Uṣūl al-Fiqh and Shāfiʿī’s Risāla Revisited

In an article published in 1993, 2 I argued that Muḥammad Ibn Idrīs al-Shāfiʿī (d. 204/820) was not, as commonly thought, the architect of uṣūl al-fiqh and that this discipline emerged only after the main battles over what became the Sunnite sources of the law were won. I had dated the emergence of writings on uṣūl al-fiqh to the last part of the third/ninth century and the first half of the fourth/tenth, pointing to Ibn Surayj (d. 306/918) and his students as amongst the earliest exponents of this type of literature. The article contributed to the rise of a considerable controversy in the field, in which a number of critics reasserted earlier origins of the discipline. In this writing, I reply to some of these critics, while confirming the main conclusions of that article and expanding and refining its arguments. In light of new evidence, empirical and interpretive, I maintain that uṣūl al-fiqh proper arose slightly later than my initial estimate. I also provide an analytical description of this theoretical science and situate it within a periodizing schema that charts its development from its prehistory down to the present.


I -Introduction
In an article published in 1993, I argued that Muḥammad Ibn Idrīs al-Shāfiʿī was not, as commonly thought, the architect of uṣūl al-fiqh. Having at the time spent nearly a decade and a half studying classical uṣūl al-fiqh works as well as Shāfiʿī's own writings, I was struck by the immense difference between the quality and structure of his Risāla and those that the later genre exhibited. In an attempt to explain this difference, I directed my attention to the legal history of the third/ninth century. What I found in the sources was something of a gap and much silence.

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Wael B. Hallaq • 19 (2019): 129-183 went back to the mid-nineteenth century. Coupled with his famous major thesis about early Islamic "borrowings" from "foreign" legal systems, the relatively rapid rise of Islamic law could be explained only as a result of appropriating ready-made foreign legal systems, which he thought the early Muslims merely clothed with an Islamic veneer. In one of his later writings-which happened to be on modern "reform"-he argued that "Islamic law is to a great extent not originally Islamic," and that modern Muslims should adopt European laws as they had done during the earliest phase of their history; all they have to do in order to make this project of massive legal transplantation palatable and legitimate is to "impose on it," once again, "categories of Islamic jurisprudence," an Islamic veneer. 10 Thus his vast writings on Shāfiʿī's "accomplishment" is integral to a structuring discourse thatconsciously or otherwise-justified and rationalized the colonialist project in Islamic lands. As we have seen, the recent scholarship, even when it insists on Shāfiʿī's "founding" moment, now acknowledges that much had to be done and "accomplished" before uṣūl alfiqh proper took root. Although Schacht's thesis of decline no longer holds sway in recent scholarship, the overarching narrative of the field continues to retain strong residues even in the most recent scholarship. Thus, a first task in writing this kind of history is to subvert the truth of power, including the shaking off of this narrative structure. In its conventional sense, colonialism is obviously not the only representation of the truth of modern power. 11 Yet, we can identify even a more significant reason for rewriting this kind of history, one that reconstitutes the rationale for historiography. The history of uṣūl al-fiqh captures Islam's long struggle with the place of ethics in human life. It is through this discipline that Islam defined itself as a juridified, virtue-grounded paradigm (with ṣūfism being another central paradigm, or, one might say, co-paradigm). I say "long struggle" because the structured and structuring hermeneutics of this discipline only started in a rather embryonic form during the second/eighth century and the beginning of the third/ninth; and it took two more centuries for this struggle to come to fruition. The uṣūl history of this period is therefore not just a legal history-which, in the narrative I am proposing a distinctly secondary by-product-but rather a trajectory of an ethical formation that defined the moral law as a way of seeing and living in the world.
To understand the intellectual elements and contestations that went into making this two-centuries' formation is to unravel how another culture strove, through massive internal debate and intellectual ferment, to formulate a conception of juridified practice and ethical praxis through and by which to live life. 12 In this narrative, how do we ethically represent (i.e., as a problem of moral philosophy) the tenacity of what we reductively call the "scripturalist thesis," that which insisted on adopting an ontology governed by fixed highorder principles? What are the hermeneutical boundaries that define the scope of authority in the conception of what I have called the Great Synthesis? What are the relationships between authority and ethics, on the one hand, and authority and power, on the other? How do we redefine extra-modern power in light of the history we have at hand? How does or must cosmology inform ethics and law? What do Sharʿī-and Ṣūfī-minded cosmologies consist of, and how do they play out in placing limits on human power, be it systemic or arbitrary? All these questions and many more can be meaningfully informed through a penetrating study of uṣūl al-fiqh, especially during the fourth/tenth century and the three decades or so that preceded and succeeded it. If uṣūl al-fiqh is to be more than a lifeless and arcane academic exercise, it must be brought to bear upon the fundamental ethical and epistemological problems with which late modernity is grappling.
Perhaps we should start from the beginning and interrogate the very nature of this discipline.

II -What is Uṣūl al-Fiqh?
In the general discourse of our field, and especially in the scholarship making up this debate, the descriptor "uṣūl al-fiqh" is taken to apply, nearly indiscriminately, to any period, starting from the early third/ninth century. The descriptor comes to be interchangeably used with "legal theory," "legal methodology," and the like. I argue here that the confusion in the application of the compound expression "uṣūl al-fiqh" is largely indicative of another problem, one that is related not only to a misplaced use of this descriptor but mainly to a vague, even confused, understanding of what uṣūl al-fiqh itself is.
It is my argument then that uṣūl al-fiqh is a well-defined concept that cannot be liberally used to refer to earlier writings on aspects of the discipline, at least not without precise and numerous qualifications. To engage the descriptors of "legal theory" or "legal methodology" does not necessarily mean an engagement with uṣūl al-fiqh. Writing on qiyās or taqlīd, for instance, is an exercise in theoretical reflection on these themes, but it does not render this exercise an accurate expression of writing uṣūl al-fiqh. Writing on qiyās or taqlīd from a refutative and highly polemical point of view (as in the cases of Dāwūd al-Ẓāhirī [d. 269/883], his son Muḥammad [d. 297/910], and al-Qāḍī al-Nuʿmān [d. 363/974]) 13 is even less so. In the repertoire I am trying to articulate, "legal theory" and "legal methodology" are generic expressions that may apply to fields of theoretical inquiry much larger, or much narrower, than uṣūl al-fiqh.
There are at least five conditions of possibility that must be met for a legal-theoretical exposition to qualify as uṣūl al-fiqh. Which is to say that the five components are the necessary conditions that ontologically make possible the sufficient condition that gives rise to this well-formed discipline. Which is also to say that all five must be present in order for the outcome to be ontologically possible in its complete form. The absence of one or more of these conditions in a work does not mean that the work would not generally qualify as an uṣūl al-fiqh treatise, but it does mean that the absence must alert us to aspects of incompleteness or a "lag" that is crucial to understanding or valuating that treatise and the theoretical trajectory in which it falls. It is only when the five conditions have been met that we can say that the work fully belongs in the genre.

