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THE FIRST SH$FI#^:THE TRADITIONALIST LEGAL THOUGHT OF

AB YA#QB AL-BUWAY^ (D. 231/846)*

AHMED EL SHAMSY

Abstract

Ab Ya#qb al-Buway, the first successor of Muammad b. Idrs al-Shfi#, made an important but hitherto unappreciated contribution to theformation of the Shfi# school of law and the convergence of the rivallegal approaches of the traditionalists (ahl al-adth) and the rationalists (ahlal-ra"y ) over the course of the 3d/9th century. An analysis of the contentand transmission history of al-Buways recently discovered Mukhtaar, theearliest work of secondary Shfi# scholarship, demonstrates that (1) the

particular interpretation of al-Shfi#s teaching developed and transmittedby al-Buwaywas marked by a characteristically traditionalist emphasis on

hadith; (2) al-Buways Shfi#ism was ultimately methodological in nature,rooted in al-Shfi#s legal hermeneutic and the central hadith principle;and (3) al-Buways hadith-oriented approach found its most enthusiasticaudience among the ahl al-adth, to whom it offered a way of engaging in

juristic reasoning (ra"y ) while maintaining the supremacy of hadith.

Introduction

It is to Max Weber that we owe the insight that much of what weview as essential to religions is due not to their founders, but rather

Correspondence: Ahmed El Shamsy, Harvard University, Center for Middle East-

ern Studies, 38 Kirkland Street, Cambridge, MA 02138. E-mail: [email protected]

* The research on which this essay is based was carried out with financialsupport from the Islamic Legal Studies Program at Harvard Law School,Social Science Research Council, American Research Institute in Turkey,and a Frederick Sheldon Traveling Fellowship from Harvard University. I amgrateful to Jonathan Brown, Christopher Melchert, David Powers, Aron Zysowand two anonymous reviewers for their insightful comments on earlier drafts

of this essay. I bear full responsibility for the errors that remain.

Koninklijke Brill NV, Leiden, 2007 Islamic Law and Society 14, 3 Also available online www.brill.nl

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to those who succeed them. These individuals face the challenge ofturning the personal bonds of loyalty between the founder and hisfollowers into adherence to an impersonal doctrine that can survive

and prosper in the absence of the charismatic leader. The successor failure of this routinization of charisma depends on the abilityof the successors to present the founders legacy in a form thatembodies the authority of the founder while facilitating the adoption,perpetuation, and creative extension of his teaching.

This essay seeks to apply Webers insight to the study of themadhhib fiqhya, the schools of law that dominated the theory andpractice of Sunni Islamic law for over a millennium.1 My casestudy is the Shfi# (Shfi#ite) school, whose origin has in recentdecades become the subject of lively controversy. Joseph Schachtssimple acceptance of the eponymous founder Muammad b. Idrsal-Shfi# (d. 204/820) as the sole author of Shfi# doctrine2 hasbeen assailed by a number of critical studies questioning al-Shfi#s

real contribution and significance.3

Norman Calder concluded thatthe foundational texts attributed to al-Shfi#, Kitb al-Umm and theRisla, are in fact the collective products of several generations of laterShfi#scholars. More recently, his conclusion has been modified byChristopher Melchert and Joseph Lowry, who have found that muchof al-Shfi#s teaching as presented in the Umm was already known toother scholars by the mid- to late ninth century.4 However, the lack of

1 Jonathan E. Brockopp has argued for the usefulness of Webers schemafor understanding the evolution of the legal schools in Theorizing Charismatic

Authority in Early Islamic Law, Comparative Islamic Studies 1 (2005): 129-58.2 Joseph Schacht, Introduction to Islamic Law (Oxford: Oxford University

Press, 1967), 58.3 See, in particular, Norman Calder, Studies in Early Muslim Jurisprudence

(Oxford: Clarendon Press, 1993); Wael B. Hallaq, Was al-Shafi#i the Master Architect of Islamic Jurisprudence? International Journal of Middle East Studies25 (1993): 587-605, and From Regional to Personal Schools of Law? A Re-evaluation, Islamic Law and Society 8 (2001): 1-26; Christopher Melchert, TheFormation of the Sunni Schools of Law, 9th-10th Centuries C.E. (Leiden and NewYork: E. J. Brill, 1997), and Qur"anic Abrogation Across the Ninth Century:Shfi#, Ab #Ubayd, Musib, and Ibn Qutaybah, in Studies in Islamic LegalTheory, ed. Bernard G. Weiss (Leiden and Boston: E. J. Brill, 2002), 75-98;

Joseph E. Lowry, Does Shfi#have a Theory of Four Sources of Law?in ibid., 23-50.

