Development of Islamic Jurisprudence

CHAPTER I

The scope of jurisprudence among Muslims; the earliest elements in it, Arab custom, Jewish law, personality of Muhammad; his attitude toward law; elements after death of Muhammad; Qur’an, Usage of the Prophet, common law of al-Madina; conception of Sunna before Muhammad and after; traditions and their transmission; traditions in book form; influence of Umayyads; forgery of traditions; the Muwatta of Malik ibn Anas; the Musnad of Ahmad ibn Hanbal; the musannafs; al-Bukhari; Muslim; Ibn Maja; at-Tirmidhi; an-Nasa’i; al-Baghawi; the problem of the Muslim lawyers; their sources; Roman law; the influence of the doctrine of the Responsa prudentium; Opinion in Islam; the Law of Nature or Equity in Islam; istihsan; istislah; Analogy; the patriarchal period in Islam; the Umayyad period; the growth of the canon law.

In tracing the development of Muslim jurisprudence few of the difficulties are encountered which surrounded Sir Henry Maine when he first examined the origins and history of European law. We do not need to push our researches back to the primitive family, nor to work our way through periods of centuries guided by the merest fragments of documents and hints of usage. Our subject was born in the light of history; it ran its course in a couple of hundred years and has left at every important point[66] authoritative evidences of its whence, its how, and its whither. Our difficulties are different, but sufficiently great. Shortly, they are two. The mass of material is overpowering; the strangeness of the ideas involved is perplexing. The wealth of material will become plain, to some extent at least, as the history is traced; but for the strangeness of the contents, of the arrangement and the atmosphere of these codes some preparation must be given from the outset. How, indeed, can we meet a legal code which knows no distinction of personal or public, of civil or criminal law; which prescribes and describes the use of the toothpick and decides when a wedding invitation may be declined, which enters into the minutest and most unsavory details of family life and lays down rules of religious retreat? Is it by some subtle connection of thought that the chapter on oaths and vows follows immediately that on horse-racing, and a section on the building line on a street is inserted in a chapter on bankruptcy and composition? One thing, at least, is abundantly clear. Muslim law, in the most absolute sense, fits the old definition, and is the science of all things, human and divine. It tells what we must render to Cæsar and what to God, what to ourselves, and what to our fellows. The bounds of the Platonic definition of rendering to each man his due it utterly shatters. While Muslim theology defines everything that a man shall believe of things in heaven and in earth and beneath the earth—and this is no flat rhetoric—Muslim law prescribes everything that a man shall do to God, to his neighbor, and to himself. It takes all duty for its portion and defines all action in[67] terms of duty. Nothing can escape the narrow meshes of its net. One of the greatest legists of Islam never ate a watermelon because he could not find that the usage of the Prophet had laid down and sanctioned a canonical method of doing so.

SCOPE OF MUSLIM LAW

It will, therefore, be well for the student to work through the sketch of a code of Muslim law which is inserted in Appendix I. One has been chosen which belongs to the school of ash-Shafi‘i because of its general accessibility. It should be remembered that what is given is the merest table of contents. The standard Arabic commentary on the book extends to eight hundred and eleven closely printed quarto pages. Even a mere reading of this table of contents, however, will show in how different a sphere of thought from ours Muslim law moves and lives. But we must return to the beginning of things, to the egg from which this tremendous system was hatched.

The mother-city of Islam was the little town of Yathrib, called Madinat an-Nabi, the City of the Prophet, or, shortly, al-Madina, ever since the Hijra or Migration of Muhammad to it in the year 622 of the Christian era. Here the first Muslim state was founded, and the germinal principles of Muslim jurisprudence fixed. Both state and jurisprudence were the result of the inter-working of the same highly complicated causes. The ferments in the case may be classified and described as follows: First, in the town itself before the appearance of Muhammad on its little stage—little, but so momentous for the future—there were two parties, often at war, oftener at peace. There was a genuine Arab element and there was a large settlement of Jews. To the Arabs any conception of law was utterly foreign. An Arab tribe has no constitution; its system is one of individualism; the single man is a sovereign and no writ can lie against him; the tribe can cast him forth from its midst; it cannot otherwise coerce him. So stands the case now in the desert, and so it was then. Some slight hold there might be on the tribe through the fear of the tribal God, but on the individual Arab, always a somewhat cynical sceptic, that hold was of the slightest. Further, the avenging of a broken oath was left to the God that had witnessed the oath; if he did not care to right his client, no one else would interfere. There was customary law, undoubtedly, but it was protected by no sanction and enforced by no authority. If both parties chose to invoke it, well; if not, neither had anything to fear but the anger of his opponent. That law of custom we shall find again appearing in the system of Islam, but there it will be backed by the sanction of the wrath of God working through the authority of the state. The Jewish element was in a different case. They may have been Jewish immigrants, they may have been Jewish proselytes—many Arab tribes, we know, had gone over bodily to Judaism—but their lives were ruled and guided by Jewish law. To the primitive and divine legislation on Sinai there was an immense accretion by legal fiction and by usage; the Roman codes had left their mark and the customary law of the desert as well. All this was working in the life of the town when Muhammad and his little band of fugitives from Mecca entered it. Being Meccans,[69] they must have brought with them the more developed legal ideas of that trading centre; but these were of comparatively little account in the scale. The new and dominating element was the personality of Muhammad himself. His contribution was legislation pure and simple, the only legislation that has ever been in Islam. Till his death, ten years later, he ruled his community as an absolute monarch, as a prophet in his own right. He sat in the gate and judged the people. He had no need of a code, for his own will was enough. He followed the customary law of the town, as it has been described above, when it suited him, and when he judged that it was best. If not, he left it and there was a revelation. So the legislative part of the Qur’an grew out of such scraps sent down out of heaven to meet the needs of the squabbles and questions of the townsfolk of al-Madina. The system was one of pure opportunism; but of what body of legislation can that not be said? Of course, on the one hand, not all decisions were backed by a revelation, and Muhammad seems, on the other, to have made a few attempts to deal systematically with certain standing and constantly recurring problems—such, for example, as the conflicting claims of heirs in an estate, and the whole complicated question of divorce—but in general, the position holds that Muhammad as a lawyer lived from hand to mouth. He did not draw up any twelve tables or ten commandments, or code, or digest; he was there and the people could come and ask him questions when they chose, and that was enough. The conception of a rounded and complete system which will[70] meet any case and to which all cases must be adjusted by legal fiction or equity, the conception which we owe to the genius and experience of the Roman lawyers, was foreign to his thought. From time to time he got into difficulties. A revelation proved too wide or too narrow, or left out some important possibility. Then there came another to supplement or correct, or even to set the first quite aside—Muhammad had no scruples about progressive revelation as applied to himself. Thus, through these interpretive acts, as we may call them, many flat contradictions have come into the Qur’an and have proved the delight of generations of Muslim jurisconsults.

MUHAMMAD AS A LEGISLATOR

Such, then, was the state of things legal in al-Madina during the ten years of Muhammad’s rule there until his death in a.d. 632. Of law there was, strictly speaking, none. In his decisions, Muhammad could follow certainly the customary law of the town; but to do so there was no necessity upon him other than prudence, for his authority was absolute. Yet even with such authority and such freedom, his task was a hard one. The Jews, the native Arabs of al-Madina, and his fellow fugitives from Mecca lived in more or less of friction. He had to see to it that his decisions did not bring that friction to the point of throwing the whole community into a flame. The Jews, it is true, were soon eliminated, but the influence of their law lasted in the customary law of the town long after they themselves had become insignificant. Still, with all this, the suitor before Muhammad had no certainty on what basis his claims would be judged; whether it would be the old law of[71] the town, or a rough equity based on Muhammad’s own ideas, or a special revelation ad hoc. So far, then, we may be said to have the three elements—common law, equity, legislation. Legal fiction we shall meet later; Muhammad had no need of it.

