A History of the Muslim World to 1405

by Vernon O Egger

  The Origins of Islamic Law

  The history of Christianity is replete with doctrinal disputes, and as a result, theology became the chief intellectual discipline of that religious tradition. Islam, by contrast, is more similar to Judaism in that correct behavior takes precedence over doctrine, and law has been the major intellectual pursuit within these two religions. In the absence of the Prophet, Muslims sought guidance regarding how to live in accordance with God’s will. Shi‘ites looked to their Imams for that guidance. Sunnis found it in the Shari‘a, or Islamic law.

  Assimilation and Adaptation

  During the earliest period of Islamic history, the Prophet served as the source of correct doctrine, the guide to the correct way to perform religious rituals, the judge for criminal acts, and the adjudicator of civil disputes. When he died, Muslims were forced to make radical adjustments in their lives. Not only did they lose their source of divine revelation, but they soon lost the intimate and compact community of which Medina and Mecca were the largest population centers. The caliph was now the ultimate authority on religious and civil matters within the community, but his capacity for remaining the central figure in this regard was limited. He was expected to make judgments within the framework established by the Qur’an, but it has only some eighty verses that deal with matters that can properly be called legal. In addition, the Ridda wars and the rapid conquests of Syria, Egypt, and Iraq greatly expanded the area under the caliph’s jurisdiction. As a consequence, he became an increasingly remote figure to most Muslims, many of whom were moving to the newly conquered areas as soldiers, administrators, merchants, or other specialists. It was unavoidable that many important decisions regarding ritual behavior, property rights, commercial issues, criminal acts, and other pressing issues would be decided without recourse to the caliph.

  An organized Muslim judiciary became established only after Mu‘awiya seized the caliphate in 661. Under the Umayyads, each garrison city was staffed with an agent to implement the body of administrative and fiscal regulations and laws that the rapidly growing military empire needed in order to function. This agent or judge, called a qadi, had wide discretionary powers. Whenever possible, qadis would rule within the principles of the Qur’an, but often they had no choice but to utilize local legal traditions in order to make a ruling. In the absence of a comprehensive Islamic legal system, qadis relied on Sasanian, Byzantine, Jewish, and Orthodox canon law for many of their decisions. As a result, the legal administrative apparatus in different areas of the empire began revealing significant differences.

  By the end of the seventh century, pious scholars began debating among themselves whether Umayyad legal practice adequately reflected the ethical values of the Qur’an. The motives of some may have included hostility towards the Umayyads, but in general these scholars were acting on the profound conviction that each human has a responsibility to obey the commands of God. Not only should a believer desist from evil acts and be sure to do the good acts himself, but he should also “command the right and forbid the wrong,” an injunction that implied a universal responsibility for maintaining the public order. During the eighth century, several of the influential urban areas had clusters of scholars (sing. ‘alim, pl. ‘ulama’; hereafter ulama, the most common English transliteration) who sought to Islamize the law by using Qur’anic principles as the standard by which to evaluate the adequacy of Umayyad legal practices.

  The unusual features of this movement of “legal review” were that it was conducted by pious scholars who held no positions of political authority and that it was not officially sanctioned by the Umayyad government. The ulama of Damascus, Kufa, Basra, Medina, and Mecca took the lead in this nascent jurisprudence. It soon became clear that, despite the intention of the scholars to use Qur’anic principles, differences began to develop among them. Syria, Iraq, and the Hijaz naturally had important differences in their social environments, and these were reflected in the legal thought that emerged from the cities within each region. For nearly a century, Muslims had adopted many local customs in each city, and even the pious naturally assumed that their local practice was identical with that of the first Muslim generation in Medina. The Qur’an, like any other revealed scripture, provides specific guidance on only a few of the issues that individuals in a complex society face. Unless a local custom conflicted with a Qur’anic directive or ethical principle, it was assumed to be legitimate. The religious scholars felt free to exercise their discretion when ruling on cases that presented original problems.