4 Christopher Melchert, The Meaning ofQla l-Shfi# in Ninth CenturySources, in #Abbasid Studies, ed. James E. Montgomery, Orientalia Lovaniensia

Analecta 135 (Leuven and Dudley, Mass.: Peeters, 2004), 277-301; Joseph

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concordance in wording between the extant text of the Umm and thequotations of al-Shfi#in other sources examined by Melchert andLowry suggests an extent of textual fluidity that has left the precise

status of this material in doubt. This uncertainty regarding the earlytextual tradition is compounded by the apparent paucity of ninth-century works dealing with al-Shfi#s Risla, commonly acclaimedas the inaugural text of the discipline of legal hermeneutics (ul al-

fiqh).5 As a consequence, we know little about the development ofShfi#doctrine in the initial decades following al-Shfi#s death.

Through a close study of the hitherto unexamined work of al-Shfi#s first successor, Ab Ya#qb al-Buway(d. 231/846), I hopeto shed new light on the very first stages in the genesis of the Shfi#school. Al-Buways Mukhtaar, or Compendium, can with someconfidence be dated to the first half of the 3d/9th century. Its contentdemonstrates that already al-Buwayactively engaged with al-Shfi#swork in both positive law and legal hermeneutics. He organized and

processed the material bequeathed by al-Shfi#, formulated ways ofreconciling contradictions within the corpus of the masters works,and promulgated his own interpretation of al-Shfi#s core message.Crucially, al-Buwayalso developed the necessary foundation of aschool of law, namely a justification for legal conformism (taqld),6

E. Lowry, Ibn Qutayba: The Earliest Witness to al-Shfi# and his LegalDoctrines, in ibid., 303-19.5 See Hallaq, Was al-Shafi#i. Given that the discipline of ul al-fiqh

is primarily concerned with the development and elaboration of rules forextracting positive law from the sacred sources, I prefer to translate ul al-

fiqh as legal (or juristic) hermeneutics as opposed to the more commonlegal theory. For a discussion of these terms, see Hans-Thomas Tillschneider,

Die Entstehung der juristischen Hermeneutik (ul al-fiqh) im frhen Islam (Wrzburg:Ergon, 2006), 1-2.

6 A pithy later definition of taqld is the acceptance of a position withoutevidence (qubl qawl bi-l ujja ); Ab\mid al-Ghazl, al-Mustaf f #ilm al-ul, ed. Hamza b. Zuhayr \fi, 4 vols. (Medina: published by the editor,1413/1993 or 1994), 4:139. This is how al-Shfi#already appears to haveunderstood the term, as demonstrated by the following rhetorical question inthe Umm: If you follow (tuqallid) #Umar b. al-Khab alone on issues regardingwhich you have no evidence (ujja ) beyond following him (taqlduh ), then howcould you disagree with him when he is supported by the Qur"an, analogy (qiys),common sense (ma#ql ), and other Companions of the Prophet? Muammadb. Idrs al-Shfi#, Kitb al-Umm, ed. Rif#at Fawz # Abd al-Mualib, 11 vols.(Mansura: Dr al-Waf", 2001), 8:346. All references to the Umm in this essayare to this edition, unless otherwise stated. Regarding the authenticity of theUmm, see footnote 39.

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i.e. a convincing theory of why the founders teaching presented areliable and authoritative path to follow.

My aim is to reconstruct how al-Buway received, interpreted,

and transmitted his masters teachings, and to trace his role bothin the formation of the Shfi#school and in the broader evolutionof Islamic legal thought. I advance three main arguments. (1) Theparticular interpretation of Shfi#ism developed by al-Buwaywascharacterized by a pronounced focus on hadith in a number of areas:as evidence in legal argumentation, as the paramount principle oflegal hermeneutics, as a criterion for judging legal opinions, and as theoverarching justification for taqldof al-Shfi#by his followers. (2) Al-Buways Shfi#ism was ultimately methodological in nature, rootedin al-Shfi#s legal hermeneutic through the central hadith principlerather than in al-Shfi#s substantive positions on positive law (fur#).(3) Al-Buways hadith-centered approach had a particular impact onthe scholarship of the ahl al-adth, or traditionalists, facilitating the

latters acceptance of juristic reasoning (ra"y ) and thus contributingto the eventual creation of a shared methodological basis in SunniIslamic law.

