IT IS CHARACTERISTIC of the practical bent of the Islamic community and of its thought that its earliest activity and most highly developed expression is in law rather than in theology. Several explanations might be advanced for this fact. It might be said, for example, that the practical needs of the community-in-being made it necessary to stabilize and standardize the processes of law long before its intellectual curiosity progressed to the point of asking and answering metaphysical questions. Or some might argue that the familiarity with Roman law acquired by the Arabs not only in Syria and Egypt but also among the Christians in Iraq predisposed them to construct their own legal system at a much earlier date than Christian controversy and Greek philosophy began to influence Islamic religious thought. In support of this view it could be pointed out that the first Muslim schools of law, in the strict sense, arose in Syria and Iraq before the end of the Umayyad Caliphate in 750. Or again, on more sociological grounds, it might be suggested that oriental societies, in contrast to most western societies, have generally devoted much more sustained and successful efforts to building up stable social organizations, with law as one of their pillars, than to constructing ideal systems of philosophical thought.

It is possible that the study of law in Islam and the organization of its elements into some coherent system were influenced or hastened on by these or other factors. But the impulse itself came from none of these things. So far as our evidence goes, it seems to show that in the Umayyad period disputes amongst the Arab tribesmen were either settled by customary law administered by their shaikhs or dealt with by the Caliph or his representatives in accordance with their own judgement - both, no doubt, influenced in greater or less degree by the legislation of the Koran. As for Roman law, though some of its formulae and contents percolated into Islamic law, the principles upon which the latter was constructed and (one may even say) the whole spirit of its application were entirely unrelated to those of the Roman jurists. Indeed, from the very beginning, the methods and formulation of Islamic law present a curious combination of positive injunction and theoretical discussion which betrays the atmosphere of the school rather than the market-place.

Law in the eyes of the Muslim scholars was not in fact an independent or empirical study. It was the practical aspect of the religious and social doctrine preached by Mohammed. For the early Muslims there was little or no distinction between 'legal' and 'religious'. In the Koran the two aspects are found side by side, or rather interwoven one with the other, and so likewise in the Hadith. The study and interpretation of the Koran involved sometimes the one and sometimes the other, and nearly a century elapsed before scholars began to specialize in one or the other aspect. Ultimately they were distinguished by relative terms: 'ilm - ‘positive knowledge’, denoting theology (though not excluding law), and fiqh, ‘understanding’, denoting law (based on theology). Only at a much later date was Greek word ‘canon’ (qanun) adopted to denote administrative rule as distinct from revealed law. (Thus ‘canon law’ in Arabic should mean the exact opposite of canon in European usage.)

The connexion between law and religion thus established by Mohammed and adopted by his followers persisted throughout all later centuries. Characteristically, all expositions of Muslim law begin with the ‘religious duties’ or ‘acts of worship’, such as ablution, prayer, and pilgrimage. As in other Semitic religions, law is thought of, not as a product of human intelligence and adaptation to changing social needs and ideals, but of divine inspiration hence immutable. For Muslims its proof-texts were to be found in the Koran and Prophetic Tradition; and on this assumption the jurists and theologians of the second century elaborated a structure of law that is, from the point of view of logical perfection, one of the most brilliant essays of human reasoning.

Before examining the product of this activity, it is of some importance to look a little more closely into the methods followed by the jurists in their endeavour to systematize their material, for the insight which it affords into the character of Muslim epistemology and reasoning.

The Koran and the Tradition are not, as it is often said, the basis of Islamic legal speculation, but only its sources. The real foundation is to be sought in the attitude of mind which determined the methods of utilizing these sources. The first question, then, is not ‘What is laid down in the Koran and the Hadith?’, but ‘Why are the Koran and the Hadith accepted as sources of law?’, and the second is ‘How are their prescriptions to be understood and applied?’

To answer the first question by saying that Koran and the Hadith are accepted as infallible sources because they are the foundations and title-deeds of the religion of Islam is to argue in a circle. The ultimate reason is metaphysical and a priori. It is a conviction of the imperfection of human reason and its inability to apprehend by its sole powers the real nature of the Good or indeed any reality whatsoever. Absolute good and evil can therefore be known to men only through a divine revelation mediated through Prophets. By Divine Providence there has been a succession of such Prophets ever since, by the creation of Adam (who was the first of them), mankind has existed on this earth. The revelations accorded to these Prophets were all identical in principle, but formed a gradually developing series adapted to the stages of man's development. Each in turn expanded, modified, and abrogated the preceding revelations. The Koran is the final revelation and therefore contains the final and most perfect solutions for all questions of belief and conduct.

