Oxford Journal of Law and Religion, 2024, 00, 1–16

https://doi.org/10.1093/ojlr/rwae016
Original article

Canonizing al-Fur�uq: Shih�ab al-Dīn

al-Qar�afī’s Text on Legal Maxims
Elias G. Saba �

ABSTRACT
)
Anw�ar al-bur�uq fī anw�a al-fur�uq by the M�alikī Shih�ab al-Dīn al-Qar�afī (d. 684/1285) is one of the
most famous legal texts written in Mamluk Cairo. This article explores two issues with this canoni­
cal work: (i) it does not align with the generic constraints of the legal distinctions genre and (ii)
the problems that early commentators found with it. First, the article discusses the text in terms of
its form and content
( to show how the work should be understood as a work of substantive legal
maxims (qaw�a id). Second, the article analyses the problems that two M�alikī commentators,
Muh: ammad al-Baqq�urī (d. 707/1307-08) and Ibn al-Sh�at: t: (d. 723/1323), found with al-Qar�afī’s
text. Put together, these two threads highlight the pioneering nature of al-Qar�afī’s text. At the same
time, something about this new text made contemporary M�alikīs uneasy about the text, even as
they gave Anw�ar al-bur�uq a privileged position within the M�alikī canon. It ends with a brief discus­
sion of the modern resonances of this text.

)
Anw�ar al-bur�uq fī anw�a al-fur�uq (hereafter al-Fur�uq) by the M�alikī jurist Shih�ab al-Dīn al-
Qar�afī (d. 684/1285) is one of the most well-known legal texts written in Mamluk Cairo
and has become a famous expression of M�alikī jurisprudence. This renown is not particu­
larly surprising given both al-Qar�afī’s personal celebrity within Cairo during his lifetime,
where he became the head of the M�alikī legal school and his prolific written corpus.
Contemporary scholars have also relied on the text to unlock important findings about the
history and development of Islamic law. Yet, there is something amiss with this book. In
spite of its title, this work does not deal with fur�uq (legal distinctions) as normally used in
legal discourse: the distinctions between apparently similar substantive laws.1 Instead, the
book deals with the different scope of application of legal maxims—when and how different
legal maxims ought to be applied in the making of legal decisions. In other words, the most

� Departments of Religious Studies and History, Grinnell College, Grinnell, IA, USA. E-mail: esaba@grinnell.edu. I wish to
thank Christian Mauder for organizing the several workshops that helped shepherd this article to its completion. I also want
to thank the other contributors to this volume for their insightful feedback at several stages. In addition, I appreciated the
feedback from Eirik Hovden and the participants in the conference ‘Canon or Code? Standardising and Transmitting Islamic
Law’. The two anonymous reviewers provided insightful comments for improving this article. I also thank the Grinnell
College Committee on Support of Faculty Scholarship for a grant that allowed me to complete this article.
1
The genre of legal distinctions is discussed in more detail below.

# The Author(s) 2024. Published by Oxford University Press.

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2 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

popular work of fur�uq seems to fall short of the basic requirements of being a work
of fur�uq.2
To understand this peculiar situation, this article first provides an overview of canons and
canonicity as a framework through which to understand the status of al-Qar�afī’s book and
the responses to it. It then explains the traditional understanding of books of legal distinc­
tions, including the M�alikī works before al-Qar�afī. A discussion of the pre-modern evidence
of discomfort surrounding the generic format of this work follows this explanation. The arti­
cle then moves towards an analysis of what theory from canon studies elucidates about al-
Qar�afī’s book and in particular how we might understand the canonization process in pre-
modern Islamic law and the intertwined relationships between legal–literary canons and le­
gal genres and concludes with a brief discussion of the modern resonances of this text.
Before moving forward with a discussion of al-Qar�afī, his Fur�uq, and its place in the
canon, it is important to review the concepts of canon and canonicity to see how these ideas
will help us explore al-Qar�afī’s text and the reaction to it. Here, I draw on Jonathan A. C.
Brown’s treatment of canons and canonicity, which provides a clear framework for address­
ing these two issues within the Islamic intellectual tradition.3 He engages productively with
the work of Gerald Sheppard in which Sheppard delineates a spectrum along which we can
place our understandings of the term canon. At one end of this spectrum, Sheppard places
Canon 1—the notion of canon as a measure of truth and falsity—and at the other end,
Canon 2—the standardized list or version of authoritative texts.4 The spectrum provides a
rubric to think about how a particular text demonstrates its canonicity: Where along this
spectrum does a given text lie? How much is a text a measure of truth and how much is it
actually used as an authoritative text? In the case at hand: How can al-Qar�afī’s Fur�uq be
seen to demonstrate either of these versions of canonicity?
Sheppard’s notion of Canon 1 derives from an ancient Greek meaning of canon (kan�on),
rule, or measure of truth. In this meaning, a canon is an unassailable truth against which
other things are measured. As Stanley Fish writes, this understanding of canons signifies that
canonical materials ‘function not to encourage thought, but to stop it’.5 Once you have
established the truth about something, there is no reason to pursue further inquiry on the
topic. Despite their potentially anti-intellectual nature, Fish still sees canons as aspirational.
Critics want to create the canon, through inclusion and exclusion, and writers hope to be in­
cluded within the canon. As Fish explains, a text becomes part of the canon through ‘a con­
sidered judgment that this text … is the kind of thing … to which all workers in the
enterprise aspire’.6 Here, Fish draws our attention to a somewhat paradoxical aspect of can­
onicity—the tension between popularity and canonicity. He tells us ‘[c]anonicity is not con­
ferred by popularity (which can in fact be disqualifying)’.7 Here, Fish leans on this tension
between popular and critical approval. A text becomes part of the canon when it is deemed

2
See Elias G Saba, Harmonizing Similarities: A History of Distinctions Literature in Islamic Law (De Gruyter 2019)( 39–40.
Other recent scholars have also understood the( text as being ( something other than a text of distinctions, including Ya q�ub al-
B�ah: usayn and Necmettin Kızılkaya.) See Ya q�ub ibn Abd al-Wahh�ab al-B�ah: usayn, al-Fur�uq al-fiqhiyya wa-l-us: �uliyya:
muqawwam�atuh�a shur�ut: uh�a nash atuh�a tat: awwuruh�a dir�asa naz: ariyya was: fiyya t�arīkhiyya (Maktabat al-Rushd; Sharikat al-
Riy�ad: 1419/1998) 152–154; Necmettin Kızılkaya, Legal Maxims in Islamic Law: Concept, History and Application of Axioms of
Juristic Accumulation (Brill 2021) 105–107.
3
See Johnathan AC Brown, The Canonization of al-Bukh�arī and Muslim: The Formation and Function of the Sunnī H: adīth
Canon (Brill 2007) 20–46.
4
Gerald T Sheppard, ‘Canon’ in Mircea Eliade (ed), The Encyclopedia of Religion, vol 3 (MacMillan 1987) 62–69. See
also Kendall Folkert, ‘The “Canons” of “Scripture”’ in Miriam Levering (ed), Rethinking Scripture: Essays from a Comparative
Perspective (State University of New York Press 1989) 170–179.
5
Stanley Fish, ‘Not for an Age but for All Time: Canons and Postmodernism’ (1993) 43 Journal of Legal Education 12.
6
ibid.
7
ibid.
 Canonizing al-Fur�uq � 3

