SOVEREIGNTY OF KHALIFATE
But a wave was soon to break in and sweep away all these forms. It came with the Mongols under Hulagu, who passed from the destruction of the Assassins to the destruction of Baghdad and the Khalifate. InA.H.656 (A.D.1258), the city was taken and the end of the Abbasids had come. An uncle of the reigning Khalifa escaped and fled to Egypt, where the Mamluk Sultan received him and gave him aspiritual court and ecclesiastical recognition. He found it good to have a Khalifa of his own to use in any question of legitimacy. The name had yet so much value. Finally, in 1517, the Mamluk rule went down before the Ottoman Turks, and the story told by them is that the last Abbasid, when he died in 1538, gave over his rights to their Sultan, Sulayman the Great. Since then, the Ottoman Sultan of Constantinople has claimed to be the Khalifa of Muhammad and the spiritual head of the Muslim world.
Such were the fates of the Commanders of the Faithful. We have traced them through a long and devious course, full of confusions and complications. Leaving aside the legitimist party, the whole may be summed in a word. The theoretical position was that the Imam, or leader, must be elected by the Muslim community, and that position has never, theoretically, been abandoned. Each new Ottoman sovereign is solemnly elected by the Ulama, or canon lawyers and divines of Constantinople. His temporal sovereignty comes by blood; in bestowing this spiritual sovereignty the Ulama act as representatives of the People of Muhammad. Thus the theoretical position was liable to much modification in practice. The Muslim community resolves itself into the people of the capital; still further, into the body-guard of the dead Khalifa; and, finally, as now, into the peculiar custodians of the Faith. Among the Ibadites the position from the first seems to have been that only those learned in the law should act as electors. Along with this, the doctrine developed that it wasthe duty of the people to recognizeun fait accompliand to do homage to a successful usurper—until another more successful should appear. They had learned that it was better to have a bad ruler than no ruler at all. This was the end of the democracy of Islam.
CONSTITUTIONAL QUESTION OF TO-DAY
Finally, it may be well to give some account of the constitutional question as it exists at the present day. The greatest of the Sultans of Islam is undoubtedly the Emperor of India. Under his rule are far more Muslims than fall to any other. But the theory of the Muslim State never contemplated the possibility of Muslims living under the rule of an unbeliever. For them, the world is divided into two parts, the one isDar al-Islam, abode of Islam; and the other isDar al-harb, abode of war. In the end,Dar al-harbmust disappear intoDar al-Islamand the whole world be Muslim. These names indicate with sufficient clearness what the Muslim attitude is toward non-Muslims. It is still a moot point among canon lawyers, however, whetherJihad, or holy war, may be made, unprovoked, upon anyDar al-harb. One thing is certain, there must be a reasonable prospect of success to justify any such movement; the lives of Muslims must not be thrown away. Further, the necessity of the case—in India, especially—has brought up the doctrine that any country in which the peculiar usages of Islam are protected and its injunctions—even some of them—followed, must be regarded asDar al-Islamand thatJihadwithin its borders is forbidden. We may doubt, however, if this doctrine would hold back the Indian Muslims toany extent if a good opportunity for aJihadreally presented itself. The Shi‘ites, it may be remarked, cannot enter upon aJihadat all until the Hidden Imam returns and leads their armies.
THEORIES OF THE KHALIFATE
Again the two signs of sovereignty for Muslims are that the name of the sovereign should be on the coinage and that he should be prayed for in the Friday sermon (khutba). In India, the custom seems to be to pray for “the ruler of the age” without name; then each worshipper can apply it as he chooses. But there has crept in a custom in a few mosques of praying for the Ottoman Sultan as the Khalifa; the English government busies itself little with these things until compelled, and the custom will doubtless spread. The Ottoman Sultan is certainly next greatest to the Emperor of India and would seem, as a Muslim ruling Muslims, to have an unassailable position. But in his case also difficult and ambiguous constitutional questions can be raised. He has claimed the Khalifate, as we have seen, since 1538, but the claim is a shaky one and brings awkward responsibilities. As stated at the present day, it has five grounds. First,de factoright; the Ottoman Sultan won his title by the sword and holds it by the sword. Second, election; this form has been already described. Third, nomination by the last Abbasid Khalifa of Egypt; so Abu Bakr nominated Umar to succeed him, and precedent is everything in Islam. Fourth, possession and guardianship of the two Harams, or Sacred Cities, Mecca and al-Madina. Fifth, possession