Condition 1: Uṣūl al-fiqh requires four paradigmatic sources that stand vis-à-vis each other within a particular set of logical and hermeneutical relations.
All jurists and ulama of the post-formative period as well as modern scholars agree that the Qurʾān, Sunna, ijmāʿ, and qiyās are the quintessential sources of the fiqh and all derivatives thereof, 14 irrespective of how different these sources are from each other. 15 A treatise claiming to be an uṣūl al-fiqh work would only partially-if at all-qualify for the designation if it acknowledges other sources as paradigmatic or if it omits one of the four. And in light of the remaining necessary conditions, the chances of being considered as such a work would further diminish with the increasing non-conformity to the other conditions. This disqualification is not only because of the absence of a source qua source-however serious this in itself is-but also because the omission or rejection of a single source has attendant hermeneutical consequences, for every source generated its own hermeneutical and logical repertoire and, at once, engaged its own repertoire with all the other sources and their concomitant hermeneutical repertoires. This is another way of saying that the hermeneutical principles generated by one source stood in a dialectical and interdependent relationship with the others, whatever they were and however they were hermeneutically elaborated. By the early fifth/eleventh century, it had become a matter of routine to mention that "uṣūl al-fiqh are four." 16 However, this was not the case even in the preceding century, and a fortiori less so in the one before it. If we go by Lowry's persuasive argument, Shāfiʿī did not uphold a theory of four sources. 17 Ibn Surayj's treatise yields no enumeration of the sources as they became later routinely, but paradigmatically, defined. Ibn Surayj almost certainly upheld the authority of the four sources, but the fact that they do not appear in an explicit order is significant. 18 Nor does Ibn Dāwūd's work, "reconstructed" by Stewart-a work which in any case disputed the very sources that became paradigmatic. 19 The earliest conscious enumeration of sources I know of comes from Abū l-ʿAbbās Ibn al-Qāṣṣ (d. 335), who was active as a mature scholar after Ibn Surayj died. Samʿānī reports that "Ibn al-Qāṣṣ said: 'the uṣūl are seven: sensory perception, the intellect, the Book, the Sunna, consensus, ʿibra, and language'." It is of particular interest here that Samʿānī felt compelled to correct Ibn al-Qāṣṣ immediately after rehearsing this enumeration, and did not take it for granted that the list was outlandish or irretrievably obsolete. He promptly responded by stating that • 19 (2019): 129-183 the "correct [position] is that the sources are four." 20 It is also of profound interest that the later uṣūlīs did not, as a rule, mention Ibn al-Qāṣṣ's enumeration, due, in my opinion, to the fact of its exceedingly antiquated nature.
Even a few decades later, we find al-Qāḍī al-Nuʿmān quite scattered in his enumeration of the sources, that is, if what he was writing can count as enumeration. In chapter two, tellingly titled "Summing Up the Opinions of Those Who Disagree on the Rules of Religion," 21 he states that the Sunnites (al-ʿāmma) are in total agreement (ajmaʿū) about the primacy of the Qurʾān as a source of legal norms, followed by the Sunna of the Prophet when the Qurʾān "is supposedly" silent on that norm. The consensus on sources stops here. At this point, al-Nuʿmān distinguishes between and among groups, which he does not name. He says that "many of them" hold the position that if answers are not provided in these two sources, then they seek both the opinions and consensus of the Companions (qālū bi-hi wa-ajmaʿū ʿalayh). If the Companions disagree on the matter, then they choose the position of one of them (takhayyarnā qawla man shiʾnā minhum). Another Sunnite group or groups took the position that if the two primary sources are silent, then they resort to the consensus of the scholars, a stance that al-Nuʿmān finds so objectionable that he segregates it for a special rebuttal. The Sunnites, he continues, further disagree on what source are authoritative in the event that neither the two primary sources nor scholarly consensus supply answers. Some held the position that in such a case they follow (taqlīd) their ancestors' and obey (ṭāʿa) their masters and nobility (sādātihim wa-kubarāʾihim). Others rejected taqlīd and advocated a variety of methods: thus, some took up qiyās, while some espoused raʾy and ijtihād, and yet others advocated istiḥsān or naẓar or istidlāl.22 Note that the scene al-Nuʿmān is describing is quite fluid, if not noticeably chaotic. The only fixed sources that everyone agreed on by his time were the Qurʾān and the Sunna. Consensus and qiyās continued to have many challengers, from within "Sunnism" itself, let alone from without.
If we accept El Shamsy's dating of Khaffāf's writings, 23 then this jurist must have been a contemporary of al-Qāḍī al-Nuʿmān. Assuming this to be true, the sources al-Khaffāf identifies seem incomplete, lacking sequence and structure. After two prefatory paragraphs, he introduces the heading "Clarification Regarding the Knowledge as to How to Reach the Permissible and Impermissible [norms]." 24 This is clearly a foundational "clarification" since it amounts to what later jurists designated as "The Methods by which Legal Norms are Reached" (al-uṣūl a-latī tuʾkhadh minhā al-aḥkām). 25 It is the place, the locus classicus, • 19 (2019): 129-183 where the uṣūl are listed and ranked. Khaffāf writes that the ways to arrive at these norms (yudrak, idrāk) are two, the intellect and revelation (ʿaql and samʿ). The intellect comprehends things in three ways: necessary, prohibited, and possible/permissible (wājib, mumtaniʿ, mujawwaz). Revelation, however, is "divided into four parts, the Book, the Sunna, the umma's consensus, or an indicant (dalīl) from [one of these]." 26 Qiyās makes no appearance here. Only much later, in par. 10, he offers a rudimentary and laconic definition of qiyās, which, in par. 20, he equates with ijtihād, the subject of this paragraph. This is Shāfiʿī's position on this pair-taking them to be interchangeable, but with the crucial difference that Khaffāf was writing nearly a century and a half after Shāfiʿī! 27 In par. 16, Khaffāf finds it relevant to mention, on the authority of Ismāʿīl b. , that Shāfiʿī thought that the "totality" of the subjects on which Muslims disagreed (ikhtalafa al-nās fīhi) are seven, the last of which consisted of the trio "istiḥsān, ijtihād, and tathbīt al-qiyās." I take tathbīt to refer to what later uṣūlīs called ḥujjiyya, the justification of this method as an authoritative aṣl on the basis of the Qurʾān or the Sunna, or both. It is remarkable that Khaffāf still finds Shāfiʿī's statement so relevant that he felt compelled to cite it in an otherwise compact work. A complete and, much less, coherent list of sources is nowhere to be found in this work.
Compare all this with an uṣūl work that appeared during the first three decades of the fifth century. Abū l-Ḥusayn al-Baṣrī (d. 436/1044), as I will show in some detail momentarily, not only recognizes this list of four sources as undisputed, normative, and altogether an integral group, but he also offers a rationalization for the structured order of subjects into which the four sources branch. 28 Condition 2: Uṣūl al-fiqh is a structured order of subject matter, dictated by a particular logical and ontological ranking and categorization.
As we will see in section IV, prototypical works of legal theory have no particular order of subject matter. Ṭabarī's Bayān 29 orders its materials as follows: (1) consensus; (2) solitary traditions; (3) traditions reaching the prophet; (4) abrogation; (5) ambiguous and specified traditions; (6) commands and prohibitions; (7) acts of the Messenger; (8) particular and general language; (9) ijtihād; and (10) invalidity of istiḥsān. This sequence seems to be very similar to the order followed by Ibn Dāwūd. 30 Notable here is the deployment of consensus before the discussion of legal language; 31 and this latter is allocated space after abrogation and traditions, when it should have appeared before any item on the list. Yet, we have no evidence that there was a trend, during the last decades of the third/ninth century or the first half of the subsequent one, that rendered normative • 19 (2019): 129-183 Qurʾān and the Sunna, followed by (thānīhā) discourse on the legal norms of the Prophet's actions (ḥukm afʿāl Rasūl Allāh) that clarify ambiguous texts in the Book and the Sunna. This comes second, he says, because if these norms clarify the revealed texts, then they in effect count as "texts" (ṣārat bi-manzilat al-khiṭāb). Third, discourse on traditions and their modes of transmission and typological divisions. Fourth, solitary traditions and the rules governing them. Fifth, consensus. Sixth, qiyās. Seventh, qualifications and conditions relative to muftīs and mustaftīs, as well as taqlīd. Bāqillānī notes that scholars at times lump the discussion of the latter three topics in one chapter, while others allocate to them separate chapters. Eighth, the original status of prohibition and permissibility (al-ḥaẓr wa-libāḥa), if it is believed that they are sharʿī propositions, not ʿaqlī. Bāqillānī states that those who hold them to be rational propositions do not include such discussions in uṣūl al-fiqh, "but the truth of the matter is that they should be included." Furthermore, there are several topics connected with this heading, but they are not necessarily an integral part of it (tattaṣil bihā wa-laysat minhā). The topics are commands, prohibitions, the particular and the general, abrogation, clear and ambiguous texts, specified and unspecified speech, linguistic syllogisms, etc. 37 At this point, Bāqillānī poses to explain why this specific order is "necessary" (wājib). It is curious, if not quite telling, that he felt compelled to stress the "necessity" of advancing the discussion of the two primary texts over "all other subjects." This could not be taken for granted. The necessity, he explains, is justified by the fact that "all legal norms are deposited (mūdaʿa) in the Book and the Sunna, either explicitly, inferentially, 38 or due to a meaning embedded in them." 39 Within these, the Book must be advanced over the Sunna, because it is God's speech, and due, among other things, to its being the proof of the Messenger's prophethood and the authority on the grounds of which the Prophet's Sunna should be followed. Consensus comes next because it is grounded in the two primary sources. Against a partisan interlocutor who questions this order (tartīb) on the grounds that "you" (probably the Sunnites) "allow consensus of the umma to supersede the apparent meaning of the Book and the Sunna, but you do not abandon consensus due to the dictates of the two [sources]" Bāqillānī replies that "we" do not do so on these grounds, but rather on the grounds of other superior indicants from within the Book and the Sunna. 40 Finally, qiyās is deferred to a subsequent stage because its authority is proven by the first three sources, and thus no conclusion derived from it can override what the texts clearly command. And it is proficiency in qiyās that justifies the inclusion of discussion of the muftī, whose competence is judged in relation to this inferential method; which in turn presupposes a mastery of preceding subject matter that Bāqillānī has already enumerated. And since the muftī's fatwā stands for the "commoner-"questioner (ʿāmmiyy) in the place of 37 Bāqillānī, Taqrīb, I, 311. Under the category I have labelled "linguistic syllogisms," Bāqillānī includes laḥn al-khiṭāb, mafhūm al-khiṭāb, and faḥwā al-khiṭāb. On these as they relate to analogy as a logical category, see HALLAQ, "Non-Analogical Arguments," 286-306. authoritative, clear texts and agreed-upon norms (bi-mathābat al-nuṣūṣ wa-l-ijmāʿāt), then a discussion of the mustaftī is also necessary at this stage. 41 We cannot take the emergence of this discourse about order for granted. We must at least ask why it came about in the first place. I argue that at this stage of uṣūl al-fiqh development (i.e. during Bāqillānī's productive intellectual life), two main factors, standing in a dialectical relationship to each other, were the chief causes for the emergence of this discourse.
First, by insisting on what is to us the most obvious-namely, that the Qurʾān and Sunna come first-and by explaining why they are first and why consensus and qiyās (and hence taqlīd) should follow in that respective order, Bāqillānī was addressing such authors who placed the subject matter differently, advancing consensus (and at times taqlīd) over all else (e.g., Ṭabarī, Ibn Dāwūd, Ibn al-Qaṣṣār, et al.), 42 or mixing the subject matter without a clear sense of structured order (e.g., Ibn al-Qaṣṣār). In the case of consensus and qiyās, he was also addressing the "deniers," those who rejected one or the other, or both.
Second, Bāqillānī-with a hawk's eye on an entire, preceding century of uṣūl debate, controversy, and exposition-was able to stand back, watch, and proceed to describe, in a self-conscious and systematic manner, what that century has accomplished-and in a sense also to schematically describe the winners and losers in the battles over juridical sources and hermeneutical methods. In other words, the discourse about order is a discourse about a synthesis of debates and intellectual labor that expressed the conclusions of a religiopolitical conflict and accommodation, but a conflict that ultimately resulted in exclusions and polar identity formations. 43 The chief identities, interrelated to the core, are manifestations of the synthesis of reason-revelation and its political consequence, the Sunnite-Shiʿite division. The rationalists, including the Muʿtazilites, 44 and the traditionalists, including the Ḥanbalites, had to tweak their doctrines and legal narratives, thereby accommodating this synthesis by the very act of their active, but adaptive, participation; hence the profound doctrinal changes that occurred in both the Muʿtazilite camp and especially the Ḥanbalite school over the following centuries. 45 And it was an integral part of this accommodation that the Ḥanafite school jettisoned raʾy and reworked its method of istiḥsān, among other things. Bāqillānī's chapter on structured order is therefore the "genetic code" that maturely captures the schematic characteristics of the religious-legalpolitical history during the two centuries preceding him.
Two or three decades after Bāqillānī, the Muʿtazilite Abū l-Ḥusayn al-Baṣrī also deployed a chapter titled "The Ordering of the Chapters of Uṣūl al-Fiqh." But his justification and rationalization of this "ordering" was different from Bāqillānī's approach, • 19 (2019): 129-183 emphasizing the priority of language and its semiotic implications. After a fairly lengthy explanation as to how each linguistic part connects with or leads to the others, he explained that the discussion of the actions of the Prophet precede abrogation, because the latter presupposes the former. He then offered a justification as to why consensus must come after abrogation, followed by a variety of subjects, including qiyās, the muftī, and the mustaftī. 46 The point I am trying to make here is that tartīb may vary from author to author to some (limited) extent, but a consciousness of the need for structured and rationalized ordering becomes normative by the first half of the eleventh century. 47 Ibn ʿAqīl (d. 513/1119), writing a century or so after Bāqillānī, nearly replicates the latter's ideas on the matter, at times verbatim. 48 By then, the structured ordering of uṣūl al-fiqh subject matter becomes a matter of course. 49 Two caveats are in order here. First, I have argued that a structured order of uṣūl subject matter had not become normative by the last part of the fourth/tenth century. Yet, the beginnings of structured ordering seem to begin at this period, as evident in Bāqillānī's Taqrīb which deploys, as we saw, an impressive chapter on the subject. Hailing from a sophisticated intellectual background that involved deep learning in a variety of sciences, Bāqillānī-though Mālikite like his contemporary Ibn al-Qaṣṣār-stood head and shoulders above his colleague, exhibiting fierce systematicity and superior modes of reasoning. My argument is then this: that there is no contradiction in a picture or a historiographical narrative that includes both Ibn al-Qaṣṣār's and Bāqillānī's works. Ibn al-Qaṣṣār represents the last breath of an era, while Bāqillānī represents a fresh and more developed stage of intellectual exploration of the discipline. It is therefore eminently arguable that in periodizing the history of uṣūl al-fiqh, we must acknowledge what might be called "Developmental Overlap," a period in which a shift occurs without it becoming immediately normative or paradigmatic. Developmental Overlap characterizes all periods of transition, I argue, by definition as well as perforce. Yet, what is important for us here is not so much the end of the period of a Developmental Overlap as its beginning. When we observe a new development within the range of the Overlap-especially one that reasserts itself subsequently-we can say that a new period or stage in the history of uṣūl al-fiqh is underway.
Second, to speak of order, however well structured, is not the same as speaking of structure. Uṣūl al-fiqh was both a structured order and a structure of ideas and concepts. I will attend to the meaning and implications of structure in my concluding part.
Condition 3: Uṣūl al-fiqh defines itself against other disciplines as a legal methodology whose most essential preoccupation is the articulation of aladilla al-ijmāliyya.
A classical definition of uṣūl al-fiqh, however varied its modes of expression may be, is that it is a field of knowledge whose preoccupation is the study of the general, higher-order, or universal indicants (adillat al-aḥkām min ḥaythu al-jumla), a feature that distinguishes it • 19 (2019): 129-183 from the study of fiqh. This latter is the study of the specific indicants from which particular, individual legal norms are derived (min ḥaythu al-tafṣīl). 50 This, of course, does not mean that the functional telos of the two fields is different, for in order to derive legal norms from indicants, the jurist must be proficient in the methodology governing the higher principles-at least those relevant to the specific case with which he is dealing. What the definitional distinction aims to clarify is that as genres, or as fields of study, they specialize in two different things. The distinction, one might say, is a formal one, not in the sense that substantively they are similar-they are clearly not-but rather in the sense that it is difficult to decide, in terms of application and functionality, where uṣūl al-fiqh ends and where fiqh begins. 51 Bāqillānī explicitly states that "it is impossible to study the fiqh indicants without these [uṣūl al-fiqh] sciences." 52 While uṣūl al-fiqh is the study and elaboration of the governing higher-order principles of legal derivation, the fiqh is the specific application of a particular uṣūl principle or principles to a masʾala. 53 Thus, the lines of distinction are indeed thin, leading some uṣūlīs to define their discipline as that whose "original aim" (gharaḍ aṣlī) is the "derivation of legal norms." 54 Others, like Bāqillānī, defined uṣūl al-fiqh as the group of sciences (ʿulūm) that are the foundations of the knowledge of legal norms, 55 while Juwaynī (d. 478/1085) simply stated that uṣūl al-fiqh "are the indicants of fiqh" (adillat al-fiqh). 56 Bājī (d. 474/1081) goes as far to say that "uṣūl al-fiqh is that on which the knowledge of legal norms is based." 57 Even the much later Karamāstī (d. 900/1494) declares that uṣūl alfiqh's utility (fāʾida) is "the attainment of knowledge of derivative legal norms." 58 (As we 50 See, e.g., Ghazālī, Mustaṣfā, I, 5. In Irshād al-Fuḥūl, 5, Shawkānī describes the discipline as the study of the "universal textual indicant" (al-dalīl al-samʿī al-kullī Shawkānī,5: "Wa-ammā fāʾidat hādhā l-ʿilm fa-hiya l-ʿilm bi-aḥkām Allāh aw al-ẓann bihā." David VISHANOFF is therefore wrong to criticize my emphasis on uṣūl al-fiqh as "rule-creation," although he recognizes that I do also understand it as the science of "rule-justification." When I was writing in the 1980s and 1990s, too many did not appreciate the pragmatic and practical aspects of this science, and so my stress on its connections with the fiqh was intended to correct this one-sided view. This • 19 (2019): 129-183 will see in due course, treating "uṣūl al-fiqh" in the plural and, later on, in the singular is not without much significance). Be that as it may, what matters to us is the beginning of a Developmental Overlap. Even the towering intellectual Bāqillānī does not yet know uṣūl al-fiqh as adilla ijmāliyya; 59 nor do Ibn Surayj, Khaffāf, Jaṣṣāṣ, and Ibn al-Qaṣṣār. The earliest documented instance seems to be Baṣrī's Muʿtamad, where the discipline is defined as "ṭuruq al-fiqh ʿalā l-ijmāl." 60 Once introduced around the last quarter of the fourth/tenth century, this theoretical self-consciousness takes hold in most works of the fifth/eleventh century. From Shīrāzī (d. 476/1083) 61 and Ghazālī (d. 505/1111) 62 to Ibn Barhān 63 (d. 518/1124) and Ibn Qudāma (d. 620/1223), 64 it becomes a common feature of the definition of the discipline. But once Āmidī (d. 631/1233) 65 and the influential Rāzī (d. 606/1210) 66 write, it becomes paradigmatic and integral to the definition in nearly all later works. 67 Starting from about 400/ 1010, then, this development is powerfully indicative of the rise of uṣūl al-fiqh as a distinctly and self-consciously theoretical and methodological discipline, separate and distinguished in qualitative ways from fiqh/furūʿ.