The emergence of Shfi#ism between adth and ra"y

Ysuf b. Yay Ab Ya#qb al-Buway, born in the upper Egyptiantown of Buway probably no later than the early 170s/late 780s,7was a Mlikscholar who belonged to the Egyptian Arab aristocracy(wujh ). He studied in Egypt with Ibn Wahb (d. 197/812), one ofMliks most prominent students, and traveled to the Hejaz, GreaterSyria, and Iraq in order to further his education.8

7 Al-Buways birth date is unknown, but he is reported to have saidof al-Muzan, who was born in 174 or 175/between 790 and 792, that thelatter was still a weak youth (aba#f ) when the two studied with al-Shfi#.See Ab Bakr Amad al-Bayhaq, Manqib al-Shfi#, ed. Amad aqr, 2 vols.(Cairo: Dr al-Turth, 1971), 2:347.

8 For biographical information on al-Buway, see Trkh Ibn Ynus al-adaf,ed. #Abd al-Fatt Fat#Abd al-Fatt, 2 vols. (Beirut: Dr al-Kutub al-#Ilmya,2000), 1:514; Ab#$im al-#Abbd, Kitb abaqt al-fuqah"al-shfi#ya, ed. GstaVitestam (Leiden: E. J. Brill, 1964), 7-9; #Uthmn b. #Abd al-Ramn al-Sha-hrazr [Ibn al-al], abaqt al-fuqah" al-shfi#ya, ed. Muy al-Dn #AlNajb, 2 vols. (Beirut: Dr al-Bash"ir al-Islmya, 1992), 2:681-4; Shams al-Dn

Ab #Abd Allh al-Dhahab, Siyar a#lm al-nubal", ed. Shu#ayb al-Arn" andMuammad Nu#aym al-#Arqass, 25 vols. (Beirut: Mu"assasat al-Risla, 1401-

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On his travels through the centers of Muslim learning, al-Buwaymust have encountered the primary juristic-epistemological conflict ofhis time, namely the chasm between the traditionalists (ahl al-adth

or ab al-adth ) and the rationalists (ahl al-ra"y or ab al-ra"y ). Atone end of this conflict, the traditionalists posited simple adherenceto authoritative sources (nu )specifically the Qur"an, prophetichadiths, and reports from the Prophets Companions (aba ) aswell as the latters Successors (tbi#n)9 as sufficient guidance forthe conduct of a believers life, and scorned juristic reasoning as animposition of human subjectivity upon God. At the other extreme,rationalist jurists rejected as too uncertain the so-called single-transmitter reports (akhbr al-d ) that constituted the bulk of thetraditionists material, relying instead on extensive and complex legalreasoning, in which the analogical extension of known rules to newcases occupied a central position. The mutually attached stigmataof the opposing camps, which branded the traditionalists primitive

and the rationalists impious, would thus have presented an aspiringscholar in the 3d/9th century with a personal dilemma. He could basehis treatment of legal questions exclusively on transmitted reports andpreserve a clear conscience, but be assured of crushing humiliationin any debate with the rationalists, some of whom appear to havemade a sport out of taunting their traditionalist counterparts inthis manner.10 Alternatively, he could adopt the sophisticated tool

kit of the rationalist jurists, but be left with the nagging doubt thathis reasoning might ascribe his own fallible opinions to God at theexpense of possibly authentic hadiths.

1409/1981-1988), 12:59; Ab Bakr Amad b. #Al [al-Khab al-Baghdd],Trkh Madnat al-Salm, ed. Bashshr #Awwd Ma#rf, 17 vols. (Beirut: Dr

al-Gharb al-Islm, 2001), 16:439-44; T j al-Dn al-Subk, abaqt al-shfi#yaal-kubr, ed. Mamd Muammad al-anand #Abd al-Fatt Muammadal-\ulw, 10 vols. (Cairo: Dr Iy" al-Kutub al-#Arabya, 1413/1992 or 1993;reprint of Cairo: #^s al-Bbal-\alab, 1964-1976), 2:162; Ab Sa#d al-Sam#n,al-Ansb, ed. # Abd Allh #Umar al-Brd, 5 vols. (Beirut: Dr al-Fikr, 1998),1:417; Ahmet zel, Bveyti, in `slm Ansiklopedisi, ed. Keman Gran, 33 vols.(Istanbul: Trkiye Diyanet Vakf, 1988-), 6:500-1; and Fuat Sezgin, Geschichte desarabischen Schrifttums [GAS ], 12 vols. (Leiden: E. J. Brill, 1967-1984), 1:491.

