Joseph Schacht- Origin of Islamic Law-Chapter 4
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Part 3
Whereas the ancient schools of law reflected different social realities, their general attitude to popular practice and administrative regulations was essentially the same, and it was certainly not the case, as has often, and recently too, been asserted, that the school of Medina was more traditional in its outlook and the school of 'Iraq more given to individual reasoning. It is true that, apart from diflferences in social development which are reflected in the doctrine, the doctrines of the school of Medina represent, generally speaking, an earlier stage of development of legal thought. But this means merely that the doctrinal development of the school of Medina often lagged behind that of the school of Kufa. 'Iraq was the intellectual centre of the flrst theorizing and systematizing efforts which were to transform Umayyad popular and administrative practice into Islamic law, and the ascendancy of 'Iraq in the development of religious law and jurisprudence continued during the whole of the secondleighth century. This is in keeping with intellectual development generally during the period.
The ancient schools shared not only a common attitude to Umayyad practice and, of course, a considerable body of positive religious law but the essentials of a legal theory, the central concept of which was the 'living tradition of the school'. This idea dominated the development of Islamic law and jurisprudence during the whole of the second/eighth century. Retrospectively it appears as the sunna or 'well-established precedent', or 'practice' ('amal), or 'ancient practice' (amr qadim). This 'practice' partly reflected the actual custom of the local community of Muslims, but it also contained a theoretical or ideal element, so that it came to mean normative sunna, the usage as it ought to be. Already at this early stage, a divergence between theory and practice manifested itself. The ideal practice was found in the unanimous doctrine of the representative religious scholars of each centre. This consensus of the scholars, representing the common denominator of doctrine achieved in each generation, expresses the synchronous aspect of the living tradition of each school. It is significant that the real basis of the doctrine of each school is not the consensus of all Muslims (which also exists) but of the scholars; the function of the class of 'ulama' in Islamic society was firmly established in that early period.
The need of creating some kind of theoretical justification for what so far had been an instinctive reliance on the opinions of the majority, led, from the first decades of the second/eighth century onwards, to the living tradition being retrojected, and to its being ascribed to some of the great hgures of the past. This process, too, began in Kufa, where the stage of doctrine achieved in the time of Hammad b. Abi Sulayman (d. I20/73 was attributed to Ibrahim al-Nakha'i (d. 95-6/7I3-I5). The Medinese followed suit and retrojected their own teaching to a number of ancient authorities who had died about the turn of the century, some of whom later became known as the 'seven jurists of Medina'. At the same time as the doctrine of the school of Kufa was retrospectively attributed to Ibrahim al-Nakha'i, a similar body of doctrine was directly connected with the very beginnings of Islam in Kufa by being attributed to Ibn Mas'ud, a Companion of the Prophet who had come to live in that city, and Ibrahim al-Nakha'i became the main transmitter of that body of doctrine, too. In the same way, other Companions of the Prophet became the eponyms of the schools of Medina and of Mecca. One further step in the search for a solid theoretical foundation of the doctrine of the ancient schools was taken in 'Iraq, very early in the second/eighth century, when the term ' Sunna of the Prophet ' was transferred from its political and theological into a legal context, and identified with the sunna, the ideal practice of the local community and the corresponding doctrine of its scholars. This term, which was taken over by the school of Syria, expressed the axiom that the practice of the Muslims derived from the practice of the Prophet, but it did not as yet imply the existence of positive information in the form of ' Traditions ' (Hadith), that the Prophet by his words or acts had in fact originated or approved any particular practice. It was not long before these Traditions, too, came into existence, and the persons who put them into circulation were the Traditionists.
The ancient schools of law themselves represented, in one aspect, an Islamic opposition to popular andadministrativepracticeunderthe later Umayyads, and the opposition group which developed into the Traditionist movement emphasized this tendency. As long as a Companion of the Prophet had been the final authority for the doctrine of a school on a particular point, it was sufficient for a divergent doctrine to be put under the aegis of another Companion of equal or even higher authority, as happened in Kufa where all kinds of minority opinions were attributed to the Caliph 'Ali, who had made Kufa his capital. But after the general authority of the Prophet himself had been invoked by identifying the established doctrine with his sunna, a more specific reference to him was needed, and there appeared detailed statements or 'Traditions' which claimed to be the reports of ear- or eye-witnesses on the words or acts of the Prophet, handed down orally by an uninterrupted chain of trustworthy persons. Very soon the emphasis shifted from proposing certain opinions in opposition to the ancient schools to disseminating Traditions from the Prophet as such, and the movement of the Traditionists, which was to develop into a separate branch of Islamic religious learning, came into being. It was the main thesis of the Traditionists that formal Traditions from the Prophet superseded the living tradition of the school. The Traditionists existed in all great centres of Islam, where they formed groups in opposition to, but nevertheless in contact with, the local schools of law. Initially the ancient schools offered strong resistance to the disturbing element represented by the Traditions, but they had no real defence against their rising tide; they had to express their own doctrines in Traditions which allegedly went back to the Prophet, and to take increasing notice of the Traditions produced by their opponents. Finally the outlines and many details of Islamic law were cast into the form of Traditions from the Prophet. In this way, one of the greatest and most successful literary fictions came into being.