of some relics of the Prophet saved from the sack of Baghdad and delivered to Sultan Salim, on his conquest ofEgypt, by the last Abbasid. But these all shatter against the fixed fact that absolutely accepted traditions from the Prophet assert that the Khalifa must be of the family of Quraysh; so long as there are two left of that tribe, one must be Khalifa and the other his helper. Still, here, as everywhere, the principal of Ijma, Agreement of the Muslim people, (see p. 105) comes in and must be reckoned with. These very traditions are probably an expression in concrete form of popular agreement. The Khalifate itself is confessedly based upon agreement. The canon lawyers state the case thus: The Imamites and Isma‘ilians hold that the appointment of a leader is incumbent upon God. There is only the difference that the Imamites say that a leader is necessary in order to maintain the laws unimpaired, while the Isma‘ilians regard him as essential in order to give instruction about God. The Kharijites, on the other hand, recognize no fundamental need of an Imam; he is only allowable. Some of them held that he should be appointed in time of public trouble to do away with the trouble, thus a kind of dictator; others, in time of peace, because only then can the people agree. The Mu‘tazilites and the Zaydites held that it was for man to appoint, but that the necessity was based on reason; men needed such a leader. Yet some Mu‘tazilites taught that the basis was partly reason and partly obedience to tradition. On the other hand, the Sunnites hold that the appointment of an Imam is incumbent upon men and that the basis is obedience to the tradition of the Agreement of the Muslim world from the earliest times. Thecommunity of Islam may have disputed over the individual to be appointed, but they never doubted that the maintenance of the faith in its purity required a leader, and that it was, therefore, incumbent on men to appoint one. The basis is Ijma, Agreement, not Scripture or tradition from Muhammad or analogy based on these two.
It will be seen from this that thede factoground to the claim of the Ottoman Sultan is the best. The Muslim community must have a leader; this is the greatest Muslim ruling Muslims; he claims the leadership and holds it. If the English rule were to become Muslim, the Muslims would rally to it. The ground of election amounts to nothing, the nomination to little more, except for antiquarians; the possession of the Prophetic relics is a sentiment that would have weight with the crowd only; no canon lawyer would seriously urge it. The guardianship of the two Harams is precarious. A Turkish reverse in Syria would withdraw every Turkish soldier from Arabia and the great Sharif families of Mecca, all of the blood of the Prophet, would proclaim a Khalifa from among themselves. At present, only the Turkish garrison holds them in check.
PAN-ISLAMISM
But a Khalifa has responsibilities. He absolutely cannot become a constitutional monarch in our sense. He rules under law—divine law—and the people can depose him if he breaks it; but he cannot set up beside himself a constitutional assembly and give it rights against himself. He is the successor of Muhammad and must rule, within limitations, as an absolute monarch. So impossible is the modern Khalifate,and so gigantic are its responsibilities. The millions of Chinese Muslims look to him and all Muslims of central Asia; the Muslims of India who are not Shi‘ite also look to him. So, too, in Africa and wherever in the world the People of Muhammad have gone, their eyes turn to the Bosphorus and the Great Sultan. This is what has been called the modern Pan-Islamic movement; it is a modern fact.
The position of the other Muslim sects we have already seen. Of Shi‘ite rulers, there are the Imamites in Persia; scattered Zaydites still in south Arabia and fugitive in Africa; strange secret bodies of Isma‘ilians—Druses, Nusayrites, Assassins—still holding their own in mountain recesses, forgotten by the world; oldest of all, the Sharifs of Morocco, who are Sunnites and antedate all theological differences, holding only by the blood of the Prophet. At Zanzibar, Uman and the Mzab in Algeria are the descendants of the Kharijites. Probably, somewhere or other, there are some fossilized descendants of every sect that has ever arisen, either to trouble the peace of Islam or to save it from scholastic decrepitude and death. Insurrections and heresies have their own uses.
It only remains to make mention of two modern movements which have deeply affected the Islam of to-day. The Pan-Islamic movement, noticed above, strives as much as anything to bring the Muslim world into closer touch with the science and thought of the Christian world, rallying all the Muslim peoples at the same time round the Ottoman Sultan as their spiritual head and holding fast by the kernel ofIslam. It is a reform movement whose trend is forward. The other two, to which we now come, are reform movements also, but their trend is backward. They look to the good old days of early Islam and try to restore them.