  Groping Toward an Islamic Jurisprudence

  With the advent of the Abbasids, the central government took an active role in encouraging the development of a legal system based explicitly upon Islamic values. The new regime hoped to gain legitimacy by supporting the demands for an Islamic law, and it saw that the empire’s legal system would benefit from uniformity in the determination and application of law. The office of the qadi was encouraged to rely on the principles being articulated by the ulama. The new impetus for the development of an Islamic law led to the emergence of a generation of reformers who were critical of the approach of their elders. Whereas the first generation of jurists tended to accept current legal practice unless it violated some Qur’anic principle, the younger generation, working during the last third of the eighth century, insisted that the Qur’an and the example of the Prophet be the norms from which all jurisprudence be based. They viewed local consensus and the analogical reasoning of individual scholars, even if based on religious precedent, with suspicion. The earlier jurists had sought guidance from the sunna (meaning way, custom, or practice) of the first generation of Muslims, assuming that it ultimately derived from the example of the Prophet; now their successors explicitly sought only the Prophet’s words and deeds. Those who sought guidance from the Sunna of the Prophet called themselves ahl al-sunna wa al-jama‘a, or the People of the (Prophet’s) Sunna and of the Community. They collected reports or traditions (sing. hadith; the singular form is usually used in transliterations as a collective noun) of the Prophet’s declarations and his behavior in certain circumstances and urged that Hadith and the Qur’an be the sole standards for legal practice. They had a powerful argument on their side, for if the law were not in fact derived directly from the Prophet’s words and example, what guarantee would the believer have that it was God’s will?

  The new emphasis on the Sunna of the Prophet resulted in great efforts being expended to discover it, and during the eighth and ninth centuries C.E., an enormous number of Hadith appeared. Several scholars organized the traditions into collections, the most famous and authoritative being those of al-Bukhari (d. 870) and Muslim (d. 875). The rapid appearance of thousands of Hadith raised suspicions that many were being fabricated, particularly when they attributed to the Prophet ideas or the use of technology that were anachronistic. Al-Bukhari, Muslim, and the other great collectors made efforts to assess the traditions by examining their internal evidence and by weighing the integrity of the scholars who were said to have passed them from one generation to another. According to legend, al-Bukhari examined 600,000 such traditions before deciding on the 2700 that he put into his collection. Although many Western scholars are skeptical that a majority of the traditions are authentic, most Muslims consider them to be as authoritative as the Qur’an.

  The new initiative to codify God’s will, however, only multiplied the differences among the various groups of ulama. According to tradition, literally hundreds of “schools” (sing. madhhab) of law emerged across the empire during the ninth century. These schools were not colleges, but rather circles of scholars who followed the methods determined by influential local ulama for ascertaining the principles of law. In most of the madhhabs that had a life span of several generations or more, the founding scholar’s teachings were modified and elaborated considerably, perhaps even beyond recognition, but each one represented a cohesive social unit as well as an ideological perspective. The madhhabs differed from each other due to the
wide variety of Hadith sources, differences in techniques of Qur’anic interpretation, variations in local customs and values, and differences over the scope that individual reasoning should be allowed in making legal judgments. The cleavage among the schools reached its height in the ninth century, when some Muslim scholars who were influenced by Greek philosophy asserted that the human mind is capable of determining which acts are good and which are bad, independent of revelation. The caliph al-Ma’mun (813–833) patronized this group, known as the Mu‘tazilites, and he ordered all qadis and other government officials to adhere to their theories. Because the Mu‘tazilite position seemed to threaten the primacy of the Qur’an, a scholar named Ahmad ibn Hanbal (d. 857) refused to submit to the ruling, even though he was persecuted as a result. His followers, the Hanbalis, insisted that acts were good or bad because God had decreed them so and that it was impious to reason why or whether they were so. Scholars should rely only upon the Qur’an and the Sunna of the Prophet.

  The Development of the Shari‘a

  The numerous schools of religious law caused confusion and consternation among Muslims. How was one to know which most closely reflected God’s will? By the middle of the tenth century, a consensus had developed on the broad outlines of a method for determining religious law. As a result, the number of schools rapidly declined and the Shari‘a, or Islamic law, became the defining element of Muslim identity.