When the Umayyads were overthrown by the 'Abbasids in I32/750, Islamic law, though still in its formative stage, had acquired its essential features; the need of Arab Muslim society for a new legal system had been filled. The early 'Abbasids continued and reinforced the islamizing trend which had become more and more noticeable under the later Umayyads. For reasons of dynastic policy, and in order to differentiate themselves from their predecessors, the 'Abbasids posed as the protagonists of Islam, attracted specialists in religious law to their court, consultet them on problems within their competence, and set out to translate their doctrines into practice. But this effort was shortlived. The early specialists who had formulated their doctrine not on the basis of, but in a certain opposition to, Umayyad popular and administrative practice, had been ahead of realities, and now the early 'Abbasids and their religious advisers were unable to carry the whole of society with them. This double-sided effect of the 'Abbasid revolution shows itself clearly in the development of the office of qadi. The qadi was not any more the legal secretary of the governor; he was normally appointed by the caliph, and until relieved of his office, he must apply nothing but the sacred law, without interference from the government. But theoretically independent though they were, the qddis had to rely on the political authorities for the execution of their judgments, and being bound by the formal rules of the Islamic law of evidence, their inability to deal with criminal cases became apparent. (Under the Umayyads, they or the governors themselves had exercised whatever criminal justice came within their competence.) Therefore the administration of the greater part of criminal justice was taken over by the police, and it remained outside the sphere of practical application of Islamic law. The centralizing tendency of the early 'Abbasids also led, perhaps under the influence of a feature of Sasanian administration, to the creation of the office of chief qadi. It was originally an honoriflc title given to the qadi of the capital, but the chief qadi soon became one of the most important counsellors of the caliph, and the appointment and dismissal of the other qadis, under the authority of the caliph, became the main function of his office.
An institution which the early 'Abbasids, and perhaps already the later Umayyads, borrowed from the administrative tradition of the Sasanian kings was the 'investigation of complaints' concerning miscarriage or denial of justice, or other allegedly unlawful acts of the qadis, difficulties in securing the execution of judgments, wrongs committed by government officials or by powerful individuals, and similar matters. Very soon, formal courts of complaints were set up, and their jurisdiction became to a great extent concurrent with that of the qadis' tribunals. The very existence of these tribunals, which were established ostensibly in order to supplement the deficiencies of the jurisdiction of the qadis, shows that their administration of justice had largely broken down at an early period. since then, there has been a double administration of justice, one religious and the other secular, in practically the whole of the Islamic world.
At the same time, the office of the 'inspector of the market' was islamized. Its holder, in addition to his ancient functions, was now entrusted with discharging the collective obligations of enforcing Islamic morals, and he was given the Islamic title of muhtasib, it was now part of his duties to bring transgressors to justice and to impose summary punishments, which on occasion came to include the flogging of the drunk and the unchaste, and even the amputation of the hands of thieves caught in the act; but the eagerness of the rulers to enforce these provisions commonly made them overlook the fact that the procedure of the muhtasib did not always satisfy the strict demands of the law.
The caliph, too, was given a place in the religious law of Islam. He was endowed with the attributes of a religious scholar and lawyer, bound to the sacred law in the same way as qadis were bound to it, and given the same right to the exercise of personal opinion as was admitted by the schools of law. The caliph retained full judicial power, the qadis were merely his delegates, but he did not have the right to legislate; he could only make administrative regulations within the limits laid down by the sacred law, and the qadis were obliged to follow his instructions within those limits. This doctrine disregarded the fact that what was actually legislation on the part of the caliphs of Medina, and particularly of the Umayyads, had to a great extent entered the fabric of Islamic law. The later caliphs and other secular rulers often enacted new rules; but although this was in fact legislation, the rulers used to call it administration, and they maintained the fiction that their regulations served only to apply, to supplement, and to enforce the sacred law. This ambiguity pervaded the whole of Islamic administration during the Middle Ages and beyond. In practice, the rulers were generally content with making regulations on matters which had escaped the control of the qads~, such as police, taxation and criminal justice. The most important examples of this kind of secular law are the siyasa of the Mamluk sultans of Egypt which applied to the military ruling class, and, later, the qanun-nama of the Ottoman sultans. Only in the present generation has a secular, modernist legislation, directly aimed at modifying Islamic law in its traditional form, come into being; this became possible only through the reception of Western political ideas. But the postulate that law, as well as other human relationships, must be ruled by religion, has become an essential part of the outlook of the Muslim Arabs, including the modernists among them.
Notwithstanding all this, the office of qadt in the form which it essentialiy acquired under the early 'Abbasids, proved to be one of the most vigorous institutions evolved by Islamic society. Qadis were often made military commanders, and examples are particularly numerous in Muslim Spain and in the Maghrib in general. They often played important political parts, although it is not always possible to distinguish the purely personal element from the prestige inherent in the office. Particularly in the Ayyubid and in the Mamluk periods, they were appointed to various administrative offices. They even became heads of principalities and founders of small dynasties from the fifth/eleventh century onwards, when the central power had disintegrated; there are especially numerous examples in Muslim Spain in the time of the Party Kings and others occur in Syria, Anatolia and Central Asia. In the Ottoman system of provincial administration, the qadi was the main authority in the area of his jurisdiction, and elsewhere, as in medieval Persia, he became the main representative of what is called the religious institution. To some extent the qadi (and the other religious scholars, too) were the spokesmen of the people; they played an important part not only in preserving the balance of the state but also in maintaining Islamic civilization, and in times of disorder they constituted an element of stability. Nevertheless, as far as the essence of the qadi's office was concerned, a real independence of the judiciary, though recognized in theory, was hardly ever achieved in practice.
Very soon after the 'Abbasid revolution, Islamic Spain broke away and became, under a surviving member of the Umayyad family and his descendants, an independent amirate and later caliphate. It is therefore not surprising that Islamic law and justice as applied in Spain should have diverged in some respects (not very essential ones, it is true) from their counterparts in the East. Whereas the qadi was always in principle a single judge, it was taken for granted in Spain that he should sit 'in council' (shura). The 'Abbasid institution of the chief qadi took a long time to become acclimatized in Spain. Although the adoption of the Sasanian 'investigation of complaints' by Islamic law probably dated from the end of the Umayyad period in the East, it had no real parallel in Spain. The 'inspector of the market ' retained his ancient title in Spain for centuries, and the theory of his functions was somewhat different there from what it was in the East.
