THE ORIGINS OF

MUHAMMADAN

JURISPRUDENCE

By

JOSEPH SCHACHT

OXFORD

AT THE CLARENDON PRESS

Oxford University Press, Walton Street, Oxford OX2 6DP

OXFORD LONDON GLASGOW

First published 1950

Reprinted 1953, 1959, 1967, and 1975

All rights reserved. No part of this publication may be

British Library Cataloguing in Publication Data

Schacht, Joseph

The Origins of Muhammadan jurisprudence.

1. Islamic Law

I. Title

Printed in Great Britain

PREFACE

THIS book is concerned with the origins of Muhammadan jurisprudence. I shall, of course, often have occasion to refer to examples taken from Muhammadan law, which is the material of Muhammadan jurisprudence. But the history of positive law in Islam as such, and the relationship between the ideals of legal doctrine and the practical administration of justice fall outside the scope of the present inquiry.

The sacred law of Islam is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in the narrow sense) legal rules. In choosing the examples I shall concentrate as much as possible on the (properly speaking) legal sphere. This course not only recommends itself for practical reasons; it is also historically legitimate. For the legal subject-matter in early Islam did not primarily derive from the Koran or from other purely Islamic sources; law lay to a great extent outside the sphere of religion, was only incompletely assimilated to the body of religious duties, and retained part of its own distinctive quality. No clear distinction, however, can be made, and whenever I use the term Muhammadan law, it is meant to comprise all those subjects which come within the sacred law of Islam.

I feel myself under a deep obligation to the masters of Islamic studies in the last generation. The name of Snouck Hurgronje appears seldom in this book; yet if we now understand the character of Muhammadan law it is due to him. Goldziher I shall have occasion to quote often; I cannot hope for more than that this book may be considered a not unworthy continuation of the studies he inaugurated. Margoliouth was the first and foremost among my predecessors to make more than perfunctory use of the then recently printed works of Shafi'i; in reviewing the field which is surveyed here in detail he came nearest, both in his general attitude to the sources and in several important details, to my conclusions. Lammens, though his

vi PREFACE

writings rarely touch Muhammadan law and jurisprudence directly, must be mentioned in the preface to a book which is to a great part concerned with the historical appreciation of Islamic 'traditions'; my investigation of legal traditions has brought me to respect and admire his critical insight whenever his ira et studium were not engaged. In the present generation, Bergsträsser, with penetrating insight, formulated the main problems posed by the formative period of Muhammadan law and offered a tentative solution. Although my results are rather different from those which he might have expected, I must pay homage to the memory of my late teacher who guided my first steps in Muhammadan jurisprudence.

All my previous studies in Muhammadan law have led, in a way, to the writing of this book. But, when I came to write it, the refusal of the Egyptian authorities to allow me to return to my work and home in Cairo in 1939 deprived me of the use of my library at the time I needed it most. I particularly regret that I was thereby prevented from consulting the Kitab al-Hujaj by Shaibani, the Kitab al-Sunan by Shafi'i, the Kitab al-Diyāt by Abū 'Āșim Nabīl, the Muntagā min Akhbar al-Aşma'ī, and the materials for my own editions, in varying stages of preparation, of the History of the Judges by Waki', of the Kitab al-Asl by Shaibani, and of the Kitab al-Masa'il by Ibn Hanbal. That I was able, notwithstanding this handicap, to use all essential texts, I owe mainly to the British Museum and to the Griffith Institute in Oxford, and to the unfailing courtesy and helpfulness of their staffs.

I wish to express my deepfelt gratitude to the Governing Body of St. John's College, Oxford, and to Mr. K. Sisam, formerly Secretary to the Delegates of the Clarendon Press, for the active interest they took in my studies in general and in this book in particular, and for the assistance they gave me. Professor F. de Zulueta has accompanied my studies in Muhammadan law and jurisprudence with sympathy and interest since the invitation given by him and by the late H. Kantorowicz to contribute to the projected Oxford History of Legal Science which unfortunately had to be abandoned. Dr. D.

PREFACE vii

Daube, of Gonville and Caius College, Cambridge, kindly enlightened me on points of Roman law, and Dr. S. Weinstock of Oxford most obligingly translated for me from the Hungarian a paper by Goldziher. Without the unfailing encouragement and help of Professor H. A. R. Gibb this book would hardly have been completed. Lastly, I wish to thank my wife for her truly invaluable aid in preparing the manuscript; to her I dedicate this book as a δόσις όλίγη τε φίλη τε.

I cannot do better than address the reader in the words of Shafi'i (Risala, 59): 'I lost some of my books but have verified what I remembered from what is known to scholars; I have aimed at conciseness, so as not to make my work too long, and have given only what will be sufficient, without exhausting all that can be known on the subject.'

