Introduction: The controversial chronology of al-Shāfiʿī's Risāla
Since the 1990s Western students of al-Shāfiʿī's Risāla have observed that this pioneering work of Islamic jurisprudence barely influenced the development of legal theory for much of the third century ah. Several interpretations of this phenomenon have been put forward.
Norman Calder devoted his Studies in Early Muslim Jurisprudence to reconsidering the chronology of a number of second-century works of jurisprudence. Calder's conclusions led to a scholarly debate that centred on his treatment of Mālik's Muwaṭṭa'. Considerably less attention has been paid to Calder's claim that al-Shāfiʿī's Risāla was composed towards the end of the third century, that is, almost one hundred years after the death of its putative author.Footnote 1 Calder drew conclusions from a comparison between the hermeneutic approaches of al-Shāfiʿī and Ibn Qutayba; the latter's Ta'wīl Mukhtalif al-Ḥadīth is, according to Calder, less sophisticated than the former's Risāla, and must therefore predate its composition.Footnote 2
According to Wael Hallaq, the discontinuity between the Risāla and other third-century legal works stems from the innovativeness of al-Shāfiʿī's theory, which stands half way between the rationalists (ahl al-ra'y), who dismissed prophetic ḥadīth as a legal source, and the traditionalists, who shunned human reasoning in all religious and legal matters.Footnote 3 Al-Shāfiʿī's allowing for a disciplined rational interpretation (qiyās and ijtihād) of the divinely revealed sources of law (the Quran and the Sunna) could hardly have attracted either the rationalists or the traditionalists in the third century.Footnote 4 At the beginning of the fourth century, the nascent science of uṣūl al-fiqh brought together revelation as the source of law, and systematic human reasoning as a tool for its interpretation. Consequently, the Risāla came to be regarded as the earliest uṣūlī source.Footnote 5
Christopher Melchert initially accepted the year 300 ah as the approximate date of the Risāla's composition.Footnote 6 Subsequently, however, he found tangible similarities between Ibn Qutayba's Ta'wīl and the Risāla, after which he considered them as roughly contemporaneous works.Footnote 7 Melchert is sceptical about Hallaq's neglect-and-revival theory. In the former's view, it makes more sense to posit a gradual development of the legal theory from Abū ʿUbayd to al-Muḥāsibī to al-Shāfiʿī than to concede a process wherein the Risāla had been ignored for decades before coming to the jurisprudents' attention in the fourth century ah.Footnote 8
Pace Calder, Joseph Lowry emphasizes the tangible differences that set apart the Risāla and the Ta'wīl in terms of methodologyFootnote 9 and intended purpose.Footnote 10 Compared with the Risāla, the Ta'wīl stands closer to the tenets of the classical uṣūl al-fiqh, a peculiarity which confirms the traditional chronology and ascription of the two works.Footnote 11 Unlike Hallaq, who describes the work of al-Shāfiʿī as “rudimentary” and “erratic”,Footnote 12 yet “connected inextricably with the emergence of uṣūl al-fiqh”,Footnote 13 Lowry maintains that the Risāla rarely came to be the epistemological basis of the classical uṣūl al-fiqh.Footnote 14 In his major study of the Risāla, Lowry points to five broad areas in which al-Shāfiʿī's work is epistemologically and functionally disconnected from the (subsequently) established legal-theoretical tradition.Footnote 15 Admittedly, by positing the uniqueness of the Risāla, Lowry has eliminated the chronological rupture inherent in Hallaq's interpretation, but his theory raises other questions. Why would later Muslim jurisprudents heed the Risāla, if in their legal hermeneutics they stood so close to Ibn Qutayba's relatively unsystematic Ta'wīl? And what were the stages of the process that drove the classical legal theory away from al-Shāfiʿī's founding theory?
To outline the historical context of the Risāla, one needs to retrace the early history of uṣūl al-fiqh, but this task is hindered by the paucity of third-century evidence.Footnote 16 Alternatively, one may follow a problem of interest to a wider range of disciplines. The dispute over whether adultery incurs stoning alone or a combination of flogging and stoning (henceforth the DVSP [dual-versus-single-penalty] dispute) is an example of such an interdisciplinary issue. Although formally pertaining to the realm of positive law (furūʿ), it engages important uṣūlī and exegetical subjects such as the sources of law and the theory of abrogation, thereby appealing to jurisprudents, ḥadīth collectors and exegetes alike.
That adulterers incur the single penalty of stoning (henceforth SPA) was the opinion of several second-century jurists; nevertheless, it was al-Shāfiʿī who endorsed SPA at the level of theory. Without contending that Islamic jurisprudence is necessarily a sustained evolutionary system, I nevertheless presume that its constituents are both synchronically interactive and diachronically dynamic. Consequently, given the prominence of the SPA advocacy in al-Shāfiʿī's works, it is expected to have influenced his contemporaries and followers, but also a wider circle of third-century scholars, irrespective of their epistemological premises. Admittedly, the dating of early texts that have survived in (much) later recensions faces the formidable challenge of avoiding the pitfall of possible interpolations, while inferences from silence may give way to new evidence. To my mind, however, if multiple texts attest to the elaboration of a common doctrine, or, conversely, fail to record it, this would serve as an important indicator of relative chronology. In addition to this historical factor, another, dialectical, element comes into play: direct references to the polemical arguments elaborated by the parties in the DVSP dispute are an important chronological marker to reckon with.
In the present essay, I focus on third-century Sunnī sources, without, however, neglecting useful evidence of later origin. I begin with a summary of the penalty for adultery in the Quran and the Sunna, followed by a survey of second-century views on this topic. Then I discuss al-Shāfiʿī's justification of SPA and its influence on the third-century Shāfiʿīyya. Next I explore a number of late-second- and third-century works of jurisprudence and exegesis, followed by the major third-century ḥadīth collections. In the closing section of this essay, I try to establish the historical context of the Risāla by identifying the roots of the DVSP polemic.
The penalty for zinā in the Quran and the Sunna
Since the present study draws on several Quranic and sunnaic passages dealing with the penalty for sexual transgressions (zinā), a brief review thereof is in order.Footnote 17
Quran 4:15 provides that the female perpetrators of abomination (fāḥisha), a euphemism interpreted by later Muslim exegetes as zinā, must be detained “until death takes them, or Allah appoints for them a way”, whereas the following verse (4:16) prescribes an unspecified corporal punishment or/and verbal rebuke (adhā) for offenders. These two verses are considered to have been abrogated, or amended, by Q. 24:2, which imposes on the offenders (al-zānī wa-'l-zāniya, pl. zunāt) the penalty of one-hundred lashes. Since none of the Quranic verses provide for stoning (rajm) as part of the penalty for zinā, Muslim exegetes and legal theorists sought justification of rajm in two main directions. Some scholars would assert that there was a “stoning verse” in the Quran, according to which the mature (shaykh) zunāt should be stoned unconditionally. The text of the verse was somehow removed (rufiaʿ), or intentionally omitted by ʿUmar, from the Quran, but its rule remained effective. Others justified rajm by the prophetic Sunna. To that end they would frequently use a tradition on the authority of the Companion, ʿUbāda b. al-Ṣāmit (henceforth “the ʿUbāda tradition”), couched as a complement to Q. 4:15:
Take it from me! Take it from me! Allah has appointed a way for them. A virgin with a virgin and a non-virgin with a non-virgin. The virgin should be flogged and banished; the non-virgin should be flogged and stoned.
