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 slothby 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 theResponsa 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 RomanIurisprudentesby 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, pluralfuqaha, is a translation ofprudens,prudentes; and that of theResponsa, 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 ordainsthat, if the opinions of the licensedprudentesall 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 theResponsa, 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“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 ofthe 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 peaceof 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, thiscanon 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.
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.
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 importantpart 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, orshould 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 newmodus vivendiwas 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 pursueour 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 seldomof 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 plainres iudicataof 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, therehas 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 thegreat 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 toNight 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 sincerelyreligious 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 earlyrise and spread of systems of jurisprudence outside of Arabia.
MALIK IBN ANAS
InA.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 andparvenuswho 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, orwith 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, somepauvre diablewith 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 termistislah, 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, theMuwattamentioned above, has come down to us. It is notin 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.
HISTORICALV.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 juristshad 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. Buthe 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. Thelast 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 traditionalenough 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, alreadymentioned. 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. HisMusnadhas 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 aschool, 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 separateschools (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.