Condition 4: Uṣūl al-fiqh is a self-conscious discipline and field of inquiry.
Proceeding from Condition 3, it is not difficult now to see that by the first half of the fifth/eleventh century, uṣūl al-fiqh, entirely unlike its prehistory, was neither defensive or factious enterprise. Even during the second half of the fourth/tenth century, it no longer struggles for striking a particular synthesis between so-called rationalism 68 and traditionis also why I critiqued the over-emphasis on theology in the study of uṣūl al-fiqh, not because this discipline did not have such connections (after all, theology is patently one of the three foundations of uṣūl, as almost every later work explicitly states [see more on this under the next Condition]), but rather because the Orientalists made too much of it. My "Uṣūl al-Fiqh: Beyond Tradition" is, among other writings, precisely directed to combat this undue emphasis on the abstract and the theological. For VISHANOFF's criticism of my work on these two accounts, see his Formation, 262 n. 35, 269.
• 19 (2019): 129-183 alism, having successfully insisted on, and maintained, certain sources and their interpretation as the foundations of a preexisting substantive law. Now, it expresses itself as a self-standing theoretical apparatus, upholding, with unqualified confidence, a finite set of sources that have between and amongst themselves intense hermeneutical relationships for both the justification of existing law and prescriptions for new cases (nawāzil, masāʾil).
The fourth condition is thus the discipline's arrival at the stage of self-consciousness. Self-consciousness is the capacity to render oneself the object of attention and reflection, whether it is psychological in the case of individuals or analytical or intellectual in the case of disciplines or fields of inquiry. It is the capacity to view oneself by oneself from the outside, so to speak, as an observable actor or agent. It is to ask questions about oneself as if from the outside: What am I doing? Who am I? What do I represent to myself and to others: that is, What am I? The interrogation of the "I" therefore necessarily entails that that interrogation is a projection of a Second or Third Person on the First. It is effectively to ask how and what do I look like from the outside? What am I not doing? What should I do? In short, self-consciousness is the capacity to have a higher-order thinking about oneself, one's tradition, or one's discipline. A major manifestation of usūlī self-consciousness was the emergence of a cosmological awareness, where uṣūl al-fiqh became ontologically situated in a chain of being. As an intellectual and ethical formation (that is, as an activity that is at once theoretical and performative of subjectivity), 69 it occupied a place between kalām and fiqh. 70 This was not just an epistemological and logical location, but ontological as well. If God, his al-Lawḥ al-Maḥfūẓ, and an ethical structure of divine creation 71 are (pre-)existent realities (mawjūdāt; wājibat al-wujūd), and if humans and their social organization are undeniable existents as well, then uṣūl al-fiqh is that which also existentially stands between the two. The existential value of this discipline is then precisely to mediate between the First Principles of existence and the earthly priorities and actions of humans. No uṣūl al-fiqh could find a place in the world without it resting on the metaphysical and cosmological foundations laid down in kalām. God's existence as a prime mover needed to be established first, before one could begin to speak of prophethood and religion. And the latter two, in conjunction with God's existence, needed to be equally demonstrated before one could begin to speak of the Qurʾān as the kalām of God and therefore the inviolable source of the law.
It is then due to theology that uṣūl al-fiqh could speak of the Qurʾān as an all-inclusive source, since the Book in turn validates all the rest of uṣūlī repertoire in what is an unfolding series in the chain of being. This is why the great majority of mature uṣūl al-fiqh works insisted on including an unambiguous language to the effect that the discipline rests 69 Uṣūl al-fiqh, as well as all "religious" disciplines such as fiqh, kalām, ṣūfism, and the like, were not, obviously, mere intellectual activities but rather forms of taʿabbud, where the act of writing (taṣnīf) in these disciplines amounted to a repetitive, habituating praxis that conduced to performing subjects and subjectivities. This aspect in the study of legal, theological, ṣūfī, and other histories has been sorely neglected in modern writings on these fields, an aspect that demands multiple monographic studies. For some notable exceptions in the study of ṣūfism, see Kugle,Sufis and Saints' Bodies,and Bashir,Sufi Bodies. 70 Ibn al-Laḥḥām, Qawāʿid, 3. 71 On these themes, see HALLAQ, "Groundwork," 239-79.
• 19 (2019): 129-183 on three foundations: kalām, fiqh, and lugha (language). Uṣūl al-fiqh mediated between the First cosmological and metaphysical Principles, on the one hand, and the domain of fiqh, on the other; and this it did through its own higher-order principles. For it ontologically and epistemologically stood between the two, namely, between the divine architecture of justice as expressed in kalām, and human management as expressed in the fiqh. 72 Language was the medium and mechanism that allowed it to play this role, for if uṣūl al-fiqh had to be substantively reduced at all, it would boil down to being a hermeneutical and linguistic enterprise that unravels, or attempts to unravel, divine wisdom and intention for this human world. 73 The emergence of this tripartite foundation thus marked the rise of a fundamental selfawareness of the place of this discipline in the world. It was this self-consciousness that answered, at the ontological level, the questions: Who and what am I/are we?
Parallel to our discussion of structured ordering of subject matter, here too we find that neither Ibn Surayj nor Khaffāf, Jaṣṣāṣ or Ibn al-Qaṣṣār even alludes to the foregrounding of the discipline in kalām, fiqh, and lugha. The latter two authors are preoccupied with fiqh and Mālik's "uṣūl," 74 respectively. The nature of the discourse that all four jurists produced does not even allow for the possibility that they may have come close to such awareness. It is likewise remarkable that for all the theoretical sophistication of Bāqillānī, he also, insofar as I can tell, does not seem to know this idea. Neither does the slightly later Baṣrī, although on the first page of his Muʿtamad he mentions in passing that a person proficient in kalām would attain the highest understanding of uṣūl. By about the middle of the fifth/eleventh century or soon thereafter, this awareness becomes an integral part of uṣūl discourse. 75 Connected to the self-consciousness that uṣūl al-fiqh's telos is the study of higher-order principles (adilla ijmāliyya, qawāʿid), there was another shift in the perception of uṣūl alfiqh itself. Reflecting the early evolution of this discipline as an intense debate over the sources of the law and/or their hermeneutical significance/signification (including ijmāʿ, taqlīd, qiyās, istiḥsān, istidlāl), 76 the theoreticians of the late fourth/tenth and fifth/eleventh centuries consistently referred to uṣūl al-fiqh in the plural. Bāqillānī thus speaks in these terms: "uṣūl al-fiqh hiya … al-ʿulūm;" 77 Shīrāzī: "uṣūl al-fiqh hiya al-adilla." 78 Even as late as Ghazālī, and certainly in the writings of his distinguished teacher Juwaynī, "uṣūl al-fiqh hiya adillat al-fiqh," although Ghazālī does refer to it once in the singular-"ʿilm." 79 However, by Rāzī's and Āmidī's time, if not a half century or so earlier, a significant and permanent shift had occurred in denotation. In the writings of these two jurists, as well as in • 19 (2019): 129-183 Ibn Qudāma and countless later theoreticians, uṣūl al-fiqh is consistently referred to in the masculine singular. 80 The shift is obviously conceptual, not merely linguistic or stylistic. It is a shift from a centrifugal conception of the field as a collection of adilla or "sources," each with its own hermeneutical imperatives, to a centripetal conception of a unified and integrated science, ʿilm. The discipline is now seen as "ʿilm al-uṣūl," 81 having systematically come together under the four-sources umbrella, with interdependent and mutually structuring relations of hermeneutics. Insofar as I can observe, no fifth/eleventh century theoretician used this language-"ʿilm al-uṣūl"-as a standard way of speaking of his field, although Ghazālī and his contemporaries seem to initiate this shift but did not complete it. By Rāzī's time it had become a fait accompli. Note that this conceptual articulation of uṣūl as a ʿilm completesbut also presupposes-a series of developments in the evolution of self-consciousness: in chronological order, the first of these developments was the discovery or creation of a structured order (tartīb); the second is the articulation of the discipline as a study of aladilla al-ijmāliyya; and the third is the ontological placement of uṣūl al-fiqh as resting on the three foundations of kalām, fiqh, and lugha. This is not all, however. Our survey of self-consciousness reveals much about the designation or naming of this theoretical field, an issue that has plagued modern writings within this controversy. We now can see that there is a complex history of the name given to this field of inquiry. Between Shāfiʿī and Jāḥiẓ (d. 255/869), the debates on "sources" (ijmāʿ, qiyās, istiḥsān, etc.) had not come up with a name to designate what these debates amounted to. In Ibn Surayj's introduction, the field is called uṣūl al-dīn, 82 and in Qāḍī al-Nuʿmān's Ikhtilāf, it still has no technical designation, although on occasion he uses uṣūl and its verbal derivative, aṣṣalū. However, his main designation for the idea of "anchoring law in sources" seems to be "uṣūl al-madhāhib," as the title of his book indicates, or "uṣūl/aṣl al-Sharīʿa." 83 Within a couple of decades or so, the designation uṣūl al-fiqh begins to appear, as is routinely evidenced in the work of Jaṣṣāṣ. In other words, the designation "uṣūl al-fiqh" appears on the scene and enters standard usage during the second half of the fourth century, but not much earlier than its middle. It continues to be treated as a collection of "sources" and methodlogies for more than a century, when in the beginning of the sixth/twelfth century, it begins to acquire the signification of a unitary and integral science. It would take another half a century to complete this process, which, once settled, it was not to change until the early nineteenth century, when the discipline met its demise at the hands of European colonialism.
Finally, the preceding discussion allows us to identify a further dimension in the development of self-consciousness, one that, I think, was located in the fifth/eleventh century and likely a decade or two earlier. This development may be designated as the professionalization of uṣūl as a discipline. Its condition of possibility was at a time when jurists could describe themselves as uṣūliyyūn, as belonging to a group or a discipline that works, and produces knowledge, in a designated and commonly recognized field, with consumers of knowledge (and not just adversaries) assumed to be the intended target-much like we describe ourselves as historians, anthropologists, sociologists, or economists. This development, so my argument goes, could not be located earlier than the last quarter or third of the fourth/tenth century. It is by no means a coincidence that in his Ṭabaqāt al-Fuqahāʾ, Shīrāzī consistently (but in all likelihood unconsciously) employs two ways to describe jurists who wrote in what was becoming the uṣūl al-fiqh field. All authors who died around the middle of the fourth century or slightly thereafter are referred to as having "authored uṣūl works" or "having books of uṣūl " (ṣannafa fī l-uṣūl, lahu muṣannafāt fī l-uṣūl), whereas all jurists who died between 390 and Shīrāzī's own time are described as "uṣūlīs" (e.g., wa-kāna faqīhan uṣūliyyan). 84 It is thus remarkable that the distinguished generation of Ibn Surayj's students, such as Ṣayrafī (d. 330/941) and Shāshī (d. 336/947), are never called uṣūlīsthey just "authored books of uṣūl." 85 Not long after Shīrāzī, reference to the scholars working in the field as "ahl al-uṣūl " or like expressions became ordinary routine. 86

Condition 5: Uṣūl al-fiqh is a genre.
Although the concept of genre is notoriously difficult to define, there are certain characteristics that have been commonly accepted in genre theory as constitutive of a genre. A basic attribute of a genre is that it is represented by texts of conventional form and content. In other words, for a genre to come into existence, there has to be a community of authors (or movie makers, as well as others) who conform to a style of writing or artistic representation; to a particular mode of organizing the literary or aesthetic corpus; and to a particular range of subject matter that gives the genre its raison d'être. This also implies that a genre sets the conditions for the process and logic of beginning and ending a work, and anything in between. Which is also to say that a genre represents itself through structured, systematized, and complete "texts." 87 It is a family of texts that have a particular type of content, structure, and not least, functional purpose and telos. I think our discussions of Conditions 1-4 amply demonstrate the presence of these qualities in uṣūl alfiqh insofar as it is a legal genre. We can readily recognize the fact that there were uṣūliyyūn/ahl al-uṣūl who wrote to a community of consumers (students and fuqahāʾ/ furūʿists, among others). They wrote in a particular style, with a generally ordered and systematized subject matter (tartīb) that represented a finite set of sources (maḥṣūra) and specialized discourse on them. Tartīb also dictated a middle-to-end structure and organization that was also systematic. Most importantly, this genre had a clear-cut functional purpose and telos. Genres are also characterized by their ambition to frame the reader's or consumer's vision of the world through their particular lenses. One might even say that genres can, 84 Shīrāzī,Ṭabaqāt,111,112,114,115,122,125,132,169. 85 Ibid.,111,112. 86 See, for instance, Samarqandī, Mīzān, 67, 76, 100. 87 BERUKSTIENE, "Legal Discourse," 92-93. I place the term "text" in quotation marks so as to include a wide range of literatures and literary productions as "texts" (including films, the visual arts, etc.), but the term obviously happens to be, in its conventional meaning, immediately relevant to the texts of uṣūl al-fiqh.
• 19 (2019): 129-183 under the right conditions, form particular subjectivities. Note, for instance, how the genres taught in business schools or law schools create a certain kind of individuals, markedly different from how a music school generally forms its own subjects through habituation and embodiment in its own genres. 88 This feature implies that a genre by definition establishes a relationship, even a cognitive "field," in which the producers and consumers of the genre interact. 89 These characteristics are likewise commonly found in uṣūl al-fiqh. It is a discursive tradition that not only entailed taṣnīf (authoring/writing) as an intellectual activity; taṣnīf itself was a form of taʿabbud that produced and reproduced subjects, for it was a technology of ethical self-formation. Furthermore, in terms of consumers, if fiqh and its praxis constituted this discipline's destination, then fiqh is nothing if it is not a performative discourse, an effective discursive, praxis-based tradition forming the Muslim subject. Finally, genres are divisible into types, such as subgenre and supergenre. A supergenre, for example, may be adult literature as compared to youth or children literature (War and Peace as compared to Harry Potter), or religious vs. scientific, for instance. A subgenre may be the category of mystery within the larger category of crime. I argue that uṣūl al-fiqh lends itself to analysis in terms of this generic typology, but not without making a temporal modification to the aforementioned division: uṣūl al-fiqh did not constitute a genre, subgenre, and supergenre all at once. Rather, it went through the three stages/types of genre in a chronological, diachronic order. In other words, it evolved from a subgenre to a genre, only to develop its compass with time to a supergenre that influenced many Islamic disciplines. It is not without good reason that Samʿānī, relatively early in the history of the discipline, was able to declare that "uṣūl al-fiqh is the aṣl of all uṣūl and the foundation of all sciences." 90 In a remarkable modern book, ʿAlī Sāmī al-Nashshār insightfully argued much the same, noting that uṣūl al-fiqh represented the methodology that undergirded and drove the investigative approaches ("research") as well as the entire intellectual edifice of mainstream, indigenous Islamic sciences. 91 As we have seen, the "theoretical" legal works of the late third/ninth century and their uṣūl reincarnation during most of the fourth predominantly constituted parts of larger works whose main subject of inquiry was not uṣūl al-fiqh itself. The first notable work, by Ibn "Indigenous" is not meant to deny the interaction between the "traditional" Islamic sciences and non-Islamic ideas (e.g., Greek), but rather to assert that there are sciences that organically grew from within Islam and its intellectual concerns and those that were cultivated in other cultures and introduced to the intellectual landscapes of Islam, mainly through translation. The refutative works of Ibn Dāwūd and al-Qāḍī al-Nuʿmān were topical and selective, interested, as we will see in section IV, in particular issues, but could hardly have been written in the way, say, Khaffāf, Jaṣṣās, and Ibn al-Qaṣṣār meant their works to be. It seems remarkable then-and a phenomenon not to be taken for granted-that Bāqillānī would author his fulsome Taqrīb (presumably an abridgment of another work) 98 as a wholly independent text. It is then with Bāqillānī and his generation that uṣūl al-fiqh begins to be its own field, progressively emerging as a genre in the true sense of the term. Yet, uṣūl al-fiqh did not stop at the stage of genre, for it continued to develop in creative and pervasive ways. It infiltrated several adjacent domains occupied by other sciences and created its own subgenres. In other words, it became a supergenre. Witness, for instance, the rise of dialectical disputation (jadal) from the early fourth/tenth century, and probably a generation before (Ibn Surayj himself, after all, was described as an expert in jadal and his student, al-Qaffāl al-Shāshī [d. 336/947], distinguished himself as a major dialectician and the "first" jurist to write on "al-jadal al-ḥasan"). 99 This uṣūlī interest in dialectic culminates in the fifth/ eleventh century with the production of a number of uṣūl treatises on the subject, such as Shīrāzī's al-Maʿūna fī l-Jadal, Bājī's al-Minhāj fī Tartīb al-Ḥijāj, and Ibn ʿAqīl's Kitāb al-Jadal ʿalā Ṭarīqat al-Fuqahāʾ. By the second half of the seventh/thirteenth century, Shams al-Dīn al-Samarqandī (d. ca. 710/1310) was able to synthesize the discipline from within the terrains of juridical dialectic as well as others, producing a summa that heavily relied on developments within uṣūl al-fiqh. 100 In this influential work, dialectic owes as much debt to intellectual refinements generated by uṣūl al-fiqh as this latter field owed dialectic itself. This development in dialectic, however, presupposed another, namely, the incorporation of Greek logic in uṣūl al-fiqh, which Ibn Taymiyya (d. 728/1328) was later to dispute, deploying a devastating critique of its Aristotelian variety in his al-Radd ʿalā l-Manṭiqiyyīn al-Yūnān. 101 Needless to say, by the time Ibn Taymiyya wrote, logic had been absorbed, digested, and profoundly disputed under the influence of uṣūl al-fiqh, no less than that of others. Between Ghazālī's famous declaration that "without logic no trustworthy knowl-95 EL SHAMSY, "Bridging the Gap," 510 ff. edge of uṣūl al-fiqh can be attained" 102 to Ibn Taymiyya's pitiless critique, uṣūl al-fiqh, now a mainstream discipline, proved itself to hold command over logic, whether in acceptance or in rejection. The discipline spread its wings much further, however: it birthed a number of subgenres that owe their existence to it either entirely or considerably. First, there arose a takhrīj al-furūʿ ʿalā l-uṣūl subgenre that exhibited a wide variety of approaches. 103 Among these, An equally significant development that drew its inspiration from fifth/eleventh-and sixth/twelfth-century uṣūl productions is captured in the Muwāfaqāt of Abū Isḥāq al-Shāṭibī (d. 790/1388). Shāṭibī's work, a magisterial and highly innovative contribution, takes uṣūl and inductive logic in new and productive directions, while building on subgenres as those elaborated by other Mālikite jurists (e.g. Qarāfī). Here, the use of logic as known then was virtually reinvented, and legal theory recast in creative ways, although a partial debt to Ghazālī's Shifāʾ al-Ghalīl fī Bayān al-Shabah wa-l-Mukhīl wa-Masālik al-Taʿlīl and similar works is highly likely. Finally, the contributions that this discipline made to linguistics and semiotics must be noted, contributions that we have not even begun to study. As the distinguished Zarkashī once remarked, uṣūl al-fiqh has "made a close study in certain matters in the language of the Arabs not achieved by the grammarians or the philologists." 106

III -Periodization
In light of the foregoing discussions, we are now in a position to schematize the history of so-called legal theory from its beginnings as a rudimentary attempt at theorization to its full maturity. Accordingly, I propose the following periodization, but with the aforementioned • 19 (2019): 129-183 caveat in respect of Developmental Overlap, to which I assign an approximate range of twenty-some years:

Stage 1 (160/780 -250/870): 107 Genesis of Theorization
Since the first decades of Islam, when conquests were actively underway and a new world and its problems were opening up, the early pious scholars were preoccupied with answering what is perhaps the most important question of all: How should we act in a way faithful to the foundational message of our community? They found answers in many places, the Qurʾān and the local sunnaic practices having obviously been from the beginning a first recourse. 108 But they also resorted to established tribal customs as well as forms of reasoning that ranged from the rudimentary to the more developed. By Abū Ḥanīfa's death in 150/767, the fiqh was still developing, and discourse on naskh and related issues was likewise rudimentary. The basic writings of Qatāda (d. 118/736) and Zuhrī (d. 124/742) on abrogation 109 could barely make for a coherent or systematic way to approach the Qurʾānic text for legal purposes. As I have shown elsewhere, it would take fiqh another half century to reach a level of maturity, in the sense that most important questions and principles of substantive law were by that time resolved. 110 The modes of reasoning sustaining this already laid-down corpus of fiqh continued to undergo refinements dictated by an increasing sophistication due to the intense debates that raged during the third/ninth century, and even later. Yet, rudimentary attention to theoretical systematization began with Shaybānī and his generation, having witnessed a relative leap in Shāfiʿī's contributions. This latter, together with such figures as Naẓẓām, Ibn Abān (d. 221/836), Muzanī, Jāḥiẓ, and others, were landmarks in this stage, each providing a dialectical move, through stimulus and response, that contributed to further refinements. This is also to say that none of these landmarks, whoever or whatever they were, established any fixed point of departure for what is to come. What made Shāfiʿī's theory relevant for later uṣūl is not due to causes inhering in his theory as such or in his project at large. Shāfiʿī became relevant because his synthesis happened to anticipate the settlement of multiple disputes, during the century after him, as to how Muslims and Islam were to define themselves, their identity. It would be nonsensical to argue otherwise, for it is rationally conceivable that Naẓẓām could have been the later Muslims' Shāfiʿī, had the Muslims of the third/ninth and fourth/tenth centuries, as a juridico-political community, decided to go a different route.
What I am arguing is that this stage cannot be characterized teleologically and monotonously, for it had no teleology (because it could not have one) and therefore it possessed no unity or a single driving force (which we erroneously attribute to Shāfiʿī, but which uṣūl al-fiqh came to command only in the later part of the fourth/tenth century and thereafter). And so one can realistically say that while Shāfiʿī's "project" represented a proposal that, by definition, can be either rejected or adopted, uṣūl al-fiqh was an effective methodology and hermeneutic that, as such, constituted a paradigm. Paradigms are, also by definition, systemic in the sense that they define and dictate the normative and standard forms of knowledge. To live in or under a paradigm is to live in a habitus with a doxa. Paradigms cannot be picked up or dropped off at will. But proposals can, which is why they are just proposals. This perhaps is the most important fact that distinguishes the Risāla from uṣūl al-fiqh. The rest of the substantive and hermeneutical differences between this treatise and uṣūl works is the function and consequence of this fundamental distinction.
Accordingly, we observe that none of the five conditions obtained at this stage.

Stage 2 (230/850 -330/940): Hermeneutical Contestation of Juridical Authority
It is impossible to identify a mainstream theory in this stage, one that was decisively more powerful than the others, assuming that such a coherent and well-structured theory existed (which obviously did not). We are not sure if the Ḥanafites were more of major players than the Shāfiʿītes, nor are we sure that the traditionalists, up to 270/880 at least, were stronger than the "rationalists." 111 The disputation rounds that took place between Ibn Surayj and Ibn Dāwūd 112 attest to the fierceness of opposition to what was to become the Great Synthesis, although the challenge was made even more existential by the presence and activism of the Fatimid advocates, most notably al-Qāḍī al-Nuʿmān. There is no period in the entire life of the discourse on "legal-sources-and-their-interpretation" that witnessed such vehement contestation by one group against another, and the groups were many. Compared to the periods before 220/840 and after 330/940, this stage was extraordinarily uncertain as to which actor or what doctrine commands the day. Not only were the sources themselves heavily disputed, but the types of interpretation/hermeneutics attached to these sources could not be settled once and for all. It was not until the Developmental Overlap period began to set in at the end of this stage that uṣūl al-fiqh-as represented in the five Conditions-began to appear in an embryonic form. This occurred during the generation of Shāfiʿītes and Ḥanafites who flourished during the first half of the fourth century. Accordingly, we observe that none of the five conditions obtained at this stage.

Stage 3 (310/920 -400/1010): Emergence
As we have discussed in some detail, this stage witnessed the first articulations of legal theory, first under such names as "uṣūl al-dīn" (a nomenclature that came to belong exclusively to theology) but later-in the second half of it-under the proper designation "uṣūl al-fiqh." Of the five conditions we have discussed, this stage meets none except the first, and even then not fully in this stage's beginnings. 111 See n. 68, above. 112 The significance of these disputations should not be underestimated. More than one-third of Shīrāzī's biographical notice allocated to Ibn Surayj describes these "dialectical rounds," when every word of a biography, any biography, was meant to deliver an important message. See Shīrāzī, Ṭabaqāt, 108-09.

Stage 4 (380/990 -520/1130): Completion and Articulation
As we have seen in detail, this is the phase which exhibited the full maturation of the discipline, having met all of the five conditions, to the partial exception of a supergenre. 113 Stage 5  By this stage, all conditions have been met, including the emergence of uṣūl al-fiqh as a supergenre. Not only explicitly Aristotelian-Porphyrian approaches have become ordinary (as exemplified in Fanārī's work), 116 but much else has been added to the discipline and its outer boundaries (e.g., takhrīj, ashbāh/naẓāʾir, furūq, qawāʿid, etc.).

Stage 7 (800/1400 -1250/1830): Stability and Further Refinements
Although this phase in the history of uṣūl al-fiqh remains to be studied, all indications point to a picture in which the discipline remained stable and continued to sustain the edifice of the Sharīʿa, pedagogically and hermeneutically. It guaranteed the continued reproduction of a sociology of knowledge that undergirded the legal culture in its widest scope.

Stage 8 (1250/1830 -present): Decline and Destruction
As I have shown elsewhere, with the promulgation in 1826 of imperial edicts that aimed to reduce the autonomy and social power of the waqf foundations, and later through the etatizing processes that displaced the Sharīʿa's structures by installing European-style courts, legal education and codes-among many other measures-the Sharīʿa and its institutions came collapsing by the end of the nineteenth century (ca. 1320 became largely irrelevant, and the textual traditions as we have known them to exist for several centuries came to a halt. No longer could any jurist after the nineteenth century write in the same style, knowledge, and sophistication-all of which are obviously symptoms of the demise of the discipline as a living, systemic, hermeneutical and pedagogical tradition. As a tradition that conceptualized the law and served its interpretive needs, uṣūl al-fiqh ceased to exist. The modern, legislating, and sovereign state stood in a mutually exclusive relationship with uṣūl al-fiqh and its conception of the world, whether that conception was juridical, ethical, or cosmological.