9 Throughout this essay, I will use the term hadiths to refer to reportsattributed to the Prophet as well as to his Companions and their Successors,distinguishing the first on occasion as prophetic hadiths.

10 Ibn Ab \tim al-Rz, $db al-Shfi# wa-manqibuh, ed. #Abd al-Ghan#Abd al-Khliq (Cairo: Maktabat al-Khnj, 1953), 65-6.

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Neither group was predominant within the scholarly communityof 3d/9th-century Egypt, which had become a center of Mlikism:senior students of Mlik, such as Ibn Wahb, Ibn al-Qsim (d. 191/

806), Ashhab (d. 204/819 or 820), and # Abd Allh b. # Abd al-\akam (d. 214/829), had settled in Egypt, and the small communityof Arabs established there after its conquest had adopted Mliksteaching. Egyptian Mlikscholars did engage in speculative legalreasoning, as demonstrated by the collections ofmas"il(hypotheticallegal questions) by Ibn al-Qsim and Ashhab. But they also utilizedhadith more than Iraqi jurists did, since the Mliks concept ofMedinan practice (#amal ahl al-Madna ) provided them with a wayof overcoming the epistemological uncertainties of single-transmitterreports. The disadvantage of the Mliks reliance on this notion,however, was that it isolated them both from the latest methodsof hadith (especially isnd ) criticism developed by hadith scholars,and from the cutting-edge juristic concepts emanating from Iraq.

In addition, Egyptian Mliks apparently had begun to feel mar-ginalized in the judicial realm, as more and more Iraqi (proto-\anaf)jurists were appointed as judges for Egypt by the caliph in Baghdad,especially during and after the reign of the imperial grand judge

Ab Ysuf (d. 182/798).11

It was in this context, between 198 and 200/813 and 816, thatanother one of Mliks students came to settle in Egypt. With his

noble lineage, impeccable scholarly credentials, and illustrious reputa-tion, Muammad b. Idrs al-Shfi#made an immediate impression onthe Egyptian scholarly scene and attracted many students, primarilyfrom the indigenous Mlikelite.12 He had studied not only in theHejaz but also in Iraq, where he had read the works of the leading\anaf scholar al-Shaybn (d.189/804 or 805) and engaged himin debate.13 This experience must have held a particular attraction

for the Mliks, as what we have of the Mlik writings of this

11 Hugh Kennedy, Central Government and Provincial Elites in the Early#Abbasid caliphate, Bulletin of the School of Oriental and African Studies44 (1981):26-38, at 37.

12 According to Zakary al-Sj(d. 307/919 or 920), al-Shfi#s arrival inEgypt was hailed as the coming of a jurist from the Quraysh, and manyprominent Mliks rushed to visit him; see Ibn #Abd al-Barr, al-Intiq" f fa"ilal-thaltha al-a"imma al-fuqah" (Beirut: Dr al-Kutub al-#Ilm ya, 1980; reprintof Cairo: Maktabat al-Quds, 1350/1931), 77-8.

13 Ibn Ab\tim, $db al-Shfi#, 201-3.

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era suggests that the Mliks ability to defeat \anaf argumentsin debate must have been very limited.14 # Abd Allh b. # Abd al-\akam, a prominent student of Mlik and the main facilitator of

al-Shfi#s move to Egypt,15 was aware of this Mlikvulnerabilityvis--vis \anafteaching. He sent his son Muammad (d. 268/882)to study with al-Shfi# in the hope that the latters methodologywould prove a potent tool in defense of Mlik. Ibn #Abd al-\akaminstructed his son to keep the company of this man, as he knowsmany [different ways of deriving] legal proofs; for if you were toleave this country and say [as evidence in a legal debate], Ibn al-Qsim said [so], you would be laughed at.16

It did not take long for the young and bright Mlikstudents whofrequented al-Shfi#s lectures to notice that al-Shfi#held manypositions that did not agree with those of Mlik. This in itself wasnot particularly unusual: the contemporary leader of the Mliks inEgypt, Ashhab, himself diverged from Mliks positions on many

for some too manypoints.17

In the heated and lively debatesbetween al-Shfi#and his students, however, al-Shfi#developedmuch more than differing conclusions on individual points of law.