canonical through ‘considered judgment’, not ‘popularity’. At the same time, it is only a cer­
tain popularity that allows a text to be subject to such judgment.
Consider, in this light, thirteenth-century Cairo. One could see al-Qar�afī wanting to es­
tablish his text as Canon 1—the truth of the M�alikī school’s doctrine on substantive legal
maxims. In this interpretation, commentators could be understood as the critics hoping to
create a canon. The tension between popular and critical approval is harder to see, however,
in the case of al-Qar�afī. The ‘popular’ appeal of an advanced legal text in thirteenth-century
Cairo was limited to a subset of people who likely also made up the critics with
‘considered judgment’.
As Fish concerns himself with canon as a measure of truth, he centres on the important
role of readers as the determiners of a canon. This is consonant with his larger interest in
‘interpretive communities’, that is communities of readers, as the ultimate arbiters of a text’s
meaning.8 As Jonathan Brown states, ‘[u]ltimately, canon studies has demonstrated un­
equivocally that canonization is not the product of an author’s intention, but rather of a
community’s reception of texts.’9 A study of canonization, then, ought to focus on commen­
tary since commentary brings together many of these considerations. The discussions about
a text—how it is accepted, how well it comes to stand as a measure of truth, whether it
forms part of a standard list of texts—are central concerns in commentaries and speak di­
rectly to the canonicity of a text. Commentaries also provide an insight into the history of
canonicity by giving us a diachronic sample of how communities understood, interacted
with, and reacted to particular texts.10
Finally, Moshe Halbertal’s idea of the Principle of Charity is useful in understanding how
readers interact with canonical texts—thereby demonstrating which texts count as canoni­
cal.11 The Principle of Charity tells us that canonical status is transferred by a generous read­
ing, one that ‘attempt[s] to minimize internal contradictions and reconcile[s] notions of
truth established by the text with those evident in the outside world.’12 The Principle of
Charity thus tells us how communities interact with canonical texts and gives us a rough
guide for recognizing canonicity. It also leads us to ask how a commentator might harmo­
nize the truth of the text? This theoretical groundwork will inform our discussion of al-
Qar�afī’s Kit�ab al-Fur�uq and the M�alikī genre of legal distinctions.

� F �I A N D H I S F U R UQ
1. PREVIOUS SCHOLARSHIP ON AL-QARA �
Legal distinctions (al-fur�uq al-fiqhiyya) is a genre of Islamic )legal writing in which a scholar
compares sets of two seemingly similar fact patterns (mas�a il) that lead to divergent legal
rulings (ah: k�am) followed by an explanation of how the apparent contradiction between
these divergent rulings is not in fact a contradiction. Put differently, in these books, jurists
ask: why do two situations that seem the same lead to different outcomes? Why does a cer­
tain act nullify a minor ablution but not a major ablution? Legal distinctions treatises are
compilations of these comparisons. The texts of legal distinctions books are remarkably con­
sistent in their presentation. They present one fact pattern and state its related legal ruling.
8
See Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard UP 1982). Sherman
Jackson has shown the usefulness of the idea of an ‘interpretive community’ to the study of Islamic legal history. See Sherman
Jackson, ‘Fiction and Formalism: Towards a Functional Analysis of Us: �ul al-Fiqh’ in Bernard Weiss (ed), Studies in Islamic
Legal Theory (Brill 2002) 177–201.
9
Brown (n 3) 36.
10
See also ibid. ‘[C]anon studies has recognized that when communities authorize texts this involves common historical
processes that change the way these texts function and are used.’
11
Moshe Halbertal, People of the Book (Harvard UP 1997). See as well the contributions by Christian Mauder, Mohamed
Aidarus Noor, and Olav Elgvin to the present volume.
12
Brown (n 3) 30.
4 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

They then present a second fact pattern and its related legal ruling. The two legal rulings are
at odds. The difference between the legal rulings implicitly asks the question: ‘Why are the
legal rulings distinct, given that the fact-patterns seem to be equivalent?’ The author of a
text of legal distinctions then answers this implied question.13
The evidence for how these books were used is indirect as no source states their purpose
explicitly. That said, some inferences can still be drawn as to their purpose, in particular,
that these texts were likely used by advanced law students to hone their understanding of le­
gal causation and the precise details of substantive law. The distinctions drawn between( sub­
stantive laws almost always relate to the proper application of the legal rationale ( illa).
Thus, these books can serve as a review of these high-level concepts. In addition, the distinc­
tions drawn in these texts are also related to the back-and-forth argumentation of formalized
legal disputation. From this, we can surmise that these books were likely used as part of the
preparation for such disputations.14
Shih�ab al-Dīn al-Qar�afī’s Fur�uq is perhaps the most well-known work of legal distinctions
ever written. It exists in numerous manuscripts throughout Europe, North Africa, and the
Middle East. For reasons that are still somewhat opaque, Anw�ar al-bur�uq was a very popular
text in the Ottoman Empire, as evidenced by the number of copies of this work in Turkey.
According to the catalogue at the S€ uleymaniye Library in Istanbul, al-Qar�afī’s al-Fur�uq is the
most popular work of distinctions in the collections.15 This book is also the only M�alikī
work of legal distinctions mentioned in H : �
ajjī Khalīfa’s bibliographic treatise Kashf al-
z: un�un.16 The prevalence of this text within the Ottoman Empire signals a kind of function
as to the canonicity of this text in this community, a circulation that seems to have taken
place in large part among non-M�alikī jurists.
Scholars have disagreed about how to categorize this text. Until recently, most modern
scholars have considered this text to be a work of legal distinctions. In a 1926 article, Joseph
Schacht included al-Qar�afī’s al-Fur�uq within a brief bibliography of the fur�uq genre.17 Here,
Schacht defines the fur�uq tradition by citing a definition given often in the classical tradition,
‘the criterion consists in the treatment of comparisons wherein the outward findings of the
18
cases are similar, but the( legal assessments differ’. This definition centres the comparison
of substantive law (fur�u ) and thus reflects the genre of legal distinctions well, even if it does
not describe al-Qar�afī’s text.19 Similarly, Wolfhart Heinrichs includes this work in his own
bibliographic article on the fur�uq genre in a ‘preliminary bibliography’.20 Although this arti­
cle advances greatly on Schacht’s earlier treatment, Heinrichs includes the same definition,
citing Schacht, and continues to include al-Qar�afī’s text as part of the fur�uq canon. It appears (
that Heinrichs does this since he is concerned with the way that the genres of fur�uq, qaw�a id
13
Saba (n 2) 16–30.
14
ibid 36–41. (
15
The S€uleymaniye has eight copies ( of this work. The second
( most popular work is the H : anafī treatise Talqīh
: al- uq� ul fī
fur�uq al-manq�ul by S: adr al-Sharī a al-Awwal, Ah: mad ibn Ubayd All�ah al-Mah: b� ubī (d. 630/1232–33), which exists in
six copies. (
16
H: �
ajjī Khalīfa, Kashf al-z: un�un an as�amī al-kutub wa-l-fun�un, vol 1 (Milli E�gitim Basımevi 1971) 186.
17
Joseph Schacht, ‘Aus zwei arabischen Fur�uq-B€uchern’ (1926) 2 Islamica 509.
18
ibid 511. (
19
Schacht
( is drawing from the fur�(uq work of Ibn Sunayna (d. 616/1219). Ibn Sunayna is the H : anbalī jurist Mu az: z: am al-
Dīn Ab�u Abd All�ah Muh: ammad ibn Abd All�ah al-S�amarrī. Schacht refers to him as al-S�amarrī. Schacht includes an edited ( ex­
cerpt of this text at the end of his article.
( The definition, however, is also given in several other sources. See, for instance, Abd
All�ah ibn Y� usuf al-Juwaynī, al-Jam wa-l-farq vol 1 (D�ar al-Jīl 2004) 37. Ibn Sunayna’s work has ( now been edited in full, al­
though the full text only (occurs across two editions. For the first part on ritual duties, ( see Mu az: z: am al-Dīn Muh: ammad ibn
Sunayna, Kit�ab al-Fur�uq al�a madhhab al-Im�am Ah: mad ibn H: anbal (D�ar al-S: umay ī 1997); the rest of the text was edited as
an MA ( thesis by Anas ibn (
19 Umar ibn Muh: ammad al-Subayyil, see Mu az: z: am al-Dīn Muh: ammad ibn Sunayna, ‘al-Fur�uq min awwal kit�ab al-jin�ay�at
il�a nih�ayat al-kit�ab dir�asatan wa-tah: qīqan’ MA thesis, Umm al-Qur�a University 1435 (2014).
20
Wolfhart Heinrichs, ‘Structuring the Law: Remarks on Fur�uq Literature’ in Ian Richard Netton (ed), Studies in Honour
of Clifford Edmond Bosworth, Volume I: Hunter of the East: Arabic and Semitic Studies (Brill 2000) 341–42.
 Canonizing al-Fur�uq � 5