So far the Koran. The argument for the infallibility of the Sunna is rather a consequential and logical than a metaphysical argument. The Koran is comparatively short, and even in this small book the greater part has no direct bearing on dogmatic, ritual, legal, political, and social questions. In theory, the general principles by which all these matters should be regulated are to be found in the Koran but not all of them are set out with equal clearness and detail. It is therefore essential to interpret and elaborate the relevant texts. The natural, and indeed the only possible interpreter whose judgement can be trusted is the Prophet through whom they were revealed. According to the Koran itself this Prophet was possessed not only of the kitab, the written ‘book’, but also of the hikma, the ‘wisdom’ whereby ultimate principles can be applied to the details and episodes of ordinary life. Consequently, his actions and sayings, transmitted by chains of reliable narrators, form a kind of commentary and supplement to the Koran. From this it was only a step to the further position that this commentary was itself inspired, in that in all his sayings and doings the Prophet was acting under ‘tacit inspiration’ and thus supplied solutions to the problems of good and evil as final as those of the Koran.^a

The Koran and Tradition having thus been accepted as infallible sources, how are their rules and indications to be applied? Neither offered a systematic body of legal provisions, but only supplied the materials out of which a system could be constructed. The actual construction of this system thus involved the creation of a new and elaborate science of interpretation or ‘roots of jurisprudence’.

Obviously, the foundation of the system was laid by the clear and unambiguous commands and prohibitions found in the Koran and Tradition. Where these exist the exercise of human reason is excluded. But first of all it is necessary to prove their existence. This question does not, of course arise in the case of Koranic texts (unless there are variant readings which alter the sense), but does arise in the case of texts in the Hadith. Hence the creation of that study of the authenticity of hadith with all its complicated disciplines which was outlined in the preceding chapter. In addition, it is necessary to show that the relevant text has been ‘abrogated’, if it should happen to be in conflict with another of equal authority.

The requirements of historical criticism having now been satisfied, it next falls to be considered whether the rule formulated in any given case is limited or not in its application. The general principle which was laid down by the jurists was that unless the text itself expressed or implied some limitation (as, for example, to local historical circumstances or to a particular class of persons), then the rule was not limited in any way but was universally applicable at all times.

Lastly it is necessary to determine what the rule means, that is, to establish the literal sense of the text or rule by means of philology and lexicography. This once established, it was held as a general principle that the words were to be taken in their literal sense as commonly used in Arabic speech - excepting, of course, such expressions as were clearly metaphorical (as, for example, the Koranic injunction to ‘hold fast to the rope of God’).

Where, however, points of law arose which were not covered by a clear statement in Koran or Tradition, the majority of jurists had recourse to analogy (qiyas), i.e. the application to a new problem of the principles underlying an existing decision on some other point which could be regarded as on all fours with the new problem. But even this was rejected by the strictest jurists as involving an element of human judgement and therefore fallible.

On this apparently narrow and literalist basis the theologians and lawyers of the second and third centuries worked out not only the law, but also the rituals and the doctrines, which were to be the special property of the Islamic community, in distinction from other religious and social organizations. Yet the narrowness is more apparent in theory than in practice, for (as we have seen and shall see again) a great deal became naturalized in Islam from outside sources through the medium of traditions claiming to emanate from the Prophet and in other ways. But because the principles on which this logical structure was built up were immutable, so also the system itself, once formulated, was held to be immutable, and indeed to be as divinely inspired as the sources from which it was drawn. From that day to this, the Shari'a or Shar', as it is called, the ‘Highway’ of divine command and guidance, has remained in essentials unchanged.

It may be asked how far this inflexibility and stereotyping were inherent in the systems of law and theology as they were originally conceived. One might have expected that the work of the theologians and jurists of the second and third centuries would have been open to review and, if necessary, revision by later generations with equal authority within the same limits. The rigidity was due to the introduction of a principle which made its appearance in the community in the first place, it would seem, to give the sanction of legitimacy to its political structure. This was the principle of ‘consensus’ (ijma').

It is one of the boasts of Islam that it does not countenance the existence of a clergy, who might claim to intervene between God and man. True as this is, however Islam, as it became organized into a system, did in fact produce a clerical class, which acquired precisely the same kind of social and religious authority and prestige as the clergy in the Christian communities. This was the class of the ‘Ulama,’¹ the ‘learned’ or the ‘doctors’, corresponding to the ‘scribes’ in Judaism. Given the sanctity of Koran and Tradition and the necessity of a class of persons professionally occupied with their interpretation the emergence of the Ulama was a natural and inevitable development though the influence of the older religious communities may have assisted the rapid establishment of their social and religious authority.