As his Disagreement with Mlik (Ikhtilf Mlik) shows, al-Shfi#putforward a critique of Mliks fundamental approach, especially thelatters inconsistent use of the sources, which, he argued, revealeda lack of hierarchy and therefore led to arbitrary decisions. The

Mlikconcept of #amal had not yet acquired a sound theoreticalbasis, and the results of its application often appeared random, as

14 For a discussion of the Mlikstyle of jurisprudence in this period, see Jonathan E. Brockopp, Competing Theories of Authority in Early Mlik

Texts, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden andBoston: E. J. Brill, 2002), 3-22, and Early MlikLaw: Ibn #Abd al-\akam and His

Major Compendium of Jurisprudence(Leiden and Boston: E. J. Brill, 2000).15 Brockopp, Early Mlik Law, 27-8.16 #Iy b. Ms al-Yab[al-Q #Iy], Tartb al-madrik wa-taqrb al-

maslik li-ma#rifat a#lm madhhab Mlik, ed. Amad Bakr Mamd, 3 vols. (Tripoli:Dr Maktabat al-\ay, 1967), 2:66. For a slightly different version of thisquotation that mentions Ashhab instead of Ibn al-Qsim, see Ibn Khallikn,Wafayt al-a#yn wa-anb" abn" al-zamn, ed. Isn #Abbs, 8 vols. (Beirut: Drdir, 1398/1978), 4:194. Ibn #Abd al-Barr, in al-Intiq", 113, also reports thatIbn # Abd al-\akam encouraged his son to study with al-Shfi#.

17 Umar Faruq Abd-Allah, Mliks Concept of#Amalin the Light of MlikLegal Theory (Ph.D. diss., University of Chicago, 1978), 108.

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seemingly clear hadiths alternately were accepted and disregarded.18It was this weakness in Mlikteaching that al-Shfi#s attacks onMlik laid bare, causing some of his Mlikstudents to question the

very foundations of their masters doctrine.The solution offered by al-Shfi#to the Mliks dilemma consisted

of an articulated legal hermeneutic that resolved these tensions. Itincorporated the theoretical sophistication of the rationalists, par-ticularly the \anafs, in the form of a conceptual repertoire of rationalargumentation. But it subjected these tools to a hierarchy that clearlyprioritized the sacred sources, including single-transmitter prophetic

reports, while excluding the indeterminate category of #amal.19The psychological effects of this synthesis can be detected in several

reports of dreams that led scholars to embrace Shfi#ism. Ab Ja#faral-Tirmidh(d. 295/907), who became one of the main popularizersof Shfi#thought in the East, described his epiphany as follows:

I studied prophetic traditions for twenty-nine years; I studied Mliks

mas"il and positions (qawl ) and I had no good opinion of al-Shfi#.Then, while I was sitting in the Prophets mosque in Medina, slumberovercame me and I saw the Prophet in my dream. So I asked him:O Prophet, should I study Ab \anfas opinions (ra" y Ab \anfa)?He answered: No. I asked: Should I study Mliks opinions? Heanswered: [Only] that which conforms to my example (sunnat ). Iasked him: Should I study al-Shfi#s opinions? He shook his headas if angry about what I had said and replied: They are no mereopinions, they are refutations of those who contravene my example.

Under the influence of this vision I left for Egypt to study al-Shfi#sbooks.20

In the dream al-Tirmidhasks for the Prophets advice on the choiceof a teacher in law, demonstrating his interest in the subject. Butthe Prophets warning to avoid contravening his example reveals

18 Joseph Schacht, The Origins of Muhammadan Jurisprudence(Oxford: ClarendonPress, 1967), 11.

19 That al-Shfi#promulgated such a hierarchy has been called into questionby Joseph Lowry in Does Shfi#have a Theory of Four Sources of Law?Lowrys argument is based on an examination of the Risla, which indeed isnot concerned with the development of a hierarchy of sources. However, asI demonstrate below, al-Shfi#put forward an explicit hierarchy in the Umm,and this was picked up by his followers beginning with al-Buway.

20 Ab Nu#aym al-Ibahn, \ilyat al-awliy"wa-abaqt al-afiy", [no namededitor], 10 vols. (Beirut: Dr al-Kitb al-#Arab, 1967-8; reprint of Cairo:Maktabat al-Khnj, 1932-8), 9:100.