The first is that of the Wahhabites, so called from Muhammad ibn Abd al-Wahhab (Slave of the Bountiful), its founder, a native of Najd in central Arabia, who died in 1787. His aim was to bring Islam back to its primitive purity and to do away with all the usages and beliefs which had arisen to cloud its absolute monotheism. But attempts at reformation in Islam have never led to anything but the founding of new dynasties. They may begin with a saintly reformer, but in the first or the second generation there is sure to come the conquering disciple; religion and rule go together, and he who meddles with the one must next grasp at the other. The third stage is the extinction of the new dynasty and the vanishing of its party into a more or less secret sect, the vitality of which is again directed into religious channels. The Wahhabites were no exception. Their rule extended from the Persian Gulf to the Red Sea, touched al-Yaman and Hadramawt and included some districts of the Pashalik of Baghdad. That was early in the nineteenth century; but now, after many dynastic changes, the rule of the Wahhabites proper has almost ceased, although the Turks have not gained any new footing in Najd. There, a native Arab dynasty has sprung up which is free from Turkish control in every respect, and has its seat in Ha’il. But the zeal of the Wahhabites gave an impulse toreform in the general body of Muslims which is not yet, by any means, extinct. Especially in India, their views have been widely spread by missionaries, and at one time there was grave fear of a Wahhabite insurrection. But dead parties in Islam seldom rise again, and the life of Wahhabism has passed into the Muslim Church as a whole. Politically it has failed, but the spirit of reform remains and has undoubtedly influenced the second reform movement to which we now come.
BROTHERHOOD OF AS-SANUSI
That is the Brotherhood of as-Sanusi, founded in 1837 by Muhammad ibn Ali as-Sanusi in order to reform and spread the faith. The tendency to organize has always been strong among Orientals, and in Islam itself there have risen, as we have seen, from the earliest times, secret societies for conspiracy and insurrection. But apart from these dubious organizations, religious feeling has also expressed itself in brotherhoods closely corresponding to the monastic orders of Europe, except that they were, and are, self-governing and under no relations but those of sentiment to the head of the Muslim Faith. Rather, these orders of darwishes have been inclined toward heresies of a mystical and pantheistic type more than toward the development and support of the severely scholastic theology of orthodox Islam. This is a side of Muhammadanism with which we shall have to deal in some detail hereafter. In the meantime, it is enough to say that the Brotherhood of as-Sanusi is one of the orders of darwishes, but distinguished from all its predecessors in its severely reforming and puritanic character. It has taken upthe task of the Wahhabites and is working out the same problem in a rather different way. Its principles are of the strictest monotheism; all usages and ideas that do not accord with their views of the exact letter of the Qur’an are prohibited. The present head of the Brotherhood, the son of the founder, who himself died in 1859, claims to be the Mahdi and has established a theocratic state at Jarabub, in the eastern Sahara, between Egypt and Tripolis. The mother house of the order is there, and from it missionaries have gone out and established other houses throughout all north Africa and Morocco and far into the interior. The Head himself has of late retreated farther into the desert. There is also an important centre at Mecca, where the pilgrims and the Bedawis are initiated into the order in great numbers. From Mecca these brethren return to their homes all over the Muslim world, and the order is said to be especially popular in the Malay Archipelago.
THE PROBLEM OF THE FUTURE
So there has sprung up in Islam, in tremendous ramifications, animperium in imperio. All the brethren in all the degrees—for, just as in the monastic orders of Europe, there are active members and lay members—reverence and pay blind obedience to the Head in his inaccessible oasis in the African desert. There he works toward the end, and there can be little doubt what that end will be. Sooner or later Europe—in the first instance, England in Egypt and France in Algeria—will have to face the bursting of this storm. For this Mahdi is different from him of Khartum and the southern Sudan in that he knows how to rule and wait; for years he has gathered arms and munitions,and trained men for the greatJihad. When his plans are ready and his time is come, a new chapter will be opened in the history of Islam, a chapter which will cast into forgetfulness even the recent volcanic outburst in China. It will then be for the Ottoman Sultan of the time to show what he and his Khalifate are worth. He will have to decide whether he will throw in his lot with a Mahdi of the old Islam and the dream of a Muslim millennium, or boldly turn to new things and carry the Successorship and the People of Muhammad to join the civilized world.
The scope of jurisprudence among Muslims; the earliest elements in it, Arab custom, Jewish law, personality of Muhammad; his attitude toward law; elements after death of Muhammad; Qur’an, Usage of the Prophet, common law of al-Madina; conception ofSunnabefore Muhammad and after; traditions and their transmission; traditions in book form; influence of Umayyads; forgery of traditions; theMuwattaof Malik ibn Anas; theMusnadof Ahmad ibn Hanbal; themusannafs; al-Bukhari; Muslim; Ibn Maja; at-Tirmidhi; an-Nasa’i; al-Baghawi; the problem of the Muslim lawyers; their sources; Roman law; the influence of the doctrine of theResponsa prudentium; Opinion in Islam; the Law of Nature or Equity in Islam;istihsan;istislah; Analogy; the patriarchal period in Islam; the Umayyad period; the growth of the canon law.