As their authority became more firmly held and more generally concerned by the public opinion of the community the class of Ulama claimed (and were generally recognized) to represent the community in all matters relating to faith and law, more particularly against the authority the State. At an early date - probably some time in second century - the principle was secured that the ‘consensus of the community’ (which in practice meant that of the Ulama) had binding force. Ijma' was thus brought the armoury of the theologians and jurists to fill up all the remaining gaps in their system. As the Tradition was the integration of the Koran, so the consensus of scholars became the integration of the Tradition.

Indeed, on a strict logical analysis, it is obvious ijma' underlies the whole imposing structure and alone gives it final validity. For it is ijima' in the first place which guarantees the authority of the text of the Koran and of the Traditions. It is ijma' which determines how the words of their texts are to be pronounced and what they mean and in what direction they are to be applied. But ijima' goes much farther; it is erected into a theory of infallibility, a third channel of revelation. The spiritual prerogatives of the Prophet - the Muslim writers speak of them as the ‘light of Prophecy’ - were inherited (in the Sunni doctrine) not by his successors in the temporal government of the community, the Caliphs, but by the community as a whole.

When the Muslim community agrees to a religious practice or rule of faith, it is, in a certain manner, directed and inspired by God, preserved from error, and infallibly led towards the Truth ... by virtue of a special grace bestowed by God upon the community of Believers.²

Ijma' thus intervenes more or less decisively in every branch of Islamic doctrine, law, and statecraft; it may even set aside or supersede the strict logical conclusions regarding the authenticity, meaning and application of a given text; it may give support to a tradition which strict criticism rejects as of doubtful genuineness; and though it cannot in theory abrogate a direct text of Koran or Tradition, it may (in the view of the jurists) indicate that ‘the law so prescribed has fallen into disuse’.

When, therefore, a consensus of opinions had been attained by the scholars of the second and third centuries on any given point, the promulgation of new ideas on the exposition of the relevant texts of the Koran and Hadith was as good as forbidden. Their decisions were irrevocable. The right of individual interpretation (ijtihad) was in theory (and very largely in practice also) confined to the points on which no general agreement had yet been reached. As these were narrowed down from generation to generation, the scholars of later centuries were limited to commenting and explaining the treatises in which those decisions were recorded. The great majority of Muslim doctors held that the ‘gate of Ijtihad’ was shut once and for all, and that no scholar, however eminent, could henceforth qualify as a mujtahid, an authoritative interpreter of the law; although some few later theologians did from time to time claim for themselves the right of ijtihad.

There is a certain analogy between this settlement doctrine by ‘consensus’ in Islam and the Councils of the Christian Church, in spite of the divergences of outer form; and in certain respects the results were very similar. It was for example, only after the general recognition of ijima' as a source of law and doctrine that a definite legal test of ‘heresy’ was possible and applied. Any attempt to raise the question of the import of a text in such a way as to deny the validity of the solution already given and accepted by consensus became a bid'a, an act of ‘innovation’, that is to say, heresy.

The most remarkable feature of this whole development is its logical formalism. Although the presuppositions which it rests may certainly be derived from the Koran, the later scholars of Medina and Iraq, in their zeal to make the system completely watertight, did not hesitate to push the conclusions derived from these presuppositions to their extreme logical limits. The doctrine that Mohammed was ‘implicitly’ inspired in all his sayings was due simply to the necessity of safeguarding his infallibility as the interpreter of the Koran. If it were held that he was inspired in those sayings which interpret the Koran but not in other sayings which refer to the trivial events of daily life, the difficulty of distinguishing between them would arise; and further, as we have seen, the legists needed an infallible source for precisely all these trivial details. Any possibility of questioning whether in fact this or that solution was inspired had to be avoided at all costs, and so the danger was parried by declaring all his acts and sayings inspired. It must not, of course, be assumed that this was anything but an instinctive, almost unconscious, movement of thought.

The same preoccupation with theoretical completeness underlies the doctrine of ijma'. Originally it allowed a measure of development (the Caliphate, for example, rests entirely upon ijma'), but its function was afterwards circumscribed to the purpose of setting the seal upon the doctrines elaborated by the jurists and theologians and stamped them as unalterable. From a positive and creative principle it was forced into a negative and repressive use.

