User:Louis P. Boog/sandbox/History of Fiqh

Origins of Fiqh

Main article: Sharia

Further information: Islamic economics in the world

Lede

According to traditional Islamic history, Islamic law followed a chronological path:

• Allah-> Muhammad-> Companions-> Followers-> Fiqh.

God revealed his final commands and prohibitions for humanity through his final Prophet -- Muhammad -- through two sources: the holy book of the Quran, and the Sunnah of the Prophet (words, deeds, and examples of Muhammad passed down through a change of records known as hadith).

The first generation of Muslims (the Sahabah or "Companions" of Muhammad) heard and obeyed, and Islam was completed shortly before Muhammad's death, as indicated by his "Farewell Sermon":

• "This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as your religion" 5:3.

This essence of Islam (completed but not yet systematized and elaborated) was passed down to the second (Tabi'un "successors" or "followers") and third generation of Muslims (Tabi' al-Tabi'in successors of successors). Muslims conquered lands to the north, east, and west, and Islam spread from West Arabia to the Eastern Mediterranean, Mesopotamia, Egypt, etc. and by the second century of Islam the systematizing and elaborating of law by scholars (ulama) began, schools of fiqh established, scholars trained, hadith scrutinized for authenticity, and classical manuals of law written explaining the traditional account of what the sources of Islamic law were and how the law developed.

Starting in the late 19th century, an alternative theory of the formation of fiqh began to be developed by Western scholars, arguing that Islamic law is based not only on Quran and hadith but on early jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the early caliphs.

eight historical eras of fiqh

The history of Islamic jurisprudence is "customarily divided into eight periods" (according to Mahmoud El Gamal):

• 0-10 AH. The first period ending with the death of Muhammad in 11 AH.
• 10-50 AH. The second period was "characterized by personal interpretations" of the canon by the Sahabah or companions of Muhammad, lasting until 50 AH.
• 50-circa 150 AH. A "traditionalist approach to jurisprudence" in western Arabia where Islam was revealed, competed with and a "rationalist approach in Iraq" during a century long period.
• circa 150-circa 350 AH. The "golden age of classical Islamic jurisprudence" followed lasting for about two centuries when the eight "most significant" schools of Sunni and Shi'i jurisprudence emerged."
• circa 350 AH-circa 650 AH. For about the next three centuries Islamic jurisprudence was "limited to elaborations within the main juristic schools".(from the mid-fourth century to mid-seventh AH0.
• 656 AH-1293 AH. The "dark age" of Islamic jurisprudence began with the fall of Baghdad to Mongol forces and lasted over 600 years, from the mid-seventh AH (1258 CE) to 1293 AH/1876 CE.
• 1293 AH-circa 1369 AH. In 1876 CE (1293 AH) the Ottomans codified Hanafi jurisprudence in the Majallah el-Ahkam-i-Adliya. Several "juristic revival movements" influenced by "exposure to Western legal and technological progress" followed until the mid-20th century CE (circa 1369 AH). Muhammad Abduh and Abd El-Razzak El-Sanhuri were products of this era.
• circa 1369 AH-current time. Since the mid twentieth century, a "Islamic revival" has rejected "Western social and legal advances" and the development of "specifically Islamic states, social sciences, economics, and finance" have been developed.

The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.

Progress in theory and methodology happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from scientific study of the Arabic language.

Secondary sources of law were developed and refined over the subsequent centuries, consisting primarily of juristic preference (istihsan), laws of the previous prophets (shara man qablana), continuity (istishab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari'ah), local customs (urf), and sayings of a companion of the Prophet (qawl al-sahabi).

Traditional story of development of fiqh

The Quran set the rights, the responsibilities and the rules for people and for societies to adhere to, like not dealing in interest. Muhammad then provided an example, which is recorded in the hadith books, showing people how he practically implemented these rules in a society. After the passing of Muhammad, there was a need for jurists, to decide on new legal matters where there is no such ruling in the Quran or the Hadith, example of Islamic prophet Muhammad regarding a similar case.

In the years proceeding Muhammad, the community in Madina continued to use the same rules. People were familiar with the practice of Muhammad and therefore continued to use the same rules.

The scholars appearing in the diagram below were taught by Muhammad's companions, many of whom settled in Madina. The 8th-century Muwatta of Malik ibn Anas -- is the earliest collection of hadith texts comprising the subjects of Islamic law and the first legal work to incorporate and combine hadith and fiqh. It was written as a consensus of the opinion, of these scholars. and quotes 13 hadiths from Imam Jafar al-Sadiq.

Aisha also taught her nephew Urwah ibn Zubayr. He then taught his son Hisham ibn Urwah, who was the main teacher of Malik ibn Anas whose views many Sunni follow and also taught Jafar al-Sadiq. Qasim ibn Muhammad ibn Abu Bakr, Hisham ibn Urwah and Muhammad al-Baqir taught Zayd ibn Ali, Jafar al-Sadiq, Abu Hanifa, and Malik ibn Anas.

Imam Jafar al-Sadiq, Imam Abu Hanifa and Malik ibn Anas worked together in Al-Masjid an-Nabawi in Medina. Along with Qasim ibn Muhammad ibn Abu Bakr, Muhammad al-Baqir, Zayd ibn Ali and over 70 other leading jurists and scholars.