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Part 4
The first half of the second/eighth century was a period of particularly rapid development for Islamic law, and this is well shown by the memorandum which the secretary of state, Ibn al-Muqaffa', presented to the 'Abbasid caliphj al-Mansur, at some time during the last few years of his life (he was cruelly put to death in I39/756). Written by an intelligent and observant outsider, a Persian convert to Islam, it shows us aspects of the stage reached by Islamic law about I40/757-8 which we should not be able to deduce from more conventional sources. Ibn alMuqaffa' deplored the wide divergencies in the administration of justice which existed between the several great cities and even (a completely unexpected piece of information) between their several quarters, and between the main schools of law. He suggested therefore that the caliph should review the different doctrines, codify and enact his own decisions in the interest of uniformity, and make this code binding on the qadis. This code ought to be revised by successive caliphs. The caliph alone had the right to decide at his discretion; he could give binding orders on military and on civil administration, but he must be guided by Qur'an and sunna. This sunna, Ibn al-Muqaffa' realized, was based to a great extent on administrative regulations of the Umayyads. Therefore, he concluded the caliph was free to determine and codify the sunna as he thought fit. The plea of Ibn al-Muqaffa' for state control over law (and, incidentally, over religion, too) was in full accord with the tendencies prevailing at the very beginning of the 'Abbasid era. But this was merely a passing phase, and orthodox Islam refused to be drawn into too close a connexion with the state. The result was that Islamic law grew away from practice, but in the long run gained more in power over the minds than it lost in control over the bodies of the Muslims.
A little later, towards the end of the second/eighth century, al-Shaf'i made the essential thesis of the Traditionists prevail in Islamic law. For him, sunna was not the idealized practice as recognized by the representative scholars; it was identical with the contents of formal 'Traditions' going back to the Prophet, even if such a Tradition was transmitted by only one person in each generation (a fact which, of course, made it very suspect to the ancient schools). This new concept of sunna, the sunna of the Prophet embodied in formal Traditions from him, superseded the concept of the living tradition of the ancient schools. According to al-Shaf'i, even the Qur'an had to be interpreted in the light of these Traditions, and not vice versa. The consensus of the scholars, too, became irrelevant for him; he fell back on the thesis that the community of Muslims at large could never agree on an error, a thesis sufficiently vague for his purpose. All this left no room for the discretionary exercise of personal opinion, and human reasoning was restricted, in al-Shaf'i's thesis, to making correct inferences and drawing systematic conclusions from Traditions. In accepting the thesis of the Traditionists, al-Shafi'i cut himself off from the natural and continuous development of doctrine in the ancient schools, and adopted a principle which, in the long run, could only lead to inflexibility. Also, the positive solutions of problems which he proposed were often, sociologically speaking, less advanced than those advocated by the contemporary 'Iraqis and Medinese; his reasoning, dominated as it was by a retrospective point of view, could hardly be productive of progressive solutions. Al-Shafi'i's was a personal achievement, and his disciples and followers formed from the very beginning the 'personal' school (madhhab) of the Shafi'is. The schools of Kufa and Medina, too, had seen the formation of groups or circles within each school, and early in the third/ninth century the geographical character of the ancient schools gradually disappeared, and personal allegiance to a master and his doctrine became preponderant.
Whereas the Hanafis and the Malikis, who continued the ancient schools of Kufa and of Medina (their names are derived from Abu Hanifa and from Malik, respectively), did not change their positive legal doctrines appreciably from what they had been when al-Shafi'i appeared, they finally adopted in the course of the third/ninth century, together with the Shafi'is, a legal theory of Traditionist inspiration. This theory differed from al-Shafi'i's own thesis in one essential respect, in that it returned to the concept of the consensus of the scholars, which it considered infallible. It endorsed al-Shafi'i's identification of the sunna with the contents of Traditions from the Prophet, but the legal rules which were to be derived from the Traditions were to be determined by the consensus of the scholars, which left the representatives of each school free to determine them for themselves, by interpretation and so forth. The fact that the Shafi'i school itself had to accept this modification of the doctrine of its founder shows the hold which the idea of the consensus of the scholars, embodying the living tradition of the ancient schools, had gained over Islamic law, and, by implication, how strong the position of the class of specialists had become.
Islamic law reached its full development in early 'Abbasid times, and its institutions reflect the social and economic conditions of Islamicsociety in that period more than any other. The various social backgrounds of the doctrines of the Medinese and of the 'Iraqis have already been mentioned. A feature which may, perhaps, reflect conditions proper to the early 'Abbasid period is the detailed treatment of 'usurpation' of the property of another, neither theft nor robbery, but high-handed appropriation. The provisions of Islamic law aim at protecting the rightful owner as much as possible, but at the same time make the frequency of similar acts, and the inability of the qddi to deal with them, painfully clear. The waqf or mortmain, too, found its final regulation at that time. The roots of this institution are various. One, which left only faint traces in Islamic law, and in the Maliki school more than in the Hanafi, can be traced to certain kinds of annuity, to use a modern, roughly approximate term, in use among the ancient Arabs; another, still very important at the beginning of the third/ninth century, though later quite pushed into the background, consisted of contributions to the Holy War, the object of innumerable exhortations in the Qur'an; a third, particular to Egypt during the first few centuries of Islam, seems to derive from the example of the Byzantine piae causae; and a fourth, which expanded enormously, particularly in 'Iraq, in the first half of the third/ninth century, and which was, perhaps, most decisive in shaping the final doctrine of Islamic law concerning waqf, arose from the desire of the Muslim middle classes to exclude the daughters and, even more so, the descendants of daughters from the benefits of the Qur'anic law of succession; in other words, to strengthen the old Arab patriarchal family system, and also to provide for the ma,vdli in order to make them reliable dependants of the family of the founder; both aims being in conflict with the purpose of the Qur'anic legislation. The waqf, and this may be counted its fifth and last root, also enjoyed a degree of security unknown to any other form of tenure, and its use became popular as a guarantee against confiscation. So was another procedure known to Islamic law, the fictitious sale or talji'a. Two things are significant here confiscation with its concomitant procedure of torture, which had become almost a fixed institution of the Islamic state at the end of the Umayyad and particularly at the beginning of the 'Abbasid period, was not taken into consideration at all by Islamic law; in other words, the pious specialists averted their eyes from procedures which they knew were wrong but which they felt they could not, without material damage to themselves, openly criticize. On the other hand, even the early 'Abbasid caliphs and their highhanded and powerful dignitaries were averse to interfering openly with transactions which on the face of it, were valid under the religious law of Islam. Ibn Qutayba (d. 276/889), Traditionist and man of letters, held that the injustice of rulers and the highhandedness of overweening persons, and even the insistence of a creditor on being paid, justified lies and perjury. At a slightly later period, the poet and philologist Ibn Durayd (d. 32I/933) composed a treatise on equivocal expressions for the benefit of people who were forced to take an oath against their will, so as to enable them 'to mean something different from what they appear to say, and to save them from the injustice of the oppressor'.