QUR’AN; USAGE OF MUHAMMAD

But with the death of Muhammad in a.d. 632 the situation was completely changed. We can now speak of Muslim law; legislation plays no longer any part; the process of collecting, arranging, correlating, and developing has begun. Consider the situation as it must have presented itself to one of the immediate successors of Muhammad, as he sat in his place and judged the people. When a case came up for decision, there were several sources from which a law in point might be drawn. First among them was the Qur’an. It had been collected from the fragmentary state in which Muhammad had left it by Abu Bakr, his second Khalifa, some two years after his death. Again, some ten years later, it was revised and given forth in a final public recension by Uthman, the third Khalifa. This was the absolute word of God—thoughts and language—and stood and, in theory, still stands first of all sources for theology and law. If it contained a law clearly applying to the case in hand, there was no more to be said; divine legislation had settled the matter. If not, recourse was next had to the decisions of the Prophet. Had a similar one come before him, and how had he ruled? If the memories of the Companions of the Prophet, the Sahibs, could adduce nothing similar from one of his decisions, then the judge had to look further for an authority. But the decisions of Muhammad had[72] been many, the memories of his Companions were capacious, and possessed further, as we must recognize with regret, a constructive power that helped the early judges of Islam out of many close corners. But if tradition even—true or false—finally failed, then the judge fell back on the common law of al-Madina, that customary law already mentioned. When that, too, failed, the last recourse was had to the common-sense of the judge—roughly, what we would call equity. At the beginning, therefore, of Muslim law, it had the following sources—legislation, the usage of Muhammad, the usage of al-Madina, equity. Naturally, as time went on and the figure of the founder drew back and became more obscure and more venerated, equity fell gradually into disuse; a closer search was made for decisions of that founder which could in any way be pressed into service; a method of analogy, closely allied to legal fiction, was built up to assist in this, and the development of Muslim jurisprudence as a system and a science was fairly begun. Further, in later times, the decisions of the first four Khalifas and the agreement (ijma) of the immediate Companions of Muhammad came to assume an importance only second to that of Muhammad himself. Later still, as a result of this, the opinion grew up that a general agreement of the jurisconsults of any particular time was to be regarded as a legitimate source of law. But we must return to consider our subject more broadly and in another field.

LEGAL CLASSES OF ACTIONS

The fact has already been brought out that the sphere of law is much wider in Islam than it has ever[73] been with us. By it all the minutest acts of a Muslim are guarded. Europe, also, passed through a stage similar to this in its sumptuary laws; and the tendency toward inquisitorial legislation still exists in America, but not even the most mediævally minded American Western State has ventured to put upon its statute-book regulations as to the use of the toothpick and the wash-cloth. Thus, the Muslim conception of law is so wide as to reach essential difference. A Muslim is told by his code not only what is required under penalty, but also what is either recommended or disliked though without reward or penalty being involved. He may certainly consult his lawyer, to learn how near the wind he can sail without unpleasant consequences; but he may also consult him as his spiritual director with regard to the relative praiseworthiness or blameworthiness of classes of actions of which our law takes no cognizance. In consequence, actions are divided by Muslim canon lawyers (faqihs) into five classes. First, necessary (fard or wajib); a duty the omission of which is punished, the doing rewarded. Secondly, recommended (mandub or mustahabb); the doing is rewarded, but the omission is not punished. Thirdly, permitted (ja’iz or mubah); legally indifferent. Fourthly, disliked (makruh); disapproved by the law, but not under penalty. Fifthly, forbidden (haram); an action punishable by law. All this being so, it will be easily understood that the record of the manners and customs of the Prophet, of the little details of his life and conversation, came to assume a high importance. Much of that was too petty ever[74] to reach expression in the great digests of law; not even the most zealous fixer of life by rule and line would condemn his fellow-religionist because he preferred to carry a different kind of walking-stick from that approved by the Prophet, or found it fitting to arrange his hair in a different way. But still, all pious Muslims paid attention to such things, and fenced their lives about with the strictest Prophetic precedent.

SUNNA; HADITH

In consequence of this, there early arose in Islam a class of students who made it their business to investigate and hand down the minutest details as to the habits of Muhammad. This was a separate thing from the study of law, although fated to be eventually connected with it. Even in the time of the Jahiliya—the period before Islam, variously explained as the ignorance or as the rudeness, uncivilizedness—it had been a fixed trait of the Arab mind to hold closely to old paths. An inherent conservatism canonized the sunna—custom, usage—of the ancients; any stepping aside from it was a bid‘a—innovation—and had to win its way by its merits, in the teeth of strong prejudice. With the coming of Muhammad and the preaching of Islam, this ancestral sunna had in great part to yield. But the temper of the Arab mind remained firm, and the sunna of Muhammad took its place. Pious Muslims did not say, “Such was the usage of our fathers, and it is mine;” but, “I follow the usage of the Prophet of God.” Then, just as the old sunna of the heathen times had expressed itself through the stories of great warriors, of their battles and loves; through anecdotes of wise men, and their keen and[75] eloquent words; so it was with the sunna of the one man, Muhammad. What he said, and what he did; what he refrained from doing; what he gave quasi-approval to by silence; all was passed on in rapidly increasing, pregnant little narratives. First, his immediate Companions would note, either by committing to memory or to a written record, his utterances and table-talk generally. We have evidence of several such Boswells, who fixed his words as they fell. Later, probably, would come notes of his doings and his customs, and of all the little and great happenings of the town. Above all, a record was being gathered of all the cases judged by him, and of his decisions; of all the answers which he gave to formal questions on religious life and faith. All this was jotted down by the Companions on sahifas—odd sheets—just as they had done in the Ignorance with the proverbs of the wise and their dark sayings. The records of sayings were called hadiths; the rest, as a whole, sunna—custom, for its details was used the plural, sunan—customs. At first, each man had his own collection in memory or in writing. Then, after the death of the Prophet and when his first Companions were dropping off, these collections were passed on to others of the second generation. And so the chain ran on and in time a tradition came to consist formally of two things—the text or matter (matn) so handed on, and the succession (isnad) over whose lips it had passed. A said, “There narrated to me B, saying, ‘There narrated to me C, saying,’” so far the isnad, until the last link came, and the matn, the Prophet of God said,[76] “Some of my injunctions abrogate others,” or “The Jann were created of a smokeless flame,” or whatever it might be. What has just been said suggests that it was at first indifferent whether traditions were preserved orally or in writing. That is true of the first generation; but it must be remembered at the same time, that the actual passing on was oral; the writing merely aided the memory to hold that which was already learned. But with time, and certainly by the middle of the second century of the Hijra, two opposing tendencies in this respect had developed. Many continued to put their trust in the written word, and even came to pass traditions on without any oral communication. But for others there lay grave dangers in this. One was evidently real. The unhappy character of the Arabic script, especially when written without diacritical points, often made it hard, if not practically impossible, to understand such short, contextless texts as the traditions. A guide was necessary to show how the word should be read, and how understood. At the present time a European scholar will sometimes be helpless before even a fully vocalized text, and must take refuge in native commentaries or in that oral tradition, if it still exists and he has access to it, which supplies at least a third of the meaning of an Arabic book. Strengthening this came theological reasons. The words of the Prophet would be profaned if they were in a book. Or, again, they would be too much honored and the Qur’an itself might be neglected. This last fear has been justified to a certain extent by the event. On these grounds, and many more,[77] the writing and transmitting in writing of traditions came to be fiercely opposed; and the opposition continued, as a theological exercise, long after many books of traditions were in existence, and after the oral transmission had become the merest farce and had even frankly dropped out.

TRADITIONS IN LITERATURE

It is to the formation of these books of traditions, or, as we might say, traditions in literature, that we must now turn. For long, the fragmentary sahifas and private collections made by separate scholars for their own use sufficed. Books dealing with law (fiqh) were written before there were any in that department of literature called hadith. The cause of this is tolerably plain. Law and treatises of law were a necessity for the public and thus were encouraged by the state. The study of traditions, on the other hand, was less essential and of a more personal and private nature. Further, under the dynasty of the Umayyads, who reigned from a.h. 41 to a.h. 132, theological literature was little encouraged. They were simple heathen in all but name, and belonged, and recognized that they belonged, not to Islam but to the Jahiliya. For reasons of state, they encouraged and spread—also freely forged and encouraged others to forge—such traditions as were favorable to their plans and to their rule generally. This was necessary if they were to carry the body of the people with them. But they regarded themselves as kings and not as the heads of the Muslim people. This same device has been used after them by all the contending factions of Islam. Each party has sought sanction for its views by representing them in traditions[78] from the Prophet, and the thing has gone so far that on almost every disputed point there are absolutely conflicting prophetic utterances in circulation. It has even been held, and with some justification, that the entire body of normative tradition at present in existence was forged for a purpose. With this attitude of the Umayyads we shall have to deal at greater length later. It is sufficient now to note that the first real appearance of hadith in literature was in the Muwatta of Malik ibn Anas who died in a.h. 179.