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the unease that al-Tirmidhfelt regarding juristic reasoning (ra"y).21Al-Shfi#s work, depicted as a type of ra"y that is not merelyconsistent with but embodies the Prophets Sunna, thus represents

the resolution of the conflict that underlies the dream.That the Mliks did feel at least to some degree bound to Mlik

by ties of loyalty seems clear. Mliks followers composed compendiaand defenses of his positions,22 and the most zealous among them,such as Fityn b. Ab Sam (d. 232/846 or 847), chastised al-Shfi#both verbally and physically for criticizing Mlik. It is a signof al-Shfi#s personal prestige that the governor punished Fitynfor the insult.23 Al-Buway, too, must have faced the tension be-tween the appeal of al-Shfi#s approach, on the one hand, andadherence to Mliks teaching, on the other. His own account ofhis conversion, as quoted by Ibn al-al, hints at the perceiveddifficulty of abandoning Mlik:

Al-Shfi#came to Egypt and began to voice much criticism of Mlik.

I [first] blamed him for it, [then] remained in a state of confusion. Iprayed much and asked God in the hope that he might show me thetruth. Then I saw in my dream that the truth was with al-Shfi#.24

21 Throughout this essay, I translate the term ra"y as juristic reasoningin the active sense of engaging in ra"y. The products of this activity I call

opinions (e.g. ra"y Ab \anfa, ra"y Mlik). Ra"y is thus a narrower conceptthan ijtihd, as the latter might also include, for example, a jurists efforts toauthenticate hadiths, while ra"y denotes juristic reasoning outside the literalscope of the sacred sources.

22 # Abd Allh b. # Abd al-\akam wrote a Mukhtaar of Mliks work; hisson Muammad authored a refutation of al-Shfi#s critique of Mlik. Forthe former, see Brockopp, Early MlikLaw; for the latter, see ric Chaumont,A propos du Kitb al-radd #al al-Shfi# attribu Muammad Ab Bakr b.Muammad Ibn al-Labbd al-Qayrawn(m. 333/944) et des rfutations de

Shfi#dans le mlikisme ancien, in Studies in Islamic and Middle Eastern Texts andTraditions in Memory of Norman Calder, ed. G. R. Hawting, J. A. Mojaddedi, and

A. Samely,Journal of Semitic StudiesSupplement 12 (Oxford: Oxford UniversityPress, 2000), 75-84, as well as Ibn # Abd al-Barr, al-Intiq", 114.

23 al-Q #Iy, Tartb al-madrik, 1:458.24 Ibn al-al, abaqt al-fuqah", 2:682-3. Although this and several other

important reports regarding al-Buwayare found exclusively in Ibn al-alswork, there is reason to believe in his trustworthiness as a transmitter of historicalinformation. In the half-dozen instances that I have checked where he quotesworks that are still extant, the quotations are accurate. The fact that much ofhis material is not replicated in other works is likely to be at least partly dueto the fact that Ibn al-al traveled through the Eastern Islamic world onlya few years before the Mongol invasion and the resultant destruction.

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Al-Buwaybecame a very close student of al-Shfi#. The mastereventually referred requests forfatws, even from the deputy governor(ib al-shura ) of Egypt, to al-Buway, demonstrating how much

he trusted his pupils judgment.25 When al-Shfi#died, little morethan four years after his arrival in Egypt, al-Buway prevailedover another favored student, Muammad b. # Abd al-\akam, inthe dispute over al-Shfi#s succession. Al-Buway took over hismasters teaching circle in the congregational mosque of Fustat andretained this position for twenty-seven years. Throughout this time,al-Buwaywas considered a first-rank religious dignitary, with closelinks to the Egyptian Mlikscholars who constituted the local elite.Thus when the Abbasid general #Abd Allh b. hir marched intoEgypt in 211/826 to reassert Abbasid authority over the conflict-torn province, it was al-Buwaywho presented the newly arrivedgeneral with a shortlist for the position of grand judge of Egypt.Several scholars on this list were Mliks, including # Abd Allh b.

# Abd al-\akam and #^s b. al-Munkadir.26

At some point between218 and 220/833 and 835, al-Buwayappears to have spent sometime in Baghdad, where he visited Amad b. \anbal (d. 241/855) inprison.27

The Abbasid Inquisition (minat al-Qur"n ) heralded a dramaticturning-point in the fates of Egyptian scholars in general and of al-Buwayin particular. In 226/840 the imperial grand judge Amad b.