)
[maxims],21 and ashb�ah wa naz: �a ir [cognate( and similar legal cases] overlap in helping to
structure and systematize ‘existing( fur�u law’.22 Heinrichs’s focus on the use of these various
genres to construct a better ‘fur�u law’ overlooks how these genres ( may operate to create a
legal structure separate from (but complementary to) that of fur�u law.23
Schacht and Heinrichs are joined in this identification by many of the editors of other
works of legal distinctions who include brief bibliographies in their introductions, most no­
tably Muh: ammad Ab� u( al-Ajf�an and H : amza Ab� u F�aris in their introduction to the Kit�ab al-
Fur�uq of Muslim ibn Alī al-Dimashqī (d. fifth/eleventh c.).24 Ab� u al-Ajf�an and Ab� u F�aris
are explicit in having a very broad (understanding of fur�uq, as being distinctions ‘sometimes
between two substantive laws (far ayn), sometimes between two substantive legal maxims,
others between lexical phrases or technical terms related to substantive law or legal the­
ory’.25 This broad definition is capacious enough to include al-Qar�afī’s text, but seems to
lose focus on the heart of fur�uq texts. This can be seen in their bibliography, which consists
of 24 books,
( 18 of which are legal distinctions
( treatises that distinguish between substantive
laws.26 Umar ibn Muh: ammad ibn Abd All�ah al-Sabīl also includes ) al-Qar�afī’s al-Fur�uq )in
his (bibliography of fur�uq works in his introduction to �I d: �ah: al-dal�a il fī l-farq bayn al-mas�a il
by Abd al-Rah: īm al-Zarīr�anī (d. 741/1341).27 Al-Sabīl uses a similar understanding of fur�uq
as do Schacht, Heinrichs, Ab� u al-Ajf�an, and Ab�u F�aris.28
However, several recent scholars have been troubled by the inclusion of al-Qar�afī’s( text in
the genre of legal distinctions. The first scholar to voice a clear objection was Ya q� ub al-
B�ah: usayn in his al-Fur�uq al-fiqhiyya wa-l-us: �uliyya (1998), the first detailed monograph on
the topic of legal distinctions.29 In this book, al-B�ah: usayn understands there to be two dif­
ferent genres of legal distinctions, substantive legal distinctions (al-fur�uq al-fiqhiyya) and
legal-theoretical distinctions (al-fur�uq al-us: �uliyya). Within the genre of substantive legal dis­
tinctions, he includes works that compare laws that appear similar but have different out­
comes—the same ones discussed by Schacht. He understands these books ultimately to be
21 ( (
Scholars have alternated between translating qaw�a id as either ‘maxims’ or ‘canons’. In a legal context, qaw�a id refers to
short phrases that a jurist can use to guide their interpretation of the law. Intisar Rabb has argued convincingly for using the
term ‘canons’ to translate
( this phrase, in part as an allusion to ‘canons of construction’ in an American legal context. While the
translation of qaw�a id as canon is generally preferable, this article will translate the term as ‘maxims’ in order to avoid confu­
sion between the two meanings of canon at play in this article: a pithy statement about the legal application and canon as a
body of authoritative texts. See Intisar Rabb, ‘Islamic Legal Maxims as Substantive Canons of Construction: H: ud�ud-
Avoidance in Cases of Doubt’ (2010) 17 Journal of Islamic Law and Society 63; Bryan A Garner, Black’s Law Dictionary
(10th edn, Thomson 2014) 247–48.
22
Heinrichs (n 20) 333. (
23
For a discussion of how the genre of qaw�a id may do this, see Intisar Rabb, Doubt in Islamic Law: A History of Legal
Maxims, Interpretation, and Islamic Criminal Law (Cambridge UP 2014) 1–24.
24
Muh: ammad Ab�u l-Ajf�an and H : amza Ab� u F�aris, ‘al-Dir�asa’ in Ab�u l-Fad: l Muslim al-Dimashqī (ed), al-Fur�uq al-fiqhiyya
(Beirut: D�ar al-Gharb al-Isl�amī 1992).
25
ibid 31. (
26
The exceptions are: (i) al-Qar�afī’s Fur�uq, (ii) his al-Ih (: k�am fī tamyīz al-fat�aw�a an al-ah: k�am wa-tas: arruf�at al-q�)ad: ī wa-l-
im�am; (iii) al-Farq bayn al-khaw�ariq al-thal�atha al-mu jiza wa-l-kar�ama wa-l-sih: r by ) Ah: mad ibn ( al-Bann�a al-Azdī
al-Marr�
( akushī (d. 721/1321), a work on supernatural acts; (iv) al-Farq bayn al-t: al�aq al-b�a in wa-l-raj ī by Ah: mad)al-Mahdī
al- Imr�anī al-Wazz�
) anī (d. 1342), an extended comparison between revocable and irrevocable divorce; (v) al-Istighn� ( a fī al-farq
th
wa-l-istithn�
( a by Badr al-Dīn Muh: ammad ( al-Bakrī
( (d.( 8th c/14 c), a work on legal maxims; ( and (vi) al-Qaw�a id wa-l-us: �ul al-
j�ami a wa-l-fur�uq wa-l-taq�asīm al-badī a al-n�afi a by Abd al-Rah: m�an ibn N� (as: ir al-Sa dī (d.?), another work on legal maxims.
Of these, (i)–(iv) are works from the M�alikī madhhab, while (v) is a Sh�afi ī work and (vi) is from the H : anbalī school. Work
(ii), the second work by al-Qar�afī, is clearly not a work of substantive law, but rather a theoretical treatise on the correct role
of judges and muftis and how each ought to relate to the state. See the recent translation by Mohammad Fadel along with his
insightful introduction: Shihab al-Din Ahmad ibn Idris al-Qarafi al-Maliki, The Criterion for Distinguishing Legal Opinions from
Judicial( Rulings and the Administrative( Acts of Judges and Rulers (Yale UP 2017). ( (
27 �
) Umar ibn Muh: ammad) ibn Abd All�ah) al-Sabīl, ‘al-Muqaddima’ in Abd al-Rah: īm ibn Abd All�ah al-Zarīr�anī, Id: �ah: al-
dal�a il fī al-farq bayn al-mas�a il (Markaz Ih: y�a al-Tur�ath al-Isl�amī 1414[/1993–94]).
28
( This study stands out for its thorough discussion of how fur�uq helps establish connections between legal rationales
( illas) and rulings. The book is particularly thoughtful and its bibliography is thorough, if a bit overinclusive. He defines ( fur�uq
as ‘the science of clarifying
) the difference between two legal issues that appear similar but have different rulings’ (al- ilm bi-
bay�an al-farq bayn mas alatayn fiqhiyyatayn mutash�abihatayn s: uratan mukhtalifatayn h: ukman), ibid 19.
29
Al-B�ah: usayn (n 2).
6 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