Yet even this appearance is not so much of hadith for its own sake, as of usages bearing upon law and of the law that can be drawn from these usages. The book is a corpus iuris not a corpus traditionum. Its object was not so much to separate from the mass of traditions in circulation those which could be regarded as sound of origin and to unite them in a formal collection, as to build up a system of law based partly on tradition. The previous works dealing with law proper had been of a speculative character, had shown much subjective reliance on their own opinion on the part of the writers and had drawn little from the sacred usage of the Prophet and quoted few of his traditional sayings. Against that the book of Malik was a protest and formed a link between such law books pure and the collections of traditions pure with which we now come to deal.

THE MUSNADS

To Malik the matn, or text, of a tradition had been the only thing of importance. To the isnad, or chain of authority running back to the Prophet, he had paid little attention. He, as we have seen, was[79] a lawyer and gathered traditions, not for their own sake but to use them in law. To others, the tradition was the thing, and too much care could not be given to its details and its authenticity. And the care was really called for. With the course of time and the growing demand, the supply of traditions had also grown until there was no doubt in the mind of anyone that an enormous proportion were simple forgeries. To weed out the sound ones, attention had to be given to the isnad; the names upon it had to be examined; the fact of their having been in intercourse to be determined; the possibility of the case in general to be tested. Thus there were formed real collections of supposedly sound traditions, which were called Musnads, because each tradition was musnad—propped, supported—against the Companions from whom it proceeded. In accordance with this also they were arranged according to the Companions. After the name of the Companion were given all the traditions leading back to him. One of the earliest and greatest of these books was the Musnad of Ahmad ibn Hanbal, who died a.h. 241; of him more hereafter. This book has been printed recently at Cairo in six quarto volumes of 2,885 pages and is said to contain about thirty thousand traditions going back to seven hundred Companions.

But another type of tradition-book was growing up, less mechanical in arrangement. It is the Musannaf, the arranged, classified—and in it the traditions are arranged in chapters according to their subject matter. The first Musannaf to make a permanent mark was the Sahih—sound—of al-Bukhari, who[80] died in a.h. 257. It is still extant and is the most respected of all the collections of traditions. The principle of arrangement in it is legal; that is, the traditions are classified in these chapters so as to afford bases for a complete system of jurisprudence. Al-Bukhari was a strong opponent of speculative law and his book was thus a protest against a tendency which, as we shall see later, was strong in his time. Another point in which al-Bukhari made his influence felt and with greater effect, was increased severity in the testing of traditions. He established very strict laws, though of a somewhat mechanical kind, and was most scrupulous in applying them. His book contains about seven thousand traditions, and he chose those, so at least runs the story, out of six hundred thousand which he found in circulation. The rest were rejected as failing to meet his tests. How far the forgery of traditions had gone may be seen from the example of Ibn Abi Awja, who was executed in a.h. 155, and who confessed that he had himself put into circulation four thousand that were false. Another and a similar Sahih is that of Muslim, who died in a.h. 261. He was not so markedly juristic as al-Bukhari. His object was rather to purify the mass of existing tradition from illegitimate accretions than to construct a basis for a complete law code. He has prefixed a valuable introduction on the science of tradition generally. In some slight details his principle of criticism differed from that of al-Bukhari.

These two collections, called the two Sahihs—as-Sahihan—are technically jami‘s, i.e. they contain all[81] the different classes of traditions, historical, ethical, dogmatic and legal. They have also come to be, by common agreement, the two most honored authorities in the Muslim world. A believer finds it hard, if not impossible, to reject a tradition that is found in both.

THE SUNAN

But there are four other collections which are called Sunan—Usages—and which stand only second to the two Sahihs. These are by Ibn Maja (d. 303), Abu Da’ud as-Sijistani (d. 275), at-Tirmidhi (d. 279) and an-Nasa’i (d. 303). They deal almost entirely with legal traditions, those that tell what is permitted and what is forbidden, and do not convey information on religious and theological subjects. They are also much more lenient in their criticisms of dubious traditions. To work exclusion with them, the rejection needed to be tolerably unanimous. This was required by their stand-point and endeavor, which was to find a basis for all the minutest developments and details of jurisprudence, civil and religious.

These six books, the two Sahihs and the four Sunans, came to be regarded in time as the principal and all-important sources for traditional science. This had already come about by the end of the fifth century, although even after that voices of uncertainty continued to make themselves heard. Ibn Maja seems to have been the last to secure firm footing, but even he is included by al-Baghawi (d. 516) in his Masabih as-sunna, an attempted epitome into one book of what was valuable in all. Still, long after that, Ibn Khaldun, the great historian (d. 808), speaks of five fundamental works; and others speak of[82] seven, adding the Muwatta of Malik to the six above. Others, again, especially in the West, extended the number of canonical works to ten, though with varying members; but all these must be regarded as more or less local, temporary, and individual eccentricities. The position of the six stands tolerably firm.

So much it has been necessary to interpolate and anticipate with regard to the students of tradition whose interest lay in gathering up and preserving, not in using and applying. From the earliest time, then, there existed these two classes in the bosom of Islam, students of tradition proper and of law proper. For long they did not clash; but a collision was inevitable sooner or later.

Yet, if the circle of the Muslim horizon had not widened beyond the little market-town of al-Madina, that collision might have been long in coming. Its immediate causes were from without, and are to be found in the wave of conquest that carried Islam, within the century, to Samarqand beyond the Oxus and to Tours in central France. Consider what that wave of conquest was and meant. Within fourteen years of the Hijra, Damascus was taken, and within seventeen years, all Syria and Mesopotamia. By the year 21, the Muslims held Persia; in 41 they were at Herat, and in 56 they reached Samarqand. In the West, Egypt was taken in the year 20; but the way through northern Africa was long and hard. Carthage did not fall till 74, but Spain was conquered with the fall of Toledo in 93. It was in a.d. 732, the year of the Hijra 114, that the wave at last was[83] turned and the mercy of Tours was wrought by Charles the Hammer; but the Muslims still held Narbonne and raided in Burgundy and the Dauphiné. The wealth that flowed into Arabia from these expeditions was enormous; money and slaves and luxuries of every kind went far to transform the old life of hardness and simplicity. Great estates grew up: fortunes were made and lost; the intricacies of the Syrian and Persian civilizations overcame their conquerors. All this meant new legal conditions and problems. The system that had sufficed to guard the right to a few sheep or camels had to be transformed before it would suffice to adjust the rights and claims of a tribe of millionnaires. But it must not be thought that these expeditions were only campaigns of plunder. With the Muslim armies everywhere went law and justice, such as it was. Jurists accompanied each army and were settled in the great camp cities which were built to hold the conquered lands. Al-Basra and al-Kufa and Fustat, the parent of Cairo, owe their origin to this, and it was in these new seats of militant Islam that speculative jurisprudence arose and moulded the Muslim system.

RISE OF SPECULATIVE JURISPRUDENCE

The early lawyers had much to do and much to learn, and it is to their credit that they recognized both necessities. Muslim law is no product of the desert or of the mind of Muhammad, as some have said; but rather of the labor of these men, struggling with a gigantic problem. They might have taken their task much more easily than they did; they might have lived as Muhammad had done, from hand to mouth, and have concealed their own sloth[84] by force and free invention of authorities. But they recognized their responsibility to God and man and the necessity of building up a stable and complete means of rendering justice. These armies of Muslims, we must remember, were not like the hordes of Attila or Chingis Khan, destroyers only. The lands they conquered were put to hard tribute, but it was under a reign of law. They recognized frankly that it was for them that this mighty empire existed; but they recognized also that it could continue to exist only with order and duty imposed upon all. They saw, too, how deficient was their own knowledge and learned willingly of the people among whom they had come. And here, a second time, Roman law—the parent-law of the world—made itself felt. There were schools of that law in Syria at Cæsarea and Beyrout, but we need not imagine that the Muslim jurists studied there. Rather, it was the practical school of the courts as they actually existed which they attended. These courts were permitted to continue in existence till Islam had learned from them all that was needed. We can still recognize certain principles that were so carried over. That the duty of proof lies upon the plaintiff, and the right of defending himself with an oath upon the defendant; the doctrine of invariable custom and that of the different kinds of legal presumption. These, as expressed in Arabic, are almost verbal renderings of the pregnant utterances of Latin law.