  Hadith: Guides to Living

  The thousands of Hadith provide guidance for a remarkably wide range of behavior. The following selections are excerpts from one of the two major collections of Hadith, the Sahih Muslim. The isnad, or chain of transmitters, has been removed from each. Note how each Hadith cites a saying or act of the Prophet as a model for one’s own life.

  ‘A’isha reported, The Messenger of Allah (may peace be upon him) said: Ten are the acts according to Fitra (the ritual acts that enable human nature to reach its potential): clipping the moustache, letting the beard grow, using the tooth-stick, snuffing up water in the nose, cutting the nails, washing the finger joints, plucking the hair under the armpits, shaving the pubes, and cleaning one’s private parts with water. The narrator said: I have forgotten the tenth, but it may have been rinsing the mouth. (I, 192–193)

  Salman reported that it was said to him, Your Apostle (may peace be upon him) teaches you about everything, even about excrement. He replied: Yes, he has forbidden us to face the Qibla at the time of excretion or urination, or cleansing with the right hand or with less than three pebbles, or with dung or bone. (I, 193)

  Jabir said: Allah’s Messenger (may peace be upon him) forbade that the graves should be plastered, or they be used as sitting places (for the people), or a building should be built over them. (II, 553)

  Jabir b. ‘Abdullah reported Allah’s Messenger (may peace be upon him) as saying: Do not walk in one sandal and do not wrap the lower garment round your knees and do not eat with your left hand and do not wrap yourself completely leaving no room for the arms (to draw out) and do not place one of your feet upon the other while lying on your back. (III, 1388)

  Buraida reported on the authority of his father that Allah’s Apostle (may peace be upon him) said: He who played chess is like one who dyed his hand with the flesh and blood of swine. (IV, 1469)

  Abu Huraira reported Allah’s Messenger (may peace be upon him) as saying: Do you know who is poor? They (the Companions of the Holy Prophet) said: A poor man amongst us is one who had neither dirham with him nor wealth. He (the Holy Prophet) said: The poor of my Umma would be he who would come on the Day of Resurrection with prayers and fasts and Zakat but … since he hurled abuses upon others, brought calumny against others and unlawfully consumed the wealth of others and shed the blood of others and beat others, Á his virtues would be credited to the account of one (who suffered at his hand). And if his good deeds fall short to clear the account, then his sins would be entered in (his account) and he would be thrown in the Hell-Fire. (IV, 1645)

  SOURCE: Imam Muslim, Sahih Muslim, tr. ‘Abdul Hamid Siddiqi. 4 vols. Rev. ed. New Delhi: Kitab Bhavan, 2000.

  The Synthesis of al-Shafi‘i

  Although the rationalists lost their official patronage by mid-century, they remained active in legal and philosophical circles for centuries. By the early tenth century, however, a compromise between the rationalist Mu‘tazilite position and the Sunna-based Hanbali position began to gain acceptance in many of the law schools. The compromise was based on the work of a scholar, Muhammad ibn Idris al-Shafi‘i, who had died a century earlier, in 820. On the one hand, he had argued that the Qur’an and Sunna of the Prophet were the sole material sources of the law, a position that sounded much like that of Ibn Hanbal. On the other hand, al-Shafi‘i squarely confronted the reality that questions frequently arise in daily life that are not addressed in these sources, and hence require the use of reason. Unlike the rationalists, he did not allow the free exercise of reason or opinion (ra’y), but he did allow reasoning by analogy: If a case could be resolved on the basis of an analogy with the ethical principles expressed in the Qur’an, Hadith, or previous legal cases, the decision was valid. When a legal decision became accepted by the consensus of scholars across the Dar al-Islam, it could reasonably be considered to reflect God’s will.

