Endnotes
1 It will become apparent in A'raji’s commentary that this question was first raised by al-Shafi'i and debated by Sunni Usulis. For a later Sunni detailed exposition of the debate, see al-Zarkashi, al-Bahr al- muhit fi usul al-fiqh (Kuwait, 1992/1413), v.
3, pp. 148-154.2 The full statement is:
. JIaU JY a» JU Xix*- f Jy
See al-Fadil al-Tuni, al-Wafiya fiusul al-fiqh (Qum, 1424/2003), pp. 114-115. Al-Juwayni (d. 478/1085) attributes this view to al-Shafi'i. See al-Juwayni, al-Burhan fi usul al-fiqh (Beirut, 1418/1997), v. 1, p. 122.
3 See, for example, al-Tirmidhi, Sunan al-Tirmidhi (Beirut, 1403/1983), v. 2, p. 298.
4 See, for example, Abu Dawud al-Sijistani, Sunan Abi Dawud (Beirut, 1410/1990), v. 2, p. 115.
5 See al-Fakhr al-Razi, al-Mahsùl fi ‘ilm usul al-fiqh (Beirut, 1412/1991), v. 2, pp. 386-388.
6 See al-'Allama al-Hilli, Tahdhib al-wusul ila ‘ilm al-usul (London, 1421/2001), p. 133.
7 See al-Ghazali, al-Mankhul min ta‘liqat al-usul (Beirut, 1419/1998), p. 223.
8 Perhaps al-Abyari (d. 718/1221) is intended. See al-Abyari, al-Tahqiq wa-l-bayan fi sharh al-Burhan fi usul al-fiqh (Kuwait, 1434/2013), v. 2, pp. 5-13.
9 A'raji appears to be referring to a hadith related by Abu Hurayra and cited in al-Bukhari in which a man tells the Prophet that he had sex while fasting during Ramadan. In his reply, the Prophet asks him if he can free a slave, fast for two consecutive months, or feed sixty needy people. When the man says no, the Prophet gives him some dates and instructs him to donate them as expiation for his sin. Ahaji’s point is that, in this case, the Prophet’s answer cannot be considered universal because he knew exactly how the man broke his fast. Al-Bukhari, Sahih al-Bukhari (Beirut, 1401/1980), v. 1, pp. 235-236.
10 See, for example, al-Qummi, Tafsir al-Qummi (Qum, 1435/2014), v. 1, p.
267.11 At the time of his conversion to Islam, Ibn Ghaylan was married to ten women. The Prophet told him to keep four wives and divorce the rest without asking whether he married them simultaneously or consecutively. Ibn Maja, Sunan Ibn Maja (Beirut, n.d), v. 1, p. 628. Because the Prophet did not ask whether he married them simultaneously or consecutively, the circumstances of his marriages have no bearing on which wives he can keep. Had the circumstances been relevant, the Prophet would have asked how the marriages took place.
12 This is how it appears in KG and M; however, al-Sayyid Muhammad Husayn al-Radawi al-Kashmiri’s edition of al-Wafiya has “al-cAllama chose this [opinion]” (wa-ikhtarahu al-calldma). Al-Fadil al-Tuni, al-Wafiya, p. 115. As al-Kashmiri notes, all of the other manuscripts that he consulted have “al-cAllama chose the first [opinion]” (wa-ikhtara l-awwal al-allama); Acraji was quoting one of these manuscripts.
13 Al-cAllama al-Hilli, Tahdhib, p. 133.
See al-cAllama al-Hilli, Nihayat al-wusul ila Ilm al-usul (Qum, 1431/2009), v. 2, p. 248.
15 Al-Fadil al-Tuni, al-Wafiya, p. 115.
16 Al-Fadil al-Tuni, al-Wafiya, p. 115.
17 Al-Fadil al-Tuni, al-Wafiya, p. 115.
18 Al-Fadil al-Tuni, al-Wafiya, pp. 115-116.
19 Acraji does not mention al-Abyari explicitly, rather, he uses the term “al-shdrih,” which we have understood as a reference to Shdrih al-Burhan [see #8 above]; however, it is unclear to which of al-Abyari’s arguments Acraji is referring. For the entire discussion, see al-Abyari, al-Tahqiq wa-l-bayan, v. 2, pp. 5-13.
20 Al-Fadil al-Tuni, al-Wafiya, p. 116.
21 Al-Fadil al-Tuni, al-Wafiya, p. 116.
22 Al-Fadil al-Tuni, al-Wafiya, p. 116.
23 Al-Fadil al-Tuni, al-Wafiya, p. 116.
24 Al-Sharif al-Murtada, al-DharLa, v.
1, p. 291.25 Al-Sharif al-Murtada, al-DharLa, v. 1, p. 291.
26 Al-Sharif al-Murtada, al-DharLa, v. 1, p. 291.
27 For the examples of Abu Bakra al-Thaqafi, Maciz b. Malik al-Aslami and Hamza b. cAbd al-Muttalib see al-Bukhari, Sahih al-Bukhari, v. 1, p. 190; v. 8, p. 24; al-Majlisi, Bihar al-anwar (Beirut, 1403/1983), v. 78, p. 349 respectively.
28 Al-Fadil al-Tuni, al-Wafiya, p. 116.
29 For a brief overview of the difference between tanqih al-manat and qiyas, see Dahini, “Nazariyyat tanqih al-manat cinda l-imamiyya,” al-Ijtihad wa-l-tajdid 25 (1434/2012), pp. 181-206. Twelvers reject qiyas because the common factor between the original case and the new case is not known with certitude; however, if the common element is stated explicitly in a proof-text, then it is acceptable. See further Gleave, “Imami Shici Refutations of Qiyas,” in Studies in Islamic Legal Theory (Leiden, 2002), pp. 267292. What is noteworthy here is that Acraji reluctantly accepts al-Tuni’s explanation, indicating that if the ratio legis was not known with certitude, he would have considered it invalid qiyas.