The scope of jurisprudence among Muslims; the earliest elements in it, Arab custom, Jewish law, personality of Muhammad; his attitude toward law; elements after death of Muhammad; Qur’an, Usage of the Prophet, common law of al-Madina; conception ofSunnabefore Muhammad and after; traditions and their transmission; traditions in book form; influence of Umayyads; forgery of traditions; theMuwattaof Malik ibn Anas; theMusnadof Ahmad ibn Hanbal; themusannafs; al-Bukhari; Muslim; Ibn Maja; at-Tirmidhi; an-Nasa’i; al-Baghawi; the problem of the Muslim lawyers; their sources; Roman law; the influence of the doctrine of theResponsa prudentium; Opinion in Islam; the Law of Nature or Equity in Islam;istihsan;istislah; Analogy; the patriarchal period in Islam; the Umayyad period; the growth of the canon law.
In tracing the development of Muslim jurisprudence few of the difficulties are encountered which surrounded Sir Henry Maine when he first examined the origins and history of European law. We do not need to push our researches back to the primitive family, nor to work our way through periods of centuries guided by the merest fragments of documents and hints of usage. Our subject was born in the light of history; it ran its course in a couple of hundred years and has left at every important pointauthoritative evidences of its whence, its how, and its whither. Our difficulties are different, but sufficiently great. Shortly, they are two. The mass of material is overpowering; the strangeness of the ideas involved is perplexing. The wealth of material will become plain, to some extent at least, as the history is traced; but for the strangeness of the contents, of the arrangement and the atmosphere of these codes some preparation must be given from the outset. How, indeed, can we meet a legal code which knows no distinction of personal or public, of civil or criminal law; which prescribes and describes the use of the toothpick and decides when a wedding invitation may be declined, which enters into the minutest and most unsavory details of family life and lays down rules of religious retreat? Is it by some subtle connection of thought that the chapter on oaths and vows follows immediately that on horse-racing, and a section on the building line on a street is inserted in a chapter on bankruptcy and composition? One thing, at least, is abundantly clear. Muslim law, in the most absolute sense, fits the old definition, and is the science of all things, human and divine. It tells what we must render to Cæsar and what to God, what to ourselves, and what to our fellows. The bounds of the Platonic definition of rendering to each man his due it utterly shatters. While Muslim theology defines everything that a man shallbelieveof things in heaven and in earth and beneath the earth—and this is no flat rhetoric—Muslim law prescribes everything that a man shalldoto God, to his neighbor, and to himself. It takes all duty for its portion and defines all action interms of duty. Nothing can escape the narrow meshes of its net. One of the greatest legists of Islam never ate a watermelon because he could not find that the usage of the Prophet had laid down and sanctioned a canonical method of doing so.
SCOPE OF MUSLIM LAW
It will, therefore, be well for the student to work through the sketch of a code of Muslim law which is inserted in Appendix I. One has been chosen which belongs to the school of ash-Shafi‘i because of its general accessibility. It should be remembered that what is given is the merest table of contents. The standard Arabic commentary on the book extends to eight hundred and eleven closely printed quarto pages. Even a mere reading of this table of contents, however, will show in how different a sphere of thought from ours Muslim law moves and lives. But we must return to the beginning of things, to the egg from which this tremendous system was hatched.
The mother-city of Islam was the little town of Yathrib, called Madinat an-Nabi, the City of the Prophet, or, shortly, al-Madina, ever since the Hijra or Migration of Muhammad to it in the year 622 of the Christian era. Here the first Muslim state was founded, and the germinal principles of Muslim jurisprudence fixed. Both state and jurisprudence were the result of the inter-working of the same highly complicated causes. The ferments in the case may be classified and described as follows: First, in the town itself before the appearance of Muhammad on its little stage—little, but so momentous for the future—there were two parties, often at war, oftener at peace. There was a genuine Arab element andthere was a large settlement of Jews. To the Arabs any conception of law was utterly foreign. An Arab tribe has no constitution; its system is one of individualism; the single man is a sovereign and no writ can lie against him; the tribe can cast him forth from its midst; it cannot otherwise coerce him. So stands the case now in the desert, and so it was then. Some slight hold there might be on the tribe through the fear of the tribal God, but on the individual Arab, always a somewhat cynical sceptic, that hold was of the slightest. Further, the avenging of a broken oath was left to the God that had witnessed the oath; if he did not care to right his client, no one else would interfere. There was customary law, undoubtedly, but it was protected by no sanction and enforced by no authority. If both parties chose to invoke it, well; if not, neither had anything to fear but the anger of his opponent. That law of custom we shall find again appearing in the system of Islam, but there it will be backed by the sanction of the wrath of God working through the authority of the state. The Jewish element was in a different case. They may have been Jewish immigrants, they may have been Jewish proselytes—many Arab tribes, we know, had gone over bodily to Judaism—but their lives were ruled and guided by Jewish law. To the primitive and divine legislation on Sinai there was an immense accretion by legal fiction and by usage; the Roman codes had left their mark and the customary law of the desert as well. All this was working in the life of the town when Muhammad and his little band of fugitives from Mecca entered it. Being Meccans,they must have brought with them the more developed legal ideas of