  Thus, al-Shafi‘i’s theory actually recognized four sources of law: the two primary sources of the Qur’an and Hadith and the two derivative sources of analogy and consensus. This new model for jurisprudence was ignored for many decades after his death in 820, but rapidly gained acceptance in the early tenth century. Soon, any jurist seeking a solution to a legal problem was expected to consult the Qur’an and the Hadith first. If the issue was not addressed directly in those sources, he was to employ an analogy with cases that had been resolved. The result was a tentative conclusion that would be substantiated or rejected by the rulings of other jurists. In the event that it was corroborated by other rulings, it was said to have been confirmed by the consensus of the other ulama.

  The growing uniformity within jurisprudence led to a general sense that God’s will was being ascertained, and the rules that were developed for living the upright life were called the shari‘a. The term shari‘a had been used up to that time to denote the beaten path to a watering hole in the desert. If one did not know the path that the camels had taken repeatedly, death could result. Likewise, knowing and practicing God’s will as revealed through the disciplined decisions of the ulama brought life to whoever submitted to it.

  Consolidation of the Madhhabs

  The Shari‘a gradually became an essential element of Muslim life. Then as now, highly trained professionals were less likely to choose to live in rural areas than in cities, and it was thus much harder for peasants and pastoralists to gain access to educated qadis. Nevertheless, everyone was expected to choose which madhhab he would follow. Over the years, the growing uniformity of legal method had the effect of consolidating many madhhabs and reducing the number from which to choose. By the end of the thirteenth century, only a few schools were left. In some large cities, a choice still existed even as the number of schools declined, for one could find qadis from several madhhabs. For most people, however, the school they followed was in effect chosen for them because of the distinctly regional coloration that the madhhabs possessed.

  Out of the numerous schools that emerged during the early period, four continued into the modern era to represent the majority of Muslims. The tradition from Kufa was named after one of Ja‘far al-Sadiq’s students, Abu Hanifa (d. 767), and was called the Hanafi school. It dominated in Iraq and Syria, and later spread to Anatolia, Central Asia, and India. The school in Medina was named after one of its greatest early scholars, Malik ibn Anas (d. 796), and is known as the Maliki school. It became paramount in North Africa and the Iberian Peninsula, and it spread into West Africa. The Shafi‘i school, claiming descent from the original disciples of al-Shafi‘i, prevailed in Egypt, Yemen, East Africa, certain coastal regions of India, and in S
outheast Asia. The Hanbali madhhab derives its name from Ibn Hanbal, who was known for his theological disputes with the Mu‘tazilites. Over the years after his death, however, his followers developed a madhhab that argued for the primacy of the Qur’an and Hadith literally understood. (Ibn Hanbal is said never to have eaten watermelon, on the grounds that he found no precedent in the example of the Prophet.)

  The Hanbalis were so hostile to the use of personal opinion that they placed sharp limits on the use of analogy. Regarded as the most conservative and traditional of the four schools, the Hanbalis nevertheless turned out to be the least bound by tradition. Because they did not feel constrained by the consensus of other scholars, in later centuries they were the most active in making new interpretations of the law to fit changing circumstances. The Hanbali madhhab was influential in Baghdad and Syria until the fourteenth century. It was revived in the Arabian peninsula in the eighteenth century and remains dominant in Saudi Arabia today. It is also popular among reformist movements all across the Muslim world, whose members regard it to be the most congenial for allowing new interpretations.

  The Shi‘ites and Kharijites developed their own distinctive madhhabs, although they share much in common with the four discussed above. As we have seen, true sectarian identity took centuries to crystallize, with the result that the major developments in Islamic law took place in an atmosphere in which Muslims of all inclinations were in communication with each other. The Shi‘ites maintained three major madhhabs, the most influential of which was attributed to Ja‘far al-Sadiq, and is thus known as the Ja‘fari madhhab. All Muslims agreed that the Qur’an and Hadith are the primary sources of the law, although the collections of Hadith used by the Isma‘ili and Twelver schools contain traditions that differ in part from the earlier collections due to an emphasis on the Alid tradition. Likewise, when Shi‘ites began developing their own legal methods, they placed less emphasis on analogy and consensus than did the earlier madhhabs, since the decisions of the Imam had authoritative weight.