Another omission of Islamic law is more difficult to explain, that of practically all reference to wholesale trade. The activities of wholesale merchants covered the whole of the Islamic world and extended beyond it, and they have left permanent traces in the merchant law of the early Middle Ages. Islamic law treats in great detail of many commercial transactions, but they are, as a rule, envisaged exclusively as transactions of retail trade, and the background of wholesale trading can only be inferred from occasional remarks and from isolated chapters such as those on the contract of muddraba or qirad (commenda, which, incidentally, seems to have come to Western Europe from Islamic law). It is true that IsIamic law is in the hrst place concerned with laying down ethical rules for the behaviour of the individual in a society the composition of which is taken for granted, but it is equally true that the wholesale trader, by the nature of his activities, is exposed, from the point of view of Islamic law, to particular moral hazards, which that law might have been expected to point out and safeguard against with the same interest in details as it does with regard to those involved in a householder sending out a minor to buy a loaf of bread. Generally speaking, Islamic law pays particular attention to transactions involving the middle or the lower-middle class; for instance, it appears clearly from legal terminology that the economic reality underlying the contract of salam, the ordering of goods to be delivered later for a price paid in advance, was the financing of the business of a small trader or artisan by his customers. A saying attributed to the Caliph 'Umar is specificaily directed against the activities of the rich speculators, who buy up supplies of food, anticipating a rise in prices, but exempts the small importer, who carries merchandise 'on his back in summer and in winter'. Merchants are also forbidden to meet caravans outside the town and to buy up what they bring, and a sedentary ought not to act as a sales agent of a bedouin. On the other hand, the Hamasa of al-Buhturi (d. z84/897) contains numerous extracts from the poetic effusions of bedouin, who boasted of having cheated the merchants from whom they had bought.
We are particularly well-informed concerning relations between neighbours in Maliki law. As interpreted by this school, Islamic law shows itself more humane than juridical. It puts the interest of certain social groups first; but these groups are, as a rule, neither state nor province nor city; in the last resort it is the family which matters, and this concern is reinforced by an easy-going acceptance of the fait accompli. The society envisaged by Islamic law is mainly urban, just as medieval Islam was essentially an urban civilization, but Islamic law did not recognize the city as such, nor did it admit corporate bodies. The doctrine of Islamic law does not attach great importance to differences of social status between free, male Muslims except, to some extent, in the requirement of the bridegroom's rank being equal to that of the bride, and, more important, the disqualification of members of certain low trades as witnesses. The doctrines of the several schools differ in details, and have undergone certain changes in the course of time. In a society in which the most highly respected economic activity was not that of the producer but of the merchant, the moralists tried to enhance the functions of the farmer and of the artisan, without, however, quite succeeding. Trade in cloth is generally regarded as the most honourable of professions, and sometimes trade in spices is associated with it. The professions of money-changer and of grain merchant are generally discredited, the hrst because it risks transgressing the complicated rules devised against ' usury ', and the second because it leads to speculation on rising prices of food. The two 'low trades ' par excellence were those of cupper and of weaver, and the contempt in which they were held seems to go back, in each case, to pre-Islamic times.
The early 'Abbasid period saw the end of the formative stage of Islamic law, and by the beginning of the fourth/tenth century a point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled (albeit with a choice of answers provided by the several schools); hence a consensus gradually established itself to the effect that from that time onwards no one could be deemed to have the necessary qualifications for independent rasoning in religious law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all. This is the 'closing of the gate of ijtihad', of independent reasoning in Islamic law. It is only in the present century that the reopening of this gate has been seriously envisaged by a number of 'ulama' and by Islamic society at large. The doctrine of the 'closing of the gate of ijtihad' was not the cause but a symptom of a state of mind which had been induced by the fear of doctrinal disintegration, a fear which was not far-fetched at a time when orthodox Islam was threatened by the esoteric propaganda of the Batiniyya. When this propaganda had brought the Fatimid caliphs to power, first in Ifriqiya and then in Egypt, they too felt the need of a doctrine of religious law of their own, and their great lawyer, the Qadi Nu 'man, provided it for them. It was a learned production which drew largely on the doctrines of the existing orthodox schools of law, rather than the result of organic growth, and it confirms the absence of a genuine Shi'i (as opposed to the general Islamic) tradition of religious law. Whatever the theory might say on the closing of the gate of ijtihad, the activity of the later scholars was no less creative, within the limits set by the very nature of their work, than that of their predecessors. New sets of facts constantly arose in life, and they had to be mastered and moulded with the traditional tools provided by legal science. This activity was carried out by the muftis, specialists on religious law who were qualified to give authoritative opinions on points of doctrine. The earliest specialists on religious law had been essentially religious advisers, muftis, and the later muftis only continued their advisory and cautelary activity. Their function was essentially private, and although muftis could be, and often were, appointed officially, it did not add to their authority. The most important officially appointed mufti in later times was the Ottoman shaykh al-Islam. The doctrinal development of Islamic law owes much to the activity of the muftis, and their advices, or fatwas, show us the most urgent problems which arose from practice in certain places and at certain times. Their decisions, if found acceptable, were generally incorporated into the later handbooks, and, generally speaking, the accretion of new cases and decisions in the interval between two comparable works of Islamic law represents the outcome of the discussion in the meantime.