(
exercised in the correct use of legal rationales ( illas).30 This is equivalent to the genre of
legal distinctions as they are normally understood. Having closely studied these texts, al-
B�ah: usayn does not include al-Qar�afī’s text here but rather considers it instead a work of
‘al-fur�uq al-us: �uliyya’.31 These works are not concerned with substantive law, but rather
with legal theory, as their name suggests. Al-Qar�afī’s Fur�uq is the only example that al-
B�ah: usayn gives in this entire section. More recently, I have made a similar claim in
Harmonizing Similarities (2019). There, Saba states that al-Qar�afī’s al-Fur�uq ‘does not fit
neatly into the genre of legal distinctions, but is more similar to a work of legal max­
ims’.32 I understand the genre as consisting of books containing lists of legal maxims
along with explanations of how they should be applied and examples of their application.
Finally, Necmettin Kızılkaya has also written about the generic identity of this work in
two publications, I_ sl^am hukukunda farklar (2016) and Legal Maxims in Islamic Law
(2021).33 Although he includes al-Qar�afī’s al-Fur�uq in his listing of fur�uq works, he too notes
its peculiarities.34 In his recent work, Kızılkaya states that works of fur�uq can be gathered
into three groups: ‘[t]hose that centre on the distinctions between maxims, those that centre
on the distinctions between issues of substantive law, and the mixed methods which com­
bines the two’.35 He lists al-Qar�afī’s work within the first group, although he notes that this
style of writing ‘was not followed after Qar�afī and did not have an independent develop­
36
ment’. ) Instead, he says, these kinds of works were folded into texts of al-ashb�ah wa-l-
naz: �a ir. It seems strange to include such a work, with no clear precedents and little follow-
up within the genre. Through this formulation, it seems as though Kızılkaya wants to in­
clude this work while at the same time signal its marginal position within the genre of legal
distinctions.
Turning our attention to al-Qar�afī’s text and its generic background, we see a small set of
M�alikī) texts of legal distinctions before al-Qar�afī.( This set consists of( four books: Fur�uq
mas�a il mushtabiha fī( l-madhhab by Ab� u al-Q�( asim Abd al-Rah: m�an ibn Alī ibn al-K�atib (d.
408/1017), al-Jum�u wa-l-fur� ) u q by al-Q�ad: ī Abd ( al-Wahh�ab al-Baghd�adī (d. 422/1031), al-
Nukat wa-l-fur�uq li-mas�a il al-Mudawwana by Abd al-H : (aqq ibn Muh : ammad al-S: iqillī (d.
466/1073–74), and al-Fur�uq al-fiqhiyya by Muslim ibn Alī al-Dimashqī (d. fifth/eleventh
c.).37 Of these four texts,( only that by Ibn al-K�atib is lost. The other three are extant and ex­
ist in printed editions.( Abd al-H : aqq al-S: iqillī seems to have developed his book separate
from that of al-Q�ad: ī Abd al-Wahh�ab, even though they share the formal ( strictures of the
distinctions genre, discussed above. Muslim al-Dimashqī was al-Q�ad: ī Abd al-Wahh�ab’s stu­
dent and his book is inspired heavily by that of his teacher.38 Of the extant texts, all are eas­
ily recognizable as part of a set. Since they adhere to similar formal strictures, they resemble
39
each other and serve as a kind of Canon 2—a set ( of authoritative texts. After al-Qar�afī, the
renowned North African M�alikī jurist, ( Ab� u al- Abb�as Ah: mad
( al-Wansharīsī (d. 914/1508),(
wrote a work on legal distinctions Iddat al-bur�uq fī jam m�a fī al-madhhab min al-jum�u

30
Al-B�ah: usayn (n 2) 42–46.
31
Al-B�ah: usayn (n 2) 152–154.
32
Saba (n 2) 175.
33
Necmettin Kızılkaya, I_ sl^am hukukunda farklar: Fur^uk literat€ur€u €uzerine bir inceleme (I_z Yayıncılık 2016); and Necmettin
Kızılkaya (n 2)
34
See Kızılkaya (n 33) 177–183 and Kızılkaya (n 2) 105–107.
35
Kızılkaya (n 2) 80.
36
ibid.
37
See Saba (n 2) 169–71, 207–208. (
38
Their similarity ( confused the earliest editors of al-Q�ad: ī Abd al-Wahh�ab’s( text. See Mah: m�ud Sal�amah al-Ghiry�( anī,
‘al-Qism al-dir�asī,’ in Abd al-Wahh�ab al-Baghd�adī, al-Fur�uq al-fiqhiyya li-l-Q� ) ad: ī Abd al-Wahh�ab al-Baghd�adī wa- al�aqatuh�a
bi-Fur�uq al-Dimashqī (Dubai: D�ar al-Buh: �uth li-l-Dir�as�at al-Isl�amiyya wa-Ih: y�a al-Tur�ath 1424/2003).
39
Sheppard (n 4).
 Canonizing al-Fur�uq � 7

(
wa-l-fur�uq.40 In this book, al-Wansharīsī follows the (strictures set out by Ibn al-K�atib, Abd
al-H : aqq al-S : iqillī, Muslim al-Dimashqī, and al-Q� ad: ī Abd al-Wahh�ab. By al-Qar�afī’s day, dis­
tinctions writing had become widespread in all four Sunni legal schools. These texts form a
genre with a formulaic structure. This is the tradition that—it seems–al-Qar�afī chose not to
engage with—or perhaps the canon that he sidestepped with his explicit focus on le­
gal maxims.
Nevertheless, many scholars have continued to refer to this as a text of legal distinction
or argue that this difference between the genres of maxims and distinctions is negligible. For
instance, Mariam Sheibani states that, for al-Qar�afī, ‘maxims and distinctions were inextrica­
bly linked and functionally constituted a single discourse, making it ineffective to study
them separately’.41 Studying maxims and distinctions together can be a highly productive
way of improving our understanding of texts and the movement of legal ideas, as her article
demonstrates. That does not mean, however, that a narrower focus on genre is not also pro­
ductive. Elias G. Saba has made a case for this focus in regard to the distinctions genre, but
such a discrepancy was also clear to M�alikī jurists contemporaneous with al-Qar�afī, includ­
ing Muh: ammad ibn Ibr�ahīm al-Baqq� urī (d. 707/1307–08), Ibn al-Sh�at: t: (d. 723/1323), and
perhaps even to Shih�ab al-Dīn al-Qar�afī himself.42
Al-Qar�afī relays his unease with the correspondence between the title of his book and its
content in the introduction. ‘The custom of the virtuous is to write a book of distinctions
between substantive laws, but this book regards distinctions between legal maxims and a
summary discussion of them. It has the ( equivalent
) prestige
) (over those books as the prestige
(
of legal theory over substantive ( law’ ( aw�a id al-fud: al�
a wad
: kutub
( al-fur�uq bayn al-fur�u wa-
h�adh� (a fī l-fur�uq( bayn al-qaw�a id wa-talkhīs: ih�a fa-lah min al-sharaf al�a tilka al-kutub sharaf al-
us: �ul al�a l-fur�u ).43 In this passage, al-Qar�afī is doing several things. First, he makes plain his
understanding of the genre of legal distinctions, al-fur�uq al-fiqhiyya, and signals to the reader
his departure from the traditional methods of that genre. Instead of the expected discussion
of distinctions between substantive law, he searches for distinctions between legal maxims.
He then states that his book is a more refined version of the traditional genre. At once, he
recognizes the M�alikī fur�uq tradition and sets it aside to blaze a better path through the
analysis of legal maxims.
As mentioned above, Muh: ammad ibn Ibr�ahīm al-Baqq� urī noticed the discrepancies
within this book. Al-Baqq� urī discusses the composition of al-Qar�afī’s text in his abridgement
and revision of the text, Tartīb al-fur�uq wa-khtis: �aruh.44 In this abridgement, one can see
something akin to al-Baqq� urī applying the Principle of Charity to al-Qar�afī’s text. He says:

When I studied [Qar�afī’s] al-Fur�uq … , it became clear to me that al-Qar�afī, may God
have mercy on him, was unable to organize it in a reader-friendly fashion because the
book was published while he was still composing it and copies were distributed in this [un­
(
finished] state. This stopped him from being able to change the book (a jazah dh�alika wa-
(
�aqah an yughayyirah).45
40
This title alludes
( to al-Qar�afī’s text, Anw�(ar al-bur�uq, while also alluding to the title of the fur�uq work by the fifth/elev­
enth century al-Q�ad: ī Abd al-Wahh�ab, al-Jum�u wa-l-fur�uq.
41
( Mariam Sheibani, ‘Innovation, Influence, and Borrowing in Mamluk-Era Legal Maxim Collections: The Case of Ibn
Abd al-Sal�am and al-Qar�afī’ (2020) 140 Journal of the American Oriental Society 931.
42
Saba (n( 2) 175. ) (
43
Ab�u al- Abb�as Ah: mad ibn Idrīs al-Qar�afī, al-Fur�uq aw Anw�ar al-bur�uq fī anw�a al-fur�uq, vol 1 (D�ar al-Kutub al- Ilmiyya
1418/1998) 11. )
44
Muh: ammad ibn Ibr�ahīm al-Baqq� urī, Tartīb al-Fur�uq wa-khtis: �arih�a (Wiz�arat al-Awq�af wa-l-Shu �un al-Isl�amiyya
1414/1994).
45
Al-Baqq�urī (n 44) vol 1, 19.
8 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

To solve the problem that Baqq� urī sees in al-Qar�afī’s text, he composed his own work, an
abridged and reorganized presentation of al-Qar�afī’s work on legal distinctions. The relative
lack of organization and clarity is a problem that other M�alikī scholars also see in al-Qar�afī’s
work, and therefore build their own works on legal distinctions with reference to al-Qar�afī’s
pivotal book. A few decades later, Ibn al-Sh�at: t: puts it more briefly, stating that al-Qar�afī:
‘did not finish verifying the book, nor did ( he refine its language or order it correctly’ (l�a
istakmala al-tas: wīb wa-l-tanqīb wa-l�a ista mala al-tahdhīb wa-l-tartīb).46 It is a testimony to
al-Qar�afī’s standing within the M�alikī madhhab in the 14th century that these two scholars
wrote commentaries on al-Qar�afī’s work that understood the work to be a work in progress.