Unlike the Quran, which treats the zunāt as a single category of offender, the ʿUbāda tradition divides them into two groups, both incurring dual penalties (henceforth DPA) for their offence. Specific aspects of the penalty for zinā, including the SPA rule, are governed by the vast group of traditions about the stoning of an adulterer who confessed voluntarily, who came to be identified as Māʿiz b. Mālik (henceforth “the Māʿiz tradition”), and the stoning of a woman who committed zinā with one of her husband's slaves (henceforth “the woman's-servant tradition”).
The penalty for zinā in the second century ah
The effort to justify stoning as the penalty for adultery dominated Islam's legal and exegetical agenda during the second century ah. At the beginning of the century, al-Ḥasan al-Baṣrī (d. 110/728) insisted on the binding force of what is presently known as Q. 4:15.Footnote 18 A few decades later the scriptural rule was amended by means of the prophetic Sunna: Shuʿba b. al-Ḥajjāj (d. 160/776), Hushaym b. Bashīr (d. 183/799) and Yaḥyā b. Saʿīd al-Qaṭṭān (d. 198/813) circulated versions of the ʿUbāda tradition which introduce stoning as a penalty for adultery alongside the Quranic requirement of flogging.Footnote 19 Another important DPA tradition records ʿAlī imposing a dual punishment on an adulteress in Kūfa. My initial research of this tradition's transmission lines points to Shuʿba b. al-Ḥajjāj and Hushaym b. Bashīr as its most salient disseminators.
Unlike the DPA rule, there are no exclusive SPA traditions traceable to the second century ah. In most cases the SPA doctrine is attached to extraneous traditions, even though it may have originated in the personal opinions of Abū Ḥanīfa (d. 150/767) and Mālik b. Anas (d. 179/795).
The earliest repositories of Abū Ḥanīfa's teachings are the works of his students Abū Yūsuf (d. 182/798) and al-Shaybānī (d. 189/804). They never mention the possibility of DPA, and, at times, seem to assume that the adulterer incurs only stoning.Footnote 20 The first Ḥanafī jurisprudent to expound on the DVSP issue is al-Ṭaḥāwī (d. 321/933),Footnote 21 but his treatment, which shows a thorough acquaintance with the Shāfiʿī SPA doctrine, is hardly informative about the development of Ḥanafī teaching in the second century ah.
Mālik b. Anas (d. 179/795) knows the Māʿiz tradition (still anonymous) and the woman's-servant tradition, but is apparently unaware of their use as a vindication of a doctrine that rejects flogging as part of the penalty for adultery. Shortly after Mālik's death, the Qayrawānī jurist, Saḥnūn (d. 240/854), reportedly asked whether, in Mālik's view, a dual penalty should be inflicted upon the adulterers. The answer of Saḥnūn's teacher, Ibn al-Qāsim (d. 191/806), does not indicate that Mālik ever considered such a possibility before his students. In an expression couched more like a personal opinion, Ibn al-Qāsim rejects the combined penalty. The adulterer incurs stoning alone, he maintains, whereas the fornicator is flogged and banished, for this is the ancient practice (bi-dhālika maḍat al-sunna).Footnote 22
Neither Saḥnūn nor Ibn al-Qāsim indicate that they witnessed a dispute about the penalty for adultery. Unlike al-Shāfiʿī, they do not take advantage of specific traditions to support the SPA rule but justify it only by the practice of the Medinese jurists. It stands to reason, therefore, that ancient Medinese custom, and possibly the Ḥanafī teaching, were the forebears of the SPA doctrine.
Al-Shāfiʿī and the Shāfiʿīyya
Al-Shāfiʿī (d. 204/820) is the first jurist to advocate SPA as opposed to DPA in his works.Footnote 23 His insistence that the adulterer should be stoned without prior flogging is part of an elaborate doctrine about the punishment for zinā.Footnote 24 Briefly, according to al-Shāfiʿī, by imposing the punishment of one hundred lashes, Q. 24:2 rescinded the earlier rule of Q. 4:15–6. Since none of the Quranic verses that treat the penalty for zinā explicitly provides for stoning, or divides the zunāt into groups incurring different penalties, al-Shāfiʿī finds the apposite rule in the ʿUbāda DPA tradition, which, according to him, modified the rule of Q. 4:15. Then he moves on to invalidate ʿUbāda's DPA requirement by asserting that it was repealed by the traditions about Māʿiz and the woman's servant. Although neither tradition deals specifically with SPA, their mere silence on flogging suffices for al-Shāfiʿī to assert that flogging was abolished as a penalty for adultery. Occasionally, al-Shāfiʿī derives a similar argument ex silentio from traditions about the putative “stoning verse” in the Quran.Footnote 25
Al-Shāfiʿī's student, al-Muzanī (d. 264/878),Footnote 26 may have shared his master's interest in rajm as an uṣūlī issue concerning the sources of lawFootnote 27 but hardly recognized it as a legal problem involving the exact penalty for adultery. In the chapter on the penalty for zinā in his Mukhtaṣar, al-Muzanī states that the Prophet stoned two muḥṣan Jewish adulterers, and ʿUmar stoned a muḥṣan adulteress.Footnote 28 By not mentioning jald, al-Muzanī may be implying that adulterers incur only stoning. One notes immediately, however, that the story about the two Jews is far from being al-Shāfiʿī's primary argument in favour of SPA,Footnote 29 whereas the invocation of ʿUmar's practice as a legal precedent is inconsistent with al-Shāfiʿī's preference of prophetic traditions over those associated with the Companions. Al-Muzanī does mention the woman's-servant tradition,Footnote 30 but not as a refutation of the DPA rule in a Shāfiʿī fashion. Al-Shafiʿī comes to mind, nonetheless, when, in Kitāb al-Amr wa-l-Nahy, al-Muzanī argues that in Q. 24:2, the meaning of zinā encompasses free persons and slaves alike, whereas Q. 4:25 rules that only half of the penalty incumbent upon free virgins (al-bikr al-ḥurr) is due to slaves.Footnote 31 Al-Muzanī's mention of “free virgins” might be construed as a reference to al-Shafiʿī's DPA rule, but, given the scanty context, one must beware of the implicit arbitrariness of such an inference; while al-Muzanī's silence on a dissenting view deserves some note. Altogether, even if al-Muzanī did consider stoning as the sole penalty for adultery, his justification departs from al-Shāfiʿī's, and does not indicate an engagement with a party of opponents.