Whereas Islamic law had been adaptable and growing until the early 'Abbasid period, from then onwards it became increasingly rigid and set in its final mould. A doctrine which had to be derived exclusively from the Qur'an and, even more important, from a number of detailed Traditions from the Prophet, and became more and more hedged in by the ever growing area of the consensus of the scholars, and by the closing of the gate of ijtihad, was unable to keep pace with the changing demands of society and commerce. This essential rigidity of Islamic law helped it to maintain its stability over the centuries which saw the decay of the political institutions of Islam. From the early 'Abbasid period onwards, we notice an increasing gap between theory and practice. This discordance and mutual interference dominated the history of Islamic law during the whole of the period here under review. This does not mean that Islamic law is entirely utopian. Apart from worship, ritual, and other purely religious duties, where in the nature of things the sacred law was the only possible norm, its hold was strongest on the law of family, of inheritance, and of waqf; it was weakest, and in some respects even non-existent, on penal law, taxation, constitutional law and the law of war; the law of contracts and obligations stands in the middle. The law of family and inheritance has always been, in the conscience of the Muslims, more closely connected with religion than other legal matters because the greater part of Qur'anic legislation is concerned with it. But even here, practice has been strong enough to prevail over the spirit, and in certain cases over the letter, of strict religious law. The legal position of women with respect to marriage and inheritance was occasionally improved in practice, but more often it deteriorated by comparison with Islamic law. AIso, the institution of waqf was used to produce this last result, as has been mentioned above. It is not the most important and essential rules of religious law which are observed most faithfully but rather those which for some reason or other have become part of popular practice, and practice sometimes insists on refinements unknown to Islamic law. The institution of pre-emption inits extended, Hanafi form proved extremely popular among the Muslims who followed that school of law, and in India it became part of the matters sanctioned by religion, concerning which the continued validity of Islamic law for Muslims was guaranteed at the beginning of British rule in 1777; but the Shari'a itself does not attach great importance to it, and the more detailed handbooks describe ways by which it can be avoided. The field of contracts and obligations was ruledby a customary law which respected the main principles and institutions of the Shari'a but showed a greater flexibility and adaptability and supplemented it in many ways, and the same is true of the special rules concerning real estate, of which only a few rudiments exist in the Shari'a. The customary commercial law was brought into agreement with the theory of the Shar'ia by the hiyal of 'legal devices' which were often legal fictions, transactions by which the parties might achieve, through legal means, ends which were made desirable by the economic and social conditions of the time, but which could not be achieved directly with the means provided by the Shari'a. The earliest devices were merely simple evasions of irksome prohibitions by merchants and others, but very soon the specialists in religious law themselves started creating little masterpieces of elaborate juridical constructions and advising interested parties in their use.
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Final Part
Another important area of contact between theory and practice was provided by the continued use of written documents which became the subject of a voluminous and highly technical literature. Islamic jurisprudence ignores custom as an official source of law, however much customs of varied provenance had contributed to forming it. But the Maliki school in Morocco in the later Middle Ages, where it developed in relative isolation from the rest of the Islamic world, took considerable notice of conditions prevailing in fact, not by changing the ideal doctrine of the law in any respect, but by recognizing that actual conditions did not allow the strict theory to be translated into practice, and that it was better to control the practice as much as possible than to abandon it completely. It therefore upheld the principle that 'judicial practice ('amal) prevails over the best attested doctrine', and it allowed a number of institutions unknown to strict theory. This Moroccan Maliki 'amal is not customary law; it is an alternative doctrine valid as long as conditions make it necessary.
We must think of the relationship of theory and practice in Islamic law, not as a clear division of spheres, but as one of intraction and mutual interference. The assimilation of the non-Islamic elements by the Islamic core in the formative period, and the assimilation of the practice by the theory in the Middle Ages, are really stages of one and the same process. This process, seen from outside, appears as a modihcation of the positive contents of Islamic law; whereas, seen from the inside, it appears as an expansion, a conquest of new helds by the ever dominant influence of Islamic law and jurisprudence. The ideal theory showed a great assimilating power, the power of imposing its spiritual ascendancy, even when it could not control the material conditions. Thus an equilibrium established itself between legal theory and legal practice, an equilibrium delicate in fact but seemingly unshakable in a closed society. As long as the sacred law received formal recognition as a reli~ious ideal, it did not insist on being fully applied in practice. But it could not abandon its claim to exclusive theoretical validity, and acknowledge the existence of an autonomous secular law; its representatives, the 'ulama', were the only qualified interpreters of the religious conscience of the Muslims; and the idea that law must be ruled by religion has remained an essential assumption even of modern Muslims. The works of Islamic law, during the whole of the medieval period, properly interpreted in relation to~ their place and time, are one of the most important sources for the investigation of Islamic society. The hold which the religious law of Islam had gained over the minds of the Muslims by the fifth/eleventh century can be gauged from the writings of al-Ghazali (d. 505/IIII), who, whilst deploring the ascendancy of legalism which threatened to extinguish religious life, and firmly restricting the subject-matter of the law to matters of this world, nevertheless protested that this did not imply reducing it to a secular subject of knowledge, and was unable to envisage secular rules for what he had insisted were matters which had nothing to do with religion.
