THE FORMATION OF ISLAMIC LAW – Book Sample
The Formation of Islamic Law
OF THE FOURTEEN CENTURIES making up lslamic legal history, the first three have the dubious distinction of being severely vexed with various historiographical problems. As a rule, the earlier the century the more difficult and insoluble these problems become.
Generally speaking, writing the his tory of the third/ninth century thus makes for an easier task than writing the history of the second/eighth century; and this latter, despite the grave historiographical difficulties associated with it, is far less problematic than the first.
The first obvious cause for these difficulties is the lack of sufficient historical evidence, be it literary, archival, archaeological or otherwise. This fact is particularly true of the first century, and more so of its beginning and middle than its end.
The volume of literary evidence steadily increases over the span of the next two centuries, but the good fortune of documentary abundance is marred by serious problems of perceived inauthenticity and faulty attribution. Just when the literary sources begin to surface around the middle of the first century, leading many a modern scholar to think that the history of that period can now be reconstructed, a cloud of doubt is thrown on the historicity of these sources.
The main case made against their usefulness for writing the history of the early period is that they cannot, as we now know them, be attributed to the time to which they are traditionally thought to belong. Rather, the argument goes, they represent at best a genuine core that had undergone a process of later redactions and accretions.1
Moreover, and as if the scarcity of source-material is not already a sufficiently serious problem, these three centuries also distinguish themselves as the most controversial in the field of Islamic (legal) studies in terms of interpretational approach, reflecting what might be termed an extreme case of hermeneutical perspectivism.
As much as modern scholars are loath to admit it, this hermeneutical perspectivism is heavily entangled with cultural, religious, political and other loyalties that have left us, roughly speaking, with two widely divergent camps of scholars. With few exceptions, the differences between the two camps are neither negligible nar reconcilable; if anything, they are nothing short of staggering.
Whatever points the two camps may occasionally, if not rarely, agree upon, the rift between them is a methodological and hermeneutical divide of the first order, one that was created by the overarching fact that one camp derived its cultural, political and worldly suppositions from a reality of colonialist domination in which it both directly and obliquely participated, while the other emerged from a reality and history that it represented, nay, defended, as the final, gradually vanishing frontier of a subjugated, colonized religious culture.
This frontier came to stand as the diametrical opposite of the colonizer’s rationalism and scientism, as the only aspect of the present that is faithful to, if not a remnant of, the glorious religious past. To put it differently, the rift was prompted by a clash between the dominating modern and dominated traditionalism.
The traditionalist camp propounds a legal history whose anchors are religious, replicating the assumptions of the pious. What Western rational ism calls “historical truth” is not the concern of this brand of scholarship.
“Historical truth”, if it were to be recovered, would ultimately turn out to be nothing but the Truth as constructed by that particular conception of ideas, events and men who were eventually made to be the defining pillars of what was, and evolved into, Islamic culture, history, religion and law. in this conception and scheme of ideas, there is no room for mundane, worldly or materialistic considerations, and even less for so-called “Western causality”. Historical motives and props must all be either noble or base, religious or irreligious, good or evil. Even as simple a factor as material self-interest, which may or may not have motivated a given historical act, is normatively viewed with the lens of piety or impiety that is transcendentally engendered rather than humanly inscribed.
Nar is there a place for deconstructing the religious myths that all societies-including those of Judaism and Christianity-have needed and found essential for their ideological, even material, survival.
For instance, the religious veneration that came to be associated with the founders of the legal schools was an essential ingredient of the authority that was constructed around their figures, an authority that was to replace the role of the state that other legal cultures so heavily depended upon as the foundation of their legal systems.
But this authority-construction amounted in effect to a long historical process spanning a period of more than a century, before which time the figures of the founders were largely, if not entirely, devoid of this constructed authority.2
The traditionalist camp’s point of departure is the fully developed notion of “founders”, already embellished with all the authority with which they came to be associated. Here, there can be no acknowledgement that the authoritative image enjoyed by the so-called founders must have emerged post eventum, and that it had little to do with the piety, accomplishments or degree of legal knowledge attained or not attained by these “founders”.
Whatever functions these posterior constructions came to play, they can hardly inform us who the historical founders “really” were, for if these constructions were necessary, they must already have been so for the period in which they came into existence, and even more so in subsequent periods. After all, if they came into being, they obviously did so for a purpose, and that purpose was legal in nature rather than historiographical.
However, these constructions cannot be permitted to function as a genuine description of what went before except solely for the purpose of serving as ideological underpinnings to the goal that these constructions were meant to achieve in the first place.
The traditionalist camp is thus driven by hermeneutical imperatives organically connected with religious relevance, compounded by a defensive tenor typically adopted by the dominated. If history and historical narrative are to be sought after, it is for the purpose of constructing, enhancing and maintaining whatever is religious or anything that sustains religion.
No historical event or narrative can be so revised as to displace or shake what religious history has traditionally come to represent, for such a displacement threatens to alter not only the logical sequence of the religious narrative that is inherently integral to faith, but also the moral and ethical content that this narrative is intended to represent.
If Islam is to be at ali justified as a religion, then it must possess substantive elements that distinguish it from competing religions, making it more than a mere replica of any of them. it must vie, as it did in this early period, for a position of uniqueness, in both ontology and purposiveness.
Its daim was revisionist, namely, to lay down the true version of religious Truth that had been adulterated by Judaism and, later, by Christianity, and that was totally unknown to the lost souls of Arabia Deserta, the idolatrous Bedouins.