The conception of law in Islam is thus authoritarian to the last degree. ‘The Law, which is the constitution of the Community, cannot be other than the Will of God, revealed through the Prophet.’³ This is a Semitic form of the principle that ‘the will of the sovereign is law’, since God is the sole Head of the Community and therefore sole Legislator. Consequently, to violate the law, or even to neglect the law, is not simply to infringe a rule of social order - it is an act of religious disobedience, a sin, and involves a religious penalty.

We can now examine briefly the content and character of this divine legislation. Muslim jurists lay it down that ‘the fundamental rule of law is liberty’. But since human nature is weak, easily led astray, ungrateful, and covetous, it is necessary both in the interests of the individual and in of the social organism to set certain limits to human freedom of action. These limits constitute the law; and hence Muslim jurists use the term hadd, ‘limit’, in the sense of ‘legal ordinance’.

These limits, ordained by the Wisdom and Lovingkindness of God, are of two kinds, corresponding to the dual nature of man as soul and body. As soul and body complement one another in the human organism, so do the two aspects of law complement one another in the social organism. The limits ordained for the soul of man define his relations to God, i.e. prescribe the principles of religious belief and in particular the acts whereby these are given outward expression, namely, the five ‘Pillars of the Faith’ (see p. 57). Similarly, the limits set to the bodily activities of man define his relations to his fellow-men. These form the subject-matter of law in the narrow sense, i.e. questions of personal status, family organization (including marriage and divorce), holding and disposal of property, commercial activities, and penal law, although the Western distinctions between civil, penal, private, and other kinds of law are not recognized in the Muslim law-books.

The consequence of this was that Law was never quite separate in conception from Duty, and never became fully self-conscious. As the standard definition put it: ‘The science of law is the knowledge of the rights and duties whereby man may fitly conduct his life in this world and prepare himself for the future life.’ The Shari'a was thus never erected into a formal code, but remained, as it has been well said, ‘a discussion on the duties of Muslims’. This characteristic determines the nature of the judgement passed upon the various activities of which it takes cognizance, a judgement which goes back to the basic conception of a divine legislation mediating absolute standards of Good and Evil. The majority of actions do not come within the scope of law at all, since the initial principle of liberty assumes that in the absence of revealed information about an action it is morally (and therefore legally) indifferent. Such actions are therefore technically called ‘permitted’. The remainder are either good or bad in themselves, but in both cases the law recognizes two categories, an absolute and a permissive. Thus the full scheme comprises five grades or classes:

1. Actions obligatory on Believers.
2. Desirable or recommended (but not obligatory) actions.
3. Indifferent actions.
4. Objectionable, but not forbidden, actions.
5. Prohibited actions.

The ethical or ritual element enters, further, not only into the classification of actions but also into the sanctions of law. These are not, in consequence, consistently worked out, and religious penalties frequently supplement or take the place of social or civil penalties.

Such a ‘science of classification’ bears on its face the marks of its theoretical and rather bookish elaboration. In origin, it was based upon a body of legal practices of heterogeneous provenance: Arab customary law, the commercial law of Mecca, the agrarian law of Medina, elements of foreign (chiefly Syro-Roman) law taken over after the conquests, supplementing or accommodated to the Koran. But since, in Umayyad times, the actual administration of law was largely in the hands of civil and military officers, the formulation of the Revealed Law was left in the hands of theologians and expositors who had little judicial experience in the outer Arab world. The advent of the Abbasid Caliphs brought this scholastic law for the first time to the test of practice, and it was at the beginning of this period, in the second and third centuries of the Muslim era, that classification was finally systematized.

As the capital of the Abbasids was in Iraq, it was natural that the legal school which they favoured should be that of Iraq. Its reputed founder was Abu Hanifa (d. 767); and although Abu Hanifa himself refused to accept judicial office two of his disciples, Abu Yusuf and Mohammed-Shaibini, held high judicial posts and in their writings organized and developed his teachings. This school, called after him the Hanafi school, arose out of the older Iraqi sunna and legal schools, adapted to the later growth of Prophetic Tradition, but retained a considerable element personal reasoning (ra'y = opinio).

The Medinian school likewise grew out of the ‘practice’ of Medina, supported by the findings of prominent Medinian Jurists of the past. Its champion was Malik ibn Anas (d. 795) who collected the traditions upon which he, as a practising judge at Medina, based his decisions into a corpus called al-Muwatta (‘the Levelled Path’), and after whom the school is called the Maliki school.