� L I K �I T R A D I T I O N O F L E G A L D I S T I N C T I O N S
2. MA
As discussed, there did exist a tradition of M�alikī distinction writing prior to al-Qar�afī. An
example will help us better understand the tradition which al-Qar� ( afī sidesteps: consider the
following, a distinction from the al-Fur�uq al-fiqhiyya of al-Q�ad: ī Abd al-Wahh�ab al-Baghd�adī
(d 422/1031) which is exemplary of the genre:

M�alik held that the option to rescind a contract (al-khiy�ar) is not valid in a marriage contract.
(
It is, however, valid in a sales contract. Both of these are contracts of exchange (mu �awad: a).

The distinction between them is that a contract of sale is rooted in mutual exaggeration
(
and deceit (al-muk�ayasa wa-l-mugh�abana). [M�alik] stipulated (ja ala) the option of recis­
sion here so that deceit will not be introduced by either of the two parties. A marriage con­
tract, however, is rooted in union and companionship (al-was: la wa-l-ulfa). The option to
rescind the contract is, therefore, not needed here. In addition, the option to rescind is
stipulated in a sales contract in order that [the buyer] may examine the sold good closely
( (
(li-yakhtabira l-mabī ). This understanding (al-ma n�a) is not present in a marriage con­
tract. Due to all of this, they differ. God knows best.47
(
In this passage, al-Q�ad: ī Abd al-Wahh�ab explains the option to rescind a contract for two
distinct kinds of contacts: those of sales and those of marriage. Although the contacts are
for quite different kinds of exchange, they are in fact variations of one model. To put it
more precisely, the marriage contract is modelled on the sales contract and exists as a modi­
fied version of the latter.48 Given this relationship, it would stand to reason that they ought
to work the same way. Reason, however, can only take one so far. Only in a sales contract
can one stipulate a rescission clause. This kind of comparison characterizes the legal distinc­
tions tradition and is explicitly the canon that al-Qar�afī ignored in his Fur�uq.

� F �I’ S T E X T
3. THE CONTENTS OF AL-QARA
Given that there is something different about al-Qar�afī’s text, it is worth examining its con­
tents. Perhaps in contrast with the impression given by the commentaries, al-Qar�afī’s text is
relatively organized and consists of 274 numbered distinctions. The distinctions vary greatly
in terms of length, with some taking up many pages in the printed edition and others only a
few lines. In general, al-Qar�afī creates three kinds of distinctions: (i) between technical legal
46 ( ) (
( al-Sh�at: t: , Idr�ar al-shur�uq al�a Anw�a al-fur�uq, vol 1 (D�ar al-Kutub al- Ilmiyya 1418/1998) 7.
Ibn
47
Abd al-Wahh�ab al-Baghd�adī (n 38) 158.
48
See the discussion in Ibn Rushd, The Distinguished Jurist’s Primer; Bid�ayat al-Mujtahid wa-Nih�ayat al-Muqtas: id, vol 2
(Garnet 1994) 3–8.
 Canonizing al-Fur�uq � 9

(
terms, (ii) between conceptual
( legal maxims (qaw�a id us: �uliyya), and (iii) between substan­
tive legal maxims (qaw�a id fiqhiyya). There are no distinctions between rulings given in
apparently similar cases. This section gives a few examples of the distinctions found in
al-Qar�afī’s book to emphasize how much they differ from the distinctions in works of the
legal distinctions genre.
After the introduction, he starts the book with ‘The First Distinction: Between
Testimony (shah�ada) and Report (riw�aya).’49 This distinction is one of the longest in the
text and through this discussion, al-Qar�afī teases out the differences between these two
concepts and how these differences relate to proper legal methodology. In addition, he also
provides a history of how these terms have been used and why jurists are so confused about
how to understand them properly. His comparison( begins with a brief anecdote: ‘I start
with this distinction between these two maxims (q�a idatayn) because I spent around eight )
years searching for it and was unable to find it. I even asked eminent scholars (al-fud: al�a )
about the distinction between the two and how to verify the essence (m�ahiyya) of each
one.’50 The problem, as al-Qar�afī tells us, is that the apparent difference here—testimony as
used in court and an eyewitness report pertaining to a legal ruling are different things—is
obvious, but defining the actual difference between the two concepts—the root cause that
makes one different from the other—is complex.
Al-Qar�afī is unable to understand the difference between these concepts and other schol­
ars are of no help. Presumably, this is because they do not understand it any better than he
does. Al-Qar�afī continues:

Indeed, each one of the two is an assertion (khabar). Thus, they say, ‘The difference be­
tween the two is that, in contrast to a report, testimony requires the following: number,
maleness (al-dhuk�uriyya), and freedom (al-h: urriyya). A report is valid from just one per­
son, even a woman or a slave.’

I said to them, however, ‘Such a requirement is only a secondary consideration of how testi­
(
mony should be understood (ishtir�at: dh�alika fīh�a far tas: awwurih�a) and it only serves to dis­
tinguish testimony from a report. Even if you could recognize the rules (ah: k�am) and tradi­
tions (�ath�ar) related to testimony—these are only known retroactively after the fact [that
(
testimony is needed has been established] (fa-law arafta bi-ah: k�amih�a wa-�ath�arih�a allati l�a
( ( (
tu rafu ill�a ba d ma rifatih�a lazima al-dawr).51 Indeed, if a case without any clear scriptural
precedent (ghayr mans: �us: a) came before us, how could we know whether the case at hand
requires testimony? Could we know this without a text that explicitly stipulates this? Perhaps
(
it is actually the kind of report (fa-la alla min b�ab al-riw�aya) that is not stipulated [directly
(
by a text] but necessity makes us distinguish between the two (al-d: ar�ura d�a iya li-
tamyīzihim�a). Similarly, let us consider the disagreement in affirming (ithb�at) the month of
Ramadan: Is it sufficient for there to be one witness (sh�ahid) or do you need two witnesses?
)
In their books, the jurists say, “The point of contention (mansha al-khil�af) there is whether
this is a kind of report (min b�ab al-riw�aya) or a kind of testimony (min b�ab al-shah�ada).”’52
49
Al-Qar�afī (n 43) vol 1, 12–13.
50
ibid.
51
Here, al-Qar�afī seems to make a logical objection to the definitions provided above. His objection seems to be the fol­
lowing: Scholars give a distinction between testimony and report that relates only to the legal requirements necessary to give
testimony or make a report. The definition, however, does not address the true difference between these kinds of assertions or
why different situations require different kinds of assertions. The definitions provided above engage in a kind of circular argu­
ment wherein the difference between testimony and report only relates to what it takes for them to be admissible, not for
them to be occasioned. In other words, they use the features of testimony to define what testimony is, and then recognize tes­
timony and the need for testimony on the basis of those features.
52
Al-Qar�afī (n 43) vol 1, 12–13.
10 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

In this long passage, al-Qar�afī discusses what he sees as the main issue here in disambiguat­
ing a testimony from a report. Testimony is more conclusive than a report. Given its higher
evidentiary weight, jurists say that the requirements for testimony are more stringent than
the requirements for a report. Al-Qar�afī, however, sees this as a weak distinction because it
only applies retroactively. The distinction made between a testimony and a report only con­
cerns the requirements for each to be admissible. In other words, the distinction takes for
granted that a report is something different from a testimony. It does not, however, discuss
why one case required testimony and another a report. Given that a particular case requires
testimony, we know it is different from one that requires a report. He says, however, that
according to this definition, a jurist can only know whether a particular law demands evi­
dence as testimony or as report based on an explicit textual marker. In the absence of one,
there are no guiding principles that help jurists know they would need one rather than the
other. Therefore, they do not really understand what makes testimony and report different
in and of themselves. He gives the start of Ramadan as an example. Jurists disagree about
whether the lunar sighting that officially begins Ramadan is a kind of testimony or a kind of
report and thus disagree about the requirements for this lunar sighting. It seems clear then
that this kind of distinction is inadequate to distinguish between these two terms.
Because of uncertainty resulting from this distinction, al-Qar�afī says:

