhams from whichever of them he wishes.

There are two opinions concerning the validity of this transaction.

The first is that it is valid, since C receives nothing except the amount he is owed.

The second is that it is not valid, since through assignment of debt C benefits by having an increase of whom he can demand what he is owed. And this increase is not permitted.

Ibn Daqīq al-‘Eid didn’t indicate which of the two opinions he preferred. According to my notes, neither did Imams al-Rāfi‘ī and al-Nawawī.

* * *

While I do not recommend this text for learning relied upon opinions according to the later Shāfi‘ī school, it is a great way for getting a taste of how Shāfi‘ī jurists do fiqh.

For more Shāfi‘ī fiqh, please see The Ultimate Conspectus and its commentary The Accessible Conspectus, sold online and in finer bookstores.

3 thoughts on “Using known fiqh issues to solve the unknown”

  1. One thing I’ve noticed is that literalists at both ends of the spectrum – liberal and conservative – don’t seem to understand that this is ACTUAL LAW.


    I can’t imagine any layman going into a courtroom with a straight face to represent themselves in a case.

    You CAN, I suppose.

    That doesn’t mean you SHOULD.

    And don’t cry when the judge throws your ign’ant butt in jail.

  2. wa alaykum al-salam. Translations are expensive. A multi-volume work requires funding. I don’t think I would do Sharh al-Muhadhdhab, though.

  3. As-salāmu ‘alaykum wa rahmatullāh, shaykh. Don’t think we ever discussed it, I’m a corporate and secured transaction attorney in the U.S. and the following occurred to me – this is to admit, the place from which I am speaking may be tainted by my industry experience in this field. The second opinion seems to disregard the fact that A & B cross guaranteed each other’s debts, so C is not gaining anything by assigning the full 1000D debt to them both since he could demand the debt of the other from either of the debtors under the cross guarantee. Unless the increase is that C can go after one of them for the full amount directly without first having to present a demand for the 500D from the other debtor. Do you have insight into the reasoning behind why in the second opinion this is considered an impermissible increase when seemingly there is no increase of any obligation on either of A or B?


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