The Shaykh, the Imam, the Eminent and the Pious, Shams al-A‘immah wa Fakhr al-Islam Abu Bakr Muhammad ibn Abi Sahl al-Sarakhsi (God, the Exalted, bless him) said:
The commentary of the core legal issues beginning with istiḥsān has ended up to buyū‘ (reciprocal exchange), supported by effective underlying concepts and transmitted reports, through the dictation of one who demands the removal (lifting) of the imposed injustice, one who has been exiled (imprisoned) because of it, a captive prevented from (contact with) his family, children and the gathered books, one who seeks his release through prayer in all humility, in the darkness of the night filled with sobs and tears, (and this) by linking it with prayer for the Chief of the Community (pbuh), for his Family and Companions (R), the pious and the devoted.
These are the terrifying words of the world’s greatest jurist written, towards the end of the 5th century of the Hijrah, in the dimly illuminated darkness of a gloomy prison cell in Uzjand (now in Kyrgyzstan). Terrifying they are for these are the words of an innocent and godly man condemned to live in a cell by a brutal and tyrannical warlord. The prison cell may have been dark and dreary but for a full fifteen years, every day and every night, it emitted a bright heavenly light that was to illuminate the whole world for all times to come. This glorious sun, the Shamsul A’immah as he was called, may have sobbed at night like any sensitive man, but he did not allow this to deter him from making an astounding contribution to the world of Islamic law from within the walls of his gloomy cell.
For all times to come we say, because he is like a majestic and fearless lion guarding the fortress of Islamic law against stealthy sneaking vultures and creeping reptiles, who are out to rob and destroy this treasure. He was the ultimate warrior, armed with the sword of truth and dedication, against all forms of tyranny and oppression, the symbol of valour in the face of intoxicated unfettered power. He was locked up in jail for 15 years for defying, in the cause of the Almighty, a tyrannical ruler of a brutal and horrifying regime. Looking at the sacrifices he made and the levels of excellence he attained, we can easily say that no ‘Alim alive is worthy of bearing his shoes, what to say of stepping into them, no modern judge is qualified for a seat outside his lecture window, no lawyer sharp enough to withstand the onslaught of his agile mind, no scholar capable enough to grapple with the expanse and intricate complexity of his brain. It will take tremendous effort on the part of these persons to attain the levels indicated.
We Muslims worship personalities, and our fascination with the personality is usually emotional. Our admiration for Shams al-A’immah Abu Bakr Muhammad ibn Abi Sahl al-Sarakhsi, however, is not emotional nor is it only due to all that has been said above. We admire him for had he been living in the present age, he would have been the foremost judge of the International Court of Justice or the Chief Justice of the United States Supreme Court, assuming that these are the best judges in the world today. No jurist, whatever the age, has ever matched the legal acumen of Imam al-Sarakhsi. It is not without reason that the governing rule in Islamic law is: “when in doubt, follow Sarakhsi.” Ibn ‘Abidin has confirmed this rule from the views of earlier well known jurists. This is no idle talk, for all this has been established by the great masters of the Ḥanafī school, again and again. Imam Abu Bakr al-Kasani, the great systematizer, is said to follow his great teacher al-Samarqandī, and he does so. Nevertheless, the bulk of his text can be traced back to al-Sarakhsī. Al-Hidāyah, by al-Marghinānī, is considered to be a masterpiece in Islamic law, but most people deem it a difficult book. To understand al-Marghīnānī’‘s text, all one has to do is to go to the book of his great great maternal grandfather, al-Sarakhsī. It has been happening for centuries. For the same reason, those who follow Sarakhsī understand Islamic law, those who do not, do not; it is as simple as that. Let us repeat: those who do not, do not; let the ulama’ take heed of these words. Those who study Western legal philosophy, and law, are often shocked to find that many of the modern legal theories are already discussed in al-Sarakhsī, but of course in a different way.