The general and normal conditions described in the preceding paragraphs were occasionally disturbed by violent religious reform movements, such as that of the Almoravids in north-west Africa and Spain in the fifth-sixth/eleventh-twelfth centuries, that of the Fulbe in West Africa in the nineteenth century, and that of the Wahhabis in Arabia in the nineteenth and again in the present century. All these movements made it their aim, in the states which they set up, to enforce Islamic law exclusively, to abolish the double system of administration of justice, and to outlaw administrative and customary law. The effects of these religious reform movements as a rule tended to wear off gradually, until a new equilibrium between theory and practice established itself. Of essentially the same kind, though sensibly different in their effects, were the efforts of established states (later than the early 'Abbasid period) to subject actual practice to the rule of the sacred law. The two most remarkable of these efforts were made in the Ottoman empire and in the Indian empire of the Mughals, whilst the Safavid empire in Persia provides an instructive parallel.
The Ottoman empire in the tenth/sixteenth century is characterized by strenuous efforts on the part of the sultans to translate Islamic law in its Hanafi form into actual practice; this was accompanied by the enactment of qanun-name which, though professing merely to supplement Islamic law, in fact superseded it. On the part of the representatives of law we find, naturally enough, uncompromising rejection of everything that went against the letter of religious law, but at the same time unquestioning acceptance of the directives of the sultans concerning its administration, and, on the part of the chief muftis, a distinctive eagerness to harmonize the rules of the Shari'a with the administrative practice of the Ottoman state. A parallel effort in the Mughal empire in the seventeenth century was part of the orthodox reaction against the emphemeral religious experiment of the emperor Akbar. In the Persia of the Safavids, the religious institution, including the scholars and qadis, was controlled by the sadr, who exercised control over it on behalf of the political institution, thereby reducing the importance of the qadis. The Safavids' supervision of the religious institution was more thorough than had been that of the preceding Sunni rulers, and by the second half of the eleventh/seventeenth century the subordination of the religious institution to the political was officially recognized. This whole development had already begun under the later Timurids.
Good reading! !
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i imagine its quite a decent read. been looking for something like this lately. will have to bookmark it and come back when i have the time.
anyone feel like they might want to high-light the key excerpts...for a prize ? !
There was Phd Herbert Berg who had a website that had a broad overrun of Hadith studies. But it went off line I think. I can't find it.
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that's a shame
Some more stuff for you thats less hectic
THE VIEWS OF ORIENTALISTS ON THE HADITH LITERATURE
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Fatma Kizil
A CHRONOLOGICAL ANALYSIS (1848-1950)The question of the value of the hadith literature (sayings of the Prophet) as a legitimate source is a broad one in which orientalists, not only those working on hadiths, but also those in other areas, including Islamic law, Islamic history and the Quran, are interested. For this reason, the discussion here needs to be limited according to some parameters. Focusing on the period between 1848 and 1950 is appropriate, for it allows one to make a chronological analysis and is a period in which leading orientalists produced their major works that shaped the view of the entire orientalist tradition on hadiths.
In the West, hadith studies began to become an independent discipline rather than being a part of studies on Islamic history or the life of the Prophet Muhammad (pbuh) in 1890 when the Hungarian scholar Ignaz Goldziher (1850-1921) published the second volume of his famous book, Muhammedanische Studien, in which he focuses on the hadiths. Therefore, any exploration of the orientalist view of the authenticity and sources of hadith literature must focus on the period that starts with Goldziher, although one also should pay attention to earlier studies as well.
Prior to Goldziher, an important figure in the literature was Gustav Weil (1808-1889), who argued in his Geschichte der Chaliphen that all the hadiths in al-Bukhari must be rejected. He was also skeptical of the authenticity of those verses in the Quran that speak of the Prophet as a mortal being and those about the event of the Isra (the night journey - a miraculous event). Shortly after him, Aloys Sprenger (1813-1893) argued in his three-volume book Das Leben und die Lehre des Mohammad, published between 1861 and 1865, that the hadith literature contains more authentic material than fabricated events. Another orientalist who worked on the authenticity of the hadith literature is William Muir (1819-1905). In the introduction to The Life of Mahomet, he proposed a number of criteria to establish the authenticity of hadiths, thereby giving the first examples of the orientalist effort to establish a chronology for them. According to Muir, although narrators often made distortions in hadith texts, the hadith literature largely contains historical facts. Finally, the last name in the pre-Goldziher era that should be mentioned is that of Reinhart Dozy (1820-1883) with his Het Islamisme (1863). Influenced by both Sprenger and Muir, Dozy argued that about half of the hadiths in al-Bukhari were authentic. For him, the fact that the writing of the hadiths occurred in the second century after the Hijrah was the reason why many fictitious hadiths to be included in the literature. His work, which also involves the claim that the revelations were epileptic crises, "generated negative reactions from all circles of society for insulting religious values" (Hatiboglu, "Osmanli Aydinlarinca Dozy'nin Tarih-i Islamiyyet' ine Yoneltilen Tenkitler , p. 202).