The earliest work of a Shāfiʿī jurist that records the DVSP dispute is the Sunna of al-Marwazī (202–94/817–907):
A group of scholars from our age and its proximity (ṭā'ifat unmin ahl iʿaṣr i-nā wa-qurb i-hi) came to demand that the ʿUbāda tradition be applied at face value (ʿalā wajh i-hi). They demanded that the fornicators be flogged according to the Book of Allah and banished for a year according to the Sunna of the Messenger of Allah; they also demanded that the adulterers be flogged according to the Book of Allah and stoned according to the Sunna of the Messenger of Allah. They said: “This was the practice of ʿAlī b. Abī Ṭālib and the precept of Ubayy b. Kaʿb. They also said: “The reports from which al-Shāfiʿī and his likes inferred that flogging is abolished with regard to the non-virgins are void of a textual proof that necessitates the revocation of flogging with regard to them [just] because flogging is never mentioned therein. It may be that the Prophet (ṣ) flogged them [the adulterers], even though this is not mentioned in the ḥadīth. They [the transmitters] may have omitted (ikhtaṣarū) its mention [flogging] from the ḥadīth because they saw it firmly established in the Book of Allah with regard to sexual offenders. Thus, by [recourse to] the Book of Allah, they dispensed with its mention [flogging] in the Sunna; but they mentioned stoning, of which there is no mention in the Book of Allah, in order to spread it among the common people, who should know that it [stoning] is a sunna from the Messenger of Allah (ṣ), so they would not be able to reject it, although some people of fancy and [heretical] innovation had rejected it.”Footnote 32
By mentioning “a group of scholars from our age and its proximity”, al-Marwazī indicates that the upholders of DPA flourished both during his lifetime and shortly before his birth in 202/817, which, incidentally, almost coincides with al-Shāfiʿī's death in 204/820. But how could such a statement be aligned with al-Muzanī's apparent lack of awareness of the DVSP dispute? Conceivably, by mentioning scholars from the immediately preceding age, al-Marwazī means second-century traditionists like Shuʿba b. al-Ḥajjāj, Hushaym b. Bashīr and Yaḥyā b. Saʿīd al-Qaṭṭān, who transmitted variants of the DPA tradition. Even though these traditionalists did not recognize two rival doctrines on the penalty for adultery, in al-Marwazī's lifetime their traditions came to be used as arguments against the proponents of SPA, whom al-Marwazī associates with al-Shāfiʿī. The DPA advocates sought justification in the prophetic Sunna (the ʿUbāda tradition) and the Companions' practice and precept (ʿAlī and Ubayy b. Kaʿb). Furthermore, the transmitters of the traditions concerning Māʿiz and the woman who had an illicit sexual relation with her servant would have omitted the mention of flogging because it is imposed by a general scriptural rule. It was al-Shāfiʿī's fallacy, his opponents claimed, to insist that by not mentioning flogging these traditions abolished it as part of the penalty for adultery.
Christopher Melchert has observed that while expounding al-Shāfiʿī's arguments in favour of the SPA rule, al-Marwazī is far from turning a deaf ear to the objections set forth by the DPA party.Footnote 33 Al-Marwazī's impartiality need not necessarily be construed as an indication that the DVSP issue had become moot by the time the Sunna was composed. That the polemic continued well into the second half of the third century is attested by Ibn al-Mundhir's DPA justification. Ibn al-Mundhir (c. 241–318/c. 855–930), who may have been loosely associated with the Shāfiʿīyya,Footnote 34 presents an elaborate version of the DPA arguments articulated in the above-mentioned al-Marwazī tradition. In contrast to al-Shāfiʿī, Ibn al-Mundhir asserts that under the formal Quranic injunction (bi-ẓāhir ikitāb il-lāh), all kinds of zunāt incur flogging, which, therefore, cannot be repealed by unwarranted inferences (tawahhum) from the ʿUbāda and the woman's-servant traditions.Footnote 35
The vacillation of the third-century Shāfiʿīyya with regard to the exact penalty for adultery may be explained by their following al-Shāfiʿī's dismissal of legal conformism (taqlīd),Footnote 36 by the absence of a continuous Shāfiʿī school of law,Footnote 37 or by rival attempts to define Shāfiʿī doctrine.Footnote 38 No matter how far-reaching they were, the differences between the individual doctrines do not account in a satisfactory way for the shift from al-Muzanī's silence about the DVSP dispute to al-Marwazī's and Ibn al-Mundhir's pronounced exposition thereof. Al-Muzanī can hardly have discounted such an important debate involving both uṣūl and furūʿ; hence his death in 264/878 is better seen as the terminus post quem for the unfolding of the DVSP controversy.
Abū ʿUbayd, al-Muḥāsibī and Ibn Qutayba
Abū ʿUbayd (d. 224/839), often associated with the Shāfiʿī school,Footnote 39 and al-Muḥāsibī (d. 243/857–58), an ascetic mutakallim and uṣūlī,Footnote 40 are primarily interested in the provenance of the penalty for zinā. They treat in some detail the relationship between scripture and the Sunna in the case of stoning,Footnote 41 but do not discuss whether or not flogging should be part of the punishment for adultery. On one occasion, Abū ʿUbayd states that the adulterer is punished more severely (ajall) because his offence is more serious (aʿẓam) than that of the fornicator,Footnote 42 but does not specify the exact penalty for either group.
Both Abū ʿUbayd and al-Muḥāsibī cite the ʿUbāda tradition, but neither cares to indicate whether its DPA prescription was abolished. Although Abū ʿUbayd knows variants of the Māʿiz tradition, which is paramount to al-Shāfiʿī's advocacy of SPA, he does not relate them to the DVSP issue.Footnote 43 Thus, Abū ʿUbayd and al-Muḥāsibī seem to have considered DPA self-evident, or at least irrelevant to the topics of their works. The latter possibility is less likely, since Abū ʿUbayd and al-Muḥāsibī were interested in jurisprudenceFootnote 44 and would hardly have disregarded a fiqhī dispute as important as that involving the penalty for zinā.
A similar lack of interest in the DVSP issue is observed in Ibn Qutayba's (213–76/828–89) last work, Ta'wīl Mukhtalif al-Ḥadīth. Probably begun not long after 256/869–70,Footnote 45 the Mukhtalif defends Islamic doctrines against rationalistic critique of their dependence on contradictory ḥadīth material. Although Ibn Qutayba explicitly mentions the ʿUbāda tradition, like Abū ʿUbayd and al-Muḥāsibī he is preoccupied with the relationship between the Quran and the Sunna while paying no attention to the DVSP issue.Footnote 46 Ibn Qutayba is also familiar with the Māʿiz tradition, but uses it to discuss the number of voluntary confessions that incur rajm.Footnote 47
Ibn Qutayba may have disregarded DVSP because it was a fiqhī dispute within the orthodox realm, but so were the number of voluntary confessions required for the imposition of rajm, which Ibn Qutayba discusses at length. Moreover, Ibn Qutayba's neglect of the DVSP dispute was not an isolated phenomenon in the first half of the third century and beyond. It is very likely, therefore, that the contention started after the Mukhtalif had been completed, and this seems to support our dating of the DVSP to before al-Muzanī's death in 264/878.
Quranic exegesis
To al-Dārimī (d. 255/869), the ʿUbāda tradition apparently modified the rule of Q. 4:15 on zinā.Footnote 48 To Ibn al-Mundhir, Q. 24:2 abrogated Q. 4:15 whereupon the ʿUbāda tradition imposed the DPA rule.Footnote 49 Whereas al-Dārimī's treatment of zinā clearly brings to mind the second-century approach, Ibn al-Mundhir is familiar with the Shāfiʿī train of thought. Nevertheless, as a DPA advocate he, as would be expected, stops short of endorsing the SPA doctrine.
