This fact strongly suggests that they

do not constitute the core of his legal theory. Just to drive this point home,
51
I would like to focus, briefly and as a conclusion to this
section, on the classic four-part lists among those which have been examined
above. Of the eighteen lists which I identified at the outset of this article,
by my count only six unproblem- atically contain the four elements Quran an,
Sunnah, ijma , and ijtihad or qiyas. Of these six, three ( 959, 1012, and 1470)
occur in the first group of lists which I discussed, and clearly represent,
there- fore, lists of secondary, corroborative authorities used in relation to
other texts which provide the primary evidence of rules. One other such list (
120) occurs in a discussion concerning ijtihad and the importance of limiting
legal enquiry to revealed texts (this particular list has a fraternal—but not
identical—twin at 1468, which con- tains five members, as I noted above). The
remaining two "unprob- lematic" lists ( 1321, 1812) represent
utterances of the interlocutor and cannot simply be taken as expressions of
Shafiis own ideas. In light of all of the above evidence, it is not possible to
maintain the four-sources interpretation of the Isaiah.
IV. The Other
Theory in the Isaiah
If Shafiis
lists of authorities do not represent the central legal-the- oretical
achievement of the Isaiah—and they would be not only the best, but really the
only evidence of the four-sources theory
52
—then
51
And lest it be
thought that I have simply muddied the waters by considering lists which are
not of the form Quran an-Sunnah-ijma -ytihad/qiyas.
52
In order to
rescue the four-sources interpretation, it might be argued that the
46 JOSEPH LOWRY
what is the Isaiah
about?
53
Although the primary purpose of this article is to call the
"four sources" interpretation of the Isaiah into question, it would
only be fair, by way of conclusion, to suggest an alternative interpretation.
To do that, one might ask: What do Shafiis lists, or for that matter the
allegedly central four-sources, have to do with Shafiis various hermeneutic
techniques and concepts which are so painstakingly demonstrated throughout the
Risalah, such as the notions of amm/khass, jumlah/nass, naskh, ikhtilaf
al-hadith, or amr/ nahy?
54
Except in the narrow (but important) sense which I have already
described, concerning secondary, corroborative authority which is analytically
posterior to exercises in legal reasoning and interpretation, the answer is:
nothing really. One might then ask whether some other concept or idea in the
Isaiah could explain
Isaiah as a
whole, in its arrangement of topics, reflects the usual four-sources scheme
(Quran an, Sunnah, ijma , qiyds/ijtihad], even if not all of its lists of
authorities do. This argument fails, however, as soon as one considers that the
first four legal-theoretical concepts which are introduced, and which take up
approximately the first third of the Isaiah—bayan, amm/khass, naskh, and
jumlah/nass—all demonstrate the inter- action (or the collision) of Quran an
and Sunnah in specific instances. For the over- all form of the Isaiah to
reflect the four-sources scheme, the discussion of these concepts would have to
concern the Quran an alone, not the functioning of Quran an and Sunnah
together. In fact, the Isaiah seems mostly unconcerned with legal prob- lems
for which the authority, whether primary or secondary, is entirely Quran anic.
This point is easily proved by an examination of the approximat ely sixty
example problems discussed by Shafii in the Isaiah. It also follows, in my
view, from Burton's studies of Shafiis legal thought (eg, his Sources of
Islamic Law). One might also mention, in this regard, that the Risalah's
discussion of ijma ( l 309-1320) is exceptionally brief and probably best
interpreted as belonging to the larger discus- sion of the Sunnah rather than
as constituting an independent, coequal topic. See especially 1309-1312, where,
in an admittedly difficult passage, Shaffii denies that an instance of the
Sunnah can be inferred from ijma (that is, one needs the actual Sunnaic text,
not just the jurists' opinion about what one must do) and then sug- gests that
ijma is only valid because of its proximity to the Sunnah. I have ana- lyzed
this passage in detail in my "Legal-Theoretical Content", 430—437.
53
I noted above the view that Shafiis achievement consisted in
making the Prophetic Sunnah the sole supplement to the Quran an, a view that,
incidentally, seems incompatible with the four-sources theory; see, eg,
Coulson's clumsy attempt to link both ideas in his History of Islamic Law,
55-59. That view, however, con- cerns much more Shafiis place in the history of
Islamic legal thought than the precise details of his doctrine as they appear in
the Isaiah.
54
Only one of Shafiis hermeneutic techniques seems at all related to
his lists of authorities, namely qiyas, and then only by the fact of its
inclusion in the lists, since the lists do not really explain anything about
qiyas except, possibly, its epis- temological value relative to those
authorities which precede it in a given list. Note, also, that qiyas appears in
some lists only.
