Sacred Texts  Islam  Index  Previous  Next 

p. 65


Development of Jurisprudence


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

p. 66

authoritative 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 own 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 shall believe of things in heaven and in earth and beneath the earth--and this is no flat rhetoric--Muslim law prescribes everything that a man shall do to God, to his neighbor, and to himself. It takes all duty for its portion and defines all action in

p. 67

terms 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.

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 and

p. 68

there 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 o fear but the anger of his opponent. That law o custom we shall find again appearing in the system o 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,

p. 69

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 recur-ring 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 will

p. 70

meet 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.

Such, then, was the state of things legal in al-Madina during the ten years of Muhammad's rule there until his death in A.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 of

p. 71

the town, or a rough equity based on Muhammad's own ideas, or a special revelation ad 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.

But with the death of Muhammad in A.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 first 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, the Sahibs, could adduce nothing similar from one of his decisions, then the judge had to look further for an authority. But the decisions of Muhammad had

p. 72

been 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 gradually into disuse; a closer search was m de for decisions of that founder which could in any way be pressed into service; a method of analog 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.

The fact has already been brought out that the sphere of law is much wider in Islam than it has ever

p. 73

been 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 (fard or wajib); a duty the omission of which is punished, the doing rewarded. Secondly, recommended (mandub or mustahabb); the doing is rewarded, but the omission is not punished. Thirdly, permitted (ja’iz or mubah); 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 ever

p. 74

to 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. 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 the Jahiliya--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 the sunna--custom, usage--of the ancients; any stepping aside from it was a bid‘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 ancestral sunna had 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 and

p. 75

eloquent 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 on sahifas--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 called hadiths; 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 the isnad, until the last link came, and the matn, the Prophet of God said,

p. 76

[paragraph continues] "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 sane 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,

p. 77

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.

It is to the formation of these books of traditions, or, as we night say, traditions in literature, that we must now turn. For long, the fragmentary sahifas and 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 called hadith. 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 from A.D. 41 to A.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 traditions

p. 78

from 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 of normative tradition 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 of hadith in literature was in the Muwatta of Malik ibn Anas who died in A.H. 179.

Yet even this appearance is not so much of hadith for its own sake, as of usages bearing upon law and of the law that can be drawn from these usages. The book is a corpus iuris not a corpus 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.

To Malik the matn, or text, of a tradition had been the only thing of importance. To the isnad, or chain of authority running back to the Prophet, he had paid little attention. He, as we have seen, was

p. 79

a 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 the isnad; 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 called Musnads, because each tradition was musnad--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 the Musnad of Ahmad ibn Hanbal, who died A.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 the Musannaf, the arranged, classified--and in it the traditions are arranged in chapters according to their subject matter. The first Musannaf to make a permanent mark was the Sahih--sound--of al-Bukhari, who

p. 80

died in A. 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 tractions. 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 rejected as 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 in A.H. 155, and who confessed that he had himself put into circulation four thousand that were false. Another and a similar Sahih is that of Muslim, who died in A.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 two Sahihs--as-Sahihan--are technically jami‘s, i.e. they contain all

p. 81

the 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.

But there are four other collections which are called Sunan--Usages--and which stand only second to the two Sahihs. 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 standpoint and endeavor, which was to find a basis for all the minutest developments and details of jurisprudence, civil and religious.

These six books, the two Sahihs and the four Sunans, 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 his Masabih 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 of

p. 82

seven, adding the Muwatta of 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 coining. 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 in A.D. 732, the year of the Hijra 114, that the wave at last was

p. 83

turned 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.

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 sloth

p. 84

by 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 loin 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.

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 the

p. 85

[paragraph continues] Responsa 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. 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 Roman 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

p. 86

that, if the opinions of the licensed prudentes all 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 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

p. 87

[paragraph continues] "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 of

p. 88

the 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."

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

p. 89

of the accomplished fact. This is the genuinely Arab period in the history of Islam. It is a period fall 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, this

p. 90

canon 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.

Next: Chapter II