Al-Ṭabarī follows a similar line of reasoning. At Q. 4:15 he mentions a number of authority statements according to which the said verse was abrogated by the penalty (ḥadd), variously described as Q. 24:2 and stoning of the adulterers (one instance), flogging and stoning of the adulterers and flogging and banishment of the fornicators (one instance), flogging, without specifying the offenders (two instances), and flogging and stoning, without specifying the offenders (three instances).Footnote 50 To remove the ambiguity, al-Ṭabarī extensively quotes the ʿUbāda tradition in a manner reminiscent of al-Dārimī and Ibn al-Mundhir.Footnote 51 Compared with the other traditions in this chapter, al-Ṭabarī's emphasis on the ʿUbāda tradition is so pronounced that he seems to endorse DPA unhesitatingly. In the concluding summary, however, al-Ṭabarī takes an unexpected turn: without going into detail, he now merely states that the “way” mentioned in Q. 4:15 is flogging and banishment for the fornicators and stoning for the adulterers, “because of the validity of the report that the Messenger of Allah (ṣ) stoned and did not flog”.Footnote 52
Al-Ṭabarī's surprising shift from an apparent acceptance of DPA to an unambiguous endorsement of SPA suggests that he once subscribed to the DPA doctrine but subsequently espoused the opposite view. Do we have any indication that al-Ṭabarī's opinion on the penalty for adultery changed over time? According to al-Khaṭīb al-Baghdādī, al-Ṭabarī frequented the lessons of Dāwūd al-Ẓāhirī (a leading exponent of the DPA rule), but then, perhaps owing to a disagreement, he left Dāwūd's circle.Footnote 53 Al-Khaṭīb does not reveal the reason for al-Ṭabarī's decision, and we can only guess as to whether the penalty for adultery had contributed to it. If this was the case, al-Ṭabarī would have embraced SPA some time before Dāwūd's death in 270/884. Note that the Commentary, which was begun shortly after that date, bears witness to al-Ṭabarī's change of opinion being a recent development; hence, the year 270/884 is a reasonable terminus ad quem for al-Ṭabarī's adoption of the SPA doctrine.
Al-Ṭabarī never mentions al-Shāfiʿī as a proponent of SPA. Although, in the Commentary, he states that the Prophet stoned but did not flog, it is unclear from which traditions he drew arguments. In Tahdhīb al-Āthār, al-Ṭabarī cites the Māʿiz tradition as proof that the Prophet stoned without floggingFootnote 54 but, again, without recognizing this as a Shāfiʿī tenet. A plausible explanation of this phenomenon lies in the absence of a discrete Shāfiʿī school in the third century ah. Al-Ṭabarī, though familiar with the Shāfiʿī teaching, preferred to synthesize different legal and exegetical opinions.Footnote 55 His indebtedness to the Shāfiʿī doctrine with regard to the penalty for zinā was probably combined with the influence of other legal teachings, some of which predated al-Shāfiʿī.
Al-Ṭabarī's drift towards the SPA rule is indicative of the history of the DVSP dispute. Tahdhīb al-Āthār was reportedly composed between 255/868 and 270/883, and the Commentary was begun c. 270/883–4.Footnote 56 This would indicate that the DVSP dispute would have unfolded in the third quarter of the third century ah.
The third-century traditionists
Abū Dāwūd al-Ṭayālisī (d. 203/818) and Ibn Abī Shayba (d. 235/849) have recorded an important clue in the DVSP dispute:
Ḥammād b. Salama ʿan Simāk b. Ḥarb ʿan Jābir b. Samura (1) anna rasūla 'l-lāhi, ṣ, rajama Māʿizan (2) wa-lam yadhkur jaldan.
Ḥammād b. Salama from Simāk b. Ḥarb from Jābir b. Samura: (1) that the Messenger of Allah (ṣ) stoned Māʿiz, (2) and [?] did not mention flogging.Footnote 57
Clause 1 summarizes the case of Māʿiz; clause 2 adds the comment of an unidentified authority that by not mentioning flogging, the Māʿiz tradition has excluded it from the punishment for adultery. ʿAbd al-Razzāq (d. 211/827) provides the only hint at the identity of the nebulous SPA advocate:
(1) ʿAn Maʿmar ʿan al-Zuhrī anna-hu kāna yankuru 'l-jalda ma'a 'l-rajmi wa-yaqūlu: “Qad rajama rasūlu 'l-lāhi, ṣ” (2) wa-lam yadhkur al-jald.
(1) From Maʿmar from al-Zuhrī that he used to renounce [the combination of] flogging with stoning. He would say: “The Messenger of Allah (ṣ) did stone”, (2) and he [al-Zuhrī] would not mention flogging.Footnote 58
Although al-Shāfiʿī may seem the most fitting choice, ʿAbd al-Razzāq is of a different opinion. His mention of al-Zuhrī may have been driven by the latter's prominence in the isnāds of the Māʿiz tradition. There being no indications that al-Zuhrī contributed to promoting SPA, ʿAbd al-Razzāq's third-person statement, “and he would not mention flogging”, looks more like a back-projection of a later doctrine onto an early authority. This brings us back to the identity of the nebulous advocate of SPA in the aforementioned traditions. Once again, al-Shāfiʿī lurks in the background, but one should note the chronological limitations of this suggestion. The above traditions are hermeneutically deficient; to be understood, they must be set against the background of the SPA doctrine and, most likely, of the entire DVSP dispute, which they apparently postdate. It is highly unlikely, therefore, that the dispute unfolded in the short span between the first recension of the Risāla (c. 195–7/811–13)Footnote 59 and the death of al-Ṭayālisī in 203/818; even less so between the second recension of the Risāla and al-Ṭayālisī's death. The same holds for ʿAbd al-Razzāq: although he died about fifteen years after the first recension of the Risāla, by the turn of the second century he had lost his sight, and his mnemonic abilities were reportedly impaired.Footnote 60 It is hard to imagine how, in the last decade of his life, ʿAbd al-Razzāq would learn about al-Shāfiʿī's SPA doctrine and engage in the DVSP dispute. In all likelihood he knew only the second-century views on the penalty for zinā.Footnote 61
Chronologically, Ibn Abī Shayba (d. 235/849) had every chance to become acquainted with al-Shāfiʿī's SPA doctrine and the DVSP dispute. Although this possibility appears to gain credence from Ibn Abī Shayba's citing the above-mentioned Māʿiz tradition, and another tradition advocating SPA,Footnote 62 the composition of his bāb entitled Fī 'l-bikr iwa-'l-thayyib imā yuṣna'u bi-himā idhā fajarā (On the virgin and the non-virgin and what is done to them in the case of [sexual] transgression)Footnote 63 points in a different direction. Ibn Abī Shayba cites a series of six traditions that endorse the DPA rule (nos. 29259–64), followed by a harmonizing tradition (no. 29265), an SPA tradition (no. 29266), a tradition about fornication (no. 29267), a DPA tradition (no. 29268), the tradition rajama Māʿiz anwa-lam yadhkur jald an (no. 29269), and another about fornication (no. 29270). Clearly, the coherent structure of the chapter, which advocates the second-century DPA rule, is disrupted by the insertion of the SPA traditions and the attempted harmonization of the two conflicting doctrines. The chapter's opening tradition, about the woman's servant, reinforces the impression of inconsistency.Footnote 64 Probably intended to endorse the stoning penalty as part of the Book of God, it is reminiscent of second-century developments.