Ignaz Goldziher, a prominent figure who is referred to by every orientalist working on the hadiths, was also skeptical about the hadith literature, but disagreed with Dozy on his view that at least half of the hadiths in al-Bukhari should be considered as authentic. Revealing his overall distrust of the hadith literature, he claimed that the great majority of the hadiths were products of the religious, historical and social conditions prevalent in the first two centuries of Islam. For him, this literature contains all kinds of competing political views. Although he sometimes implies that the hadith literature might contain some amount of authentic material, he is not clear on this issue. Also, he claims that the significance of the sunnah (practices of the Prophet) as a legitimate source had gradually increased - a claim which would be taken up by later orientalists, particularly by Schacht and his followers, who argued that the prophetic traditions were not a reference source at the beginning of Islamic history. Goldziher draws a picture of a Muslim society where the fabrication of hadiths was a widespread phenomenon, with people frequently producing fictitious hadiths for political or other purposes. He argues that different groups would either make up many hadiths that supported their respective positions, or modify existing traditions to justify their views, or else censor the hadiths that had been adopted by others. He also accuses Muslim scholars of relying solely on the isnad (chain of transmitters) without paying attention to ?obvious anachronisms' in hadith texts.
The Dutch orientalist C. Snouck Hurgronje (1857-1936), a contemporary of Goldziher's, claimed, just like the latter, that the hadith literature was a product of dominant groups in the first three centuries of Islam, and thus it reflected their views. Both orientalists agree on the idea that different groups made up many hadiths and used them as a means to gain their objectives. Likewise, they both claim that the hadith literature contains many elements of the Old and the New Testament, as well as Roman law. According to Hurgronje, when the Muslims scholars realized that these foreign elements had started to become a threat, they started sorting them out and eliminating those that were having a negative impact; however, they kept those elements that had become an integral part of the Islamic tradition, and then erased any sign that might have indicated their real source, calling these retained traditions "hadith". Accordingly, Hurgronje asserts that the idea that the roots of these hadiths can be traced all the way back to the Prophet is completely false and that the life and teachings of the Prophet cannot be re-constructed based on these traditions - an assertion that is a logical consequence of his biased view of the hadith literature.
Goldziher's claim that Muslim scholars could not notice the ?obvious anachronisms' in hadith texts was also taken up by the Belgian orientalist Henri Lammens (1862-1937). According to him, since the Muslim ulema (scholarly class) largely confined their efforts to the critique of narrative chains (isnad) and paid insufficient attention to the internal/textual critique of the hadiths, they failed to notice logical and historical impossibilities and anachronisms in the narrations. As on many points, he agrees with Goldziher about the allegedly fictitious nature of the traditions, and argues that Islamic law was very much influenced by Roman law. According to Lammens, elements borrowed from foreign sources were not only falsely attributed to the Prophet and his Companions through the fabrication of hadiths, but they also had been completely assimilated into Islamic law, thereby making it seem as if Islamic lae was an original and authentic legal tradition.
Another orientalist scholar who takes the idea that Islamic law is an imitation of other systems as self-evident is David Samuel Margoliouth (1858-1940). Highly influenced by Goldziher and Muir, Margoliouth claims that the development of the hadith literature, as explicated in Goldziher's studies, should lead the researcher to be skeptical and to constantly ask the question, "what is the possible reason for the fabrication of this particular hadith?" In addition to being influenced by his predecessors, Margoliouth also had a considerable impact on subsequent orientalists, particularly Joseph Schaht, and through him, the entire orientalist tradition. In this context, his most effective assertion is the idea that the concept of the "sunnah" was originally used to refer to pre-Islamic customs/traditions that had not been abolished by the Quran. For him, the attribution of the term "sunnah" to the Prophet's sayings and deeds was a result of a slow and gradual process. One of the reasons behind this transformation, he argues, was the desire to prevent a potential anarchical situation that might be caused by the prevalence of the traditions and life styles of the different groups that were integrated into the Muslim world as a result of the expansion of Islam. Margoliouth sees the concepts of infallibility (ismah) and non-recited revelation (wahy ghayr matluw) as theories constructed to justify the position of the Prophet's sunnah as a legitimate source of the law. A similar claim was made by Goldziher in the context of ghayr matluw revelation. Margoliouth maintains that at the end of the process of justifying existing practices by referring them to the Prophet, with these practices becoming the Prophet's sunnah and thus strengthening authority, al-Bukhari tried to sort out the hadiths with his strict rules; however, in the view of Goldziher the authenticity of those traditions he considered to be reliable are still questionable.
Another Western orientalist in the pre-1950 period is Josef Horovitz (1874-1931), who is known for his studies on the seerah literature. However, as Horovitz himself remarks, it is not possible to completely separate the latter from the hadith literature. He tried to establish the chronology of the isnad by employing the methods of Ibn Ishak (85/704-151/76. According to Horovitz, the isnad first emerged in the last quarter of the first century AH. Although this is an earlier date for the start of the isnad than that given by previous orientalists, Horovitz was still skeptical about the isnad in terms of its role in establishing the ?sources' of hadiths, unlike other orientalists, such as G. H. A. Juynboll, who traced the isnad back to the same date. Likewise, although Horovitz differs from his predecessors on the issue of the chronology of the isnad, he occupies common ground with them in terms of the assertion that Islam contains many elements from other religions and cultures. He describes Islam as "an area where syncretism dominates."
The same assertion was also made by the Dutch orientalist Arent Jan Wensinck (1882-1939), who was a leading member of the famous Concordance project. A study on the Dutch orientalist tradition reports that while he was working on his PhD dissertation on Prophet Muhammad's relationships with the Jews in Medina, Wensinck realized the significance of the hadiths for Islamic theology, and thus started the Concordance project in order to make sure that the hadiths could be used more efficiently in studies on Islam. He claims that the scope of the provisions of the Quran was limited to the Medina context, and with the expansion of Islam beyond the Arabian Peninsula there emerged the need for different moral and legal sources; these Muslims found in Roman and Jewish law, Christian ethics and asceticism, and Hellenism. Elements taken from these external traditions, according to him, compensated for the missing traditions, and they are contained in the hadith literature. He further claims that this literature includes not only those elements borrowed from the above-mentioned traditions, but also the hadiths fabricated by competing groups, as Goldziher argued before him. For this reason, Wensinck sees the hadiths as an important source for the history of Islamic theology. Assuming that the Quran was authored by the Prophet, he claims that the hadiths were produced by Islamic society after him, and that this is the reason why they have been so popular among Muslims.