AbDu"d (d. 240/854) charged a fervent \anaf, Ibn Abal-Laythal-Aamm (d. 250/864 or 865), with the vigorous implementationof the Inquisition in Egypt, which hitherto had been spared the

violence of the mina in Iraq. Under the guise of enforcing thetheological tenet of the createdness of the Qur"an, Ibn Abal-Laythembarked upon an aggressive campaign to suppress and intimidate

followers of Mlik and al-Shfi# in order to promote \anafism,which had at that time achieved no more than a marginal presencein Egypt.28 Mlikand Shfi#scholars were barred from teachingin the central mosque of Fustat, and many were openly humiliated

25 Ibn Ab \tim, $db al-Shfi#, 275. For the meaning of ib al-shura,see Kennedy, Central Government, 35-6.

26 Ab #Umar al-Kind, Kitb wult Mir wa-yalhi kitb Tasmiyat qutih(Beirut: Mu"assasat al-Kutub al-Thaqf ya, 1987), 327.

27 Ibn al-al, abaqt al-fuqah", 2:684.28 al-Kind, Kitb wult Mir, 341-2.

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and beaten.29 While most scholars accepted the necessity of publicadherence to the new doctrine in order to evade persecution, al-Buwaydefiantly refused to abandon his position and was sent in

chains to Baghdad for further interrogation.30 There he died inprison in the year 231/846.31

Al-Buways version of Shfi#ism

For the quarter-century that al-Buwayled al-Shfi#s teaching circle

in the central mosque, his work and teaching represented the main vehicles for the propagation of al-Shfi#s thought. We know ofnumerous scholars who studied with al-Buway, including many whotransmitted his writings to subsequent generations.32 In contrast,al-Shfi#s other disciples in Egyptthe most prominent of whomwere Muammad b. # Abd al-\akam, Ism#l b. Yay al-Muzan(d. 264/877), al-Rab# b. Sulaymn al-Murd (d. 270/884), and

Ynus b. # Abd al-A#l (d. 264/877 or 878)appear to have hadvery few students in the period spanning the deaths of al-Shfi#andal-Buway.33 The lessons that al-Buway imparted to his studentsthus set the initial course for the emerging school.

What, then, did al-Buwayteach his followers? The answer to thisquestion holds the key to understanding the birth and survival of

29 Nurit Tsafrir, The History of an Islamic School of Law: The Early Spread ofHanafism (Cambridge, Mass.: Islamic Legal Studies Program at Harvard LawSchool and Harvard University Press, 2004), 99-100.

30 Some reports suggest that al-Buways downfall was hastened by a con-spiracy of fellow Shfi#s that included al-Muzan, \armala, and al-Shfi#sson Ab #Uthmn; see #Alb. al-\asan [Ibn #Askir], Trkh madnat Dimashq,ed. Muyal-Dn al-#Amraw, 70 vols. (Beirut: Dr al-Fikr, 1995-2001), 53:359-

60. 31 The only source that claims al-Buwaydied in 232 rather than in 231is Ibn Ynus; see Trkh Ibn Ynus, 1:514.

32 For details on al-Buways students, see the next section on The impactof al-Buways Shfi#ism.

33 The only reports that I have been able to locate relate to two scholarswho studied al-Shfi#s works with al-Rab# b. Sulaymn al-Murd: Ab Zur#aal-Rzin the year 227/841 or 842, and an unknown scholar in 207/822 or823. For the former, see Ibn #Askir, Trkh madnat Dimashq, 51:369, and Ibn\ajar al-#Asqaln, Tahdhb al-Tahdhb, [no named editor], 12 vols. (Beirut:Dr al-Fikr, 1984; reprint of Hyderabad: Matba#at Majlis D"irat al-Ma#rifal-Nim ya, 1907-1909), 3:213. For the latter, see al-Shfi#, al-Umm, 3:269(Kitb al-ajj).

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the Shfi#school as a unified institution. This is because the formthat al-Shfi#s legacy would take was by no means determined byal-Shfi# himself. As countless reports by his followers show, al-

Shfi#s students considered him exemplary as an individual and ascholar: of noble lineage and exceptional piety, possessed of personal

virtues such as chivalry, unmatched in the depth and range of hisscholarship, and a brilliant debater. As a consequence, despite therelative brevity of his sojourns in Iraq and Egypt, he attracted adevoted following in both locations. This personal charisma, whicheventually found expression in the hagiographic reports (manqib)of the late 3d/9th and early 4th/10th centuries, bound al-Shfi#sstudents to him as admiring disciples while he was still alive. Thequestion at al-Shfi#s death was whether his charisma would survivehim: would his students go their separate ways, each carrying hisown understanding of the masters memory and legacy, or wouldthey form a community of scholars united by their allegiance to al-