Like al-Ṭayālisī, ʿAbd al-Razzāq, and Ibn Abī Shayba in his Musnad, Aḥmad b. Ḥanbal cites the ʿUbāda tradition and the tradition rajama rasūl u'l-lāh iMāʻiz anwa-lam yadhkur jald an. But which of the two contradictory traditions represents Aḥmad's opinion? The evidence of the Masā'il collections composed by several of his followers is enlightening, yet ambiguous. Aḥmad's son, Ṣāliḥ (d. 266/879–80), reports his father's counsel that the muḥṣan adulterer should be stoned but not flogged.Footnote 65 Al-Kawsaj (d. 251/853), who is acquainted with the harmonizing traditions that divide the zunāt into fornicators, young adulterers and shaykh-adulterers, asks Aḥmad whether the virgins should be flogged and banished, while the (young) non-virgins (thayyib) should be stoned, and the shaykh-adulterers should be flogged and stoned.Footnote 66 Aḥmad's answer, “stoned and not flogged” (yurjam wa-lā yujlad), is ambiguous. If he means both the young- and the shaykh-adulterers, or the shaykh-adulterers alone, then he is calling for SPA. If his statement is restricted to the young adulterers, then a different penalty would seem incumbent upon the shaykhs. The latter possibility is highlighted by Ibn Hāni' (d. 275/888–9), who tells us that Aḥmad based his opinion on the tradition of Masrūq b. al-Ajdaʿ → Ubayy b. Kaʿb that divides the adulterers into young persons and shaykhs. Aḥmad would say that the shaykh-adulterer incurs flogging and stoning “for his offence is graver” (huwa aʿẓam u-humā jurm an).Footnote 67
Recent research on the Masā'il has shown that, when facing contradictory traditions, Aḥmad would try to find a solution according to the principles of tradition criticism; if unable to do so, he would withhold his opinion lest it become authoritative.Footnote 68 This seems only partly true with regard to the penalty for adultery. Whereas in the Musnad Aḥmad cites contradictory prophetic and Companion traditions about the issue, in each separate Masā'il collection he voices an unequivocal opinion as if he is unaware of any contradictions. In aggregate, these opinions are inconsistent and fairly independent of the ḥadīth material in the Musnad. Thus the Musnad attests that Aḥmad knew the tradition rajama rasūl u'l-lāh iMāʻiz anwa-lam yadhkur jald an, which reflects the Shāfiʿī SPA doctrine; the same tradition is never deployed as an argument in the Masā'il. Aḥmad's son, Ṣāliḥ, asserts that his father upheld SPA based on an account according to which ʿUmar stoned but did not flog. Although formally endorsing SPA, this opinion seeks vindication in the Companion practice, an approach that contrasts sharply with al-Shāfiʿī's preference for prophetic ḥadīth. No trace of Ṣāliḥ's tradition is found in the Musnad, where ʿUmar traditions are used mainly to argue that the Prophet did stone. As attested by the Musnad, Aḥmad knew the ʿUbāda tradition. Its grave legal and exegetical implications notwithstanding, this tradition is not part of any deliberation in the Masā'il.
There is no evidence that Aḥmad ever justified the SPA doctrine in the way that Shāfiʿī did: the tradition rajama rasūl u'l-lāh iMāʻiz anwa-lam yadhkur jald an, which is intended to vindicate the Shāfiʿī opinion, seems foreign to the Musnad. The same is true for the Ubayy b. Kaʿb tradition: it is an attempt to harmonize the clashing views in the course of the DVSP dispute. Barely aware of that dispute, Aḥmad is even less likely to have propounded a compromise between the two opposing poles of legal opinion. The above traditions discarded, we are left with the ʿUbāda tradition, which defined the penalty for zinā during the second century ah, and the ʿUmar tradition which, to Aḥmad, is a means to justify the very existence of the stoning penalty in Islam. Thus, Aḥmad seems much like a second-century traditionist-jurisprudent who does not know about al-Shāfiʿī's SPA doctrine. Aḥmad's attitude indicates that the DVSP dispute would have unfolded, or at least reached its pinnacle, after his death in 241/855. Given that al-Kawsaj, who died a decade later, appears to know of a tradition that tries to harmonize the clashing views, the dispute must have begun some time around Aḥmad's date of death.Footnote 69 Consequently, the terminus post quem, which I derived from al-Muzanī's date of death (264/878), would have to be revised backwards by approximately two decades.
Unlike the collections I discussed previously, the Six Books do not record the tradition rajama rasūl u'l-lāh iMāʻiz anwa-lam yadhkur jald an. A more detailed review will help us to determine which of the collectors was acquainted with al-Shāfiʿī's SPA doctrine and the DVSP dispute.
In an apparent endorsement of the SPA rule, al-Bukhārī (d. 256/870) does not cite DPA traditions. Likewise, the chapter heading Rajm u'l-muḥṣan (The stoning of the adulterer) may indicate support for SPA, but a closer inspection shows that the chapter's rambling contents are hardly instructive concerning al-Bukhārī's stance on the way to punish adulterers.Footnote 70 Furthermore, though extensively quoting the Māʿiz and the woman's-servant traditions throughout the Ṣaḥīḥ, al-Bukhārī is unfamiliar with their applicability as SPA arguments. It is more likely, therefore, that his opinion coincided with the second-century Mālikī and Ḥanafī SPA doctrine.
Unlike al-Bukhārī, who tellingly avoids the DPA traditions, Muslim (d. 261/875) puts the ʿUbāda tradition at the cenre of his discussion of zinā.Footnote 71 Regarding the DPA rule, one would expect that if Muslim disagreed with the respective part of the ʿUbāda tradition, he would refute it in the following chapter, entitled Rajm u'l-thayyib ifī 'l-zinā (The stoning of the non-virgin for (his/her) sexual offence). Contrary to expectation, the chapter includes a single tradition by which there was a stoning verse in the Quran.Footnote 72 Thus, unlike al-Bukhārī, who points to the sunnaic provenance of rajm, Muslim derives this penalty from scripture. Neither of the two, however, is concerned with the DVSP issue.