This narrative stood since the early phases of Islam as the su preme explanatory cause behind the rise of the new religion, and as such could be displaced only at the risk of shaking the foundations of the entire faith. in fact, with the constancy of the faith’s relevance to Muslims past and present, there could not have arisen a single reason that would prompt such a displacement, for no other narra tive is as relevant and as indigenous to this history as that which represents revisionism and reformation.
If Islam came to reform, then it could not have come without command ments, or a law, or at least a legal blueprint. Nor could its law have been absent when its adherents conducted the most successful territorial conquest history has ever known, where an expansive militarized empire was soon thereafter erected and an entire imperial system came to function so effec tively. in this narrative, the Muslim Arabs were masters who stood in need of no foreign law and, what is more, none could impose on them any such laws.
This fact of perceived political and military superiority was consis tent with the original impulse of propounding the law of God as revealed to Muslims, a law that had to be particular to the Muslims whose purpose was nothing less than correcting what had been adulterated by other monothe ists. On this Muslim view, then, it would have been absurd to expect a community embarking on such a Mission to derive its reformist inspiration from the very entities that it was supposed to reform.
Outlined in the Qur’an, the Mission was to be propounded and articu lated by the Prophet, whose conduct was so consistent with God’s will that his Sun na was sanctioned, ab initio, as an authoritative source of law.
De spite its derivative nature, the Prophet’s Sunna came to be constituted asa source equal in force to the Qu’an, but offering a wealth of material barely matched by the concise, revealed text itself. Thus, lslamic law is said to have come into existence during the last years of the Prophet’s life, but only to the extent that was needed by the Prophet to conduct the nascent umma’s affairs in Medina. The subsequent wave of the Rightly Guided caliphs, their Umayyad successors and the jurists of the time expanded the law as the need arose, and in accordance with the varied demands and hence different inter pretations of each region.
Out of this emerged centers of legal specialization and jurisprudential expertise in Medina, Mecca, Yemen, al-Kufa, al-Başra, Syria, Egypt and Khurasan.
An important element of this traditionalist narrative is the proposition that the Qur’an and Prophetic Sunna came to be viewed by the faithful as sources of the law upon the death of the Apostle and that all legal solu tions, therefore, must have and indeed were ultimately derived therefrom.
The Rightly Guided caliphs continued on the path already paved by the Apostle, thereby partaking in the Prophetic role of mediating the discovery of God’s law. As the immediate deputies of the late Prophet and his closest Companions (the şa iiba), they knew not only what he did and said, but also how he thought and reacted (or would have reacted) to certain situations. They were also most familiar with the fundamental injunctions of the Qur’a.n.
This profound and extensive knowledge, the narrative con tinues, gave the caliphal jurisprudence in particular, and the Companions’ legal scholarship in general, a certain authority which came to complement Qur’a.nic and Sunnaic material as a source of law.
The supplementary legal provisions of the early caliphs and the oldest Companions are said to have brought to closure the gate of revelation where, beyond this point, law could only be derived through interpretation of what had become fixed material sources.
And this is precisely what the next generation, that of the Suc cessors, accomplished. The class of legal specialists that emerged is said to have hailed from amongst these Successors (tabi’iin), specialists whose main preoccupation was the study of all kinds of religious discourse that would lead to the elaboration of legal doctrine. Their scholarly activity included, among other things, the study of the Qur’a.nic text, its exegesis, the princi ples of abrogation, legal language, Prophetic adıth, Arabic grammar, and often arithmetic.
in spite of the legal accomplishments of the jurists and caliphs who lived and flourished during the first century and the two decades that followed, Islamic law as a methodologically structured system only emerged with the coming into being of the schools whose formations are associated with the careers of their eponyms: Abu f:lanıfa (d. 150/767), Malik (d. 179/795), al Sha.fi’I (d. 204/820), and lbn f:lanbal (d. 241/855). All these school founders gained distinction in one way or another, but of them all it was al-Sha.fi’I who alone was recognized for juristic excellence, in that he was believed to have single-handedly elaborated a theory of jurisprudence and methodology of law (uşiil al-fiqh). He is said to have been to law what Aristotle was to log ic.3
What al-Sha.fi’I is said to have accomplished in this theory was to discover the general principles according to which the law had been constructed by the community of jurists and to delineate the hermeneutical and juristic methods through which law is-and should be-derived from its two primary sources, the Qur’a.n and Prophetic Sunna, as well as through consensus and the inferential method of qiyas.
Although this traditionalist narrative does not make clear the relationship of al-Shafi’I’s methodology to the work of the other founding fathers and preceding jurists, it was clearly assumed that, while jurisprudence had been put into practice before al-Shafi’I, it was he who articulated in theoretical discourse what jurists had always done as a matter of juristic and judicial practice. By al-Shafi’I’s death, or perhaps soon thereafter, positive law was deemed fully elaborated, the schools had taken a fairly developed form, and the theoretical foundations of the law had been sufficiently expounded in accordance to al-Shafi’I’s Risala.
The central problem associated with this narrative is its power to project backwards events and developments that could not have taken place during the periods assigned to them. The Qur’an, for instance, could not have acquired the importance attributed to it as a comprehensive, canonical and foundational source of law immediately af ter the death of the Prophet.
Even the early Muslim sources themselves do not attest to the Qur’anic values, much less its legal content, as having the sort of dominance that would have rendered the Book an instantaneous and direct source of law. Nor is there evidence that the Sunna rose to equal prominence immediately after the Prophet’s death, or that his Sunna was ever the only form of “model dicta” during the first cent ury.4 But such acknowledgements, which would entail a certain diminution in the weight of these legal sources, could not be made in…
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