IV -Counter-Critique
With understanding what uṣūl al-fiqh is, we now turn to critiques directed at my thesis that Shāfiʿī was not "the master-architect of Islamic jurisprudence." In three pieces of overlapping and internally repetitive nature, 118 Devin Stewart attempts to argue that a continuity existed between early third/nineth century jurisprudence and fourth/tenth and fifth/elventh century mature and complete uṣūl al-fiqh. Paving the ground for his argument, he cites George Makdisi's work on Shāfiʿī, 119 where Makdisi compiles two lists of uṣūl al-fiqh authors mentioned in the works of Badr al-Dīn al-Zarkashī (d. 794/1392) and Tāj al-Dīn al-Subkī (d. 771/1370). In Zarkashī's list, Muzanī appears as the earliest writer in this genre, but Stewart rightly dismisses him on the grounds that his work, dealing with qiyās, is devoted to only "one constituent element of the science of uṣūl alfiqh." 120 The next writers in line are the much later Abū l-ʿAbbās Ibn Surayj and Abū Bakr al-Ṣayrafī. In Subkī's list, however, the first author is the distinguished jurist and theologian Abū Bakr al-Bāqillānī, who was writing, as we saw, in a somewhat established discipline. Unsatisfied with the testimonies of two of the most distinguished later legal theorists, and having cited Makdisi to the effect that Subkī nonetheless viewed the Risāla as a work of uṣūl al-fiqh, 121 Stewart goes on to argue that: Hallaq holds, on the contrary, that the Risālah differs radically from later uṣūl alfiqh in content. He sees that it focuses primarily on hadith and emphasizes the role of Prophetic traditions in the derivation of the law. In a painstaking study, [Joseph] Lowry has shown that the Risālah's organizing principle is quite different from that evident in later uṣūl al-fiqh works. It is essentially a discussion of hermeneutics describing various possible types of interaction between scriptural texts from the Koran and hadith. Furthermore, it does not uphold the theory of four sources … that 118 Namely, his "Muḥammad b. Dāʾūd," 99-58; ID., "Muḥammad b. Jarīr al-Ṭabarī," 321-49; ID., Islamic Legal Orthodoxy, 30-37. Since the two articles represent advanced stages in STEWART's critique and seem to supersede the relevant arguments in the book, I shall not deal with the latter except when it is necessary.
• 19 (2019) Stewart cares not to address the implications of Lowry's substantive and technical findings, which-as we will see in greater detail below-must be overturned or interpreted away in order for one to establish a continuity between Shāfiʿī's ideas and those that dominated later mainstream uṣūl al-fiqh writings. 123 Instead, he veers toward another path of inquiry whose focus is "culling citations from later works" in the genre so as to show that complete works in that discipline existed as early as the beginning of the third/ninth century. But before Stewart delves into Ibn Dāwūd's case, he defines uṣūl al-fiqh as a genre "that aims to present and explain a complete, finite, and ordered collection of 'roots' or 'sources' from which all legal assessments-an infinite number-may be derived." 126 Without elaborating any further on what each of the definition's terms mean, and in which period this definiendum came into existence, he begins to unravel his own argument by saying that "this concept," presumably the definition itself, is what "sets such works as the Fuṣūl of Jaṣṣāṣ or the Taqrīb of Bāqillānī apart from al-Shāfiʿī's Risālah." Although the Risāla "aims to provide a comprehensive method for the derivation of rulings for all possible future cases," it "does not contain the features characteristic of later uṣūl al-fiqh works, nor can it likely have served as a model for them, since its organization is decidedly not based on an ordered list of uṣūl." 127 And presumably to clinch his case, Stewart introduces a "second crucial feature" 128 of "uṣūl al-fiqh genre," namely, that books, in order to belong to this field, must have in their title the word uṣūl (note, however, that it is not necessary for 122 Ibid.,103. 123 Joseph Lowry, a foremost specialist on Shāfiʿī, argues that the link between Shāfiʿī and his closest students-mainly Muzanī and al-Rabīʿ b. Sulaymān al-Murādī, "is, at the very least, fortuitous." LOWRY, "Reception of al-Shāfiʿī's Concept," 128. See also ID., "Does Shāfiʿī have a Theory of Four Sources?" Doctrinally and substantively speaking, even Muzanī, who was supposed to be Shāfiʿī's immediate student, had already transcended the master's teaching. "It appears that Muzanī has in many respects completely done away with Shāfiʿī's conceptual framework" (ibid., 147, 149 Stewart to have the full designation "uṣūl al-fiqh," yet we are not told how such an exclusion can be justified. Nor are we told why he calls the discipline "genre," or what he means by it, or, still, when this discursive field constituted itself as a genre). He then avers that al-Shāfiʿī's Risālah "stands [further] apart, for it neither bears the term in its title nor uses it as such in the text." 129 So we here have an unabiguous acknowledgement from Stewart that the Risāla does not "feature" the characteristics of mature uṣūl al-fiqh, making Shāfiʿī anything but the founder or progenitor of this science. 130 Yet, in the very next sentence, Stewart throws at his reader a bombshell. "The concept of a complete, finite, and ordered list of the roots of the law, however, existed already in the early nineth century, perhaps even during al-Shāfiʿī's day." The supposed proof of this contention is a statement culled from al-Qāsim b. Sallām (d. 224/838-39), who lists as sources of the law the Qurʾān and "what the leading jurists and righteous ancestors have ruled on the basis of consensus and ijtihād. There is no forth category." 131 Stewart takes this last sentence as indication that Ibn Sallām was arguing against those who held ijtihād "and possibly consensus as well" as sources of law. The upshot of this is that although this "concept" of "a finite, countable collection of principles" is "absent in al-Shāfiʿī Risālah … [it] had [nonetheless] become important by the early ninth century." 132 The question that arises here is this: Even if we submit that the "concept" of four sources had become important by Shāfiʿī's time or a few decades later, how does the mere existence of this "concept" prove anything regarding the evolution of a full-fledged hermeneutical theory of uṣūl by the mid-third/ninth century? In fact, it is quite likely that this "concept" existed sometime before Shāfiʿi, probably among the Ḥanafites and others, but then where does such an empirical fact, stripped from any and all contextual evidence, leave us? I will later argue that Stewart's definition of uṣūl al-fiqh is unduly narrow and imprecise, and because of its imprecision and incompleteness it lacks the analytical power to help in resolving the problems that this controversy about uṣūl raised.
Proceeding to build on the two "crucial features" of what makes a work an uṣūl al-fiqh production, Stewart gives a list of authors who wrote titles containing the term "uṣūl," such as Although we have no more than faint clues as to the nature of these works, Stewart nonetheless concludes that the "two fundamental conditions" defining uṣūl "had both been met by the early ninth century." 133 He finds that "in some cases," the sources preserve "substantial hints" that "are sufficient to dispel any doubts that the works in question were manuals of uṣūl al-fiqh." 129  One such work is Kitāb Uṣūl al-Futyā of Jāḥiẓ, which Charles Pellat did not deem to be a book on jurisprudence, and J. van Ess took it to reflect Naẓẓām's refutation of consensus (ijmāʿ), refusing the idea that it is "a comprehensive exposition of uṣūl al-fiqh." 134 But Stewart begs to differ with these eminent experts on Jāḥiẓ, fleetingly arguing instead that the work "may have been a comprehensive work on Jurisprudence," that it "included as well the other topics dealt with in typical works of jurisprudence as we know them from the following centuries: the language of the Koran and the Sunnah, qiyās, ijtihād, and so forth." 135 But why are none of these "topics" identified by the later sources as integral to the book? Stewart's answer is that the "main transmitters" of the work were Shīʿites whose attitude to the work "played a role in skewing its contents." Introducing further evidence from Zaydi sources that deal with consensus, qiyās and ijtihād in Jāḥiẓ's work-which is to say that these sources at no point exceeded these three topics, even by Stewart's admission-Stewart is still able to claim that "Jāḥiẓ' Kitāb uṣūl al-futyā wa'l-aḥkām must therefore have treated uṣūl al-fiqh, including, at the very least, sections on consensus, legal analogy, and ijtihād." 136 The reader begins to wonder about Stewart's reasoning here, if not the quality of it. First, "must have been" in the last sentence can never translate into evidence, much less a persuasive one, at least by virtue of the fact that nothing more than these supposedly three topics can with any dint of certainty be attributed to Jāḥiẓ. It is striking that Stewart's article is excessively replete with expressions of uncertainty and speculation ("must have," "may have been," "suggests," "appears to be," "seems," "seems likely," "seems probably," "quite likely," "implies," "possibly," "probably," "may be," etc.) 137 -expressions that are quickly transposed to certainties, all of which go to the unsubstantiated affirmation that complete uṣūl al-fiqh works existed by the first half of the third/ninth century.
Second, the uncritical distinction between qiyās and ijtihād is highly problematic, both in the way Stewart conceives them as distinct categories, and as they appear in Shāfiʿī's Risāla. This latter deals with them as a single entity, mingling them and using them interchangeably. Jāḥiẓ, on the other hand, treats them as separate, when it is true that they were neither separate nor interchangeable in uṣūl al-fiqh discipline. Here, qiyās structurally stands as a subset of ijtihād, this latter having a hermeneutical range that permeates the entire spectrum of the uṣūl methodology. It can be said then that neither Shāfiʿī's Risāla nor Jāḥiẓ's Uṣūl al-Futyā reflected the integrated structure of the later uṣūl, since they still grappled with the ordered and hermeneutical relationship between the two concepts.
Third, if Stewart could not establish with any semblance of plausibility that Jāḥiẓ's work covered grounds beyond these "three" topics, then what is the difference between him and Shāfiʿī, whom Stewart dismissed as the "founder" of the discipline? For, after all, Shāfiʿī's Risāla does, without a doubt, cover these "three" topics and much more. 138 In 134 Ibid., 107. 135 Ibid., 108 (emphasis mine). 136 Ibid., 109. 137 All these citations and several more like them appear just on pp. 122-23 and 125 of STEWART's "Muḥammad b. Dāʾūd," but also profusely throughout (e.g., "apparently," "may have been," "suggests," "we may hazard to guess," 110, 111, 131, passim). other words, why should Jāḥiẓ be credited with having authored a "complete" work of uṣūl al-fiqh but not Shāfiʿī, especially in light of the fact that due to the existence of the Risāla we are able to speculate less about Shāfiʿī than about what appears to be the extinct text of Jāḥiẓ? None of this is addressed by Stewart. About eighteen pages into the article, Stewart begins to address his main concern, namely, Ibn Dāwūd's al-Wuṣūl ilā Maʿrifat al-Uṣūl. 139 Invoking a statement from Yāqūt's Irshād al-Arīb to the effect that in this work Ibn Dāwūd critiqued Ṭabarī regarding consensus, he concludes that "[t]this reference confirms that al-Wuṣūl ilā maʿrifat al-uṣūl is a work on jurisprudence rather than the points of law and shows that it included a chapter devoted to the topic of consensus in particular." Stewart immediately enlarges his claim, stating that "[c]onsiderable material for what appears to be al-Wuṣūl ilā maʿrifat al-uṣūl is preserved" in the Fatimid work of al-Qāḍī al-Nuʿmān. 140 Although Ibn Dāwūd's name "explicitly appears only three times, in connection with [consensus, qiyās, and ijtihād]," there are "indications that all of these passages are attributed to him." It must be said that for the source-critical mind, none of Stewart's "indications" can be taken seriously. In the remaining passages, al-Nuʿmān could have been referring to any of dozens of possible interlocutors. Ibn Dāwūd obviously could hardly be the main or chief protagonist. But even if we concede that all the materials alleged by Stewart to belong to Ibn Dāwūd's work do belong to it, the total sum is admitted to be no more than "ten passages." 141 Stewart lists pp. 100-101 as dealing with consensus; pp. 142-44, 151-54, 156-61, 171-73 as directed against qiyās; pp. 183-86, as against istiḥsān; pp. 186-87 on a treatment of istidlāl; and pp. 199-202, 205-06 as a refutation of ijtihād. From this Stewart leaps to the conclusion that "the amount of material cited, together with the fact that the excerpts themselves refer to a book, suggests that al-Qāḍī al-Nuʿmān had a manual of uṣūl al-fiqh by Ibn Dāʾūd at his disposal." 142 Although he admits that from "the material included in Ikhtilāf uṣūl al-madhāhib, one cannot actually reconstruct Muḥammad b. Dāʾūd's work," he nonetheless continues to affirm that "one can gain some idea of its original plan and contents." 143 It is not clear to me how one can, if reconstruction is impossible, still accomplish the feat of knowing the "original plan and contents" of the work. But Stewart nonetheless marches ahead to square the triangle, saying that the work is "implied" to have an introduction, followed by "what appears to be five distinct chapters," all of which make up the work. The first chapter after the introduction is on juristic disagreement (ikhtilāf). With this assertion, Stewart promptly abandons his pursuit of chapter order, asserting that the book also contained chapters on consensus, taqlīd, qiyās, istiḥsān, ijtihād, and istidlāl, chapters • 19 (2019): 129-183 whose specific location in the work he leaves undetermined. 144 From this, and still forging ahead, Stewart employs what is nothing less than dubious methods of philological extractions (where intimations and excessively vague references become textual facts) to arrive at the stunning conclusion that "the evidence thus far provides the following sketch of the work's contents." 145 This philological footwork allows him to add the following chapters to those purported to be included in al-Nuʿmān's work: (a) an Introduction; (b) taqlīd; (c) General and particular scriptural texts; and (d) Prophetic Sunna. Questions about the size, depth, substantive content, and order of these chapters remain unanswered. In fact, how could any answer be provided when we have nothing better than indirect, vague, passing, and secondhand allusions to the work, if, that is, the allusions are indeed to Ibn Dāwūd's work, which is often unclear? Yet, Stewart is confidently able to pronounce the judgment that this "sketch, despite its limitations, suggests that al-Wuṣūl was a comprehensive manual of jurisprudence." 146 Notice, a "sketch," acknowledged to have "limitations" (or "severe limitations," certainly) is able to tell us that the work was not only on jurisprudence but also a comprehensive one! As we have seen, uṣūl al-fiqh not only included a vast array of topics, but also was selfconscious of the importance of order of its subject matter, a self-consciousness that constituted part of the discipline's identity as well as one of its conditions of possibility. 147 Stewart's list places consensus first, when it was commonly allocated space in the middle or in the second half of uṣūl al-fiqh works. 148 The next five chapters, 3-7-dealing with taqlīd, qiyās, istiḥsān, istidlāl, and ijtihād-are supposedly located in the middle parts of Ibn Dāwūd's work, when they ordinarily occupied the last third of uṣūl treatises. The penultimate chapter on legal language is almost always the first chapter in the later works, after the introductory subject matter. And the last chapter presumably treating Prophetic Sunna usually comes around the middle of works in the established genre. Thus, in terms 144 Ibid., 123-25. 145 Ibid., 127. of material/topical coverage, and notwithstanding Stewart's excessive speculation, Ibn Dāwūd's work was sorely partial and far from "comprehensive." And in terms of meeting one of the constitutive conditions of established uṣūl al-fiqh genre (namely, structured order, to be discussed in due course) the work, if we accept it as an integral treatise, is both messy and directionless. Up to this point, one does not suspect that Stewart is aware of the importance of structured order in uṣūl al-fiqh, but he in fact seems to be. He remarks that "by Ibn Dāʾūd's time, the conception of uṣūl al-fiqh as an ordered list of indicators of the law was already so ingrained that any departure from this organizing principle met with great resistance." 149 The matter of order aside for the moment, we must query another central issue. An order, or a consciousness of order, of "indicators" or of "sources" of the law presupposes a general agreement regarding a fixed and certain set of sources. You cannot order something that does not exist. By Ibn Dāwūd's time, such an agreement on order could not have possibly existed, by virtue of the fact that no less than seven groups were battling each other over what qualifies as "sources" of the law. There were Mālikites, Shāfiʿites, Ḥanafites, Muʿtazilites (with varied representations), traditionalists (with differing voices and a wide spectrum of positions), the emerging Ḥanbalites, Ẓāhirites, and others. 150 As I argued elsewhere, the "Great Synthesis" had not yet been reached by Ibn Dāwūd's death, although it was underway. A structured order could not have existed when that which constitutes the order, its subject and predicate, was anything but a locus of agreement. Stewart himself unwittingly recognizes this, although he makes nothing of it: "We are indebted to Qāḍī al-Nuʿmān for preserving so much of Ibn Dāʾūd's work primarily because their works [being Fatimid and Ẓahirite, respectively] … aimed to disprove or invalidate many of the methodological principles that the Sunnite jurists had adopted as fundamental elements of their theories of legal interpretation." 151 But it is more than just the "methodological principles" that were the target of the Fatimid and Ẓāhirite jurists: they also sought to invalidate some of the very sources upheld by the other, more powerful, groups. It is also important to recognize that each and every one of the seven groups enumerated above were later corralled into Sunnism, albeit only after substantial modifications have been made, mutatis mutandis, to their earlier hermeneutical doctrines. Which is the entire point of the Great Synthesis.
That Ibn Dāwūd, a Sunnite, seems to have criticized Shāfiʿī for not including consensus before qiyās 152 is no proof that he did so due to an awareness of, and insistence on, a particular order of the discipline's entire range of subject matter. Ibn Dāwūd was commenting on consensus and qiyās alone, that is, as they stand in a relationship to each other. This of course is the beginning of awareness regarding the importance of structured order, but it is, as we will see, a far cry from what emerges a century or so later. With so much speculation and guesswork, Stewart nonetheless continues to make drastic claims. By Ibn Dāwūd's time, he tells us, "Uṣūl al-fiqh was a sophisticated science presented in comprehensive manuals." 153 This audacious pronouncement is made despite the full admission that immediately follows: "Who wrote these manuals and how far back the tradition goes is still unclear, though one may state with confidence that they originated before the late ninth century, probably even before 233/848, by which time al-Jāḥiẓ had completed Kitāb uṣūl al-futyā wa-l-aḥkām." 154 Despite the fact that there is so much that we do not know about "these manuals"-not even if they ever existed-Stewart continues to state his case with astounding "confidence." The few pages he culls from al-Nuʿmān's work and his unwarranted guesses and speculations about Jāḥiẓ's work are insufficient evidence to justify such claims. As we have seen, most of the twenty or so pages that are claimed to belong to Ibn Dāwūd's work cannot be plausibly verified in any reasonable way to belong to that work. But it seems that Stewart belongs to the school that thinks the massive accumulation of guesswork, speculation, and unrelenting repetition 155 of unproven theses, if they can overwhelm the reader, will eventually result in certainty. Yet, the most striking feature of his writing is that the very hypothesis to be proven is posited, with repetition, as a given premise. Th uṣūlī-dialecticians detested al-muṣādara ʿalā l-maṭlūb.
In another article apparently written in the same period as that treating of Ibn Dāwūd, Stewart argues that the famous historian and jurist Ibn Jarīr al-Ṭabarī also authored a book on uṣūl al-fiqh, titled al-Bayān ʿan Uṣūl al-Aḥkām. Culling evidence from later sources, he lists the chapters of the Bayān in the following order: (1) consensus; (2) solitary traditions; (3) traditions reaching the Prophet; (4) abrogation; (5) ambiguous and specified traditions; (6) commands and prohibitions; (7) acts of the Messenger; (8) particular and general language; (9) ijtihād; and (10) invalidity of istiḥsān. 156 Realizing that the arrangement of this material is similar to the Ẓāhirī works (which he has already discussed in the earlier article), Stewart acknowledges that Ṭabarī's work, despite the "debt" it owes to Shāfiʿī, differs from the Risāla in "structure, method, and content." 157 Ṭabarī, he observes, must have been conscious that the Risāla "failed quite radically to adhere to the generic conventions of Uṣūl al-Fiqh in his own day." 158 But this is not all. Ṭabarī's treatise also differs from "other later works, and shows resemblance to the manuals" of Ibn Dāwūd and his father. 159 "The oddity in the Bayān is the placement of consensus first, at the beginning of 153 Ibid., 132. 154 Ibid. (emphasis mine). 155 The language of "no doubt," "undoubtedly," and "dispel any doubt" peppers STEWART's article, a language that has a corollary to the repetitive affirmations that uṣūl al-fiqh works existed in a comprehensive form as early as the first decades of the ninth century. See ibid., 100,101,106,108,109,111,113,122,127,132,133,134,135,136 the work, followed by the chapters on the Ḥadīth, before the discussions of linguistic topics." 160 This is quite accurate. But how is it that Ṭabarī viewed the Risāla to have "failed" due to its nonconformity to "uṣūl al-fiqh" works when his own, supposedly an uṣūl work, suffered from at least as flagrant a nonconformity as that which Shāfiʿī's work is accused of? For Ṭabarī to view the Risāla thus, he must assume and take for granted a normative structure and organization of the uṣūl al-fiqh genre which developed, as such, decades after his death. And had he taken it for granted or considered it normative, why would he then violate that which he himself regards as legitimately normative? Or worse, why would he violate the same standard which he critiqued Shāfiʿī for failing to meet? Stewart has no answers, for he does not ask any of these questions in the first place. At this point, Stewart adds an interesting dimension to his overall argument. Because Shāfiʿī's Risāla did not pass muster with Ṭabarī and his contemporaries, Ṭabarī, in the Bayān, as well as other jurists, were "arguing primarily against Hanafi theorists who adopted a less strict scriptural or textual approach." 161 And so it now emerges that it was the early Ḥanafites, including Shaybānī (d. 189/805), who were the engineers of uṣūl al-fiqh. 162 Why would the Ḥanafites, the advocates of raʾy and istiḥsān, be the architects of uṣūl alfiqh-which rejected early forms of both modes of thinking? Why would they embark on constructing an uṣūl al-fiqh methodology-which rejects their own early forms of itiḥsān and categorically shuns raʾy-only to come around in the fourth/tenth century to accept a highly modified form of the former and distance themselves entirely from the latter? Why would the Ḥanafites play "a role in suppressing elements of their own tradition, erasing for posterity traces of their existence and rendering the task of the historian that much more difficult" 163 ? If they were "founders" of the discipline in the sense the later Shāfiʿites were, why didn't they insist on their own modes of reasoning and hermeneutics? Were the Ḥanafites elaborating the theory on their own terms or were they mainly responding to the challenge of the Shāfiʿītes? Again, Stewart does not even begin to entertain such questions, nor does he attempt to resolve the contradictions arising from his claims. The historian's task becomes all the more difficult indeed when history is imagined to be skewed and convoluted more than it already is.
Stewart's guesswork and unwarranted speculations take us back to square one. My thesis that "Shāfiʿī's theory, as innovative as it may have been," failed to generate uṣūl al-fiqh works within a continuous development throughout the ninth century still stands. Even if we were to grant Stewart his guesswork and agree that Ibn Dāwūd and Ṭabarī were authors of "Interestingly, among the works attributed to Dāwūd is a tract entitled al-Uṣūl. Ibn al-Nadīm, however, lists the work in the midst of titles on positive law. That the work did not treat uṣūl al-fiqh may also be gleaned from the fact that a student of Dāwūd, Abū Saʿīd al-Raqqī, wrote a work, also titled al-Uṣūl, on the model of Dāwūd's work" that consists of a hundred chapters (kutub). Having already enumerated the kutub-clearly treating positive law-in the bio-bibliographical notice of the master, Ibn al-Nadīm remarks that "we need not mention them here." HALLAQ, "Was al-Shafiʿi the Master Architect?" 589-90.
• 19 (2019): 129-183 "developed" uṣūl al-fiqh works (which we cannot), this claim will not affect the argument I made that their more distinguished contemporary Ibn Surayj contributed to the venture in more lasting ways-for unlike Ṭabarī, and certainly Ibn Dāwūd, Ibn Surayj's basic elaborations anticipated the paradigmatic structure and contents of "mature" uṣūl al-fiqh.
Whereas Stewart represented my arguments somewhat correctly (peppered, nonetheless, with out-of-context citations and downright misreading 164 that tend to exaggerate my position), El Shamsy, another critic, manages to distort my position and even the documentary support of my thesis almost beyond recognition. First, he alleges that I "deny the existence of a genealogical relationship between the Risāla and the classical genre of legal theory." Second, he aggravates this misrepresentation by attributing to me the restricted position that I view the Risāla as "primarily a theoretical work whose aim is to establish the authority of ḥadīth, while the discipline of legal theory concerns itself with theorizing the relationship between reason and revelation." Third, El Shamsy vitriolically and reductively claims that my "search in Ibn al-Nadim's Fihrist for early works with the word uṣūl in the title having been unsuccessful," I "concluded that there is no evidence of legal-theoretical literature before the generation of Ibn Surayj." 165 It appears that El Shamsy does not appreciate the weight of meanings and complexities associated with the term "genealogical," a term that never appears in my article on Shāfiʿī in the first place. Furthermore, there is no language in the article, whether indirect or direct, to permit any careful reader to deduce that I was speaking about any form of genealogy or geological analysis. Our field continues to stand apart from dexterous forms of theorization that are taken for granted in most academic fields. Unless, of course, El Shamsy was using "genealogical" in its basic meaning, though even this is misleading. It is worth our while here to sum up this aspect of my larger argument in that article about the Risāla. While I never spoke of genealogy, I did speak of an "organic" connection between the Risāla and later uṣūl al-fiqh works, although I also argue that this connection took more than threequarters of a century after Shāfiʿī to become firmly rooted in juristic discourse. The problem, as I see it, relates to the claim for systematic "continuity," 166 and the significance of any lack of it. And I did acknowledge that Shāfiʿī "stood somewhere in the middle of the formative period, half-way between the crude beginnings during the very first decades of the 8 th century and the final formation of the legal schools at the beginning of the 10 th . Similarly, I argued that the "rapid growth of the Shāfiʿite school coincided with the emergence of the … compromise between the traditionalists and the rationalists," which resulted in uṣūl al-fiqh being finally defined, and that must have taken place sometime between the death of Dāwūd al-Ẓāhirī (Ibn Dāwūd's father) and the generation of Abū Bakr al-Ṣayrafī." 168 I also asserted that the legal theory of Ṣayrafī and his aṣḥāb, who were the students of Ibn Surayj, "coincided" with "Shāfiʿī's bare thesis." 169 In my concluding section, I unambiguously stated that "the history of Shāfiʿī's Risāla is connected inextricably with the emergence of uṣūl al-fiqh as an organically structured and independent science." 170 El Shamsy's exaggerated and straw man claim that I argue for "a radical discontinuity" therefore not only misrepresents (as we will see) the empirical data I use, but also egregiously overlooks how I situate Shāfiʿī in the developments across the third/ninth and fourth/tenth centuries, which resulted in the Great Synthesis.
From the forgoing alone, there is enough evidence to throw doubt on El Shamsy's allegation that I narrowly viewed the Risāla as "primarily a theoretical work whose aim is to establish the authority of ḥadīth." As I have been arguing, here and in the article, Shāfiʿī struck a hermeneutical synthesis between reason and revelation that was not accepted (as the case of Buwayṭī demonstrates) 171 anytime soon after his death, but one that came to reflect the Great Synthesis reached during the first half of the fourth century. This synthesis became the hallmark of uṣūl al-fiqh. 172 At one point in the article, I did say, among other things, that the Risāla "lacks depth" and that it leaves out a "legion of questions pertaining to consensus, abrogation, legal reasoning, causation," and so much else that it would seem to be mainly concerned "with the Sunna of the Prophet and the utilization of ḥadīth in the elaboration of the law." 173 None of this is much different from the general conclusions reached by various scholars after I published my article, and is certainly consistent with El Shamsy's own acknowledgement that "questions related to Ḥadīth and their role in law" were "central" to Shāfiʿī. 174 Nor does this differ from Lowry's detailed studies. In an important article, Lowry shows that although Shāfiʿī knows the "pair amr and nahy, he only has a theory of nahy and hardly discusses the problem of divine commands, amr, as such at all. In fact, his relative weighting of these two topics is almost exactly the reverse of the approach taken in the classical works of uṣūl al-fiqh." Most important in this context is that Shāfiʿī saw nahy as a problem that "affects the Sunna only," for he was "interested specifically in nahy in the Sunna-not amr in the Qurʾān." The Sunna, as Lowry insightfully observed, was for Shāfiʿī "a special locus of hermeneutical problems." 175