I remained, therefore, quite anxious, yearning to understand this distinction (lam azil
(
kadh�alika kathīr al-qalaq wa-l-tashawwuf il�a ma rifat dh�alika), until I read Sharh: al-Burh�an
53
by al-M�azarī … He says, ‘Testimony and report are both assertions. If the thing asserted
(
is an unrestricted issue (amran �amman) that is, it is not restricted by a particular charac­
teristic, then it is a report. An example of this is the Prophet’s statement, “Verily, acts are
(
nothing but their intentions (innam�a al-a m�al bi-l-niyy�at).” The right of pre-emption (al-
(
shufa a) in regard to that which is indivisible (l�a yaqsamu) does not specify a particular
person, but rather that [applies] to all creation in all times and cities, as opposed to the
(
statement of a just witness (al- adl) in front of a judge (al-h: �akim), “A is holding B’s dinar
(
intended for C.” No one else can preempt C in this situation (li-h�adh�a inda h�adh�a dīn�ar
( (
li-mu ayyan l�a yata add�ahu il�a ghayrih). That is the essence of testimony (shahada
mah: d: a). The first statement is the essence of report (al-riw�aya al-mah: d: a).’ 54

In other words, al-Qar�afī found a satisfactory distinction

( between testimony and report in
the writings of the Sicilian jurist Muh: ammad ibn Alī al-M�azarī. The difference between
them is that a report is necessary when dealing with an issue that is unrestricted—a legal
matter not constrained by a particular prooftext from the Quran or Hadith that applies in
most circumstances. Restricted legal issues, on the other hand, apply only in particular cir­
cumstances, as determined by a scriptural prooftext. Testimony, rather than a report, is nec­
essary when dealing with restricted legal issues. The difference seems to hinge on the idea
that an unrestricted issue is more general and the lower evidentiary burden of a report
would suffice, whereas the more complex nature of a restricted issue necessitates testimony.
)
Al-Qar�afī goes on to explain how from this essential version of each, aberrations (shaw�a ib)
have entered into the understanding of each concept, which then leads to the muddled defi­
nitions with which he began his discussion. Al-Qar�afī elaborates here at length clarifying the
(
53
This is a reference to the �Id: �ah: al-mah: s: �ul min burh�an al-us: �ul by the Sicilian M�
( alikī scholar Muh: ammad ibn Alī al-
M�azarī (d. 536/1141), which is a commentary on al-Burh�an fī us: �ul al-fiqh by the Sh�afi ī jurists Im�am al-H : aramayn al-Juwaynī
(d. 478/1085).
54
Al-Qar�afī (n 43) vol 1, 14–15.
 Canonizing al-Fur�uq � 11

distinctions between these two concepts and the changing ways that jurists have understood
them since the time of the Prophet.
As is clear from this distinction, al-Qar�afī is interested in defining legal terms. At root,
this discussion is about legal jargon, its correct understanding, and its proper usage. Because
of convenience and common use, jurists use broad definitions for testimony and report. It
may be the case that these definitions are sufficient in practice, but al-Qar�afī wants to get to
the heart of the matter and see how and why these concepts are different. In this sense, his
discussion here is largely theoretical. He asks how these two concepts differ once one peels
back the layers of legal habit. Having done so, he continues showing not only how these
two concepts can be used in their essential versions, but also how and why the various impu­
rities appear therein. Again, this discussion is ultimately about words and their meanings.
This discussion relates, of course, to particular legal cases and matters of substantive law,
but unlike in traditional works of legal distinctions, those concerns are secondary.
In another distinction, al-Qar�afī does something similar, making a distinction between
two concepts of rights (h: uq�uq): ‘The Twenty Second Distinction: Between the Rights of
God, may He be exalted, and the Rights of Humans. God’s claims are His command and
His prohibition (h: aqq All�ah amruh wa-nahyah). The rights of the worshipper are their inter­
ests (mas: �alih: ).’55 In this case, the distinction is straightforward, perhaps because the distinc­
tion is between two specific concepts rather than general terms. From here, al-Qar�afī goes
on to specify what he means: ‘Obligations are of three types: God’s rights (h: aqq All�ah), like
faith and forbidding disbelief; rights of worshippers, like debts and prices, and rights that
combine the rights of God and rights of worshipper, like the capital punishment (h: add)
against false accusation of illicit sexual intercourse.’56 The legal obligations imposed by
Islamic law are all divided into those owed to God and those owed to others, although these
categories are not mutually exclusive. The imposed duties which we considered the rights of
God are qualitatively different than those considered rights of humans. In the rest of the dis­
cussion, al-Qar�afī explains this in detail with a few illustrative examples. As with the previous
example, he is interested not in distinguishing between particular applications of substantive
law, but rather in distinguishing between two particular legal concepts.
Moving to a third example, al-Qar�afī does not distinguish between lexical items, but in­
stead between two legal maxims. Given that words and maxims are very different, the ensu­
ing discussion is quite different from the preceding examples. That said, the formal features
of all three distinctions are quite similar. Once more, al-Qar�afī does ) not centre rulings based
on substantive laws (ah: k�am). This discussion focuses on istibr�a , establishing evidence of
non-pregnancy. This issue arises most commonly when a man purchases an enslaved
woman. Before having sexual relations with this woman, the slave owner must establish that
the enslaved woman is not pregnant. This process serves to dispel any doubts about the pa­
ternity of children to whom she may give birth. If the enslaved woman is already pregnant,
the father must be her previous owner, but if the current owner can establish that she is not
pregnant, then he can be assumed the father of any future pregnancy.
I provide the discussion in full so that the reader can appreciate al-Qar�afī’s style of reason­
ing and then explain the distinction:

The One-Hundred Seventy-Seventh Distinction: Between the maxim ‘establishing evi­

)
dence of non-pregnancy by menstruation can be done with one menstrual cycle (qar )’

55
ibid, 256.
56
ibid.
12 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

and the maxim ‘establishing evidence of non-pregnancy by months cannot be done with
one month’.

Given that women usually have only one menstrual cycle [per month], then one month should
be sufficient, as is one menstrual cycle. The difference between the two approaches (b�abayn)
is that one menstrual cycle, ie, menstruation (al-h: ayd: ), is normally indicative of an empty
womb. Usually (gh�aliban), menstruation and pregnancy do not occur together. Thus, one
menstrual cycle indicates an empty womb and lack of pregnancy. Although, for those who
menstruate (fī h: aqq man tah: īd: u), one menstrual cycle may occur in a month, for someone
who does not menstruate (fī h: aqq man l�a tah: īd: u) one month is insufficient to prove there is
an empty womb. This is because in the womb semen can remain semen for approximately one
month and only then does it become an embryo (mud: gha) after having been a blood clot
(
( alaqa). Thus, pregnancy is usually not visible until after three months, when the womb grows
(fa-takbiru l-jawf) and the first movements [of the fetus] occur. As for one month, the womb
(jawf) of a pregnant woman is equivalent in appearance to that of a non-pregnant woman.
Because of this, one month is not considered sufficient, while one menstrual cycle is.57

Al-Qar�afī presents two maxims for establishing non-pregnancy. The first maxim has to do
with menstrual cycles, while the second with months. The discussion assumes a particular
confusion at work: one menstrual cycle lasts one month, but the maxims require either
3 months or one menstrual cycle. If this is indeed the case, then it seems that one maxim
allows for a much faster establishment of non-pregnancy than the other. It is quicker to
judge by menstrual cycles rather than months, though the two are roughly equivalent. But,
al-Qar�afī says, things are not so simple. While it might be usual for a menstrual cycle and a
month to be a similar unit of time, the two are actually quite different. In the first maxim, a
menstrual cycle is not a way of measuring time. The legally important aspect of the cycle is
the menstruation itself, which is what proves the absence of pregnancy. The second maxim,
however, does work by measuring time. If a woman is pregnant, she will not menstruate.
Pregnancy, however, is only one of the many reasons why a woman may not menstruate.
For the purposes of establishing non-pregnancy, the particular reason a woman does not
menstruate is irrelevant. The only relevant consideration is the passage of three months be­
cause that is enough for a pregnancy to occur and, importantly, for the enslaved woman to
show signs of pregnancy. After three months of no evidence of pregnancy, it can be assumed
that the woman is not pregnant.
As with the prior examples, even here al-Qar�afī does not discuss apparently similar legal
cases with distinct outcomes. One could, of course, rephrase the distinction so that it does
not involve legal maxims and rather has to do with the application of substantive law. Al-
Qar�afī could have written something like: ‘A man purchases an enslaved woman. She goes
through one menstrual cycle. Intercourse with her is licit for him. It would not be licit had
only one month passed.’ In this rephrasing, two specific circumstances are being compared,
with the reader asking themself the implicit question: ‘Why not? Why are these different?’
Such phrasing would be in line with the larger tradition of M�alikī fur�uq, but al-Qar�afī instead
centres his discussion on legal maxims and comparing them. This change, while seemingly
minor, is not only a break with the genre, but also serves to demonstrate that M�alikī law (
can, in fact, keep up with the times and be expressed through maxims, as was the Sh�afi ī
trend at the time.
57
ibid vol 3, 360–61.
 Canonizing al-Fur�uq � 13