that trading centre; but these were of comparatively little account in the scale. The new and dominating element was the personality of Muhammad himself. His contribution was legislation pure and simple, the only legislation that has ever been in Islam. Till his death, ten years later, he ruled his community as an absolute monarch, as a prophet in his own right. He sat in the gate and judged the people. He had no need of a code, for his own will was enough. He followed the customary law of the town, as it has been described above, when it suited him, and when he judged that it was best. If not, he left it and there was a revelation. So the legislative part of the Qur’an grew out of such scraps sent down out of heaven to meet the needs of the squabbles and questions of the townsfolk of al-Madina. The system was one of pure opportunism; but of what body of legislation can that not be said? Of course, on the one hand, not all decisions were backed by a revelation, and Muhammad seems, on the other, to have made a few attempts to deal systematically with certain standing and constantly recurring problems—such, for example, as the conflicting claims of heirs in an estate, and the whole complicated question of divorce—but in general, the position holds that Muhammad as a lawyer lived from hand to mouth. He did not draw up any twelve tables or ten commandments, or code, or digest; he was there and the people could come and ask him questions when they chose, and that was enough. The conception of a rounded and complete system which willmeet any case and to which all cases must be adjusted by legal fiction or equity, the conception which we owe to the genius and experience of the Roman lawyers, was foreign to his thought. From time to time he got into difficulties. A revelation proved too wide or too narrow, or left out some important possibility. Then there came another to supplement or correct, or even to set the first quite aside—Muhammad had no scruples about progressive revelation as applied to himself. Thus, through these interpretive acts, as we may call them, many flat contradictions have come into the Qur’an and have proved the delight of generations of Muslim jurisconsults.
MUHAMMAD AS A LEGISLATOR
Such, then, was the state of things legal in al-Madina during the ten years of Muhammad’s rule there until his death inA.D.632. Of law there was, strictly speaking, none. In his decisions, Muhammad could follow certainly the customary law of the town; but to do so there was no necessity upon him other than prudence, for his authority was absolute. Yet even with such authority and such freedom, his task was a hard one. The Jews, the native Arabs of al-Madina, and his fellow fugitives from Mecca lived in more or less of friction. He had to see to it that his decisions did not bring that friction to the point of throwing the whole community into a flame. The Jews, it is true, were soon eliminated, but the influence of their law lasted in the customary law of the town long after they themselves had become insignificant. Still, with all this, the suitor before Muhammad had no certainty on what basis his claims would be judged; whether it would be the old law ofthe town, or a rough equity based on Muhammad’s own ideas, or a special revelationad hoc. So far, then, we may be said to have the three elements—common law, equity, legislation. Legal fiction we shall meet later; Muhammad had no need of it.
QUR’AN; USAGE OF MUHAMMAD
But with the death of Muhammad inA.D.632 the situation was completely changed. We can now speak of Muslim law; legislation plays no longer any part; the process of collecting, arranging, correlating, and developing has begun. Consider the situation as it must have presented itself to one of the immediate successors of Muhammad, as he sat in his place and judged the people. When a case came up for decision, there were several sources from which a law in point might be drawn. First among them was the Qur’an. It had been collected from the fragmentary state in which Muhammad had left it by Abu Bakr, his second Khalifa, some two years after his death. Again, some ten years later, it was revised and given forth in a final public recension by Uthman, the third Khalifa. This was the absolute word of God—thoughts and language—and stood and, in theory, still stands first of all sources for theology and law. If it contained a law clearly applying to the case in hand, there was no more to be said; divine legislation had settled the matter. If not, recourse was next had to the decisions of the Prophet. Had a similar one come before him, and how had he ruled? If the memories of the Companions of the Prophet, theSahibs, could adduce nothing similar from one of his decisions, then the judge had to look further for an authority. But the decisions of Muhammad hadbeen many, the memories of his Companions were capacious, and possessed further, as we must recognize with regret, a constructive power that helped the early judges of Islam out of many close corners. But if tradition even—true or false—finally failed, then the judge fell back on the common law of al-Madina, that customary law already mentioned. When that, too, failed, the last recourse was had to the common-sense of the judge—roughly, what we would call equity. At the beginning, therefore, of Muslim law, it had the following sources—legislation, the usage of Muhammad, the usage of al-Madina, equity. Naturally, as time went on and the figure of the founder drew back and became more obscure and more venerated, equity fell gradually into disuse; a closer search was made for decisions of that founder which could in any way be pressed into service; a method of analogy, closely allied to legal fiction, was built up to assist in this, and the development of Muslim jurisprudence as a system and a science was fairly begun. Further, in later times, the decisions of the first four Khalifas and the agreement (ijma) of the immediate Companions of Muhammad came to assume an importance only second to that of Muhammad himself. Later still, as a result of this, the opinion grew up that a general agreement of the jurisconsults of any particular time was to be regarded as a legitimate source of law. But we must return to consider our subject more broadly and in another field.