Abū Dāwūd (d. 275/889) treats the issue of rajm in a systematic way that calls to mind al-Shāfiʿī's approach. First, he cites an Ibn ʿAbbās tradition according to which Q. 24:2 abrogated Q. 4:15–6;Footnote 73 then he moves to the ʿUbāda tradition which introduces dual penalties for adultery and fornication.Footnote 74 Unlike al-Shāfiʿī, Abū Dāwūd stops short of citing traditions that abrogate ʿUbāda, and proceeds, instead, to other aspects of the penalty for zinā.Footnote 75 Melchert has likened Abū Dāwūd's apparent support of DPA to the Ḥanbalī doctrineFootnote 76 but, as shown above, Aḥmad's position is elusive. Despite being closer to Aḥmad than the other authors of the Six Books,Footnote 77 Abū Dāwūd does not cite the tradition rajama rasūl u'l-lāh iMā‘iz anwa-lam yadhkur jald an. This is strange if Abū Dāwūd was aware of the DVSP issue, but it is possible that he shunned the ḥadīth on account of its being a secondary opinion about the prophetic practice.Footnote 78
In his chapter Ḥadd al-zinā (The punishment for zinā), Ibn Māja (d. 273/887) cites the woman's-servant tradition, which is one of al-Shāfiʿī's SPA arguments, followed by the ʿUbāda tradition, which demands DPA.Footnote 79 It is tempting to consider this arrangement to be an indication of naskh whereby the latter ruling rescinds the former, but such a hypothesis is hard to sustain given that Ibn Māja's collection does not present any other clues about his commitment to either SPA or DPA.Footnote 80 Compared with Abū Dāwūd's systematic treatment of the penalty for zinā, Ibn Māja's approach is less advanced; it betrays an interest in the piling up of (contradictory) traditions without fully considering their legal implications.
Like Ibn Māja, al-Tirmidhī (210–79/825–92) opens the chapter devoted to the punishment for adultery (Mā jā'a fī rajm i'l-thayyib) with the woman's-servant tradition, followed by the case of a slave girl who commits adultery, and the ʿUbāda tradition.Footnote 81 Unlike the other third-century ḥadīth collectors, al-Tirmidhī closes the chapter with an exposition of the DVSP dispute:
Abū ʿĪsā [al-Tirmidhī] said: “This [viz. ʿUbāda] is a fairly sound tradition (ḥasan unṣaḥīḥ) that should be acted upon according to several people of knowledge among the Companions of the Prophet (ṣ), like ʿAlī b. Abī Ṭālib, Ubayy b. Kaʿb, ʿAbd Allāh b. Masʿūd and their likes, who said: ‘The non-virgin is flogged and stoned’. The same was upheld by several [later] people of knowledge; it is the opinion (qawl) of Isḥāq [b. Rāhwayh]. And several people of knowledge among the Companions of the Prophet (ṣ), like Abū Bakr, ʿUmar and their likes said that he [viz. the adulterer] should be stoned but not flogged. It was reported from the Prophet (ṣ) in more than one tradition about the story of Māʿiz and his likes that he (viz. the Prophet) ordered stoning and did not order that he be flogged beforehand. This should be acted upon according to several [later] people of knowledge; it is the opinion (qawl) of Sufyān al-Thawrī, Ibn al-Mubārak, al-Shāfiʿī and Aḥmad.”Footnote 82
Along with al-Marwazī and Ibn al-Mundhir, al-Tirmidhī's exposition is the earliest third-century attestation of the DVSP dispute. Among the three scholars, Ibn al-Mundhir articulates the most consummate justification of DPA, and produces a detailed list of its proponents and opponents (see Table 1). Unlike al-Marwazī and al-Tirmidhī, Ibn al-Mundhir is familiar with the variant tradition of Ubayy b. Kaʿb which sought to harmonize DPA with SPA: the young adulterers incur flogging alone, while the shaykh-adulterers incur the combined penalty of flogging and stoning. Consequently, Ibn al-Mundhir's exposition attests to a later stage of polemic accomplishment, possibly attained around or after al-Marwazī's death in 294/907.
Both parties described by al-Marwazī, al-Tirmidhī and Ibn al-Mundhir would bolster their opinions by the Companion practice and the prophetic Sunna. Their emphasis on the Companion practice is so pronounced, indeed, that it relegates the prophetic Sunna to a secondary position. Such treatment of the Sunna is at variance with al-Shāfiʿī's endorsement thereof as a paramount source of legal norms coequal with the Quran. Note also the nuanced attitude towards al-Shāfiʿī's SPA doctrine. Al-Marwazī's apparent assent thereto is balanced by an exposition of the DPA arguments that is far from dismissive. Similarly, al-Tirmidhī does not divulge his opinion about the conflicting doctrines, but he describes the arguments of the SPA party in a way that might be construed as a careful endorsement of that view. Conversely, Ibn al-Mundhir is a staunch advocate of DPA. Such varied opinions indicate that by the last quarter of the third century ah, the DVSP dispute (and efforts to define Shāfiʿī doctrine) would have been still ongoing.
In summary, the third-century evidence attests to the wide circulation of the second-century DPA doctrine before Ibn Ḥanbal's death in 241/855. After that date awareness of the SPA doctrine increases steadily, and in the third quarter of the century, al-Shāfiʿī is mentioned as an SPA advocate. By the turn of the third century, both parties' arguments appear in a state of polemic accomplishment that would preclude substantial changes over the ensuing centuries.
Who were the parties to the DVSP polemic?
Important clues to the chronology of the DVSP dispute can be gleaned from the lists of authorities who were reportedly engaged in the DVSP polemic. Table 1 summarizes the source accounts.
Sources for the chronology of the DVSP dispute
The proponents of DPA are:
1. Of the Companions, ʿAlī is always mentioned; when further names are added, he is always accompanied by Ubayy b. Kaʿb. Ibn Masʿūd is mentioned twice; Ibn ʿAbbās and Abū Dharr each appear once.
2. The earliest proponent of DPA among the third-century fuqahā' is Isḥāq b. Rāhwayh. The later sources always add Dāwūd al-Ẓāhirī and (apart from al-Ṭūsī and al-Ḥāzimī) al-Ḥasan al-Baṣrī. Aḥmad and Ibn al-Mundhir are mentioned three times, and al-Ḥasan b. Ṣāliḥ b. Ḥayy once.
Those who distinguished between shaykh-adulterers and young adulterers (not included in the table) are:
1. Among the Companions: Ubayy b. Kaʿb.
2. Among the later fuqahā' no specific names are mentioned, but according to al-Kawsaj and Ibn Hāni', this was Aḥmad's precept.
The proponents of SPA are:
1. Whenever Companions are named, ʿUmar is invariably mentioned. Abū Bakr accompanies him when more than one Companion is listed. Ibn Qudāma's mention of ʿUthmān and Ibn Masʿūd along with ʿUmar, and al-Marwazī's list of Companions, are anomalous.
2. Among the later fuqahā', al-Shāfiʿī is the unmistakeable master of the SPA doctrine. Sufyān al-Thawrī is mentioned seven times; al-Awzāʿī and Mālik six times; Aḥmad five times; Abū Ḥanīfa, Abū Thawr, al-Nakhaʿī and al-Zuhrī four times; Ibn al-Mubārak, Ibn Abī Laylā and al-Ḥasan b. Ḥayy twice; Abū Shubruma, Abū Yūsuf, al-Shaybānī, al-Layth b. Sa‘d and al-Ṭabarī once.
Upon comparison, one notes contradictions in the views attributed to specific Companions and jurisprudents. Thus:
1. Ubayy b. Kaʿb now calls for DPA and now distinguishes between shaykh-adulterers and young adulterers, in which case only the shaykhs incur DPA.