RESPONSA PRUDENTIUM; OPINION

But most important of all was a liberty suggested by that system to the Muslim jurisconsults. This was through the part played in the older school by the[85] Responsa Prudentium, answers by prominent lawyers to questions put to them by their clients, in which the older law of the Twelve Tables was expounded, expanded, and often practically set aside by their comments. Sir Henry Maine thus states the situation: “The authors of the new jurisprudence, during the whole progress of its formation, professed the most sedulous respect for the letter of the code. They were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by placing texts together, by adjusting the law to states of fact which actually presented themselves, and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamt of by the compilers of the Twelve Tables, and which were in truth rarely or never to be found there.” All this precisely applies to the development of law in Islam.

EQUITY; LEGAL FICTION

The part of the Twelve Tables was taken by the statute law of the Qur’an and the case law derived from the Usage of Muhammad; that of the Roman Iurisprudentes by those speculative jurists who worked mostly outside of al-Madina in the camp cities of Mesopotamia and Syria—the very name for lawyer in Arabic, faqih, plural fuqaha, is a translation of prudens, prudentes; and that of the Responsa, the answers, by the “Opinion” which they claimed as a legitimate legal method and source. Further, the validity of a general agreement of jurisconsults “reminds us of the rescript of Hadrian, which ordains[86] that, if the opinions of the licensed prudentes all agreed, such common opinion had the force of statute; but if they disagreed, the judge might follow which he chose.” The Arabic term, ra’y, here rendered Opinion, has passed through marked vicissitudes of usage. In old Arabic, before it, in the view of some, began to keep bad company, it meant an opinion that was thoughtful, weighed and reasonable, as opposed to a hasty dictate of ill-regulated passion. In that sense it is used in a tradition—probably forged—handed down from Muhammad. He was sending a judge to take charge of legal affairs in al-Yaman, and asked him on what he would base his legal decisions. “On the Qur’an,” he replied. “But if that contains nothing to the purpose?” “Then upon your usage.” “But if that also fails you?” “Then I will follow my own opinion.” And the Prophet approved his purpose. A similar tradition goes back to Umar, the first Khalifa, and it, too, is probably a later forgery, written to defend this source of law. But, with the revolt against the use of Opinion, to which we shall soon come, the term itself fell into grave disrepute and came to signify an unfounded conclusion. In its extremest development it went beyond the Responsa, which professed always to be in exact accord with the letter of the older law, and attained to be Equity in the strict sense; that is, the rejection of the letter of the law for a view supposed to be more in accordance with the spirit of justice itself. Thus, Equity, in the English sense, is the law administered by the Court of Chancery and claims, in the words again of Sir Henry Maine, to[87] “override the older jurisprudence of the country on the strength of an intrinsic ethical superiority.” In Roman law, as introduced by the edict of the Prætor, it was the law of Nature, “the part of law ‘which natural reason appoints for all mankind.’” This is represented in Islam under two forms, covered by two technical terms. The one is that the legist, in spite of the fact that the analogy of the fixed code clearly points to one course, “considers it better” (istihsan) to follow a different one; and the other is that, under the same conditions, he chooses a free course “for the sake of general benefit to the community” (istislah). Further scope of Equity Muslim law never reached, and the legitimacy of these two developments was, as we shall see, bitterly contested. The freedom of opinion, with its possibility of a system of Equity, had eventually to be given up, and all that was left in its place was a permissibility of analogical deduction (qiyas), the nearest thing to which in Western law is Legal Fiction. In a word, the possibility of development by Equity was lost, and Legal Fiction entered in its place. But this anticipates, and we must return to the strictly historical movement.

During the first thirty years after the death of Muhammad—the period covered by the reigns of the four theocratic rulers whom Islam still calls “the Four Just, or Rightly Guided Khalifas” (al-Khulafa ar-rashidun)—the two twin studies of tradition (hadith) and of law (fiqh) were fostered and encouraged by the state. The centre of that state was still in al-Madina, on ground sacred with the memories of[88] the Prophet, amid the scenes where he had himself been lord and judge, and under the conditions in which his life as ruler had been cast. All the sources, except that of divine revelation, which had been open to him, were open to his successors and they made full use of all. Round that mother-hearth of Islam was still gathered the great body of the immediate Companions of Muhammad, and they formed a deliberative or consulting council to aid the Khalifa in his task. The gathering of tradition and the developing of law were vital functions; they were the basis of the public life of the state. This patriarchal period in Muslim history is the golden age of Islam. It ended with the death of Ali, in the year 40 of the Hijra, and the succession of Mu‘awiya in the following year. “For thirty years,” runs a tradition from the Prophet, “my People will tread in my Path (sunna); then will come kings and princes.”

GROWTH OF CANON LAW

And so it was; Mu‘awiya was the first of the Umayyad dynasty and with him and them Islam, in all but the name, was at an end. He and they were Arab kings of the old type that had reigned before Muhammad at al-Hira and Ghassan, whose will had been their law. The capital of the new kingdom was Damascus; al-Madina became a place of refuge, a Cave of Adullam, for the old Muslim party. There they might spin theories of state and of law, and lament the good old days; so long as there was no rebellion, the Umayyads cared little for those things or for the men who dreamt them. Once, the Umayyads were driven to capture and sack the holy city, a horror in Islam to this day. After that there was peace, the peace[89] of the accomplished fact. This is the genuinely Arab period in the history of Islam. It is a period full of color and light and life; of love and song, battle and feasting. Thought was free and conduct too. The great theologian of the Greek Church, John of Damascus, held high office at the Umayyad court, and al-Akhtal, a Christian at least in name, was their poet laureate. It is true that the stated services of religion were kept up and on every Friday the Khalifa had to entertain the people by a display of eloquence and wit in the weekly sermon. But the old world was dead and the days of its unity would never come again. So all knew, except the irreconcilable party, the last of the true Muslims who still haunted the sacred soil of al-Madina and labored in the old paths. They gathered the traditions of the Prophet; they regulated their lives more and more strictly by his usage; they gave ghostly council to the pious who sought their help; they labored to build up elaborate systems of law. But it was all elaboration and hypothetical purely. There was in it no vitalizing force from practical life.

From this time on Muslim law has been more or less in the position held by the canon law of the Roman Church in a country that will not recognize it yet dares not utterly reject it. The Umayyads were statesmen and opportunists; they lived, in legal things, as much from hand to mouth as Muhammad had done. He cut all knots with divine legislation; they cut them with the edge of their will. Under them, as under him, a system of law was impossible. But at the same time, in quiet and in secret, this[90] canon law of Islam was slowly growing up, slowly rounding into full perfection of detailed correlation. It was governing absolutely the private lives of all the good Muslims that were left, and even the godless Umayyads, as they had to preach on Fridays to the People of Muhammad, so they had to deal with it cautiously and respectfully. Of the names and lives of these obscure jurists little has reached us and it is needless to give that little here. Only with the final fall of the Umayyads, in the year of the Hijra 132, do we come into the light and see the different schools forming under clear and definite leaders.

CHAPTER II

The Abbasid revolution; the compromise; the problem of the Abbasids; the two classes of canon lawyers and theologians; the rise of legal schools; Abu Hanifa; his application of Legal Fiction; istihsan; the Qadi Abu Yusuf; Muhammad ibn al-Hasan; Sufyan ath-Thawri; al-Awza‘i; Malik ibn Anas; the Usage of al-Madina; istislah; the doctrine of Agreement; the beginning of controversy; traditionalists or historical lawyers versus rationalists or philosophical lawyers; ash-Shafi‘i, a mediator and systematizer; the Agreement of the Muslim people a formal source; “My People will never agree in an error;” the resultant four sources, Qur’an, Usage, Analogy, Agreement; the traditionalist revolt; Da’ud az-Zahiri and literalism; Ahmad ibn Hanbal; the four abiding schools; the Agreement of Islam; the Disagreement of Islam; iurare in verba magistri; the degrees of authority; the canon and the civil codes in Islam; their respective spheres; distribution of schools at present day; Shi‘ite law; Ibadite law.