LEGAL CLASSES OF ACTIONS
The fact has already been brought out that the sphere of law is much wider in Islam than it has everbeen with us. By it all the minutest acts of a Muslim are guarded. Europe, also, passed through a stage similar to this in its sumptuary laws; and the tendency toward inquisitorial legislation still exists in America, but not even the most mediævally minded American Western State has ventured to put upon its statute-book regulations as to the use of the toothpick and the wash-cloth. Thus, the Muslim conception of law is so wide as to reach essential difference. A Muslim is told by his code not only what is required under penalty, but also what is either recommended or disliked though without reward or penalty being involved. He may certainly consult his lawyer, to learn how near the wind he can sail without unpleasant consequences; but he may also consult him as his spiritual director with regard to the relative praiseworthiness or blameworthiness of classes of actions of which our law takes no cognizance. In consequence, actions are divided by Muslim canon lawyers (faqihs) into five classes. First, necessary (fardorwajib); a duty the omission of which is punished, the doing rewarded. Secondly, recommended (mandubormustahabb); the doing is rewarded, but the omission is not punished. Thirdly, permitted (ja’izormubah); legally indifferent. Fourthly, disliked (makruh); disapproved by the law, but not under penalty. Fifthly, forbidden (haram); an action punishable by law. All this being so, it will be easily understood that the record of the manners and customs of the Prophet, of the little details of his life and conversation, came to assume a high importance. Much of that was too petty everto reach expression in the great digests of law; not even the most zealous fixer of life by rule and line would condemn his fellow-religionist because he preferred to carry a different kind of walking-stick from that approved by the Prophet, or found it fitting to arrange his hair in a different way. But still, all pious Muslims paid attention to such things, and fenced their lives about with the strictest Prophetic precedent.
SUNNA; HADITH
In consequence of this, there early arose in Islam a class of students who made it their business to investigate and hand down the minutest details as to the habits of Muhammad. This was a separate thing from the study of law, although fated to be eventually connected with it. Even in the time of theJahiliya—the period before Islam, variously explained as the ignorance or as the rudeness, uncivilizedness—it had been a fixed trait of the Arab mind to hold closely to old paths. An inherent conservatism canonized thesunna—custom, usage—of the ancients; any stepping aside from it was abid‘a—innovation—and had to win its way by its merits, in the teeth of strong prejudice. With the coming of Muhammad and the preaching of Islam, this ancestralsunnahad in great part to yield. But the temper of the Arab mind remained firm, and the sunna of Muhammad took its place. Pious Muslims did not say, “Such was the usage of our fathers, and it is mine;” but, “I follow the usage of the Prophet of God.” Then, just as the old sunna of the heathen times had expressed itself through the stories of great warriors, of their battles and loves; through anecdotes of wise men, and their keen andeloquent words; so it was with the sunna of the one man, Muhammad. What he said, and what he did; what he refrained from doing; what he gave quasi-approval to by silence; all was passed on in rapidly increasing, pregnant little narratives. First, his immediate Companions would note, either by committing to memory or to a written record, his utterances and table-talk generally. We have evidence of several such Boswells, who fixed his words as they fell. Later, probably, would come notes of his doings and his customs, and of all the little and great happenings of the town. Above all, a record was being gathered of all the cases judged by him, and of his decisions; of all the answers which he gave to formal questions on religious life and faith. All this was jotted down by the Companions onsahifas—odd sheets—just as they had done in the Ignorance with the proverbs of the wise and their dark sayings. The records of sayings were calledhadiths; the rest, as a whole, sunna—custom, for its details was used the plural,sunan—customs. At first, each man had his own collection in memory or in writing. Then, after the death of the Prophet and when his first Companions were dropping off, these collections were passed on to others of the second generation. And so the chain ran on and in time a tradition came to consist formally of two things—the text or matter (matn) so handed on, and the succession (isnad) over whose lips it had passed. A said, “There narrated to me B, saying, ‘There narrated to me C, saying,’” so far theisnad, until the last link came, and thematn, the Prophet of God said,“Some of my injunctions abrogate others,” or “The Jann were created of a smokeless flame,” or whatever it might be. What has just been said suggests that it was at first indifferent whether traditions were preserved orally or in writing. That is true of the first generation; but it must be remembered at the same time, that the actual passing on was oral; the writing merely aided the memory to hold that which was already learned. But with time, and certainly by the middle of the second century of the Hijra, two opposing tendencies in this respect had developed. Many continued to put their trust in the written word, and even came to pass traditions on without any oral communication. But for others there lay grave dangers in this. One was evidently real. The unhappy character of the Arabic script, especially when written without diacritical points, often made it hard, if not practically impossible, to understand such short, contextless texts as the traditions. A guide was necessary to show how the word should be read, and how understood. At the present time a European scholar will sometimes be helpless before even a fully vocalized text, and must take refuge in native commentaries or in that oral tradition, if it still exists and he has access to it, which supplies at least a third of the meaning of an Arabic book. Strengthening this came theological reasons. The words of the Prophet would be profaned if they were in a book. Or, again, they would be too much honored and the Qur’an itself might be neglected. This last fear has been justified to a certain extent by the event. On these grounds, and many more,the writing and transmitting in writing of traditions came to be fiercely opposed; and the opposition continued, as a theological exercise, long after many books of traditions were in existence, and after the oral transmission had become the merest farce and had even frankly dropped out.