DOES SHAFII HAVE A THEORY OF "FOUR
SOURCES" OF LAW? 47
something
about the significance of those hermeneutic techniques and concepts, and there
does in fact exist an idea in the Isaiah which sheds some light on both the
content and the organization of the Isaiah.
The
very first legal-theoretical concept which Shafii discusses at length in the
Isaiah is what he calls the "bayan", a "statement of a legal
rule". According to Shafii, legal rules are expressed, in revealed texts,
in one of five ways: (1) by the Quran an alone, (2) by the Quran an and the
 Sunnah together whereby the Sunnah echoes the Quran an, (3) by the Quran an and
Sunnah together whereby the Sunnah explains the Quran an, (4) by the Sunnah
alone, or (5) by none of the above, in which case one resorts to ijtihad and
qiyas (see generally Isaiah 53- 125). This catalog of modes of Quran an-Sunnah
interaction aims to provide a complete statement of all possible combinations
of revealed authority, and in those cases where revealed authority eludes the
practitioner completely, then the practitioner is thrown back into this matrix
of revealed texts by the injunction to resort to qiyas, a carefully defined
method for linking a rule to a revealed text in par- ticularly difficult cases.
55
The scheme of source-interaction outlined by the bayan evinces a
kind of symmetry, inasmuch as any given rule will always be a product of the
Quran an alone, the Quran an and Sunnah together, or the Sunnah alone. Thus,
Shafiis concept of the bayan complements his claim that the divine law is
all-encom- passing,
56
by showing
that the divine law exhausts all possible per- mutations of revealed authority,
57
and by showing
that it does so in an orderly and aesthetically satisfying manner.
55
If my interpretation of this aspect of Shafiis concept of the
bayan is correct, then the ostensibly non-revelatory elements in Shafiis
lists—ijma , athar, aqawil al- sahaba, and so on—should probably be understood
as offering interpretations of underlying revealed texts, that is, Quran an and
Sunnah, as I have already suggested above, at notes 37 and 38 for ijma and
athar. This is because non-revelatory infor- mation would be irrelevant to or
excluded from the system described by Shafiis theory of the bayan.
56
"No event befalls one of the people of God's religion without
there being in God's Book the indication of a rightly-guided course of conduct
in respect of it". "Laysa tanzilu bi-ahad min ahl din alldh nazilah
il1a wa-fi kitab allah al-dalil ala sabil al- hudd flha". (Isaiah 48)
57
It is also worth noting that the intensely complementary nature of
the rela- tionship between Quran an and Sunnah, as portrayed in the bayan
scheme, recalls the relationship between the Written and Oral Torahs in
Rabbinic Judaism.
48 JOSEPH LOWRY
If I have understood it, Shafiis bayan begins to sound like the
foundations of a theory of the law, since it attempts to offer an utterly
complete and systematic description of the law's shape and functioning. It
seems to me to represent the central point of the Isaiah: it forms the first
topic discussed at any length in the Isaiah, Shafii refers to it repeatedly
after his introduction of it,
58
and, significantly, it also reflects, or
rather, I would argue,
determines, the overall structure of the Isaiah and the order of topics
discussed. In the first third of the Risdlah, Shafii discusses problems of
source- interaction 53-125 [bayan] and 179-568 [ amm/khass, naskh,
59
jumlah/ nass]}, that is, problems in
which the Quran an and Sunnah
combine to express legal rules. In the second section, he discusses problems
relating to contradictions between individual hadith ( 569-1308, also including
isnad criticism),
60
that is, problems in which the Sunnah alone expresses legal rules.
In the third section, he discusses ijtihad and qiyas and other problems whose
solutions are difficult to docu- ment ( 1 321-1670), that is, problems for
which Quran an and Sunnah seem to offer no directly apposite rule, such that
one which is only indirectly relevant must be used as a basis for qiyas.
61
Thus, the over- all form of the Isaiah as well as
its arrangement
of discussions of individual hermeneutic techniques— amm/khass, ikhtilaf al-hadith,
qiyas, and so on—appear to be arranged according to Shafiis categories of the
bayan.
62
58
He expressly invokes this idea at Isaiah 293, 298-301, 308,
310-311, 418, 433, 440, 461-462, 465, 478-480, 568, 570-571, 613-615, and 629.
That is, it appears frequently in that part of the Isaiah devoted to problems
of source-inter- action, as one might expect.
59
Burton has certainly suggested, and the text of the Isaiah
confirms, that for Shafii naskh is very much a problem of Quran an-Sunnah
harmonization. Burton, Sources, eg 1-8. Shafii himself admits as much at Isaiah
608, where he says that the Sunnah frequently provides a dalil that naskh has
occurred within the Quran an: wa-akthar al-nasikh fl kitab allah innama 'urifa
bi-dilalat sunan rasul allah.
60
At the
beginning of this section, Shafii also reprises some aspects of Quran- Sunnah
interaction.