� F �I I N H I S T O R I C A L C O N T E X T
4. AL-QARA
Al-Qar�afī was a major figure in the M�alikī school of Mamluk Cairo, even though he was
never officially appointed to a judicial post. As Sherman Jackson notes, ‘during his lifetime
58
[ … ] al-Qar�
) afī was hailed as one of the greatest scholars of his day’. Al-Qar�afī became the
head (ra īs) of the M�alikī school in Cairo where he devoted himself to studying and writing
about M�alikī law, (which was losing favour among the ruling classes.59 As Mariam Sheibani
explains, the Sh�afi ī madhhab was ascendant in Egypt ( after Saladin (r. 569–589/1174–1193)
and the Ayyubids. The Ayyubids favoured Sh�afi ī jurists for ‘the majority of judicial, ministe­
rial, and ambassadorial appointments’.60 Seeing ( this political reality, many M�alikī jurists
were leaving the M�alikī school for the Sh�afi ī school.61 Yet, in spite of this, al-Qar�afī was
able to reinvigorate the M�alikī school and return it to a place of prestige. Students came
from North Africa to study with al-Qar�afī and his works became the new standard for
M�alikī jurists going forward. Sheibani has shown that the trick to al-Qar�a(fī’s success was his
adoption of ‘scholarly discourses and literatures [developed by the] Shafi is’.62 (
Given these circumstances, it should not surprise us that al-Qar�afī had many Sh�afi( ī teach­
ers. From these teachers, al-Qar�afī developed a particular ‘attachment to [the Sh�afi ī scholar
Fakhr al-Dīn] al-R�azī [(d. 606/1209)]’.63 Al-Qar�afī held him in great regard and perhaps
saw him as an aspirational figure who blazed a clear and novel path in( legal–theoretical writ­
ing. Al-Qar�afī wrote a book responding to al-R�azī’s al-Mah: s�ul fī ilm us: �ul al-fiqh called
Tanqīh: al-fus: �ul and a commentary on this text Sharh: tanqīh: al-fus: �ul. Nevertheless, Sherman
Jackson points out that ‘despite his genuine admiration for al-R�azī, al-Qar�afī was not in the
habit of slavishly following the master’.64 In other words, al-Qar�afī greatly admired al-R�azī
and displayed this admiration through(a critical engagement( ( with al-R�azī’s renowned legal–
theoretical work. In addition,
( the Sh�
( a fi ī jurist al- Izz ibn Abd ( al-Sal�am was ‘al-Qar�afī’s most
important teacher’.65 Al- Izz ibn Abd al-Sal�am was a Sh� ( ī scholar with familial connec­
a fi
tions to North Africa, not unlike al-Qar�afī himself. Ibn Abd al-Sal�am achieved his promi­
nence in Damascus before being invited to Cairo by the last Ayyubid sultan, al-S: �alih: Ayy� ub
(d. 647/1249), and Sheibani has demonstrated how al-Qar� ( a fī’s al-Fur�
u q should
( be under­
stood as a kind of response to and ‘Malikization’ of Ibn Abd al-Sal�am’s al-Qaw�a id al-kubr�a.
As part of this effort, al-Qar�afī’s work is concerned with maxims and general principles
rather than minute distinctions between rules of positive law. As discussed above, he appears
to use the term fur�uq in a general way, not as the term had otherwise come to be known in
the realm of fiqh. In discussing the contents of his work, he tells us:
)
I wrote the beginnings of my investigations (mab�adi al-mab�ah: ith) of maxims by discus­
sing distinctions and asking about the distinctions between two substantive laws, or two le­
gal maxims. When there is a question about the distinction between two substantive laws,
it is clarified by discussing a maxim, or two maxims between which there is a distinction,
and both are sought, by discussing a distinction as a way of resolving both (tah: s: īlihim�a). If
a question of distinction occurs between two maxims and the goal is to verify both of

58
Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shih�ab al-Dīn al-Qar�afī (Brill 1996) 2.
59
Mariam Sheibani (n 41) 945.
60
ibid 944.
61
ibid.
62
ibid.
63
Jackson (n 58) 8.
64
ibid. ( ( ( ( )
65
( ibid 11; Ibr�ahīm ibn Alī ibn Farh: �un, al-Dīb�aj al-mudhahhab fī ma rifat a y�an ulam�a al-madhhab, vol 1 (D�ar al-Kutub
al- Ilmiyya 2004) 236. See Sheibani (n 41) 928–30; Jackson (n 58). 9–13.
14 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

them (tah: qīqihim�a), then their verification by asking for the distinction between them is
prior to verifying them through some other means.66

This discussion is far removed from the standard presentation of legal distinctions discussed
earlier in this article. Al-Qar�afī’s clear engagement with maxims literature and the M�alikī
contributions to the genre should be seen as part of his campaign to revitalize the M�alikī
school. This means, in part, downplaying the connections with the past and emphasizing the
theoretical refinement of M�alikī doctrine. (
His simultaneous embrace and rejection of Sh�afi ī legal thought tells us both why he
wrote his works and explains his innovative approach to M�alikī law. Indeed, Sheibani argues
that ‘much of al-Qar�afī’s intellectual production was prompted ( by a desire to produce for
the M�alikī school intellectual discourses that the Sh�afi is had pioneered, while resisting
appearing overtly influenced by a rival school’.67 Al-Qar�afī succeeded in producing this kind
of work and al-Fur�uq was no exception. Jackson notes that ‘this work, perhaps more than
anything else al-Qar�afī wrote, reflects the state to which Muslim legal science had evolved
up to his time’.68 Sheibani, meanwhile, refers to this book as ‘the crowning achievement of
his intellectual career’.69 With respect to maxims, Sheibani’s (statement could be rephrased
slightly to say that al-Qar�afī understood contemporary Sh�afi ī scholars as being a kind of
canon, conforming here with the idea of Canon 1—an (unassailable standard against which
truth is measured. Al-Qar�afī understands the great Sh�afi ī works as aspirational and seeks to
create a similar set of texts for his own madhhab.70
By many measures, it appears that al-Qar�afī succeeded in this undertaking. He was
rewarded professionally during his life and has had an enduring legacy as a key M�alikī
thinker. Both Sherman Jackson and Mariam Sheibani have disagreed with the judgments of
al-Qar�afī’s contemporaries. Jackson expresses surprise at Ibn al-Sh�at: t: ’s statements regarding
al-Fur�uq: ‘In fact, it seems at times that Ibn al-Sh�at: t: ’s zeal to upstage al-Qar�afī results in his
misunderstanding the latter.’71 Perhaps out of a sense of professional jealousy, Jackson says,
Ibn al-Sh�at: t: is driven to misunderstand al-Qar�afī and his project. Less directly, Sheibani
argues that ‘a careful reading reveals that al-Qar�afī loosely groups together related topics
and roughly structures the work according to the standard organization of a book of law’.72
In other words, she disagrees with al-Baqq� urī in seeing al-Qar�afī’s organization of al-Fur�uq
as problematic. While she is correct in reading organization into this work, we should still
take seriously the fact that al-Baqq�urī and Ibn al-Sh�at: t: expressed discomfort with it.
Here, it is worth reflecting briefly on the relevance of genre and the overlap between a
sense of genre and generic identity and the concept of a canon as an idealized series of texts
against which other texts are compared.73 With both ideas, the standards and expectations
of a genre and the canonicity of a particular text are expressed through the ‘considered judg­
ment’ of a community of interpreters.74 To quote Jonathan Brown once more, ‘canon stud­
ies has demonstrated unequivocally that canonization is not the product of an author’s
intention, but rather of a community’s reception of texts’.75 We can understand al-Baqq� urī
66
Al-Qar�afī (n 43) vol 1, 9–10.
67
Sheibani (n 41) 941.
68
Jackson (n 58) 19.
69
Sheibani (n 41) 930. (
70
See also the contribution to the present volume by Christian Mauder on H
: anafī engagement with the Sh�
afi ī madhhab.
71
Jackson (n 58) 19.
72
Sheibani (n 41) 933.
73
For further discussion of genre and canon, see the contributions by Eirik Hovden and Christian Mauder to the pre­
sent volume.
74
Fish (n 5) 13.
75
Brown (n 3) 36, emphasis added.
 Canonizing al-Fur�uq � 15