TRADITIONS IN LITERATURE
It is to the formation of these books of traditions, or, as we might say, traditions in literature, that we must now turn. For long, the fragmentarysahifasand private collections made by separate scholars for their own use sufficed. Books dealing with law (fiqh) were written before there were any in that department of literature calledhadith. The cause of this is tolerably plain. Law and treatises of law were a necessity for the public and thus were encouraged by the state. The study of traditions, on the other hand, was less essential and of a more personal and private nature. Further, under the dynasty of the Umayyads, who reigned fromA.H.41 toA.H.132, theological literature was little encouraged. They were simple heathen in all but name, and belonged, and recognized that they belonged, not to Islam but to the Jahiliya. For reasons of state, they encouraged and spread—also freely forged and encouraged others to forge—such traditions as were favorable to their plans and to their rule generally. This was necessary if they were to carry the body of the people with them. But they regarded themselves as kings and not as the heads of the Muslim people. This same device has been used after them by all the contending factions of Islam. Each party has sought sanction for its views by representing them in traditionsfrom the Prophet, and the thing has gone so far that on almost every disputed point there are absolutely conflicting prophetic utterances in circulation. It has even been held, and with some justification, that the entire body ofnormativetradition at present in existence was forged for a purpose. With this attitude of the Umayyads we shall have to deal at greater length later. It is sufficient now to note that the first real appearance ofhadithin literature was in theMuwattaof Malik ibn Anas who died inA.H.179.
Yet even this appearance is not so much ofhadithfor its own sake, as of usages bearing upon law and of the law that can be drawn from these usages. The book is acorpus iurisnot acorpus traditionum. Its object was not so much to separate from the mass of traditions in circulation those which could be regarded as sound of origin and to unite them in a formal collection, as to build up a system of law based partly on tradition. The previous works dealing with law proper had been of a speculative character, had shown much subjective reliance on their own opinion on the part of the writers and had drawn little from the sacred usage of the Prophet and quoted few of his traditional sayings. Against that the book of Malik was a protest and formed a link between such law books pure and the collections of traditions pure with which we now come to deal.
THE MUSNADS
To Malik thematn, or text, of a tradition had been the only thing of importance. To theisnad, or chain of authority running back to the Prophet, he had paid little attention. He, as we have seen, wasa lawyer and gathered traditions, not for their own sake but to use them in law. To others, the tradition was the thing, and too much care could not be given to its details and its authenticity. And the care was really called for. With the course of time and the growing demand, the supply of traditions had also grown until there was no doubt in the mind of anyone that an enormous proportion were simple forgeries. To weed out the sound ones, attention had to be given to theisnad; the names upon it had to be examined; the fact of their having been in intercourse to be determined; the possibility of the case in general to be tested. Thus there were formed real collections of supposedly sound traditions, which were calledMusnads, because each tradition wasmusnad—propped, supported—against the Companions from whom it proceeded. In accordance with this also they were arranged according to the Companions. After the name of the Companion were given all the traditions leading back to him. One of the earliest and greatest of these books was theMusnadof Ahmad ibn Hanbal, who diedA.H.241; of him more hereafter. This book has been printed recently at Cairo in six quarto volumes of 2,885 pages and is said to contain about thirty thousand traditions going back to seven hundred Companions.