That great revolution which brought the Abbasid dynasty to power seemed at first to the pious theologians and lawyers to be a return of the old days. They dreamt of entering again into their rights; that the canon law would be the full law of the land. It was only slowly that their eyes were opened, and many gave up the vain contest and contented themselves with compromise. This had been rare under the Umayyads; the one or two canon lawyers who had thrown in their lot with them had been marked men. Az-Zuhri (d. 124), a man of the highest moral and theological reputation who played a very important[92] part in the first codifying of traditions, was one of these, and the later pious historians have had hard work to smooth over his connection with the impious Umayyads. Probably—it may be well to say here—the stories against the Umayyads have been much heightened in color by their later tellers and also az-Zuhri, being a man of insight and statesmanship, may have recognized that their rule was the best chance for peace in the country. Muslims have come generally to accept the position that unbelief on the part of the government, if the government is strong and just, is better than true belief and anarchy. This has found expression, as all such things do, in traditions put in the mouth of the Prophet.

THE PROBLEM OF THE ABBASIDS

But while only a few canonists had taken the part of the Umayyads, far more accepted the favors of the Abbasids, took office under them and worked in their cause. The Abbasids, too, had need of such men. It was practically the religious sentiment of the people that had overthrown the Umayyads and raised them to power; and that religious sentiment, though it could never be fully satisfied, must yet be respected and, more important still, used. There is a striking parallel between the situation then, and that of Scotland at the Revolution Settlement of 1688. The power of the Stuarts—that is, of the worldly Umayyads—had been overthrown. The oppressed Church of the Covenant—that is, the old Muslim party—had been freed. The state was to be settled upon a new basis. What was that basis to be? The Covenanting party demanded the recognition of the Headship of Christ—that the Kirk should rule the state, or should be the state, and that all other religious views should be put under penalty. The old Muslim party looked for similar things. That religious life should be purified; that the canon law should be again the law of the state; that the constitution of Umar should be restored. How the Covenanters were disappointed, how much they got and how much they failed to get, needs no telling here.

Exactly in the same way it befell the old Muslims. The theological reformation was sweeping and complete. The first Abbasids were pious, at least outwardly; the state was put upon a pious footing. The canon law also was formally restored, but with large practical modifications. Canon lawyers were received into the service of the state, provided they were adaptable enough. Impossible men had no place under the Abbasids; their officials must be pliable and dexterous, for a new modus vivendi was to be found. The rough and ready Umayyad cutting of the knot had failed; the turn had now come for piety and dexterity in twisting law. The court lawyers learned to drive a coach and four through any of the old statutes, and found their fortunes in their brains. So the issue was bridged. But a large party of malcontents was left, and from this time on in Islam the lawyers and the theologians have divided into two classes, the one admitting, as a matter of expediency, the authority of the powers of the time and aiding them in their task as rulers; the other, irreconcilable and unreconciled, denouncing the state as sunk in unbelief and deadly sin and its lawyers as traitors to the cause of religion. To pursue our parallel, they are represented in Scotland by a handful of Covenanting congregations and in America by the much more numerous and powerful Reformed Presbyterian Church.

It is a significant fact that with the lifting of the Umayyad pressure and the encouragement of legal studies—such as it was—by the Abbasids, definite and recognized schools of law began to form. What had so long been in process in secret became public, and its results crystallized under certain prominent teachers. We will now take up these schools in the order of the death dates of their founders; we will establish their principles and trace their histories. We shall find the same conceptions recurring again and again which have already been brought out, Qur’an, tradition (hadith), agreement (ijma), opinion (ra’y), analogy (qiyas), local usage (urf), preference (istihsan), in the teeth of the written law—till at length, when the battle is over, the sources will have limited themselves to the four which have survived to the present day—Qur’an, tradition, agreement, analogy. And, similarly, of the six schools to be mentioned, four only will remain to the present time, but these of equal rank and validity in the eyes of the Believers.

ABU HANIFA

The Abbasids came to power in the year of the Hijra 132, and in 150 died Abu Hanifa, the first student and teacher to leave behind him a systematic body of teaching and a missionary school of pupils. He was a Persian by race, and perhaps the most distinguished example of the rule that Muslim scientists and thinkers might write in Arabic but were seldom[95] of Arab blood. He does not seem to have held office as a judge or to have practised law at all. He was, rather, an academic student, a speculative or philosophical jurist we might call him. His system of law, therefore, was not based upon the exigencies of experience; it did not arise from an attempt to meet actual cases. We might say of it, rather, but in a good sense, that it was a system of casuistry, an attempt to build up on scientific principles a set of rules which would answer every conceivable question of law. In the hands of some of his pupils, when applied to actual facts, it tended to develop into casuistry in a bad sense; but no charge of perverting justice for his own advantage seems to have been brought against Abu Hanifa himself. His chief instruments in constructing his system were opinion and analogy. He leaned little upon traditions of the usage of Muhammad, but preferred to take the Qur’anic texts and develop from them his details. But the doing of this compelled him to modify simple opinion—equivalent to equity as we have seen—and limit it to analogy of some written statute (nass). He could hardly forsake a plain res iudicata of Muhammad, and follow his own otherwise unsupported views, but he might choose to do so if he could base it on analogy from the Qur’an. Thus, he came to use what was practically legal fiction. It is the application of an old law in some sense or way that was never dreamt of by the first imposer of the law, and which may, in fact, run directly counter to the purpose of the law. The fiction is that it is the original law that is being observed, while, as a matter of fact, there[96] has come in its place an entirely different law. So Abu Hanifa would contend that he was following the divine legislation of the Qur’an, while his adversaries contended that he was only following his own opinion.

But if, on the one hand, he was thus limited from equity to legal fiction, on another he developed a new principle of even greater freedom. Reference has already been made to the changes which were of necessity involved in the new conditions of the countries conquered by the Muslims. Often the law of the desert not only failed to apply to town and agricultural life; it was even directly mischievous. On account of this, a consideration of local conditions was early accepted as a principle, but in general terms. These were reduced to definiteness by Abu Hanifa under the formula of “holding for better” (istihsan). He would say, “The analogy in the case points to such and such a rule, but under the circumstances I hold it for better to rule thus and thus.”

THE QADI ABU YUSUF

This method, as we shall see later, was vehemently attacked by his opponents, as was his system in general. Yet that system by its philosophical perfection—due to its theoretical origin—and perfection in detail—due to generations of practical workers—has survived all attack and can now be said to be the leading one of the four existing schools. No legal writings of Abu Hanifa have reached us, nor does he seem to have, himself, cast his system into a finished code. That was done by his immediate pupils, and especially by two, the Qadi Abu Yusuf, who died in 182, and Muhammad ibn al-Hasan, who died in 189. The first was consulting lawyer and chief Qadi to the great Khalifa Harun ar-Rashid, and, if stories can be believed, proved himself as complaisant of conscience as a court casuist need be. Innumerable are the tales afloat of his minute knowledge of legal subtleties and his fertility of device in applying them to meet the whims of his master, Harun. Some of them have found a resting place in that great mirror of mediæval Muslim life, The Thousand and One Nights; reference may be made to Night 296. Through his influence, the school of Abu Hanifa gained an official importance which it never thereafter lost. He wrote for Harun a book which we have still, on the canon law as applied to the revenues of the state, a thorny and almost impossible subject, for the canon law makes really no provision for the necessary funds of even a simple form of government and much less for such an array of palaces and officials as had grown up around the Abbasids. His book is marked by great piety in expression and by ability of the highest kind in reconciling the irreconcilable.

But all the canon lawyers did not fall in so easily with the new ways. Many found that only in asceticism, in renunciation of the world and engaging in pious exercises was there any chance of their maintaining the old standards in a state that was for them based on oppression and robbery. One of these was Sufyan ath-Thawri, a lawyer of high repute, who narrowly missed founding a separate school of law and who died in 161. There has come down to us a correspondence between him and Harun, which, though it cannot possibly be genuine, throws much light on the disappointment of the sincerely[98] religious section. Harun writes on his accession to the Khalifate (170), complaining that Sufyan had not visited him, in spite of their bond of brotherhood, and offering him wealth from the public treasury. Sufyan replied, denouncing such use of public funds and all the other uses of them by Harun—many enough—except those precisely laid down in the codes. On the basis of these, Harun would have had to work for his own living. There are also other denunciations for crimes in the ruler which he punished in others. Harun is said to have kept the letter and wept over it at intervals, but no change of life on his part is recorded. Apparently, with the accession of the Abbasids ascetic and mystical Islam made a great development. It became plain to the pious that no man could inherit both this world and the next.