Less than a generation later, al-Shafi'i (d. in Egypt 820), a disciple of Malik, laid the foundations of the juristic science described earlier in this chapter. The system to which he gave his name combined strict adherence to the established Prophetic Tradition (which he distinguished from Medinian tradition) with a modification of Hanafi method in the form of analogical deduction (qiyas).

In spite of their formal differences and divergences in details, all three schools grew into substantial agreement on the more important matters. All of them in practice recoginzed the same sources: Koran, Sunna, Ijma', and some form of analogical reasoning; and all recognized each other's systems as equally orthodox. Thus they are not to distinguished as different ‘sects’ of Sunni Islam, but merely as distinct schools, or in the Arabic expression ‘ways’ (madhahib, sing. madhhab). Any scholar or ordinary Believer might belong to any one, but in the long run they tended to divide the Islamic world between them. At the present day the Hanafi school predominates in Western Asia (except Arabia), Lower Egypt, and Pakistan; the Shafi'i in Indonesia; and the Maliki in North and West Africa and Upper Egypt.

Besides these three there were several other schools. The Syrian school of al-Awza'i (d. 774) disappeared in favour of Malikism at a very early date. During the third century a strong traditionalist reaction against the speculative ‘innovations’ of the previous schools and the Mu'tazilite dialectic was led by two Baghdad doctors, Ahmad ibn Hanbal (d. 855) and Da'ud al-Zahiri (d. 883). The Zahiri school seems never to have gained a wide following, though it counted some outstanding jurists in later centuries, but the Hanbali school had a strong following in Iraq and Syria until the Ottoman conquest. In the eighteenth century it was revived (under the name of Wahhabi) in Central Arabia, and is now the dominant school in most of Central and Northern Arabia. Although recognized by the other schools as a fourth orthodox madhhab, its attitude towards them has been generally less tolerant.

Since the formal legal doctrines and definitions of these schools remained substantially unchanged through all the later centuries, there is little to be gained by tracing down and discussing their formidable output of juristic works. But in view of the very widely held view that Islamic Law (or Koranic Law, as it is often called) has remained in a petrified state ever since the ‘gate of Ijtihad’ was closed in the third century, it is of considerable interest to note some of the later developments.

Since the formulation of the Religious Law was totally independent of the secular authority, there could be no question of interference by Caliphs or Sultans with its rules and decisions. The secular authorities were bound to recognize it and to provide for its due administration by the appointment of judges (qadis) in all parts of their territories. But although there is little that can be called legislation by the State until the rise of the Ottoman Empire, yet from an early date the secular authorities intervened to a certain extent in judicial administration by holding courts ‘for the redress of wrongs’ (mazalim). In these a somewhat arbitrarily modified form of the religious law was applied, with or without the collaboration of the official qadis.

In the religious courts, and sometimes in mazalim courts as well, it was a common procedure to submit a summary of any important case to a qualified jurist for his opinion. Such a consultant was called a mufti, and his reply was embodied in a fatwa or statement of the legal issues. As a rule the muftis maintained their independence of the secular administration, but in the Ottoman Empire they were graded in the official hierarchy, ranking below the qadis, and the Chief Mufti of Constantinople, who was entitled Shaikh al-Islam, was the highest religious authority in the Empire.

The collections of fatwas by eminent jurists are thus a much more important source for the study of legal usage and development than the stereotyped text-books of the madhahib. In them there is reflected the long struggle which went on for centuries (and still continues) between the Religious Law and local customary law in many Islamic countries, and the steady pressure of the religious leaders to assimilate local usages ('adat) to the standards of Islamic law.

In spite of these derogations from its authority, the Shari'a always remained in force as an ideal and a final court of appeal, and by its unity and comprehensiveness it formed the main unifying force in Islamic culture. Its very lack of flexibility contributed to this result by preventing divergences and disintegration into purely local systems. It permeated almost every side of social life and every branch of Islamic literature, and it is no exaggeration to see in it, in the words of one of the most penetrating of modern students of the subject, ‘the epitome of the true Islamic spirit, the most decisive expression of Islamic thought, the essential kernel of Islam’.⁴

¹ Properly 'ulama;' plural of 'alim,' one possessed of 'ilm' (i.e. religious knowledge).

² Santillana, Instituzioni de Diritto musulmana, I, 32.

³ Santillana,Diritto, I, 5.

⁴ G. Bergstr�sser's Grundz�ge des Islamischen Rechts, edited by Joseph Schacht, p. 1.

Go To Start: WWW.BIBLE.CA