And, it appears that the learned Imam, by some intuitive power, is already aware of his lofty status. He does not hesitate to identify who the true jurist is, and openly declares what the crucial conditions are for the real jurist. He then points out that when all these are found to converge in the true jurist, he becomes unstoppable and his star is on the rise. Imam al-Sarakhsī’s star will ever be on the rise, as it has been since the day he was born; it appears to have been engraved in the Lawh Mahfuz. We should let the Imam speak for a while, for no one else’s words can have that magical effect on the text being discussed. It is as if we are listening to a powerful text of our own age. Introducing the famous letter written by Sayyidunā ‘Umar (God be pleased with him), the Imam says:
Know that adjudication based upon justice is among the strongest obligations, after faith in Allah (imān billahi), and it is the most noble of the acts of worship. It is for this function that Allah, the Exalted, associated the term khilāfah with Adam (peace be on him), and said: “I will create a vicegerent on earth.” He established authority for Dawud (peace be on him) and said, “O David! We did indeed make thee a vicegerent on earth: so judge thou between men in truth (and justice): nor follow thou the lust (of thy heart), for it will mislead thee from the Path of Allah: for those who wander astray from the Path of Allah, is a chastisement grievous, for that they forget the Day of Account.” He commanded each Prophet, that He sent, to do justice, until He sent the Seal of the Prophets (peace be on him) and said, “It was We who revealed the Torah (to Moses): therein was guidance and light, and by its standard judge the Prophets.” And Allah, the Exalted said, “Judge thou between them by what Allah hath revealed, and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) which Allah hath sent down to thee.” The reason is that a judgment based on the Truth is the manifestation of justice, and it is through justice that the heavens and the earth are maintained and injustice is removed. For justice calls out the reason of every reasonable man: for the seeking of fairness (inṣāf) for the victim of injustice from the oppressor; for the securing of the right for one to whom it belongs; and for the commanding of the good and condemnation of the reprehensible.
It is for justice that He sent the Prophets and the Messengers (God‘s peace and blessings on them all), and it is with justice that the Khulafa‘ Rashidun (God be pleased with them) were occupied. All that we have said is indicated by a tradition with which Imam Muhammad began his book (on Adab al-Qāḍī).
How beautifully he tells us that Islamic law is all about justice. Those who study Imam al-Sarakhsī’s text know that he does not only guide us on Islamic law, he helps us understand the difficult parts of Western law that we sometimes encounter. This may sound strange to some, but it is the truth. If you come to understand even a part of Sarakhsī’s work—for understanding the whole may need more than one lifetime—the study of Western law becomes easy. His Kitāb al-Uṣūl may be easily read for the interpretation of modern statutes. Thus, for example, in law there is still a debate about what is the ratio decidendi: facts, principle, rule, rationale, holding, what? What exactly is binding in a judgement? If you still do not understand, ask yourself what exactly is meant by the words, “to the extent that it decides a question of law or is based upon or enunciates a principle of law” in Articles 189 and 201 of the Constitution of Pakistan, 1973. If you really want to know, read al-Mabsūṭ. The entire al-Mabsūṭ is about the ratio decidendi. If only Muslims were to wake up and find out. Need we say more?
Many a times we notice that generations of jurists are saying one thing, which modern scholars often repeat without thinking, and then Imam al-Sarakhsī comes up with a unique and penetrating legal idea or observation that alters the entire way of thinking on the issue. Ask any student of law whether the maxim “al-umūru bi-maqāṣidihā” (Things depend on their intended objectives) is a valid and important principle, and without even thinking he will say “Yes!” Imam Sarakhsī, however, will very calmly state that the principle is “al-umūru bi-‘awāqibihā” (all affairs must be judged on the basis of their consequences). There is a world of a difference. What he then says after stating this maxim contains lessons for Bentham, the Realists and Sociological Jurisprudence. We can go on adding examples, but this is no way of studying Sarakhsī’s works; it should be done in a full academic ritual and with respect.
These few words of tribute about this great Imam are also a tribute to the Imams Abu Hanifah, Abu Yusuf, and of course Imam Muhammad whose glorious text he uses, and also a few other great names. Without these Imams, Sarakhsī would not be Sarakhsī; there is a whole chain of authority behind Imam Sarakhsī’s statements. The chain has come down to us, and its awesome power must be unleashed in its full glitter and glory in the present world. The goal will be to understand modern law through the lessons passed on to us by Imam al-Sarakhsī.