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Development of Muslim Theology: Part II. Development of Jurisprudence: Chapter I

Development of Jurisprudence

CHAPTER I

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

IN tracing the development of Muslim jurisprudence few of the difficulties are encountered which surrounded Sir Henry Maine when he first examined the origins and history of European law. We do not need to push our researches back to the primitive family, nor to work our way through periods of centuries guided by the merest fragments of documents and hints of usage. Our subject was born in the light of history; it ran its course in a couple of hundred years and has left at every important point

isnad, until the last link came, and the matn, the Prophet of God said,

Iurisprudentes by those speculative jurists who worked mostly outside of al-Madina in the camp cities of Mesopotamia and Syria--the very name for lawyer in Arabic, faqih, plural fuaqha, is a translation of prudens, prudentes; and that of the Responsa, the answers, by the "Opinion" which they claimed as a legitimate legal method and source. Further, the validity of a general agreement of jurisconsults "reminds us of the rescript of Hadrian, which ordains

ra’y, here rendered Opinion, has passed through marked vicissitudes of usage. In old Arabic, before it, in the view of some, began to keep bad company, it meant an opinion that was thoughtful, weighed and reasonable, as opposed to a hasty dictate of ill-regulated passion. In that sense it is used in a tradition--probably forged--handed down from Muhammad. He was sending a judge to take charge of legal affairs in al-Yaman, and asked him on what he would base his legal decisions. "On the Qur’an," he replied. "But if that contains nothing to the purpose?" "Then upon your usage." "But if that also fails you?" "Then I will follow my own opinion." And the Prophet approved his purpose. A similar tradition goes back to Umar, the first Khalifa, and it, too, is probably a later forgery, written to defend this source of law. But, with the revolt against the use of Opinion, to which we shall soon come, the term itself fell into grave disrepute and came to signify an unfounded conclusion. In its extremest development it went beyond the Responsa, which professed always to be in exact accord with the letter of the older law, and attained to be Equity in the strict sense; that is, the rejection of the letter of the law for a view supposed to be more in accordance with the spirit of justice itself. Thus, Equity, in the English sense, is the law administered by the Court of Chancery and claims, in the words again of Sir Henry Maine, to

istihsan) to follow a different one; and the other is that, under the same conditions, he chooses a free course "for the sake of general benefit to the community" (istislah). Further scope of Equity Muslim law never reached, and the legitimacy of these two developments was, as we shall see, bitterly contested. The freedom of opinion, with its possibility of a system of Equity, had eventually to be given up, and all that was left in its place was a permissibility of analogical deduction (qiyas), the nearest thing to which in Western law is Legal Fiction. In a word, the possibility of development by Equity was lost, and Legal Fiction entered in its place. But this anticipates, and we must return to the strictly historical movement.

During the first thirty years after the death of Muhammad--the period covered by the reigns of the four theocratic rulers whom Islam still calls "the Four Just, or Rightly Guided Khalifas" (al-Khulafa ar-rashidun)--the two twin studies of tradition (hadith) and of law (fiqh) were fostered and encouraged by the state. The centre of that state was still in al-Madina, on ground sacred with the memories of

sunna); then will come kings and princes."

And so it was Mu‘awiya was the first of the Umayyad dynasty and with him and them Islam, in all but the name, was at an end. He and they were Arab kings of the old type that had reigned before Muhammad at al-Hira and Ghassan, whose will had been their law. The capital of the new kingdom was Damascus; al-Madina became a place of refuge, a Cave of Adullam, for the old Muslim party. There they might spin theories of state and of law, and lament the good old days; so long as there was no rebellion, the Umayyads cared little for those things or for the men who dreamt them. Once, the Umayyads were driven to capture and sack the holy city, a horror in Islam to this day. After that there was peace, the peace