Another Western scholar working on the prophetic traditions, Alfred Guillaume (1888-1965), differs from his predecessors with his claim that the different ways in which the hadiths were fabricated reflect the political and religious tendencies of competing groups. He also argues that only a few of the hadiths can belong to the authorities to whom they were attributed, based on mistakes made during the narration process. His work on the hadith literature entitled The Traditions of Islam makes it necessary to mention his name in this context.
It can be observed that all of the orientalists mentioned so far share a common skeptical attitude towards the hadith literature. At this point, we may refer to a different view in the orientalist literature, namely that of Johann Fueck (1894-1974), who criticizes the skeptical approach of his predecessors, arguing that the Prophet had set an ideal example for Muslims from the beginning. He stresses the uniting, as opposed to dividing, aspects of the hadith literature, focusing on independent and neutral hadith scholars rather than an idea of competing groups fabricating prophetic traditions. According to Fueck, those who see the hadith literature as simply a collection of views of later generations ignore the deep influence of the Prophet on believers. They thus fail to see the originality of the hadith literature, regarding it instead as a ?mosaic' composed of many foreign elements. Consequently, they accept the hadiths as fabricated until proven otherwise. For Fueck, however, despite the fact that hadith scholars were not completely successful in eliminating fabricated hadiths, the hadith literature contains many authentic traditions. For when the activities of collecting hadith started fifty years after the death of the Prophet, only the younger Companions were still alive and the ulema of hadith narrated only from them. In this context, the fact that there are very few traditions narrated from such companions as Abu Bakr and Omar, who were closer to the Prophet, increases the credibility of the hadith scholars. (For, according to Fueck, if these scholars had been fabricating the hadiths as was claimed, they would have attributed them to older companions who were closer to the Prophet, rather than the younger ones, for this would support the soundness of their hadiths; but the fact that they did not do so proves their trustworthiness.) On the other hand, Fueck argues that the narrative chains of hadiths can ultimately be traced back only to the second century (AH), while there is no sound evidence for the preceding period. Although he admits the idea that the roots of the sunnah can be found in the first century, he claims that some modifications and revisions in the hadiths were made by later generations. Nevertheless, he still differs from earlier orientalists in arguing that in many cases the authentic essence beneath these modifications can be established on the basis of certain criteria.
It is clear that all the orientalists mentioned so far, with the notable exception of Johann Fueck, basically agree with, and expand upon, the views put forward by Goldziher. Nevertheless, Joseph Schacht (1902-1969), who made an impact on his successors similar to that of Goldziher, complained that the findings of the latter had been ignored and consequently the ?standards lowered'. By ?lowered standards' he meant, of course, the abandonment of Goldziher's skepticism towards hadiths. He saw his own studies as an extension of Goldziher's work, and started from the basic premise that the hadiths were not traditions that conveyed the Prophet's sayings and practices, but were rather simply a reflection of developments and dominant views in second-century Islamic society. According to Schacht, it was al-Shafi's (150/767-204/820) efforts that allowed the hadiths to become a legitimate source of Islamic law, gaining an ultimately authoritative position vis-?-vis opinion; within 50 years there was a great wave of marfu (hadiths that belonged to the Prophet) narrations. Accordingly, Schacht alleges that the marfu hadiths first emerged in the middle of the second century (AH), and the legitimate hadiths belonging to the Companions (mawkuf traditions) emerged in the early second century. As is apparent from this periodization, he claims that the adoption of the hadiths of the Prophet as a source of law in Islam took place at a later date than that of the traditions of the Companions - that is, the latter were adopted at a time closer to the Prophet himself. Nevertheless, as mentioned above, the date he provides for the traditions of the Companions does not reach further back than 100 (AH), which also invites another of his assertions. According to Schacht, it is not possible to find any authentic tradition among those attributed to the Companions either. He argues that authentic legal traditions can only be found among those attributed to the subsequent generation, the generation of Successors (tabiun). Thus, the implications of his allegations are serious. Furthermore, although he admits that the hadiths about theological issues could be dated to an earlier time than the legal traditions, Schaht nevertheless asserts that not all of these hadiths can be dated to the first century. He also maintains that his conclusions about legitimate hadiths can be applied to historical narratives as well. Considering all this, his assertions might be said to have far-reaching implications. Thus, Schacht became a major figure in orientalist literature, greatly influencing the later scholars - so much so that the subsequent generations of orientalists have been divided into either those who accept his claims or those who do not, making him a central figure in the literature.
The orientalists briefly discussed so far are those who represent the mainstream tradition of Islamic studies in the West. The designation of Schacht as a turning point is not only due to his great influence on his successors, but also because he shaped the direction of the discipline by generating a strong reaction against his assertions. The common allegation of his own work and this period in general can be summarized thus contrary to what Muslims think, there was no intense activity of hadith narration or any systematic scientific effort on the part of Muslim scholars in this area during or after the lifetime of the Prophet. For this reason, the orientalists of this period do not believe in the authenticity of the hadith literature, nor do they ever directly relate it to the Prophet in any way. However, this attitude makes it impossible to say anything about the first century and prevents further research, turning it into a closed period. Those Western scholars who have realized this and tried to make use of the hadiths on the basis of certain criteria they have established, on the other hand, are accused (by Schacht) of "lowering the standards".
http//www.lastprophet.info/en/content/view/35/15/