But another type of tradition-book was growing up, less mechanical in arrangement. It is theMusannaf, the arranged, classified—and in it the traditions are arranged in chapters according to their subject matter. The firstMusannafto make a permanent mark was theSahih—sound—of al-Bukhari, whodied inA.H.257. It is still extant and is the most respected of all the collections of traditions. The principle of arrangement in it is legal; that is, the traditions are classified in these chapters so as to afford bases for a complete system of jurisprudence. Al-Bukhari was a strong opponent of speculative law and his book was thus a protest against a tendency which, as we shall see later, was strong in his time. Another point in which al-Bukhari made his influence felt and with greater effect, was increased severity in the testing of traditions. He established very strict laws, though of a somewhat mechanical kind, and was most scrupulous in applying them. His book contains about seven thousand traditions, and he chose those, so at least runs the story, out of six hundred thousand which he found in circulation. The rest were rejectedas failing to meet his tests. How far the forgery of traditions had gone may be seen from the example of Ibn Abi Awja, who was executed inA.H.155, and who confessed that he had himself put into circulation four thousand that were false. Another and a similarSahihis that of Muslim, who died inA.H.261. He was not so markedly juristic as al-Bukhari. His object was rather to purify the mass of existing tradition from illegitimate accretions than to construct a basis for a complete law code. He has prefixed a valuable introduction on the science of tradition generally. In some slight details his principle of criticism differed from that of al-Bukhari.
These two collections, called the twoSahihs—as-Sahihan—are technicallyjami‘s, i.e.they contain allthe different classes of traditions, historical, ethical, dogmatic and legal. They have also come to be, by common agreement, the two most honored authorities in the Muslim world. A believer finds it hard, if not impossible, to reject a tradition that is found in both.
THE SUNAN
But there are four other collections which are calledSunan—Usages—and which stand only second to the twoSahihs. These are by Ibn Maja (d. 303), Abu Da’ud as-Sijistani (d. 275), at-Tirmidhi (d. 279) and an-Nasa’i (d. 303). They deal almost entirely with legal traditions, those that tell what is permitted and what is forbidden, and do not convey information on religious and theological subjects. They are also much more lenient in their criticisms of dubious traditions. To work exclusion with them, the rejection needed to be tolerably unanimous. This was required by their stand-point and endeavor, which was to find a basis for all the minutest developments and details of jurisprudence, civil and religious.
These six books, the twoSahihsand the fourSunans, came to be regarded in time as the principal and all-important sources for traditional science. This had already come about by the end of the fifth century, although even after that voices of uncertainty continued to make themselves heard. Ibn Maja seems to have been the last to secure firm footing, but even he is included by al-Baghawi (d. 516) in hisMasabih as-sunna, an attempted epitome into one book of what was valuable in all. Still, long after that, Ibn Khaldun, the great historian (d. 808), speaks of five fundamental works; and others speak ofseven, adding theMuwattaof Malik to the six above. Others, again, especially in the West, extended the number of canonical works to ten, though with varying members; but all these must be regarded as more or less local, temporary, and individual eccentricities. The position of the six stands tolerably firm.
So much it has been necessary to interpolate and anticipate with regard to the students of tradition whose interest lay in gathering up and preserving, not in using and applying. From the earliest time, then, there existed these two classes in the bosom of Islam, students of tradition proper and of law proper. For long they did not clash; but a collision was inevitable sooner or later.
Yet, if the circle of the Muslim horizon had not widened beyond the little market-town of al-Madina, that collision might have been long in coming. Its immediate causes were from without, and are to be found in the wave of conquest that carried Islam, within the century, to Samarqand beyond the Oxus and to Tours in central France. Consider what that wave of conquest was and meant. Within fourteen years of the Hijra, Damascus was taken, and within seventeen years, all Syria and Mesopotamia. By the year 21, the Muslims held Persia; in 41 they were at Herat, and in 56 they reached Samarqand. In the West, Egypt was taken in the year 20; but the way through northern Africa was long and hard. Carthage did not fall till 74, but Spain was conquered with the fall of Toledo in 93. It was inA.D.732, the year of the Hijra 114, that the wave at last wasturned and the mercy of Tours was wrought by Charles the Hammer; but the Muslims still held Narbonne and raided in Burgundy and the Dauphiné. The wealth that flowed into Arabia from these expeditions was enormous; money and slaves and luxuries of every kind went far to transform the old life of hardness and simplicity. Great estates grew up: fortunes were made and lost; the intricacies of the Syrian and Persian civilizations overcame their conquerors. All this meant new legal conditions and problems. The system that had sufficed to guard the right to a few sheep or camels had to be transformed before it would suffice to adjust the rights and claims of a tribe of millionnaires. But it must not be thought that these expeditions were only campaigns of plunder. With the Muslim armies everywhere went law and justice, such as it was. Jurists accompanied each army and were settled in the great camp cities which were built to hold the conquered lands. Al-Basra and al-Kufa and Fustat, the parent of Cairo, owe their origin to this, and it was in these new seats of militant Islam that speculative jurisprudence arose and moulded the Muslim system.