While Abu Hanifa was developing his system in Mesopotamia, al-Awza‘i was working similarly in Syria. He was born at Baalbec, lived at Damascus, and at Beyrout where he died in 157. Of him and his teaching we know comparatively little. But so far it is clear that he was not a speculative jurist of the same type as Abu Hanifa, but paid especial attention to traditions. At one time his school was followed by the Muslims of Syria and the entire West to Morocco and Spain. But its day was a short one. The school of Abu Hanifa, championed by Abu Yusuf with his tremendous influence as chief Qadi of the Abbasid empire, pushed it aside, and at the present day it has no place except in history. For us, its interest is that of another witness to the early[99] rise and spread of systems of jurisprudence outside of Arabia.

MALIK IBN ANAS

In a.h. 179, three years before the death of Abu Yusuf and twenty-nine after that of Abu Hanifa, there died at al-Madina the founder and head of an independent school of a very different type. This was Malik ibn Anas, under whose hands what we may call, for distinction, the historical school of al-Madina took form. Al-Madina, it will be remembered, was the mother-city of Muslim law. It was the special home of the traditions of the Prophet and the scene of his legislative and judicial life. Its pre-Islamic customary law had been sanctioned, in a sense, by his use. It had been the capital of the state in its purest days. From the height of all these privileges its traditionists and lawyers looked down upon the outsiders and parvenus who had begun to intermeddle in sacred things.

But it must not be thought that this school was of a rigid traditionism. The case was quite the reverse, and in many respects it is hard to make a distinction between it and that of Abu Hanifa. Its first source was, of necessity, the Qur’an. Then came the usage of the Prophet. This merged into the usage of the Successors of the Prophet and the unwritten custom of the town. It will be seen that here the historical weight of the place came to bear. No other place, no other community, could furnish that later tradition with anything like the same authority. Further, Malik ibn Anas was a practical jurist, a working judge. He was occupied in meeting real cases from day to day. When he sat in public and judged the people, or[100] with his pupils around him and expounded and developed the law, he could look back upon a line of canon lawyers who had sat in his place and done as he was doing. In that lies the great difference. He was in practical touch with actual life; that was one point; and, secondly, he was in the direct line of the apostolic succession, and in the precise environment of the Prophet. So when he went beyond Qur’an, prophetic usage, agreement, and gave out decisions on simple opinion, the feeling of the community justified him. It was a different thing for Malik ibn Anas, sitting there in state in al-Madina, to use his judgment, than for some quick-brained vagabond of a Persian or Syrian proselyte, some pauvre diable with neither kith nor kin in the country, to lay down principles of law. So the pride of the city of the Prophet distinguished between him and Abu Hanifa.

But though the speculative element in the school of Malik, apart from its local and historical environment, which gave it unifying weight, was essentially the same as in the school of Abu Hanifa, yet it is true that at al-Madina it played a less important part. Malik used tradition more copiously and took refuge in opinion less frequently. Without opinion, he could not have built his system; but for him it was not so much a primary principle as a means of escape. Yet one principle of great freedom he did derive from it and lay down with clearness; it is the conception of the public advantage (istislah). When a rule would work general injury it is to be set aside even in the teeth of a valid analogy. This, it will be seen, is nearly the same as the preference of Abu Hanifa. The technical term istislah, chosen by Malik to express his idea, was probably intended to distinguish it from that of Abu Hanifa, and also to suggest in the public advantage (maslaha) a more valid basis than the mere preference of the legist.

THE DOCTRINE OF AGREEMENT

Another conception which Malik and his school developed into greater exactitude and force was that of the agreement (ijma). It will be remembered that from the death of Muhammad all the surviving Companions resident in al-Madina formed a kind of consultive council to aid the Khalifa with their store of tradition and experience. Their agreement on any point was final; it was the voice of the Church. This doctrine of the infallibility of the body of the believers developed in Islam until at its widest it was practically the same as the canon of catholic truth formulated by Vincent of Lerins, Quod ubique, quod semper, quod ab omnibus. But Malik, according to the usual view, had no intention of granting any such deciding power to the outside world. The world for him was al-Madina and the agreement of al-Madina established catholic verity. Yet there are narratives which suggest that he approved the agreement and local usage of al-Madina for al-Madina because they suited al-Madina. Other places might also have their local usages which suited them better.

In the next school we shall find the principle of agreement put upon a broader basis and granted greater weight. Finally, Malik is the first founder of a system from whom a law book, the Muwatta mentioned above, has come down to us. It is not[102] in the exact sense, a manual or code; rather a collection of materials for a code with remarks by the collector. He gives the traditions which seem to him of juristic importance—about seventeen hundred in all—arranged according to subject, and follows up each section, when necessary, with remarks upon the usage of al-Madina, and upon his own view of the matter. When he cannot find either tradition or usage, he evidently feels himself of sufficient authority to follow his own opinion, and lay down on that basis a binding rule. This, however, as we have seen, is very different from allowing other people, outsiders to al-Madina, to do the same thing. The school founded by Malik ibn Anas on these principles is one of the surviving four. As that of Abu Hanifa spread eastward, so that of Malik spread westward, and for a time crushed out all others. The firm grip which it has especially gained in western North Africa may be due to the influence of the Idrisids whose founder had to flee from al-Madina when Malik was in the height of his reputation there, and also to hatred of the Abbasids who championed the school of Abu Hanifa.

But now we pass from simple development to development through conflict. Open conflict, so far as there had been any, had covered points of detail; for example, the kind of opinion professed by Abu Hanifa, on the one hand, and by Malik, on the other. One of the chiefest of the pupils of Abu Hanifa, the Muhammad ibn al-Hasan already mentioned, spent three years in study with Malik at al-Madina and found no difficulty in thus combining his schools. The conflict of the future was to be different and to touch the very basis of things. The muttering of the coming storm had been heard for long, but it was now to burst. Exact dates we cannot give, but the reaction must have been progressing in the latter part of the life of Malik ibn Anas.

HISTORICAL V. PHILOSOPHICAL LAWYERS

The distinction drawn above between traditionists and lawyers will be remembered, and the promise of future collision which always has come between historical or empirical, and speculative or philosophical students of systems of jurisprudence. The one side points to the absurdities, crudities, and inadequacies of a system based upon tradition and developing by usage; the other says that we are not wise enough to rewrite the laws of our ancestors. These urge a necessity; those retort an inability. Add to this a belief on the part of the traditionists that they were defending a divine institution and the situation is complete as it now lay in Islam. The extreme right said that law should be based on Qur’an and tradition only; the extreme left, that it was better to leave untrustworthy and obscure traditions and work out a system of rules by logic and the necessities of the case. To and fro between these two extremes swayed the conflict to which we now come.

In that conflict three names stand out: ash-Shafi‘i who died in 204, Ahmad ibn Hanbal who died in 241 and Da’ud az-Zahiri who died in 270. Strangely enough, the first of these, ash-Shafi‘i, struck the mediating note and the other two diverged further and further from the via media thus shown toward a blank traditionism.