61
As noted above, Shafiis principal discussion of ijma , l 309-1320,
may belong to his treatment of the Sunnah as an independent source of law.
Shafiis discus- sion of problems in which the solution is difficult to document
in a revealed text,
1671-1821,
arguably belongs together with his discussion of qiyas and ijtihad.
62
Conspicuous by its absence is a section on the Quran an as an
independent source of legislation. I noted above that this absence represents a
problem for the four-sources theory as well, but I think I have shown that
there is no independent statement of a four-sources idea in the Isaiah, and so
no reason to think in the first place that the four-sources theory might
constitute the Risalah's main point.
DOES SHAFI'I HAVE A THEORY OF "FOUR
SOURCES" OF LAW? 49
Now, the point of Shafiis concept of the bayan would seem to be to
show, first, that all legal rules come from revealed texts and, second, that
what must have appeared as a bewildering array of contradictory rules and texts
can always be explained in terms of more-or-less defined hermeneutic techniques
( amm/khass, etc.), which themselves can be arranged into rationally organized
categories of possible combinations of Quran an and Sunnah (modes of
source-inter- action described by the bayan scheme).
63
These two points have the- ological corollaries: First, if the
divine law is truly all-encompassing, as Shafii claims, then that fact should
be reflected in its texts, and Shafiis concept of the bayan attempts
schematically to show how the law makes every possible use of its two revealed
sources, Quran an and Sunnah, by deploying them (as legislation) in all
possible com- binations. This attempt to account for all possible combinations
of revealed texts complements the notion of a revelation which con- templates
every eventuality. Second, when apparent contradiction in the divine law can
always be resolved and shown to be illusory, the perfection of the divine
itself is confirmed. These corollaries serve an even grander theological point,
which is that, for Shafii, Islam is first and foremost a religion of laws, and
the perfection, which is to say the ultimate truth, of the religion itself
emerges only, or at least most obviously, from a consideration of the religion
and its texts as fundamentally legislative in design. There is good reason to
think, then, that Shafiis notion of the bayan might represent the cornerstone
of a carefully constructed "juridical theology".
64
On the other hand, Shafii clearly outlines his notion of the bayan
and then refers to it repeatedly. The absence of a section of the Isaiah
devoted exclusively to the Quran an could be explained by the fact that the
overwhelming majority of legal rules are found in the Sunnah and, moreover, the
primary legal-hermeneutical problem to be solved for someone like Shafii was
the problem of contradictions between Qur'an and Sunnah. Shafiis bayan theory
obviously attempts to naturalize such contradictions by making Qur'an-Sunnah
combinations a primary feature of the law's structure. This explanation is supported
by the conclusions of Burton espe- cially on the role of the Qur'an in early
legal thought. See also, for a good sur- vey of the whole problem of the early
legal history of the Qur'an, P. Crone, "Two Legal Problems Bearing on the
Early History of the Qur'an", Jerusalem Studies in Arabic and Islam 18
(1994), 1-37.
63
Shafii devoted
his lengthiest work on legal theory and hermeneutics, Ikhtilaf al-hadith, to
instances of contradictory hadith.
64
This is George Makdisi's term for Shafii s achievement in the
Risaiah, and is more apt than he may have realized. "The Juridical
Theology of Shafii: Origins and Significance of usul al-fiqh", Studia
Islamica 59 (1984), 5-47.
50 JOSEPH LOWRY
V. Conclusion
I have tried to show above that Safins lists of authorities appear
in the service of larger legal-theoretical ideas, ideas which really can- not
be reduced to the lists, and of which the lists do not represent convenient
summations. Quite apart from the fact that the Isaiah's text does not allow
such a reductive interpretation, it seems to me that the four-sources
interpretation does considerable damage to Shafii as a legal theorist, making
his legal thought appear simplis- tic and implicitly making of the Isaiah a
badly organized jumble of unconnected ideas, unconnected, that is, except by
diverse, randomly appearing lists of authorities, sandwiched between
discussions of mat- ters to which they are largely irrelevant. I have also
tried to suggest that the Isaiah can be read as a book with an overarching
point: Shafiis theory of the bayan.
Given the sweeping implications of Shafiis concept of the bayan.,
it seems significant that it has no obvious connection to anything like a
theory of four sources; it certainly does not spell out a method (such as
mining the sources). Instead, Shafiis concept of the bayan would seem to be an
attempt to describe, down to the last detail, the divine architecture of the
law. By contrast, the (alleged) four- sources theory has no particular
implications that I can discern, and it is hard to explain why anyone should
have taken the trouble to work it out as a full-blown theory (which anyway it
is not). Since the four-sources theory also seems to have much less support in
the text of the Isaiah than one might have thought, given its ubiquity in the
secondary literature, perhaps the time has come to abandon it and to ponder
instead Shafiis concept of the baydn.