and Ibn al-Sh�at: t: as members of this interpretive community. By writing a commentary on

this text, al-Baqq� urī and Ibn al-Sh�at: t: take part in its reception. As interpreters, they simulta­
neously enshrine al-Qar�afī’s text as canonical—underscoring brilliant aspects of the work—
while expressing scepticism about how it is canonical—it is not a work of legal distinctions.
We can understand their position as both elevating al-Qar�afī’s text while at the same time
enforcing boundaries around the genre of legal distinctions. This is an important text, they
say, but not of the kind that al-Qar�afī claims it to be. Given the novelty of al-Qar�afī’s text, al-
Baqq� urī and Ibn al-Sh�at: t: do not recognize it as falling within the distinctions genre. That is
a problem with genre, but not necessarily with the text itself.
It is instructive to see how the M�alikī biographer Ibn Farh: �un (d. 799/1397) sees this
situation. In his biographical dictionary, he tells us about al-Qar�afī’s (al-Fur�uq. In his entry
on al-Qar�afī, Ibn Farh: �un relates that al-Qar�afī wrote a ‘Kit�ab al-qaw�a id, a book unlike any
ever written and )unlike any written since.’76 It seems likely that Ibn Farh: �un is referring
here to the Anw�a al-bur�uq since he does not mention it otherwise and the description fits
the contents and reputation of al-Fur�uq as a groundbreaking work. Ibn Farh: �un sees it not
as a work of distinctions, but as a work of legal maxims, and thus does not call it Kit�ab
al-Fur�uq. Ibn Farh: �un also includes biographical notices on the two commentators,
al-Baqq� urī and Ibn al-Sh�at: t: . Regarding al-Baqq� urī, Ibn Farh: �un tells us that he wrote ‘a
commentary (kal�am) on Shih�ab al-Dīn al-Qar�afī’s book on us: �ul’.77 Here, there is no title
given and (the contents) are referred ( to as us: �ul. Ibn al-Sh�at: t: , meanwhile, wrote ‘Anw�ar al-
78
bur�uq fī ta aqqub mas�a il al-qaw�a id wa-l-fur�uq’, referring presumably to al-Qar� ) afī’s text.
This is confusing given that al-Qar�afī’s text is titled Anw�ar al-bur�uq fī anw�a al-fur�uq and
Ibn Farh: �un seems to use this title to refer to Ibn al-Sh�at: t: ’s commentary. Nevertheless,
once more there is a close connection between legal maxims and al-Qar�afī’s al-Fur�uq. Ibn
Farh: �un refuses to refer explicitly to this text as a text on legal distinctions. The comments
made by al-Baqq�urī and Ibn al-Sh�at: t: can be understood in their proper context. In com­
menting on al-Qar�afī’s text, they are taking part in cementing his status as a pivotal jurist
who brought prominence to the madhhab. At the same time, they sense the disconnect
between his text and earlier texts of the tradition. Perhaps the very impulse that pushed
al-Qar�afī to write this text was what later commentators needed to quell through interpre­
tative commentary.

5. MODERN RESONANCE
The fame and popularity surrounding al-Qar�afī’s text have endured, even if the shape that
the fame and popularity have taken changed over time. Alongside the H : anbalī scholar Ibn
Qayyim al-Jawziyya (d. 751/1350),
( al-Qar�a fī has emerged as a key historical figure in the de­
velopment of fiqh al-w�aqi (understanding reality or contemporary jurisprudence), a term
coined by the Egyptian scholar Y�usuf al-Qarad: �awī (d. 2022).79 In addition, the Saudi-based
Mauritanian scholar Abdallah bin Bayyah (b. 1935), a ‘highly regarded Neo-traditionalist
76
Ibn Farh: �un (n 65) vol 1, 237.
77
ibid vol 2, 316.
78
ibid vol 2, 152.
79
Mahmud El-Wereny, ‘Reichweite und Instrumente islamrechtlicher Normenfindung in der Moderne’ (2018) 58 Die
Welt des Islams 91; Sari Hanafi, ‘Normativity of Migration Studies Ethics and Epistemic Community’ in Ray Jureidini and
Said Fares Hassan (eds), Migration and Islamic Ethics (Brill 2020) 127; Christopher Pooya Razavian, ‘Post-Salafism: Salman
al-Ouda and Hatim al-Awni’ in Masooda Bano (ed), Modern Islamic Authority and Social Change, Volume 1: Evolving Debates
in Muslim Majority Countries (Edinburgh UP 2018) 175–80; Christopher Pooya Razavian, ‘Al-Azhar, Wasat: īyah and the
W�aqi’’ in Masooda Bano (ed), Modern Islamic Authority and Social Change, Volume( 1: Evolving
( Debates in Muslim Majority
(Countries (Edinburgh UP 2018). This idea has parallels with the idea of ‘taqdīm al- aql al�a al-naql’ coined by Muh: ammad
Abduh. See also the contribution by Aria Nakissa in the present volume for a discussion of this idea.
16 � Oxford Journal of Law and Religion, 2024, Vol. 00, No. 0

scholar’80 rose to prominence based, in part, on his doctoral dissertation from Umm al-
Qur�a University. His thesis centred on al-Qar�afī’s approach to legal maxims and their useful­
ness for regulating financial transactions.81 Similarly, in an impromptu speech decrying what
he sees as the underdeveloped legal thought of the Andalusian scholar Ab� u Is: h: �aq al-Sh�at: ibī
(d. 790/1388), the former Grand Mufti of Egypt, Ali Gomaa (b. 1952) claimed that al-
Qar�afī is one of the ‘especially learned’ touchstones of the Islamic tradition.82 The relevance
of al-Qar�afī today makes clear his place as a canonical figure in the Islamic legal tradition.
He is recalled as an aspirational figure and his approach to the study of Islamic law contin­
ues to inspire new intellectual and legal developments.

80 (
Usaama al-Azami, ‘ Abdull�ah bin Bayyah and the Arab Revolutions: Counter-revolutionary Neo-traditionalism’s
Ideological Struggle Against Islamism’ ((2019) 109 The Muslim World 343.
81 (
Abd All�ah ibn Bayyah, al-Qaw�a id wa-l-d: aw�abit: al-fiqhiyya al-qar�afiyya: zumrat al-tamlīk�at al-m�aliyya (D�ar al-Bashr al-
Isl�amiyya 1425/2004).
82 (
Amr Jam�al, ‘Not Stopping from Inciting Debate: Ali Gomaa Describes Imam al-Sh�at: ibī as a Journalist’ al-Jazīra (Cairo
13 July 2021)<https://www.aljazeera.net/politics/2021/7/13/%D9%84%D8%A7-%D9%8A%D8%AA%D9%88%D9%82%
D9%81-%D8%B9%D9%86-%D8%A5%D8%AB%D8%A7%D8%B1%D8%A9-%D8%A7%D9%84%D8%AC%D8%AF%D9%
84-%D8%B9%D9%84%D9%8A-%D8%AC%D9%85%D8%B9%D8%A9-%D9%8A%D8%B5%D9%81> accessed 28 October
2023. See also the article by Asma Sayeed and Nour-Eddine Qaouar for a discussion of this quote. I thank them for drawing
my attention to this statement.