Ash-Shafi‘i is without question one of the greatest figures in the history of law. Perhaps he had not the originality and keenness of Abu Hanifa; but he had a balance of mind and temper, a clear vision and full grasp of means and ends that enabled him to say what proved to be the last word in the matter. After him came attempts to tear down; but they failed. The fabric of the Muslim canon law stood firm. There is a tradition from the Prophet that he promised that with the end of every century would come a restorer of the faith of his people. At the end of the first century was the pious Khalifa, Umar ibn Abd al-Aziz, who by some accident strayed in among the Umayyads. At the end of the second came ash-Shafi‘i. His work was to mediate and systematize and bore especially on the sources from which rules of law might be drawn. His position on the positive side may be stated as one of great reverence for tradition. “If you ever find a tradition from the Prophet saying one thing,” he is reported to have said, “and a decision from me saying another thing, follow the tradition.” An absolutely authentic—according to Muslim rules of evidence—and clear tradition from the Prophet he regarded as of equally divine authority with a passage in the Qur’an. Both were inspired utterances, if slightly different in form; the Qur’an was verbally inspired; such traditions were inspired as to their content. And if such a tradition contradicted a Qur’anic passage and came after it in time, then the written law of the Qur’an was abrogated by the oral law of the tradition. But this involved grave difficulties. The speculative jurists had defended their position from the beginning by pointing to the many contradictory traditions which were afloat, and asking how the house of tradition could stand when so divided against itself. A means of reconciling traditions had to be found, and to this ash-Shafi‘i gave himself. We need not go over his methods here; they were the same that have always been used in such emergencies. The worship of the letter led to the straining of the letter, and to explaining away of the letter.

AGREEMENT AS A SOURCE

But there lay a rock in his course more dangerous than any mere contradiction in differing traditions. Usages had grown up and taken fast hold which were in the teeth of all traditions. These usages were in the individual life, in the constitution of the state, and in the rules and decisions of the law courts. The pious theologian and lawyer might rage against them as he chose; they were there, firmly rooted, immovable. They were not arbitrary changes, but had come about in the process of time through the revolutions of circumstances and varying conditions. Ash-Shafi‘i showed his greatness by recognizing the inevitable and providing a remedy. This lay in an extension of the principle of agreement and the erection of it into a formal source. Whatever the community of Islam has agreed upon at any time, is of God. We have met this principle before, but never couched in so absolute and catholic a form. The agreement of the immediate Companions of Muhammad had weight with his first Successors. The agreement of these first Companions and of the first generation after them, had determining weight in the early church. The agreement of al-Madina had weight with Malik ibn Anas. The agreement of many divines and legists always had weight of a kind. Among lawyers, a principle, to the contrary of which the memory of man ran not, had been determining. But this was wider, and from this time on the unity of Islam was assured. The evident voice of the People of Muhammad was to be the voice of God. Yet this principle, if full of hope and value for the future, involved the canonists of the time in no small difficulties. Was it conceivable that the agreement could override the usage of the Prophet? Evidently not. There must, then, they argued, once have existed some tradition to the same effect as the agreement, although it had now been lost. Some such lost authority must be presupposed. This can remind us of nothing so much as of the theory of the inerrant but lost original of the Scriptures. And it had the fate of that theory. The weight of necessity forced aside any such trifling and the position was frankly admitted that the agreement of the community was a safer and more certain basis than traditions from the Prophet. Traditions were alleged to that effect. “My People will never agree in an error,” declared Muhammad, or, at least, the later church made him so declare.

ANALOGY; THE FOUR SOURCES

But ash-Shafi‘i found that even the addition of agreement to Qur’an and Prophetic usage did not give him basis enough for his system. Opinion he utterly rejected; the preference of Abu Hanifa and the conception of the common welfare of Malik ibn Anas were alike to him. It is true also that both had been practically saved under agreement. But he held fast by analogy, whether based on the Qur’an or on the usage of the Prophet. It was an essential instrument for his purpose. As was said, “The laws of the Qur’an and of the usage are limited; the possible cases are unlimited; that which is unlimited can never be contained in that which is limited.” But in ash-Shafi‘i’s use of analogy there is a distinction to be observed. In seeking to establish a parallelism between a case that has arisen and a rule in the Qur’an or usage, which is similar in some points but not precisely parallel, are we to look to external points of resemblance, or may we go further and seek to determine the reason (illa) lying behind the rule and from that draw our analogy? The point seems simple enough and the early speculative jurists sought the reason. For that they were promptly attacked by the traditionists. Such a method was an attempt to look into the mysteries of God, they were told; man has no business to inquire after reasons, all he has to do is to obey. The point thus raised was fought over for centuries and schools are classified according to their attitude toward it. The position of ash-Shafi‘i seems to have been that the reason for a command was to be considered in drawing an analogy, but that there must be some clear guide, in the text itself, pointing to the reason. He thus left himself free to consider the causes of the divine commands and yet produced the appearance of avoiding any irreverence or impiety in doing so.

Such then are the four sources or bases (asls) of jurisprudence as accepted and defined by ash-Shafi‘i—Qur’an, prophetic usage, analogy, agreement. The last has come to bear more and more weight. Every Shafi‘ite law book begins each section with words to this effect, “The basis of this rule, before the agreement (qabla-l-ijma), is” Qur’an or usage as the case may be. The agreement must put its stamp on every rule to make it valid. Further, all the now existing schools have practically accepted ash-Shafi‘i’s classification of the sources and many have contended that a lawyer, no matter what his school, who does not use all these four sources, cannot be permitted to act as a judge. Ash-Shafi‘i has accomplished his own definition of a true jurist, “Not he is a jurist who gathers statements and prefers one of them, but he who establishes a new principle from which a hundred branches may spring.”

DA’UD AZ-ZAHIRI

But the extreme traditionists were little satisfied with this compromise. They objected to analogy and they objected to agreement; nothing but the pure law of God and the Prophet would satisfy them. And their numbers were undoubtedly large. The common people always heard traditions gladly, and it was easy to turn to ridicule the subtleties of the professional lawyers. How much simpler, it struck the average mind, it would be to follow some clear and unambiguous saying of the Prophet; then one could feel secure. This desire of the plain man to take traditions and interpret them strictly and literally was met by the school of Da’ud az-Zahiri, David the literalist. He was born three or four years before the death of ash-Shafi‘i, which occurred in 204. He was trained as a Shafi‘ite and that, too, of the narrower, more traditional type; but it was not traditional[109] enough for him. So he had to cut himself loose and form a school of his own. He rejected utterly analogy; he limited agreement, as a source, to the agreement of the immediate Companions of Muhammad, and in this he has been followed by the Wahhabites alone among moderns; he limited himself to Qur’an and prophetic usage.

In another point also, he diverged. Ash-Shafi‘i had evidently exercised a very great personal influence upon his followers. All looked up to him and were prepared to swear to his words. So there grew up a tendency for a scholar to take a thing upon the word of his master. “Ash-Shafi‘i taught so; I am a Shafi‘ite and I hold so.” This, too, Da’ud utterly rejected. The scholar must examine the proofs for himself and form his own opinion. But he had another peculiarity, and one which gained him the name of literalist. Everything, Qur’an and tradition, must be taken in the most exact sense, however absurd it might be. Of course, to have gone an inch beyond the very first meaning of the words would have been to stray in the direction of analogy. Yet, as fate would have it, to analogy, more or less, he had in the end to come. The inexorable law that the limited cannot bound the unlimited was proved again. “Analogy is like carrion,” confessed a very much earlier traditionist, “when there is nothing else you eat it.” Da’ud tried to make his meal more palatable by a change in name. He called it a proof (dalil) instead of a source (asl); but what difference of idea he involved in that it is hard to determine. This brought him to the doctrine of cause, already[110] mentioned. Were we at liberty to seek the cause of a divine word or action and lead our “proof” from that? If the cause was directly stated, then Da’ud held that we must regard it as having been the cause in this case; but we were not at liberty, he added, to look for it, or on it, as cause in any other case.

It is evident that here we have to do with an impossible man and school, and so the Muslim world found. Most said roundly that it was illegal to permit a Zahirite to act as judge, on much the same grounds that objection to circumstantial evidence will throw out a man now as juror. If they had been using modern language, they would have said that it was because he was a hopeless crank. Yet the Zahirite school lasted for centuries and drew long consequences, historical and theological, for which there is no space here. It never held rank as an acknowledged school of Muslim law.

We now come to the last of the four schools, and it, strange as its origin was, need not detain us long. The Zahirite reaction had failed through its very extremeness. It was left to a dead man and a devoted Shafi‘ite to head the last attack upon the school of his master. Ahmad ibn Hanbal was a theologian of the first rank; he made no claim to be a constructive lawyer. His Musnad has already been dealt with. It is an immense collection of some thirty thousand traditions, but these are not even arranged for legal purposes. He suffered terribly for the orthodox faith in the rationalist persecution under the Khalifa al-Ma’mun, and his sufferings gained him the position of a saint. But he never dreamed of forming a school, least of all in opposition to his master, ash-Shafi‘i. He died in 241, and after his death his disciples drew together and the fourth school was founded. It was simply reactionary and did not make progress in any way. It minimized agreement and analogy and tended toward literal interpretation. As might be expected from its origin, its history has been one of violence, of persecution and counter-persecution, of insurrection and riot. Again and again the streets of Baghdad ran blood from its excesses. It has now the smallest following of the four surviving schools.