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On the same page of my article, I do summarize the Risāla's contents in six major points, acknowledging that the work aims to advocate (1) the exclusivity of revelation as a source of law; 176 (2) the Sunna as integral to revelation and thus "binding in legal matters." The Risāla is peppered with statements-pregnant with theoretical implications-that it is incumbent upon Muslims to follow the Prophet and abide by his Sunna; 177 (3) the absence of contradiction between the Sunna and the Qurʾān ; (4) the central concept that the "two sources complement each other hermeneutically"; (5) an epistemology that distinguishes between text-based rulings and inferential ones; and (6) the textual basis of ijtihād and consensus. 178 All of this, it is true, is inextricably connected to the ḥadīth and its advocacy, but it also goes to my larger argument that Shāfiʿī's synthesis existed long before the general climate was ready for it. If Sunnism as a well-defined paradigm did not exist by the first decades of the third/ninth century, then Shāfiʿī's synthesis had no communal legs to stand on. For it is my argument as well that the history of the formation of uṣūl al-fiqh is perhaps the most accurate reflection of the history of the rise of Sunnism. 179 Finally, El Shamsy's absurd reduction of my research material to a bibliographical survey based on Ibn al-Nadīm's Fihrist is belied by the fact, obvious in the article's endnotes, that I comb a good variety of sources, not the least of which is the multi-volume Shāfiʿite biographical work of Subkī, a number of other Shāfiʿīte, Ḥanafite, Ḥanbalite and general biographical dictionaries, manāqib works, uṣūl treatises, etc. 180 The latter, it is true, do not appear in abundance in the article, but obviously without drawing on more than a decade of prior research and writing in this genre, involving a close study of dozens of uṣūl works, the very article would not have been conceived in the first place.
Be that as it may, El Shamsy argues that recent research demonstrates the untenability of my "thesis of radical discontinuity." He cites Stewart's two articles as being part of this research, articles that we have seen to fail in showing a single complete and mature work on uṣūl al-fiqh prior to 310/922. He then cites as part of this research his own book, The Canonization of Islamic Law, singling out chapter 8. Yet, I fail to see how even the entire book can refute my position regarding the early history of this discipline. If anything, his findings support at least the main outlines of my thesis. Even Stewart, a most sympathetic reviewer and wary critic of this book, could not help but note, with an astounding accuracy, that El Shamsy has not directly addressed "Hallaq's claim" that "the Risāla does not resemble later manuals of uṣūl al-fiqh in form, a strong argument against al-Shāfiʿī's formative influence on the genre as a whole. The Canonization of Islamic Law passes over on this matter in silence for it does not investigate the early genre of uṣūl al-fiqh, its form, 176 Which sums up VISHANOFF's main argument in his Formation, to be discussed in due course.
179 Which is to say that Shīʿīte uṣūl al-fiqh came into existence after Shīʿism was fully formed, whereas Sunnite uṣūl al-fiqh was itself constitutive of the very processes that gave rise to Sunnite identity. Genealogically, this is the single most important difference between the two sectarian disciplines. A further conclusion to be drawn from this field of inquiry is that Shīʿism was not alone in defining itself in opposition to the Sunnite Other, for Sunnism itself behaved very much the same in its attempts to crystalize an identity for itself.
• 19 (2019): 129-183 or its conventions." 181 As we will see shortly, El Shamsy even dedicates some five pages in his book to explaining why there was a relative neglect of Shāfiʿī's works (what he describes as a "lull") during the decades following this jurist's death. 182 Now, in this 2017 article, El Shamsy takes another aim at my argument, saying that his article "continues this line of inquiry," namely that which he purportedly deployed in his book. His evidence consists of two short texts by Ibn Surayj and another jurist, presumably Khaffāf, a fairly obscure writer. 183 He emphasizes the importance of Ibn Surayj in the history of the Shāfiʿite school, stating, with great approval, that "recent scholarship" recognized him "as an indispensable figure," lauded "as the true father of legal schools in general and of the Shāfiʿī school in particular, and as a crucial node through which legaltheoretical thought passed to his students, who were the originators of legal theory proper." 184 It is quite remarkable that El Shamsy's citations for this "recent scholarship" are two works by Christopher Melchert and K. S. Vikør, the former published in 1997 while the latter in 2005. 185 Tellingly, my article on Shāfiʿī, published in 1993, does not make an appearance here. Why tellingly? Because El Shamsy's argument is nearly identical to mine, and so acknowledging (much less accurately) what I had to say about Ibn Surayj will automatically preempt El Shamsy's critical momentum, rendering his "critique" of my thesis a vacuous bubble. (Incidentally, he also passes in complete silence over Stewarts' unfounded claim, which contradicts his argument, that it was the Ḥanafites who embarked on the construction of "uṣūl al-fiqh" as early as the beginning of the third/ninth century).
In the 1993 article, basing myself on a variety of sources, I had this to say about Ibn Surayj: He "without exaggeration [was] the most significant jurist in the Shāfiʿite school after Shāfiʿī himself." He was "universally held to be the unrivaled leader of the school, far superior to all contemporary and earlier Shāfiʿītes, including Muzanī." He was "distinguished as Shāfiʿī's loyal and true disciple who single-handedly defended the madhhab and rendered it victorious. In his time, he was the most influential professor of Shāfiʿite law, and his students were so numerous that he is credited with 'spreading the madhhab' to unprecedented dimensions." He combined "a superior knowledge" of dialectic, law, and theology and excelled in them to such a degree that he "was known as the Little Shāfiʿī" and "thought by many as the mujaddid" of the fourth Hijri century. 186 Having discussed Ibn Surayj and his students, such as Ibn Ḥaykawayh, Ibrāhīm al-Marwazī, Abū Bakr al-Fārisī, 181 STEWART's review, 845.
182 See EL SHAMSY,Canonization, See my discussion of Khaffāf in section II, above. Note that El Shamsy himself wavers on Khaffāf's appearance on the scene, saying, on the same page, that he flourished in the "early fourth/tenth century" and-ten lines later-that the flourishing happened in the "first half of the fourth/tenth century." "Bridging the Gap," 505. Needless to say, someone who flourished in the early part of the century could have died by, say, 330/940, while another who flourished in the first half of the century could die as late as 370/980. In either case, we will see that Khaffāf's work does not qualify as an uṣūl al-fiqh treatise proper, despite all appearances. Abū Bakr al-Ṣayrafī and al-Qaffāl al-Shāshī, I concluded that these "two consecutive generations [i.e., Ibn Surayj's and that of his students], who had at their disposal a combination of traditionalist and rationalist sciences," were the true exponents of uṣūl alfiqh, 187 although-as I show below-the discipline was to need another third or half of a century to bring about uṣūl al-fiqh as a mature genre. The two "consecutive generations" were "to conceptualize legal theory as a synthesis between rationality and the textual tradition," which is why Ibn Surayj is credited with the title "the middle-of-the-roader." 188 I have also noted that "there is no evidence that Ibn Surayj wrote a complete work on uṣūl al-fiqh," 189 an observation that El Shamsy acknowledges but has nothing to say about its relation to his work. 190 As he himself in effect concedes, Ibn Surayj's work al-Wadāʾiʿ li-Manṣūṣ al-Sharāʾiʿ is neither a full uṣūl work nor a work fully dedicated to the uṣūl discipline, but rather "contains both positive law and legal theory." The uṣūlī part, quite short, "served as one of the main sources on Ibn Surayj's ideas" on uṣūl al-fiqh for Badr al-Dīn al-Zarkashī, 191 an encyclopedic author on the subject. El Shamsy quotes a statement from Ibn Surayj that "contextualizes" the placement of this short theoretical work in his larger fiqh book. Ibn Surayj tellingly speaks of his contemporaries and predecessors as having extensively written about substantive law while disagreeing amongst themselves, this being "due to their refraining from clarifying their method [of legal derivation] (istinbāṭ al-uṣūl)…. I therefore decided to compose a work that brings together methods (uṣūl aldīn) and individual rules (furūʿ)." 192 First, note here that the towering and encyclopedic Zarkashī relied on this partial uṣūl book to "uncover" Ibn Surayj's legal theory. If Zarkashī had another "complete" uṣūl alfiqh book from Ibn Surayj, he would undoubtedly have used it.
Second, while Ibn Surayj attained a good level of mastery in legal theory, the writings on this subject during his time, as we will see, cannot be said to have constituted a genre and an entirely independent field of inquiry. Just as Bayān and Fuṣūl were prolegomena to the tafsīr works of Ṭabarī and Jaṣṣāṣ, respectively, so was Ibn Surayj's tract an addendum to his furūʿ work (as was the Muqaddima of the later Ibn al-Qaṣṣār). 193 That "uṣūl" was so commonly attached to larger works in more established fields is a fact that has not yet been 187 Ibid., 596.
188 Ibid.,599,and p. 604,n. 98. 189 Ibid.,596. 190 On p. 507, n. 11, of his "Bridging the Gap," EL SHAMSY quotes my "claim" to the effect that "there is no evidence that Ibn Surayj wrote a complete work on uṣūl al-fiqh," but he does not explain how his work refutes this "claim." 191 Ibid.,507. 192 Ibid., 507-08. sufficiently appreciated, a fact that speaks of the relative infancy of the field and one that has been complained about by later uṣūl writers. 194 Third, Ibn Surayj's own "contextualizing" of the work is quite telling: He is informing his contemporaries and associates that they need to probe the methodology that leads them to fiqh, explaining in the process why they disagree on their outcomes. Such an explanation would have sounded extremely trite a century later, but it obviously was not for Ibn Surayj and his generation. Uṣūl al-fiqh was still not the most obvious discipline, a "new creation in Islam" (mustaḥdath fī l-umma), as Ibn Khaldūn aptly noted (though even for the shrewd observer that he was, his estimate, reflecting later projections, was anachronistically too early). 195 Furthermore, the discipline had not yet developed a state-of-the-art name for itself: Ibn Surayj does not yet know uṣūl al-fiqh, using instead uṣūl al-dīn. This infant designation is just what it is: infant. An infant does not yet know his or her name! All this, however, is borne out by El Shamsy's own concluding statement about Ibn Surayj: Ibn Surayj, El Shamsy tells us, "also takes some very unusual positions that diverge both from al-Shāfiʿī's Risāla and from the later theoretical literature." 196 But none of this matters to El Shamsy, who marches ahead without examining how these crucial and central facts about Ibn Surayj can place his work, with nuance, in the trajectory of uṣūl al-fiqh development.
Finally, one must note the overall claims that El Shamsy makes in his article. He sums up his findings in three points. First, he affirms that his "broad comparison… indicates that by this time [300/912] Muslim jurists accepted as given an established discourse of legal theory-at this stage called uṣūl al-dīn, not yet uṣūl al-fiqh." Second, "legal-theoretical discourse was not carried on exclusively in the form of dedicated monographs, but also in introductions or conclusions to works of positive law" (and we may add tafsīr/aḥkām al-Qurʾān). "Third, a gradual development from al-Shāfiʿī to the classical fourth-/tenth-century texts on legal theory can be discerned. " 197 Note here that the first finding is not substantiated: there is no evidence or argument in El Shamsy's article to the effect that uṣūl al-fiqh was "an established discourse," certainly not in the sense being disputed in the present controversy. If "established" means that uṣūl al-fiqh reached maturity or was formed as a genre, then the claim is unsustainable, whether by El Shamsy's work or any other (more on this to come). If it means that the beginnings of theorization toward a full elaboration of the discipline had already begun by Ibn Surayj and his contemporaries, then this conclusion adds nothing to my findings which El Shamsy militates against. Second, and as I mentioned earlier, El Shamsy glosses over the significance of the fact that "uṣūl" works in that early period all too frequently formed prolegomena or addenda to larger works, when this phenomenon almost entirely disappeared from the fifth/eleventh century onward. Nor was there any confusion after the fourth/tenth century with regard to which discipline the designation of "uṣūl al-dīn" belongs. And finally, there is nothing in El Shamsy's article to sustain or prove the claim that "a gradual development from al-Shāfiʿī to the classical fourth-/tenth-century texts on legal theory can • 19 (2019): 129-183 be discerned." To be substantiated, such a claim must account for the dynamic but slow evolution of debates on fragments of what became later as legal theory, from Shāfiʿī's death to about 270/880. As noted earlier, El Shamsy does not address this history in his book, and much less in the article under consideration.
Another critic whose "argument is in sympathy with that of El Shamsy" is David Vishanoff. The fundamentals of the agreement between the two scholars is that, Vishanoff states, "al-Shāfiʿī introduced the whole textual paradigm on which classical legal theory is based." 198 Vishanoff says this in the same footnote where he registers his disagreement with my article, although he manages to invoke the article disapprovingly a number of other times throughout the text. Before proceeding further to speak about his findings, it is worthwhile reasserting immediately that I did not dispute the relevance of the essentials of Shāfiʿī's theory to later uṣūl al-fiqh-every jurist who mattered accepted the basic givens of a revelation-based law, with all that is entailed in terms of hermeneutical-legal derivation. In fact, I emphatically and repeatedly argued that Shāfiʿī's synthetic theory was "innovative" and that it "coincided" 199 with the synthesis to be reached nearly a century after his death. This is precisely why it was relevant to Ibn Surayj and his students, although one can find much in fourth/tenth and fifth/eleventh century theory-and in Ibn Surayj's own thought-that diverged from the arguments of the Risāla. The second half of my article does not tire of repeating the correspondence between Shāfiʿī's synthesis and the legal theory that came later to be taken for granted. And in the conclusion I do unequivocally state that: (1) Shāfiʿī's Risāla "gained the distinction of being the first attempt at synthesizing the disciplined exercise of human reasoning and the complete assimilation of revelation as the basis of the law." 200 This characterization is not much different from Vishanoff's own description of what his work, in its main thesis, tries to show, namely, that the Risāla posed the "basic hermeneutical problem [of]… how to negotiate the problematic relationship between revealed texts and legal rules." 201 While Vishanoff goes the route of hermeneutics and language in order to uncover the techniques and modalities of Shāfiʿī's theory, I was interested in the final and macro results of this process, namely, logical systematization and effectual legal reasoning which take for granted the important basic theses in Vishanoff's detailed research; (2) the "history of Shāfiʿī's Risāla is connected inextricably with the emergence of uṣūl al-fiqh as an organically structured and independent science"; 202 (3) the "simultaneity"-in the first half of the fourth/tenth centurybetween the rise of uṣūl al-fiqh and the marked appearance of commentaries on, and refutations of his work-"should by no means be explained away as coincidental, for such an explanation would ignore blatantly the historical sequence of events that led up to the emergence [of uṣūl al-fiqh] in the beginning of the 10 th century." 203 • 19 (2019): 129-183 Thus, a close reading of my article reveals that Vishanoff's position on the relevance of the Risāla to later uṣūl al-fiqh-i.e., that it laid down the essentials of anchoring law in revealed texts-is remarkably close to mine, although we naturally frame the problem in different terms. So the question that arises is this: What does Vishanoff object to in my thesis? Like the earlier critics I have discussed-who think that I argued for a "radical discontinuity" 204 between Shāfiʿī's theory and later uṣūl literature-Vishanoff insists that there was a continuity from the Risāla onwards. Ironically, in a footnote documenting his statement that the Risāla was "known and circulated and used and disputed" 205 in the third/ninth century, he cites my article on Shāfiʿī, where I acknowledge that there were instances in which Shāfiʿī's work was discussed and criticized, citing such names as Ibn Ḥanbal, Bakkār Ibn Qutayba, Abū ʿAlī al-Zaʿfarānī, and Muzanī. 206 But I do argue that the third/ninth century attacks were not necessarily against Shāfiʿī's Risāla as a whole but against certain doctrines in it. 207 Furthermore, I do describe such instances as "relatively few" considering the "immense literature" 208 that was produced in that century. This is a relative assessment, and considering the relatively little and thin empirical evidence that these critics have managed to unearth since the publication of my article a quarter of a century ago, my estimate is truer now than it was then.
Vishanoff's vehemence in defending the hypothesis of continuity could not come without a heavy price. Immediately after he asserts that there are "numerous reports" of the Risāla being discussed and disputed, he begins a series of qualifications that undermine his own argument. "It is true that al-Shāfiʿī's proposals did not immediately win the day; his hermeneutical devises were sometimes ignored… As late as the turn of the fourth/tenth century, some scholars writing on the reconciliation of conflicts in revelation seem not to have taken into account the arguments of the Risāla, even though their project was related to Shāfiʿī. Also many legal works continued to rely heavily on non-Prophetic reports (which al-Shāfiʿī marginalized) until the late third/ninth century." 209 In a footnote, he cites Norman Calder who notes that neither Ibn Quatyba's Taʾwīl Mukhtalif al-Ḥadīth nor Ṭaḥāwī's Bayān Mushkil al-Āthār seem to take note of the Risāla's arguments, saying that his own • 19 (2019): 129-183 "reading of al-Ṭaḥāwī bears this out." 210 In my own article, I have also noted the glaring absence of Shāfiʿī's name from the two famous lists in Ibn Qutayba's work al-Maʿārif. 211 Vishanoff himself finds this "particularly striking in light of the fact that al-Ṭaḥāwī (Bayān Mushkil al-Āthār, 1:084.7) quotes directly from the principal transmitter of the Risāla, al-Rabīʿ ibn Sulaymān al-Murādī." 212 Note here that two of the most focused specialists on Shāfiʿī, Vishanoff and El-Shamsy, admit that Shāfiʿī's proposal did not immediately win the day and in fact experienced a "lull" for a few decades after his death. It is also important to note that the focus of Vishanoff's work is not the third/ninth century, for he explicitly admits, as his entire book evinces, that his "sources … are the systematic legal theory manuals that survive from the late fourth/tenth and early fifth/eleventh centuries," it being the case that "only a few writings on legal theory survive from the third/ninth and early fourth/tenth centuries." 213 Given this, it is telling how thin Vishanoff's argumentation becomes when he speaks of "continuity" between Shāfiʿī and later theory: He finds that this "continuity… is to be found precisely in this hermeneutical analysis of ambiguity, and in the imagined correlation between law and revelation that this analysis was designed to support. Al-Shāfiʿī may not have been the 'architect' of Islamic legal theory, but he certainly appears to have launched it as a hermeneutical enterprise." 214 If "launching" means that he was the first prominent name to have argued a thesis of the sort he advanced, then I would have no objection to this characterization. In fact, I wholly endorse it. But if this "launching" intends to insist on continuity, then we must clarify what continuity means. To Vishanoff, "instances of opposition to al-Shāfiʿī's proposals" during the third/ninth century appear to be subsumed under the meaning of continuity, and here I beg to differ. In my view, for "continuity" to mean the ordinary connotations of the term, there would have had to be a steady and regular flow of commentary, interpretation, transmission, and hermeneutical construction of the Risāla's arguments, without a few decades of "lull," and certainly without the fundamentals of "Shāfiʿī's proposal" being disputed as a legitimate methodology by numerous third-/ninth-century groups, circles, and scholars, including his own students (which I have enumerated above). Vishanoff's "instances" thus pertain to foundational matters, not just details. Furthermore, the later Shāfiʿītes would also be expected to have accepted Shāfiʿī's doctrine at least substantially, but we will see that this was not the case. If the third/ninth century was the time of vehement disputes about the very sources of the law, which no serious scholar can deny, then there was no fixed or commonly accepted legal theory, a theory that largely defined what Sunnite law and Sunnism came to be. This background of fermentation, of intellectual 210 Ibid.,64 n. 239. 211 HALLAQ, "Was al-Shafiʿi the Master Architect?" 594. 212 VISHANOFF, Formation, 64, n. 239, tries to mitigate this "striking" fact by quoting LOWRY who argues that this is due to the "different purposes of the two works;" but this does not resolve the problem of total absence of Shāfiʿī in other sources (e.g., Ibn Qutayba's lists) when invoking him would have been so natural if VISHANOFF's and EL SHAMSY's imaginings were to be true. and even political dispute, hardly supports any claim for continuity, be it the case of Shāfiʿī's "proposal" or any other. While Vishanoff's claims-considering the totality of his and other critics' evidenceare far-fetched, his thorough work does nonetheless reveal what lies at the heart of the current controversy. If he were to take his own words seriously, and tease out their full implications, he would have to abandon his thesis of continuity. There was no continuity in the robust and organic sense I have just described, not only because the biographical and bio-bibliographical evidence does not support a claim for continuity, but also, substantively speaking, the desiderata and teleology of Shāfiʿī's doctrine and that of later uṣūl al-fiqh differed widely. What Shāfiʿī forged, with "sweat and blood," became the bare outline and taken-for-granted basis of later theory, but not without considerable methodological modifications and theoretical expansion and distension along the way.
Vishanoff perceptively recognizes that what emerged from Shāfiʿī's "ad hoc solutions to concrete interpretive problems was not a rulebook for applying texts, but a toolbox of hermeneutical devices for negotiating the problematic relationship between the evolving and contested discourse of positive law, and an evolving and contested body of authoritative texts." 215 Key here is the term "evolving," which makes the use of "ad hoc" quite meaningful. Thus, the "overall purpose" of Shāfiʿī's hermeneutic "was not to create or justify legal rules, but to validate a certain imagined canon … the proper basis for (what) a truly Islamic law should be." 216 All this, Vishanoff realizes, was taken for granted by later legal theory. 217 Most importantly, if this theory had a purpose, it was precisely that with which Shāfiʿī never bothered: the rationalization of the law and the continual construction of it. Which is to say that uṣūl al-fiqh not only looked back to validate and derive lessons from existing fiqh (one of its three foundations), but also looked forward to the further elaboration of the law, whether through fresh ijtihād or creative taqlīd. 218 Uṣūl al-fiqh was a 215 Ibid., 61. 216 Ibid., 62 (emphasis mine).  (2001), I "reversed course" with regard to taqlīd, now accepting it, without acknowledging his contribution, as a creative juridical activity and agent of legal change. (See JACKSON, "Ijtihad and Taqlid;" the contribution he refers to is his Islamic Law and the State). However, I see no reversal here but a shift in focus, despite Jackson's wily manipulation of citations from my work, and arguments from silence, all intended to show my supposed debt to his monumental and supposedly unique discovery. It is true that my concern in the early period of my career was to show that the so-called "closure of the gate of ijtihād" and its supposed consequences in terms of "rigidity" and "ossification" did not occur; hence my focus on ijtihād as contrasted to the generally negative view of taqlīd (which not only Schacht but also all Muslim jurists disdained and derided generally, especially when the term was used without qualification). But as early as 1984, it was clear to me that "ijtihad continued to be employed but mostly without being recognized under its proper name" ("Was the Gate of Ijtihad Closed?" 32). In later years, and as a continuation of my larger project, I turned my attention to the question of legal change, which required a foray into the formation of the madhhabs as the sites of juristic authority, as well as the authoritative, post factum construction of the school forward-looking hermeneutical enterprise, among other things. Shāfiʿī's was not. Yes, Shāfiʿī states in the beginning of the Risāla that every nāzila must find a solution in God's Book, 219 but this cannot be interpreted in any way that attributes to Shāfiʿī a clear and articulate, much less systematic, vision of a forward-looking methodology, one whose main preoccupation is laying the methodological foundations for discovering God's ethico-legal intentions. His theory was defensive and squarely situated within the polemics of its own times. From the experience of reading his Risāla, Kitāb Jamāʿ al-ʿilm, and other parts of al-Umm, one can vividly imagine real persons debating and interrogating him. His defensive "proposal" was just that, a proposal, partly accepted, partly rejected, even by his own followers ("partly accepted," it must be emphasized, because nearly no one denied the Qurʾān the status of being the first and foremost source of law). Which is to say that between the "ad hoc" nature of Shāfiʿī's project and his struggle for the basics (those foundational facts that were taken for granted by the middle of the fourth/tenth century), it is hardly reasonable to argue that uṣūl al-fiqh took off where Shāfiʿī left it. It would take about a century after he wrote the new Risāla for the essentials of his proposals to be rehabilitated within the walls of the Great Synthesis, and even then not without much pruning, modification, expansion, and exogenous osmosis. In fact, it is highly plausible to argue, as Lowry convincingly did, that even by the time of Muzanī, Shāfiʿī's theory, whose core and substance was the concept of bayān, was already in good part obsolete. 220 But Lowry went much further. Through detailed analysis "founders," among other things. Here, complex juristic processes were at work, including the end spectrum of taqlīd which, as I argued, bordered on ijtihād. This component of taqlīd-properly known as ittibāʿ-was obviously relevant to the arguments I was deploying. The other end of taqlīd's spectrum and much in between was and remains objectionable, to this day. In a nutshell, the difference between Jackson's work and mine is that he wants to subordinate all post-formative legal developments under taqlīd, a thesis he incorrectly deems to be his original contribution to the field, but which I continue to find all too categorical and radical. To the extent that I did not footnote Jackson's book, mea culpa. I should have done so, if only to reassure him of the attention he seeks. (On the jurists' condemnation of taqlīd, and on its differentiation from ittibāʿ, see, among other works, Ibn ʿAbd al-Barr, Jāmiʿ Bayān al-ʿIlm, II, 109-33: "Bāb Fasād al-Taqlīd wa-Nafyihi wa-l-Farq bayna al-Taqlīd wa-l-Ittibāʿ"). -In the same year Jackson's book was published, Norman Calder voiced a similar criticism of my earliest work, this likewise having been a part of Calder's "general theory" about ijtihād and creative and non-creative taqlīd. But Calder at least fairly acknowledged-basing himself on an article I wrote two years before Jackson's book appeared-that "Hallaq shows remarkably how he has not stopped thinking about these matters [regarding madhhabic ijtihād and creative taqlīd]. Here, all the major questions that had demonstrably contributed to the theoretical explorations of Ibn al-Ṣalāḥ and al-Nawawī emerge too for him… The real existence of muftīs who were actually muqallids and, sometimes, scarcely capable of even low-grade ijtihād is recognized as a factor requiring to be caught in a theoretical frame." See CALDER, "Al-Nawawī's Typology," 159-60, and especially 161, for the quote. My article that Calder referred to in 1996 was eventually published under the title "Ifta' and Ijtihad in Sunni Legal Theory," in the same year as Jackson's book also saw light (Calder had already obtained the manuscript of the article from me some two years ealrier). Although Calder does not fully appreciate the importance of my early work's focus, he remains, unlike Jackson, a balanced and nuanced critic. Crucially, his article on Nawawī had put the case for creative taqlīd (or ittibāʿ) more pointedly and effectively than Jackson's (concurrently published) work did, a stark fact that seriously challenges Jackson's claim for his supposedly unique discovery and exclusive influence on others.
• 19 (2019): 129-183 of Shāfiʿī's central problem of bayān and how it was received by later theorists, he demonstrated that a fundamental "transition" occurred "from concern with structure and contradiction evident in [Shāfiʿī's work] to the concern with language and communication that is prominent in works of uṣūl al-fiqh ….
[U]ṣūl al-fiqh has a concept of bayān that differs from Šafiʿī's," a concept that is both "unprecedented" and later rejected by his own followers. 221 Even as early as Jāḥiẓ, he argued, the transformation amounted to nothing less than a "linguistic turn," ushering in the works of uṣūl a preoccupation "with issues of language and signification" that are of "more literary, linguistic, communicative, or perhaps even semiotic connotation." 222 Even when Shāfiʿī's theoretical claims were not obsolete, they were deemed too radical even by his closest and most loyal students. El Shamsy's and Zysow's own empirical findings about Buwayṭī (d. 231/846) demonstrate this much, although these two authors are silent as to the significance of these findings. In his "compendium (mukhtaṣar) of his master's writings," Buwayṭī includes at the end of the work a "paraphrased abridgement" of the Risāla. This part, merely four folios, amounts to about two percent of Buwayṭī's total work, and about 4% of the Risāla itself. His abridgment addresses only three topics in the latter work, and excludes the rest. One of the three topics occupies "a significant part of the abridgment," 223 where Buwayṭī in effect takes a negative stance toward qiyās and relegates it to an inferior position, although it ranked in Shāfiʿī's theory as the only valid form of legal inference. And so Buwayṭī, supposedly the "first Shāfiʿī," 224 in effect turns out to be a partial dissident, refusing to accept one of the most fundamental elements in his "master's" theory. 225 If Shāfiʿī's theories of bayān and qiyās were most central to his entire project, and if these fundamental components were largely rejected by the later theorists and by his contemporaries and even immediate followers, respectively, then what is the real achievement of this "arch-jurist"? It seems that the short answer to this question is this: Shāfiʿī, as Schacht has shown beyond doubt, insisted on the primacy of Qurʾān and ḥadīth as the exclusive sources of the law, the former needing no further legitimacy, whereas the latter was the battleground on which Shāfiʿī fought his war against those who either rejected it on principle or those whose use of it was unsystematic, even inconsistent and sporadic. But to introduce the two textual sources as the exclusive sources of the law, much had to be done by way of reasoning and inference, both understood by him to be modes of thinking that require precise and rigorous methods of analysis. For raʾy and istiḥsān-two modes of tribution is the major argument that the Risāla's main theoretical investment was the elaboration of a theory of bayān, one that dominates the work. 221 Shāfiʿī's "questionable" theory of bayān allowed the later Ḥanafites to level devastating attacks against the Shāfiʿītes. See LOWRY, "Preliminary Remarks," 514-15, 518. 222 Ibid., 506, 509, and in more detail, 510.