2. Al-Tirmidhī and al-Baghawī count Ibn Masʿūd among the supporters of the DPA rule; Ibn Qudāma considers him an advocate of SPA.
3. According to Ibn Ḥazm, al-Ḥasan b. Ḥayy supported DPA, but according to Ibn ʿAbd al-Barr and al-Ṭaḥāwī he held that adulterers incur only stoning.
4. Aḥmad's alleged support for all possible doctrines on the penalty for adultery indicates multiple back-projections obfuscating his original opinion.
Having eliminated all controversial names from the list, we are left with only few DPA advocates: ʿAlī b. Abī Ṭālib among the Companions, and al-Ḥasan al-Baṣrī, Isḥāq b. Rāhwayh, Dāwūd al-Ẓāhirī and Ibn al-Mundhir among the later fuqahā'.
Likewise, the apparently large number of SPA advocates decreases to only a few on closer consideration. Among the Companions, ʿUmar and Abū Bakr are predominant. Among the fuqahā', the SPA doctrine is attributed to anonymous bodies of jurisprudents (ʿāmmat u'l-fuqahā', ahl al-ra'y, etc.); to jurisprudents who held that adultery incurs stoning before the advent of the classical SPA doctrine (Abū Ḥanīfa, Mālik, Abū Yūsuf, al-Shaybānī); and to persons who, though frequently found in the isnāds of traditions dealing with zinā, cannot be proven to have held opinions regarding SPA or DPA (al-Zuhrī, al-Thawrī, Ibn al-Mubārak). If we further remove from the list al-Ḥasan b. Ḥayy, on account of the contradictory statements about his opinions, and al-Nakhaʿī, whose DPA opinion is a later back-projection,Footnote 97 al-Shāfiʿī would stand out as the most salient SPA champion. Aḥmad's presence in the list is also important, on which more later.
Whether Companions contributed to the promulgation of each doctrine is impossible to verify; even a less sceptical Western student of Muslim traditions would be reluctant to attach much weight to contested fiqhī issues being associated with such early authorities. A considerable number of the ʿAlī traditions were circulated by Shuʿba b. al-Ḥajjāj (d. 160/776–7) and Hushaym b. Bashīr (d. 183/799), their main point being not to impose the DPA rule as much as to justify the stoning penalty against those who stuck to the ordinance of Q. 4:15–16. Since al-Ḥasan al-Baṣrī belonged to the latter group,Footnote 98 he cannot be considered a proponent of DPA.
Thus, we are left with two principal third-century DPA advocates: Isḥāq b. Rāhwayh (161–238/778–853) and his student, Dāwūd b. Khalaf al-Ẓāhirī (c. 202–279/c. 817–884). Regrettably, the extant Musnad of Ibn Rāhwayh does not record DPA or SPA traditions, whereas there are no extant works of Dāwūd b. Khalaf.
The earliest surviving work that mentions Ibn Rāhwayh's support of DPA is the Masā'il collection of al-Kawsaj (d. 251/853).Footnote 99 By al-Kawsaj's testimony, Ibn Rāhwayh would justify DPA by the Companion tradition about ʿAlī's punishment of Shurāḥa. He would further assert that the woman's-servant tradition is not clear proof,Footnote 100 thus indicating that it was an argument set forth by the SPA advocates, none of whom, however, is identified by name. Ibn Rāhwayh does not consider the Māʿiz tradition which, were it known to him as an SPA argument, would have been susceptible to the same rebuttal as the woman's-servant tradition. Ibn Rāhwayh's defence of DPA indicates that in his lifetime the opposing party relied on arguments that were below the level of maturity observed in the Risāla. Unlike al-Shāfiʿī, who favours prophetic ḥadīth, Ibn Rāhwayh supports his opinion by the Companion practice alone. Thus, to use Susan Spectorsky's qualification, he acts “much more as a scholar of the second century … than as a prominent third-century collector and disseminator of traditions”.Footnote 101
The first explicit attribution of the DPA doctrine to Dāwūd b. Khalaf is found in the commentary of Abū Dāwūd's Sunan composed by al-Khaṭṭābī (d. 388/998). According to him, DPA was the opinion (qawl) of Dāwūd and his followers.Footnote 102 Note, however, that a century earlier, al-Marwazī attributes to an anonymous group of DPA advocates the statement that the ʿUbāda tradition should be interpreted “at face value” (ʿalā wajh i-hi), a locution that immediately calls to mind ʿalā ẓāhir i-hi, that is, “according to its outward meaning”. This analogy coincides with the contemporary remark by Ibn al-Mundhir that the proponents of DPA relied on the outward meaning (ẓāhir) of scripture. Both references apparently point to the early ẓāhiriyya, perhaps even before their group became distinguished by this name.
Al-Khaṭṭābī does not set forth Dāwūd b. Khalaf's arguments, but, arguably, they concur with the view of the anonymous DPA group described by Dāwūd's contemporary, al-Marwazī. These jurists insisted on the literal reading of the ʿUbāda, Māʿiz and the woman's-servant traditions in conjunction with the Quranic ordinance for flogging the zunāt. Such an adherence to the textual sources of law accords with the ẓāhirī concept of uṣūl al-fiqh, which rejects analogical reasoning and does not rely on authorities other than scripture and the Sunna.Footnote 103 The listing of a number of Companions as DPA exponents brings to mind al-Ẓāhirī's doctrine which confined consensus (ijmā') to the generation of the Companions.Footnote 104
Compared with what we know about Ibn Rāhwayh's doctrine, Dāwūd b. Khalaf wields the DPA arguments in a more detailed and skilful manner. Whereas Ibn Rāhwayh appeals to Alī's practice alone, Dāwūd adds the ʿUbāda tradition. Likewise, Dāwūd rebuts both the woman's-servant tradition and the Māʿiz tradition, whereas Ibn Rāhwayh deals only with the former. Dāwūd's arguments are set out clearly and convincingly; conversely, Ibn Rāhwayh is content with the ambiguous statement that the woman's-servant tradition is not a clear proof. Dāwūd's more advanced deliberation indicates that both the DPA and SPA parties had refined their arguments after the death of Ibn Rāhwayh in 238/853.
If the third-century DPA doctrine was elaborated by Ibn Rāhwayh and Dāwūd b. Khalaf, then, of course, the legitimate question arises as to who their opponents were. The list of SPA proponents, as shown in Table 1, is amorphous; when examined in more detail it can be limited to al-Shāfiʿī and Ibn Ḥanbal. Ibn Rāhwayh's cruder reasoning being no match to al-Shāfiʿī's refined SPA doctrine, one expects that Aḥmad, if he ever subscribed to SPA, ought to have relied on arguments mirroring those advanced by Ibn Rāhwayh. This is indicated by Aḥmad's son Ṣāliḥ, who asserts that his father justified SPA by a companion tradition going back to ʿUmar. Ibn Rāhwayh's response with an ʿAlī tradition seems reciprocal.
