By Emma Westhoff*
My data collection project consisted of matching variants for canons 5258–5358. The kinds and degree of variation within this dataset were interesting to me. Some canons were clear variants and expressed the same principle with slightly different wording, like canon #5262, the obligatory act is not compensated for (الفرض لا يؤخذ عليه عوض; al-farḍ lā yuʾkhadh ʿalayhi ʿawaḍ),[1] and #5263, it is not permissible to take compensation for the obligatory (الواجب لا يجوز أخذ العوض عنه; al-wājib lā yajūz akhdh al-ʿawaḍ ʿanh).[2]
Others clearly touched on the same topic, such as divorce law, but addressed situations different enough that I had to consider whether they were true variants. This was true for canons #5264–66, which contained provisions for cases where:
(1) divorce initiated by the husband, whether for valid or invalid reasons, entitles the woman to maintenance and housing (الفرقة إذا وقعت من قِبَل الزوج بمباح أو محظور تستحق المرأة النفقة والسكنى; al-furqa idhā waqaʿat min qibal al-zawj bi-mubāḥ aw maḥẓūr tastaḥiq al-marʾa al-nafaqa wal-suknā);[3] (2) divorce initiated by the woman, if based on valid grounds like the option of puberty, emancipation, or compatibility, entitles her to maintenance and housing (إذا وقعت من قِبَل المرأة بفعل مباح كخيار البلوغ والعتق وعدم الكفاءة لها النفقة والسكنى الفرقة; al-furqa idhā waqaʿat min qibal al-marʾa bi-fiʿl mubāḥ ka-khayār al-bulūgh wal-ʿitq wa-ʿadam al-kafāʾa lahā al-nafaqa wal-suknā);[4] and
(3) divorce occurring from a prohibited act such as apostasy or obedience to the husband's son does not entitle her to maintenance and housing (محظور كالردَّة ومطاوعة ابن الزوج فليس لها نفقة ولا سكنى إن وقعت بفعل; in waqaʿat bi-fiʿl maḥẓūr kal-ridda wa-muṭāwaʿt ibn al-zawj fa-laysa lahā nafaqa wa-lā suknā).[5] I had expected some canons to be incompatible, but was surprised to find some canons that were the direct inverse of the other—for example #5337, expiation is dropped by doubt (الكفّارة تسقط بالشبهة; al-kaffāra tasquṭ bil-shubha),[6] and #5338, expiations are not invalidated by doubts (الكفّارات لا تندرئ بالشبهات; al-kaffārāt lā tandariʾ bil-shubuhāt).[7]
Some canons seemed to complete each other, fleshing out additional information or implications not addressed by the alternate version. Canon #5285, for example, stipulates that a judge is not held accountable for mistakes in judgment unless they are deliberate (القاضي لا تلحقه العهدة بالخطأ إذا لم يكن متعمدا; al-qāḍī lā talḥaquh al-ʿuhda bil-khaṭaʾ idhā lam yakun mutaʿammidan),[8] and its variant #5286 directly acknowledges the implication that when the burden on the error does not fall on the judge, it necessarily falls on the litigant (إذا اخطأ القاضي كان خطؤه على المقضي له وإن تعمّد كان عليه; idhā akhṭaʾa al-qāḍī kāna khaṭaʾuh ʿalā al-maqḍī lahu wa-in taʿammada kāna ʿalayh).[9] Some matches applied a more general principle to a specific context, such as #5292, which applied the general principle that something may be established incidentally even when it cannot be established intentionally to the specific context of contract law (قد يثبت حكم العقد في الشيء تبعاً وإن كان لا يجوز إثباته فيه مقصوداً; qad yathbut al-ḥukm al-ʿaqd fī al-shayʾ tabaʿan wa-inn kān lā yajūz ithbātuh fīh maqṣūdan).[10] Canons would sometimes take the same premise, like contradictory statements are not considered valid against others, but then extend it to different conclusions, such as . . . but they are valid against the one who made them (قول المناقض غير معتبر في حق غيره ولكنه معتبر في حقه; qawl al-munāqiḍ ghayr muʿtabar fī ḥaqq ghayrih wa-lākinahu muʿtabar fī ḥaqqih)[11] and . . . but inconsistency does not prevent the enforcement of its legal implications (المناقض لا قول له في حق غيره ولكن التناقض لا يمنع الزامه حكم كلامه; al-munāqiḍ lā qawl lahu fī ḥaqq ghayrih wa-lākin al-tanāquḍ lā yamnaʿ ilzāmuh ḥukm kalāmuh)[12] (#5310 and #5311, respectively).
I was also intrigued to see some canons posed as questions that their variants addressed, such as #3521, is a temporary obstacle considered the same as a concurrent one? (؟ المانع الطارئ هل هو كالمقارن; al-māniʿ al-ṭāriʾ hal huwa kal-muqāran?),[13] which has no official metadata translation but raises a question about the effect of intervening factors. A small number of canons, such as #5272 (contract termination is considered based on the original contract; فسخ العقد معتبر بأصل العقد; faskh al-ʿaqd muʿtabar bi-aṣl al-aqd),[14] appeared to be missing, and others appeared alongside and were matched with additional canons outside of my target range.
As I progressed through the data set, it became easier for me to see the connections between the canons and identify variants, and my ability to match less obvious variations increased. I moved from expecting matches that were exactly the same to recognizing the shared characteristics between variants with substantive differences. Matching variants allowed me to see the kind of network of logic that jurists had to develop to create a code that could be applied to all possible situations. Principles would extend, overlap, and come together to try to ensure consistency, both across rulings and with higher religious authorities such as the Qur'ānic text. There were cases of apparent success—such as when variants accounted for a variety of different contexts or a variety of different situations within the same context—and cases where the lack of reconciliation was obvious, such as the canons that were direct inverses of each other. To me, this highlighted the significance of the traditions of different schools as we covered them in class, both in the sense that loyalty to a school of thought allowed for greater internal consistency and in the sense that appealing to jurists of different schools could result in very different results. Finally, the way in which canons seemed to build on each other—some appearing as mere fragments and others laying out extensive layers of application—helped me appreciate the development of the legal tradition over time, with different scholars using their best judgment to tie together the principles of the past with their current needs and practice.
Notes:
* Emma Westhoff is a second-year JD student at Harvard Law School. She received her bachelors in linguistics from Brigham Young University. She is interested in interfaith work and the intersection of law and religion, particularly as it affects minority religious groups.
[1] SHARIAsource CnC Database Canon No. 5262 (citing Muḥammad Ṣidqī Būrnū, Mawsūʿat al-qawāʿid al-fiqhiyya (3d ed., 2015), 8:29 [hereinafter Būrnū]).
[2] Canon No. 5263(citing Būrnū, 12:142).
[3] Canon No. 5264 (citing Būrnū, 8:38).
[4] Canon No. 5265 (citing Būrnū, 8:38).
[5] Canon No. 5265 (citing Būrnū, 8:38).
[6] Canon No. 5337 (citing Būrnū, 8:300).
[7] Canon No. 5338 (citing Būrnū, 8:300).
[8] Canon No. 5285 (citing Būrnū, 8:118).
[9] Canon No. 5286 (citing Būrnū, 8:118).
[10] Canon No. 5292 (citing Būrnū, 8:152).
[11] Canon No. 5310 (citing Būrnū, 8:241).
[12] Canon No. 5311 (citing Būrnū, 8:241).
[13] Canon No. 3521 (citing Būrnū, 9:290).
[14] Canon No. 5273 (citing Būrnū, 8:49).
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