EL SHAMSY, "First Shāfiʿī."
225 The implications of Buwayṭī's demotion of qiyās should not be underestimated. The fact that his "Mukhtaṣar reached a wide audience earlier than al-Shāfiʿī's own works" (EL SHAMSY, "First Shāfiʿī," 333) is not a coincidence, and may well have been due to the unpopularity of Shāfiʿī's ideas during the first half of the third/ninth century, the period of the "lull." • 19 (2019):  reasoning that constituted Shāfiʿī's focus of critique-were not dissociated from the careless and unsystematic reliance on ḥadīth, which is to say that he saw these sources and their hermeneutical exploitation as interconnected problems of ontology and epistemology, respectively. The introduction of ḥadīth as a systematic scriptural source therefore required a systematic method of reasoning, which unfolded in his concept of qiyās/ijtihād. All the remaining issues that represented hermeneutical engagement and the assertion of authoritativeness (ḥujjiyya, of both qiyās and consensus, even dissensus [ikhtilāf]) 226 were essential yet subordinate to this overarching concern with particular sources and particular derivation of rules therefrom. This "advance" is what the later theorists remembered that Shāfiʿī accomplished, and this is why he was credited with a monumental achievement that was much later viewed as a synthesis between rationalism and traditionalism. 227 But what the later jurists did not care to articulate is something that would have, had they brought it to light, undercut their own project. For what they were doing-that is, their defining concern-was to construct the authority of this jurist as the Founder of their school, a post eventum process of authorization on which all schools embarked, each promoting their own eponym as a Founder, using-as I have shown in detail elsewhere-a variety of techniques that consisted of biobibliographical data, constructed narratives, and substantive legal doctrines, among other things. 228 That Shāfiʿī's "findings"-however innovative at the time-were either rejected or taken for granted by the middle of the fourth/century is a fact that finds support in a closer look at what uṣūl al-fiqh was to mean for the Sunnite tradition as a whole. That his theory of the two textual sources and their ijtihādic derivation constituted the common denominator with later uṣūl al-fiqh is-as I have argued in my article-his true, though distinctly post eventum, accomplishment.