Although a late addition to the list of SPA exponents, the Baghdadi transmitter of al-Shāfiʿī's old teaching (qadīm), Abū Thawr (d. 240/854), may have subscribed to the primitive Baghdadi SPA doctrine. Reportedly, Aḥmad praised Abū Thawr as a traditionalist, but eventually condemned him for his heretical tenets in exegesis.Footnote 105
As time went on, Aḥmad's opinion came to be associated with the classical SPA doctrine. According to the Ḥanbalī jurisprudent Ibn Qudāma (d. 620/1223), Abū Bakr al-Athram (d. 273/886–7), a student of Aḥmad from whom he later distanced himself,Footnote 106 cited his teacher's opinion that the ʿUbāda tradition “was the first ḥadd-penalty that was revealed, while the Māʿiz tradition is later; the Prophet (ṣ) stoned him (viz. Māʿiz) but did not flog him, and ʿUmar stoned and did not flog”.Footnote 107 As this statement is not present in the extant works of al-Athram, one wonders whether Ibn Qudāma, who was influenced by al-Shāfiʿī's works to the point of plagiarism,Footnote 108 may have altered al-Athram's words. That this was not the case is suggested by Ibn Qudāma's reluctance to entertain the arguments of al-Athram and his like: Ibn Qudāma avoids considering Aḥmad either as a proponent of SPA or an opponent thereof; and his own opinion leans towards the DPA rule.Footnote 109 This attitude probably reflects Ibn Qudāma's realization that it was the generation after Aḥmad that cast his original concepts in a Shāfiʿī mould. It also aligns with the established Ḥanbalī doctrine, which eventually abandoned SPA, probably owing to the equivocal status of some of its third-century exponents with regard to Aḥmad and the later orthodoxy.
If the early stages of the DVSP dispute did occur in Ibn Rāhwayh's era, then our suggested terminus post quem, the death of Ibn Ḥanbal in 241/855, should be moved back to an earlier date, some time in the first decades of the third century ah. Hence the traditional dating of the Risāla would seem quite feasible. Nothing in Aḥmad's tentative support for SPA, however, indicates familiarity with al-Shāfiʿī's SPA doctrine. Nor does Ibn Rāhwayh respond to opponents who seem to have wielded Shāfiʿī arguments. The first jurist to argue explicitly against SPA as a Shāfiʿī doctrine is Dāwūd b. Khalaf. Unlike Ibn Rāhwayh's crude anti-SPA reasoning, Dāwūd's arguments are as detailed and refined as the arguments in the Risāla. But Dāwūd died in 279/884, which brings us again to the death-date of al-Muzanī (d. 264/878) as the terminus post quem of the classical DPA doctrine.
Conclusion
In rejecting the DPA rule of the ʿUbāda tradition, al-Shāfiʿī may have appealed to the practice of the ancient Mālikī school, which, nonetheless, he adapted to his theory of abrogation within the corpus of the prophetic Sunna. In so doing al-Shāfiʿī distanced himself from the ancient-school tradition, and sought to put the Islamic penalty for zinā on a firm sunnaic basis. Hence, though formally concurring with a previously existing practice, al-Shāfiʿī's SPA doctrine would be better seen, at the level of theory, as having no precedent in the history of Islamic jurisprudence.
In the present study, I argue that the SPA doctrine as found in the Risāla (and other works attributed to al-Shāfiʿī) is not without precedent. It concluded a prolonged polemic between rival parties who continuously sharpened their arguments. This process is significant in two ways: it demonstrates the undisrupted development of an important facet of the Islamic positive law before it made its way into the Risāla; and it postdates al-Shāfiʿī.
Our historical survey has shown that al-Shāfiʿī's contemporary traditionists and jurisprudents are surprisingly unfamiliar with his SPA doctrine. Although a single tradition which corresponds to the Shāfiʿī SPA doctrine is present in the collections of al-Ṭayālisī, ʿAbd al-Razzāq and Ibn Abī Shayba, its intrusive character is clear. The situation does not change much in the generation following al-Shāfiʿī. None of Ibn Ḥanbal's contradictory statements on the penalty for adultery presupposes an acquaintance with the SPA arguments as set forth in the Risāla, and neither does the discussion of adultery found in the works of al-Muzanī, Abū ʿUbayd, al-Muḥāsibī, Ibn Qutayba, al-Bukhārī and Muslim.
The earliest jurist to engage in polemic against SPA is Ibn Rāhwayh, but his crude advocacy of DPA indicates that he faced few opponents inspired by the classical Shāfiʿī doctrine. A generation later, Ibn Rāhwayh's student, Dāwūd b. Khalaf, presents exactly the kind of arguments that one expects from an exponent of the ripe SPA doctrine; it is not surprising therefore that its first explicit attribution to al-Shāfiʿī belongs to the same period. Al-Tirmidhī is familiar with al-Shāfiʿī's arguments, and with those advanced by his opponents. The same holds for al-Marwazī, who is the principal source of information about the early ẓāhirī doctrine on the penalty for adultery. Al-Ṭabarī's treatment of the issue indicates that he changed his opinion from an endorsement of DPA to its rejection, the turning point being roughly coterminous with Dāwūd b. Khalaf's death in 279/884. Ibn al-Mundhir's exposition of the DVSP dispute shows that by the end of the third century, the refinement of both doctrines had been almost accomplished.
The members of the early third-century SPA party are more difficult to identify due to the arbitrary and often anonymous ascriptions of this doctrine. One may think, nevertheless, that Ibn Rāhwayh and Dāwūd b. Khalaf were responding to SPA arguments expressed by Ibn Ḥanbal and Abū Thawr, and refined by al-Jūzajānī and al-Athram.
The gradual unfolding of the DVSP dispute is hardly compatible with Lowry's positing of the Risāla's uniqueness and Hallaq's neglect-and-revival theory, both of which, in our case, would presuppose the existence of the classical SPA doctrine by the end of the second century ah. We have seen that Ibn Rāhwayh's rebuttal of the DPA arguments reflects a pre-Shāfiʿī treatment of the penalty for adultery; Dāwūd b. Khalaf's critique, however, is apparently evoked by the fully-fledged Shāfiʿī teaching on the issue. If Dāwūd b. Khalaf built upon Ibn Rāhwayh's doctrine, then such a process would essentially preclude a Shāfiʿī influence. For otherwise one must concede that Ibn Rāhwayh argued against an undeveloped Shāfiʿī doctrine of obscure origin, without (together with his opponents!) being familiar with its better original; then, all of a sudden, Dāwūd b. Khalaf refuted the original Shāfiʿī view, while at the same time improving Ibn Rāhwayh's cruder arguments. Instead of a period of neglect, one may think of the SPA doctrine as being related to al-Shāfiʿī only at an advanced stage of its development. Thus Ibn Rāhwayh would have argued against an SPA rule whose association with al-Shāfi‘ī was still unaccomplished, whereas Dāwūd b. Khalaf faced opponents who were conscious of the Shāfi‘ī origins of their doctrine.
The gradual development of the DPA doctrine in conjunction with its SPA counterpart does not rule out Melchert's re-dating of the Risāla as we know it to the third quarter of the third century ah. To my mind, this is the period when the association of the DPA doctrine with al-Shāfiʿī was completed. This is not to say that the Risāla had not existed before, only that certain parts thereof were amended so as to respond to changing third-century legal concepts.