J. S.

OXFORD

PREFACE TO THE FOURTH IMPRESSION

I HAVE made only a few small changes and additions, incorporating some of my more recent conclusions, but have not attempted to add to the book substantially. It remains a work of research that does not aim at giving a comprehensive account of legal science in the first few centuries of Islam. For a general picture of the development of Muhammadan jurisprudence as a whole, from its beginnings to modern times, I may refer the reader to my Introduction to Islamic Law, second impression, Oxford, 1966.

January 1967

CONTENTS

PART I

THE DEVELOPMENT OF LEGAL THEORY

CHAPTER 1. THE CLASSICAL THEORY OF MUHAMMADAN LAW. THE FUNCTION OF TRADITIONS . . . . 1

CHAPTER 2. THE ANCIENT SCHOOLS OF LAW. SHĀFI‘Ī'S

ATTITUDE TO THEM . . . . 6

CHAPTER 3. SHĀFI‘Ī AND LEGAL TRADITIONS . . . 11

CHAPTER 4. TRADITIONS IN THE ANCIENT SCHOOLS OF LAW . 21

A. The Medinese . . . . . 22

B. The Iraqians . . . . . 27

C. The Syrians . . . . . 34

CHAPTER 5. TECHNICAL CRITICISM OF TRADITIONS BY SHĀFI‘Ī AND HIS PREDECESSORS . . . . . 36

CHAPTER 6. ARGUMENTS FOR AND AGAINST TRADITIONS . 40

A. Adversaries of traditions in general . . . 40

B. Arguments against traditions from the Prophet . . 44

C. Arguments in favour of traditions from the Prophet . . 53

D. Conclusions . . . . . 57

CHAPTER 7. SUNNA, ‘PRACTICE’, AND ‘LIVING TRADITION’ . 58

A. General . . . . . . 58

B. The Medinese . . . . . 61

C. The Syrians . . . . . 70

D. The Iraqians . . . . . 73

E. Shāfi‘Ī . . . . . . 77

F. Conclusions . . . . . 80

CONTENTS

CHAPTER 8. CONSENSUS AND DISAGREEMENT . . 82

A. The old idea of consensus . . . 82

B. The Medinese and consensus . . . 83

C. The Iraqians and consensus . . . 85

D. The Mu'tazila and consensus . . . 88

E. Shafi'i and consensus . . . 88

F. The later doctrine of consensus . . . 94

G. Disagreement . . . 95

CHAPTER 9. ANALOGY, SYSTEMATIC REASONING, AND PERSONAL OPINION . . . 98

A. The Umaiyad period . . . 100

B. The Iraqians . . . 103

C. The Medinese . . . 113

D. The Syrians . . . 119

E. Shafi'i . . . 120

F. The Mu'tazila . . . 128

G. The traditionists . . . 128

H. Traditions against human reasoning in law . . . 129

CHAPTER 10. FINAL REMARKS ON LEGAL THEORY . 133

PART II

THE GROWTH OF LEGAL TRADITIONS

CHAPTER 1. PRELIMINARY REMARKS . . . 138

CHAPTER 2. THE GROWTH OF LEGAL TRADITIONS IN THE LITERARY PERIOD. CONCLUSIONS ON THE PRE-LITERARY PERIOD . . . 140

CHAPTER 3. THE CONFLICT OF DOCTRINES AS REFLECTED IN THE GROWTH OF TRADITIONS . . . 152

CHAPTER 4. THE EVIDENCE OF ISNADS . . . 163

CHAPTER 5. THE ORIGIN OF LEGAL TRADITIONS IN THE FIRST HALF OF THE SECOND CENTURY A.H. . . . 176

CHAPTER 6. LEGAL MAXIMS IN TRADITIONS . . . 180

PART III

THE TRANSMISSION OF LEGAL DOCTRINE

CHAPTER 1. UMAIYAD PRACTICE AS THE STARTING-POINT OF MUHAMMADAN JURISPRUDENCE . . . 190

A. Preliminary remarks . . . 190

B. Umaiyad popular practice . . . 192

C. Umaiyad administrative practice . . . 198

D. The attitude of the ancient schools of law to Umaiyad practice . . . 213

CHAPTER 2. COMMON ANCIENT DOCTRINE AND CROSS-INFLUENCES . . . 214

A. The common ancient doctrine . . . 214

B. Early cross-references and cross-influences . . . 218

C. Later polemics and influences . . . 222

D. Conclusions . . . 222

CHAPTER 3. THE KORANIC ELEMENT IN EARLY MUHAMMADAN LAW . . . 224

CHAPTER 4. THE IRAQIANS

A. Shuraih . . . 228

B. Hasan Başrī . . . 229

C. Sha'bī . . . 230

D. Ibn Mas'ud and his Companions . . . 231

E. Ibrahim Nakha'ī . . . 233

F. Hammad . . . 237

G. The Iraqian opposition . . . 240

H. Sufyan Thauri . . . 242

CHAPTER 5. THE MEDINESE AND MECCANS

A. The 'seven lawyers of Medina' . . . 243

B. Zuhri . . . 246

C. Rabi'a . . . 247