V -Conclusion
It is then my argument that while the controversy over the legacy of Shāfiʿī's Risāla has encouraged scholars during the last two decades to uncover manuscripts and collect fragmentary evidence relevant to the debate, the overall contributions and arguments do not amount to proving a narrative of continuity and, much less, provide an account of structural links between the work of this supposedly "master-architect" and the later genre. Schacht (and Coulson, who follows him with an abounding measure of taqlīd) had argued that 226 See CALDER, "Ikhtilāf and Ijmāʿ." 227 This is what I argued for in "Was al-Shafiʿi the Master Architect?" 597-98 and passim. Some critics thought that by rationalists and traditionalists I was referring exclusively to ahl al-ḥadīth and ahl al-raʾy, but as evident on p. 598, I regard the Muʿtazilites, for instance, as belonging to the rationalists (as I do the Ḥanafites), while the traditionalists, under my implicit definition, included many Ḥanbalites and others, such as the Ḥashwiyya (whom I described as "ultratraditionalist." Ibid.,598). For caution in the use of "rationalists" and "rationalism," see n. 68, above.
228 The construction of the eponyms' authority was a major concern of my Authority, Continuity and Change. However, much work remains needed in order to unravel how (i.e., the particular modalities that) each school employed in its processual construction of the eponym as a "founding" figure.
• 19 (2019): 129-183 Shāfiʿī's legal thought equaled, if it did not surpass, all later jurisprudential elaborations, which at any rate soon sunk into a state of futile scholasticism that was associated in his mind with stagnation and ossification of the Sharīʿa. But later scholarship on uṣūl al-fiqh came to recognize that these are unsubstantiated claims, and my 1993 article, along with others, 229 had their target this constellation of Schacht's ideas. By about 2002, when Schacht was long out of the way and forgotten as a precipitator for much refutative scholarship in the 1980s and 1990s, critics stripped my said article of its historical context and instead focused their attention on proving that my thesis of a patent lack of continuity between Shāfiʿī's Risāla and uṣūl al-fiqh was unsustainable. I argue here that the aggregate and cumulative effect of this scholarship has nonetheless failed to prove the alleged continuity. Not a single work of uṣūl al-fiqh from the first three-quarters of the third/ninth century could so far be produced. And now there is more doubt than existed in 1993 that the works produced during the period between about 270/880 and 310/920 qualify as works of uṣūl proper. Devin Stewart, a chief critic, has introduced evidence on the basis of which he formulated a two-pronged argument that in effect reinforces my thesis rather than his. On the one hand, he acknowledges, as I do and have done since 1993, that it is neither Shāfiʿī nor any Shāfiʿite could be held responsible for initiating the theoretical construction of uṣūl al-fiqh in the early third/century. To this extent, his argument supports my position. On the other hand, he insists that it was the Ḥanafites who initiated this process of construction, an insistence that goes well beyond the plausible view that the Ḥanafites effectively participated, as interlocutors and opponents, in the raging debates over sources during the course of the third/ninth century. It is undeniable that without these contestations no uṣūl al-fiqh could have arisen, and that the very Ḥanafite challenge to the other "debating" groups (which I identify above) was an essential ingredient in the emergence of uṣūl al-fiqh nearly a century later. But Stewart does not proffer any convincing evidence to prove his argument, which is more an afterthought than it is a sustained, premeditated argument. It simply cannot be taken seriously.
The second prong, on the other hand, is represented in his arduous efforts in gathering fragmentary evidence, which yielded less proof of his own thesis and more for mine. It shall be recalled that my argument-admittedly limited to extensive bio-bibliographical evidence-is that it was Ibn Surayj and his students who were the earliest expositors of uṣūl al-fiqh. As counter-evidence, Stewart marshals fragments from Ibn Dāwūd and Ṭabarī, both of whom were almost exact contemporaries of Ibn Surayj (the three having all died within a dozen years from each other). Even if we grant Stewart his claim as to the subject matter these two jurists wrote about, none of his overall arguments refutes the dating of the rise of uṣūl al-fiqh I argued for in the 1993 article. Among the three, Ibn Surayj is universally acclaimed to be the towering jurist, and explicitly associated in the classical literature with a new way of thinking, having mastered so many disciplines. Most important is that unlike the defunct Jarīrians and Ẓāhirites, Ibn Surayj's jurisprudence represented the Great Synthesis in ways that the two others could not. It is therefore difficult to grant Stewart his claim, since after all is said and done, the works of these two jurists do not-as we have • 19 (2019): 129-183 seen in detail-show structural (and in the case of Ibn Dāwūd, substantive) affinity with either later uṣūl works and much less with the Risāla.
The next critic, El Shamsy, argues for a relative continuity from Shāfiʿī to Ibn Surayj but his overall argument (like Vishanoff's) remains unsubstantiated. In fact, El Shamsy is rather contradictory on the matter, for he advocates continuity when much of the evidence he himself adduces runs counter to his own claim: Ibn Surayj did not know the familiar structure of uṣūl al-fiqh, nor does he even know the discipline by its name (even less than what I expected Ibn Surayj to know when I wrote my 1993 article). Nor does his work comport with earlier or later works: Ibn Surayj, El Shamsy tells us, "also takes some very unusual positions that diverge both from al-Shāfiʿī's Risāla and from the later theoretical literature." 230 But the claim for continuity persists, despite the fact that El Shamsy himself acknowledges and discusses the reasons for the relative neglect of Shāfiʿī's works during the first half of the third/ninth century. And when he, in another article, studies Buwayṭī, he finds that the "First Shāfiʿī" (i.e., Buwayṭī, Shāfiʿī's student and supposedly follower) has virtually abjured one of the most important cornerstones of his master's thought: qiyās. We remain askance at the quality and meaning of the "continuity" that El Shamsy advocates. Nonetheless, the recovery of Ibn Surayj's work no doubt remains an advance in scholarship, if only to show that even my own estimates of the uṣūl development by this jurist's time were somewhat exaggerated. Which is to say that Ibn Surayj's work calls for a revision of my original estimate to a slightly later period, while at the same time considerably militating against El Shamsy's (and Vishanoff's) estimate for an earlier dating.
It might be safe to assume that a recovery of an uṣūl al-fiqh work from before Ibn Surayj's time would be impossible, irrespective of whether the work bears the term "uṣūl" or not. 231 The reason for this impossibility is in fact simple: Uṣūl al-fiqh is product of a process, and thus could not, ipso facto, precede the very process of which it is an effect and outcome. There is no amount of manuscript retrieval or scouring for fragmentary evidence that could overcome this logical and ontological fact. And I think it is precisely here where the critics missed a crucial and monumental consideration: They took uṣūl al-fiqh to be a "collection of sources," as Stewart called them, 232 and failed to see that uṣūl al-fiqh is a structured theory of sources and methodologies, and not just an ordered system of thought. Order (tartīb) is the function of structure. Structure is not just an arrangement, ordering, or topical configuration of subject matter. Structure means that there are no veritably discrete parts in this system, because all parts are interconnected and interdependent, substantively and, especially, hermeneutically and epistemologically. There is no part that can, on its 230 EL SHAMSY, "Bridging the Gap," 509.
• 19 (2019): 129-183 own, be deemed complete. Every part stands in a semiotic, hermeneutical, logical, and substantive legal relationship to other parts within that system of thought. In this system, as I believe in every other, the structure is everything, for it is more than the sum total of all its parts. Inasmuch as qiyās, for instance, cannot be-in all these hermeneutical and other ways-independent of the Qurʾān, the Qurʾān, in this system, can never stand on its own, and thus inextricably remains interconnected and interdependent with qiyās and every other component. And if a component of the theory appears not to have an immediate structural relation with another (an assumption made only for the sake of argument), the latter would be structurally interconnected and interdependent with yet other parts with which the former is tied in structural ways; which is to say that in uṣūl al-fiqh there is no "source," including the Qurʾān, that is complete and autonomous by virtue of itself, for every "source" interacts with, draws from, and eventually depends on other parts of the uṣūl repertoire.
To miss the immense significance of structure is to allow for the erroneous thinking that a discussion or refutation of qiyās, consensus, or otherwise, constituted, in most of the third/ninth century, a discourse on uṣūl al-fiqh. To describe this discourse as such is to distort the fact that what was happening was a major conflict over hermeneutical and legal methodologies and the very sources from which and for the sake of which these methodologies were articulated in the first place; all of which disputes having been atomistic events or ad hoc controversies that were a far cry from engaging in structure, or the elaboration thereof. From Shāfiʿī to Ibn Dāwūd, the debates reflected a foundational disagreement over sources, but from Ibn Surayj's time, and especially by the time his students wrote, the discourse began to exhibit preoccupation with structure, having taken the emergent sources for granted. Al-Qāḍī al-Nuʿmān was perhaps the last breath of opposition.
When the uṣūlīs proper came to order their discursive subject matter (Condition 2, above), they first did so logically, and only second ontologically, because it was the act of ordering the sources that constituted their priority. This priority, logical ordering, is itself significant, and not to be taken for granted. Of course, logical ordering implied the ontological structure, but also masked it to the point of appearing as if it had replaced it. Yet, if the route of logical ordering won the day, it was because it was the function of the very history that gave rise to uṣūl al-fiqh, a history that is constitutive of the very discipline and genre-almost exactly in the way the theories of the Caliphate, Sultanate, and siyāsa sharʿiyya were determinately conceptualized within a historical context that in fundamental ways imposed on political discourse its own conceptions of reality. The logical ordering was thus the result of a long but acrimonious history that stretched from as far back as the early second/eighth century, a history not unlike that of the so-called "first civil war" that left an indelible mark on the much later political conceptions. ʿAbd al-Qāhir al-Baghdādī was an astute historian when he articulated the rise of uṣūl al-fiqh as that theoretical system that eventually emerged out of battles between or amongst fairly well-identified adversaries. 233 The ordering then reflected the paradigmatic discursive assertion and reassertion of victory in the disputes, if not also acrimonious conflicts, between and among these contending groups.
• 19 (2019):  Yet, the atomizing nature of these disputes should not be allowed to mask what I have called in the 1993 article the "organically structured" 234 nature of uṣūl al-fiqh, which is to say, in an inverse way, that it is this structure-as defined above-that made uṣūl al-fiqh what it came to be. This structure was not just a theoretical process, but a choice of how a majority of Muslims wanted to see the world and the modes in which they wished to live in it. This is why, as I have argued earlier, uṣūl al-fiqh was an integral part of Islamic cosmology, one that defined a set of hermeneutical principles that struck a particular balance between the higher principles of the divine, on the one hand, and human rational thrust, on the other. 235 Yet, it was the entirety of principles, low-and high-order, that defined this particular legal, political, and communal way of life-proverbially called the way of the Middle-of-the-Roaders (al-umma al-wasaṭ). And it is precisely this "middle way"-what I have called the Great Synthesis-that uṣūl al-fiqh, the "noble science," 236 reflected and defined. Modern scholarship has yet to contend with this uṣūl history as the most defining process of how Sunnite Islam came to be, and it is both ironic and unfortunate that not a single critic of mine took up the challenge of situating the process of uṣūl evolution, including its prehistory, within this colossal historical formation. For the history of uṣūl will remain unwritten without placing this paradigmatic discipline in the historical macroprocesses that finally came to give Islam, in all of its political, theological, and moral-legal varieties, its forms, structures, modes of subjectification, and traditions.