Shfi#s teachingin other words, a school?The second option has aptly been termed the routinization ofcharisma (die Veralltglichung des Charisma ) by Max Weber.34 Thefounders immediate successors play a crucial role in this process, asit is their task to enable the continuation of the founders charismaticauthority by channeling it into either of the two other basic formsof authority identified by Weber, traditional or legal-rational. In the

context of madhhab formation, traditionalization entails establishingthe founders positions as authoritative in and of themselves, whilerationalization requires their justification and application within asystematic framework that is portrayed as rooted in universal orobjective truths. To achieve the latter, the founders charisma mustbe de-personalized and attached to the doctrine disseminated byhis followers. This process (die Versachlichung des Charisma in Webers

terminology) involves a dissociation of charisma from a particularindividual, making it an objective, transferable entity.35 I believethat al-Buway very effectively rationalized and de-personalized

34 Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie(Tbingen: Mohr, 1976), part 1, chap. III, 11 (Die Veralltglichung des Charis-ma durch Traditionalisierung und Rationalisierung zum Zwecke der Designation

von Nachfolgern).35 Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed. and

trans. Guenther Roth and Claus Wittich (Berkeley and Los Angeles: Universityof California Press, 1978), 248.

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al-Shfi#s charisma as a mujtahidby promulgating and transmitting toothers a version of al-Shfi#s teaching that was based on a convincingrationale for taqldof al-Shfi#. This rationale rested on the primacy

of hadith in both positive law and legal hermeneutics.The main source for reconstructing al-Buways interpretation

of al-Shfi#s thought is al-Buways Mukhtaar, or Compendium.This text, extant only in manuscript form, has hitherto been almostentirely ignored in modern scholarship on the Shfi#school, withthe apparently solitary exception of a 1977 Masters thesis written atCairo University.36 Nevertheless, references to the manuscripts canbe found in a number of modern texts,37 and at least four completemanuscripts of the work are available; for a description of these andevidence of the works authenticity see the Appendix.38

TheMukhtaarconsists of summaries in the form of succinct para-phrases of most of the treatises and chapters included in the Umm andthe Risla, introduced by the phrase qla al-Shfi#.39 In addition,

the text is interspersed with several layers of brief comments by al-Buway, al-Rab#, Ab\tim al-Rz(d. 277/890), and Ab Thawr

36 Jaml al-Layl # Abd al-#Azz, al-Buway wa-atharuhu f al-fiqh (M.A. diss.,Cairo University, Dr al-#Ulm, 1977). This is a basic introduction to al-Buways life and hisMukhtaarin which #Abd al-#Azz does not seek to analyse

the role of al-Buwayin the development of the Shfi#school. This shortcomingmay be at least partly attributable to the fact that the authors original supervisor,the famous legal scholar Muammad Ab Zahra, who prompted the study,died when the project was still in its early stages. See #Abd al-#Azz, al-Buwaywa-atharuh, introduction.

37 Sezgin, GAS, 1:491; zel, Bveyti, in `slm Ansiklopedisi, 6:500; editorsintroduction to al-Shfi#, al-Umm, 1:15.

38 References in this essay are to the following manuscript, unless otherwisestated:Muhtasar el-Bveyti(Istanbul: Sleymaniye, Murad Molla, MS 1189 [196

fols, 625/1228]).39 My argument throughout this essay is based on the assumption that, paceCalder in Studies in Islamic Jurisprudence, the Umm and the Risla as they existtoday in critical editions do indeed represent the work of al-Shfi#himself (aswritten down or copied by his direct students), and had achieved their textualcontentif not their final arrangementby the 260s/870s at the latest. Thisconclusion is based on the existence of hundreds of accurate quotations ofthe two texts in other works known to date from this period, as well as onother evidence such as chains of transmission. For a detailed defense of this

view, see Ahmed El Shamsy, A Textual History of al-Shfi#s Kitb al-Ummand Rislah (paper presented at the 217th Meeting of the American OrientalSociety, San Antonio, March 16-19, 2007), as well as my forthcoming Ph.D.dissertation, chap. 2.

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(d. 240/854).40 These comments, prefaced by qla and the names oftheir authors, offer additional evidence, mention alternative positions,provide clarifications and explanations, and occasionally express

minor disagreements. TheMukhtaarcould thus also be described asa school text, in that it reflects the collective efforts of a numberof Shfi#scholars to arrive at the correct interpretation of al-Shafi#sthought.41 It is illuminating to compare the style of the Mukhtaarwith that of the Umm, in which al-Rab# on numerous occasionsclaims to reproduce al-Shfi#s words verbatim and thus meticulouslyrecords the precise methods of t