PRINCIPLES OF UNITY AND VARIETY

There is no need to pursue this history further. With ash-Shafi‘i the great development of Muslim jurisprudence closes. Legislation, equity, legal fiction have done their parts; the hope for the future lay, and lies, in the principle of the agreement. The common-sense of the Muslim community, working through that expression of catholicity, has set aside in the past even the undoubted letter of the Qur’an, and in the future will still further break the grasp of that dead hand. It is the principle of unity in Islam. But there is a principle of variety as well. The four schools of law whose origin has been traced are all equally valid and their decisions equally sacred in Muslim eyes. The believer may belong to any one of these which he chooses; he must belong to one; and when he has chosen his school, he accepts it and its rules to the uttermost. Yet he does not cast out as heretics the followers of the other schools. In every chapter their codes differ more or less; but each school bears with the others; sometimes, it may be, with a superior tone, but still bears. This liberty of variety in unity is again undoubtedly due to the agreement. It has expressed itself, as it often does, in apocryphal traditions from the Prophet, the last rag of respect left to the traditionist school. Thus we are told that the Prophet said, “The disagreement of My People is a Mercy from God.” This supplements and completes the other equally apocryphal but equally important tradition: “My People will never agree upon an error.”

But there is a third principle at work which we cannot view with the same favor. As said above, every Muslim must attach himself to a legal school, and may choose any one of these four. But once he has chosen his school he is absolutely bound by the decisions and rules of that school. This is the principle against which the Zahirites protested, but their protest, the only bit of sense they ever showed, was in vain. The result of its working throughout centuries has been that now no one—except from a spirit of historical curiosity—ever dreams of going back from the text-books of the present day to the works of the older masters. Further, such an attempt to get behind the later commentaries would not be permitted. We have comment upon comment upon comment, abstract of this and expansion of that; but each hangs by his predecessor and dares not go another step backward. The great masters of the four schools settled the broad principles; they were authorities of the first degree (mujtahidun mutlaq), second to Muhammad in virtue of his inspiration only. Second, came the masters who had authority within the separate schools (mujtahidun fi-l-madhahib) to determine the questions that arose there. Third, masters of still lesser rank for minor points (mujtahidun bil-fatwa). And so the chain runs on. The possibility of a new legal school arising or of any considerable change among these existing schools is flatly denied. Every legist now has his place and degree of liberty fixed, and he must be content.

THE CANON AND CIVIL CODES

These three principles, then, of catholic unity and its ability to make and abrogate laws, of the liberty of diversity in that unity, and of blind subjection to the past within that diversity, these three principles must be our hope and fear for the Muslim peoples. What that future will be none can tell. The grasp of the dead hand of Islam is close, but its grip at many points has been forced to relax. Very early, as has already been pointed out, the canon law had to give way to the will of the sovereign, and ground once lost it has never regained. Now, in every Muslim country, except perhaps the Wahhabite state in central Arabia, there are two codes of law administered by two separate courts. The one judges by this canon law and has cognizance of what we may call private and family affairs, marriage, divorce, inheritance. Its judges, at whose head in Turkey stands the Shaykh al-Islam, a dignity first created by the Ottoman Sultan Muhammad II in 1453, after the capture of Constantinople, also give advice to those who consult them on such personal matters as details of the ritual law, the law of oaths and vows, etc. The other court knows no law except the custom of the country (urf, ada) and the will of the ruler, expressed often in what are called Qanuns, statutes. Thus, in Turkey at the present day, besides the codices of canon law, there is an accepted and authoritative corpus of such Qanuns. It is based on the Code Napoléon and administered by courts under the Minister of Justice. This is the nearest approach in Islam to the development by statute, which comes last in Sir Henry Maine’s analysis of the growth of law. The court guided by these Qanuns decides all matters of public and criminal law, all affairs between man and man. Such is the legal situation throughout the whole Muslim world, from Sulu to the Atlantic and from Africa to China. The canon lawyers, on their side, have never admitted this to be anything but flat usurpation. There have not failed some even who branded as heretics and unbelievers those who took any part in such courts of the world and the devil. They look back to the good old days of the rightly guided Khalifas, when there was but one law in Islam, and forward to the days of the Mahdi when that law will be restored. There, between a dead past and a hopeless future, we may leave them. The real future is not theirs. Law is greater than lawyers, and it works in the end for justice and life.

DISTRIBUTION OF SCHOOLS

Finally, it may be well to notice an important and necessary modification which holds as to the above statement that a Muslim may choose any one of the four schools and may then follow its rules. As might be expected, geographical influences weigh overwhelmingly in this choice. Certain countries are Hanifite or Shafi‘ite; in each, adherents of the other sects are rare. This geographical position may be given roughly as follows: central Asia, northern India, and the Turks everywhere are Hanifite. Lower Egypt, Syria, southern India and the Malay Archipelago are Shafi‘ite. Upper Egypt and North Africa west of Egypt are Malikite. Practically, only the Wahhabites in central Arabia are Hanbalites. Further, the position holds in Islam that the country, as a whole, follows the legal creed of its ruler, just as it follows his religion. It is not only cuius regio eius religio, but cuius religio eius lex. Again and again, a revolution in the state has driven one legal school from power and installed another. Yet the situation occurs sometimes that a sovereign finds his people divided into two parties, each following a different rite, and he then recognizes both by appointing Qadis belonging to both, and enforcing the decisions of these Qadis. Thus, at Zanzibar, at present, there are eight Ibadite judges and two Shafi‘ite, all appointed by the Sultan and backed by his authority. On the other hand, the Turkish government, ever since it felt itself strong enough, has thrown the full weight of its influence on the Hanifite side. In almost all countries under its rule it appoints Hanifite judges only; valid legal decisions can be pronounced only according to that rite. The private needs of non-Hanifites are met by the appointment of salaried Muftis—givers of fatwas, or legal opinions—of the other rites.

IBADITES

In the above sketch there have been of necessity two considerable omissions. The one is of Shi‘ite and the other of Ibadite law. Neither seems of sufficient importance to call for separate treatment.[116] The legal system of the Shi‘ites is derived from that of the so-called Sunnites and differs in details only. We have seen already (p. 38) that the Shi‘ites still have Mujtahids who are not bound to the words of a master, but can give decisions on their own responsibility. These seem to have in their hands the teaching power which strictly belongs only to the Hidden Imam. They thus represent the principle of authority which is the governing conception of the Shi‘a. The Sunnites, on the other hand, have reached the point of recognizing that it is the People of Muhammad as a whole which rules through its agreement. In another point the Shi‘ite conception of authority affects their legal system. They utterly reject the idea of co-ordinate schools of law; to the doctrine of the varying (ikhtilaf) as it is called, and the liberty of diversity which lies in it, they oppose the authority of the Imam. There can be only one truth and there can be no trifling with it even in details. Among the Shi‘ites of the Zaydite sect this was affected also by their philosophical studies and a philosophical doctrine of the unity of truth; but to the Imamites it is an authoritative necessity and not one of thought. Thus on two important points the Shi‘ites lack the possibility of freedom and development which is to be found with the Sunnites. Of the jurisprudence of the Ibadites we know comparatively little. A full examination of Ibadite fiqh would be of the highest interest, as the separation of its line of descent goes far back behind the formation of any of the orthodox systems and it must have been codified to a greater or less extent by Abd Allah ibn Ibad himself. Its basis appears to be threefold, Qur’an, prophetic usage, agreement—naturally that of the Ibadite community. There is no mention of analogy, and traditions seem to have been used sparingly and critically. Qur’an bore the principal emphasis. See above, (p. 26) for the Ibadite position on the form of the state and on the nature of its headship.

 Adopted from-DEVELOPMENT OF MUSLIM THEOLOGY, JURISPRUDENCE
AND CONSTITUTIONAL THEORY -1903

By DUNCAN B. MACDONALD, M.A., B.D