Al-Shafi‘i was taught by Malik ibn Anas. Ahmad ibn Hanbal was taught by Al-Shafi‘i. Muhammad al-Bukhari travelled everywhere collecting hadith and his father Ismail ibn Ibrahim was a student of Malik ibn Anas.

Diagram of early scholars

In the books actually written by these original jurists and scholars, there are very few theological and judicial differences between them. Imam Ahmad rejected the writing down and codifying of the religious rulings he gave. They knew that they might have fallen into error in some of their judgements and stated this clearly. They never introduced their rulings by saying, "Here, this judgement is the judgement of God and His prophet." There is also very little text actually written down by Jafar al-Sadiq himself. They all give priority to the Qur'an and the Hadith (the practice of Muhammad). They felt that the Quran and the Hadith, the example of Muhammad provided people with almost everything they needed. "This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion" 5:3

These scholars did not distinguish between each other. They were not Sunni or Shia. They felt that they were following the religion of Abraham as described in the Quran "Say: Allah speaks the truth; so follow the religion of Abraham, the upright one. And he was not one of the polytheists" (Qur'an 3:95).

Most of the differences are regarding Sharia laws devised through Ijtihad where there is no such ruling in the Quran or the Hadiths of Islamic prophet Muhammad regarding a similar case. As these jurists went to new areas, they were pragmatic and continued to use the same ruling as was given in that area during pre-Islamic times, if the population felt comfortable with it, it was just and they used Ijtihad to deduce that it did not conflict with the Quran or the Hadith. As explained in the Muwatta by Malik ibn Anas. This made it easier for the different communities to integrate into the Islamic State and assisted in the quick expansion of the Islamic State.

To reduce the divergence, ash-Shafi'i proposed giving priority to the Qur'an and the Hadith (the practice of Muhammad) and only then look at the consensus of the Muslim jurists (ijma) and analogical reasoning (qiyas). This then resulted in jurists like Muhammad al-Bukhari dedicating their lives to the collection of the correct Hadith, in books like Sahih al-Bukhari. Sahih translates as authentic or correct. They also felt that Muhammad's judgement was more impartial and better than their own.

These original jurists and scholars also acted as a counterbalance to the rulers. When they saw injustice, all these scholars spoke out against it. As the state expanded outside Madina, the rights of the different communities, as they were constituted in the Constitution of Medina still applied. The Quran also gave additional rights to the citizens of the state and these rights were also applied. Ali, Hassan and Hussein ibn Ali gave their allegiance to the first three caliphs because they abided by these conditions. Later Ali the fourth caliph wrote in a letter "I did not approach the people to get their oath of allegiance but they came to me with their desire to make me their Amir (ruler). I did not extend my hands towards them so that they might swear the oath of allegiance to me but they themselves extended their hands towards me". But later as fate would have it (Predestination in Islam) when Yazid I, an oppressive ruler took power, Hussein ibn Ali the grandson of Muhammad felt that it was a test from God for him and his duty to confront him. Then Abd Allah ibn al-Zubayr, Qasim ibn Muhammad ibn Abu Bakr's cousin confronted the Umayyad rulers after Hussein ibn Ali was betrayed by the people of Kufa and killed by Syrian Roman Army now under the control of the Yazid I the Umayyad ruler. Abd Allah ibn al-Zubayr then took on the Umayyads and expelled their forces from Hijaz and Iraq. But then his forces were depleted in Iraq, trying to stop the Khawarij. The Ummayads then moved in. After a lengthy campaign, in his last hour Abd Allah ibn al-Zubayr asked his mother Asma' bint Abu Bakr the daughter of Abu Bakr the first caliph for advice. Asma' bint Abu Bakr replied to her son, she said: "You know better in your own self, that if you are upon the truth and you are calling towards the truth go forth, for people more honourable than you have been killed and if you are not upon the truth, then what an evil son you are and you have destroyed yourself and those who are with you. If you say, that if you are upon the truth and you will be killed at the hands of others, then you will not truly be free". Abd Allah ibn al-Zubayr left and was later also killed and crucified by the Syrian Roman Army now under the control of the Umayyads and led by Hajjaj. Muhammad ibn Abi Bakr the son of Abu Bakr the first caliph and raised by Ali the fourth caliph was also killed by the Ummayads. Aisha then raised and taught his son Qasim ibn Muhammad ibn Abu Bakr who later taught his grandson Jafar al-Sadiq.

During the early Ummayad period, there was more community involvement. The Quran and Muhammad's example was the main source of law after which the community decided. If it worked for the community, was just and did not conflict with the Quran and the example of Muhammad, it was accepted. This made it easier for the different communities, with Roman, Persian, Central Asia and North African backgrounds to integrate into the Islamic State and that assisted in the quick expansion of the Islamic State. The scholars in Madina were consulted on the more complex judicial issues. The Sharia and the official more centralized schools of fiqh developed later, during the time of the Abbasids.

Madhhabs

Further information: Madhhab

In the the ninth and tenth centuries CE, the four Sunni madhhabs (schools of fiqh), that we have today, emerged -- Hanafi, Maliki, Shafi'i and Hanbali. By the twelfth century almost all jurists aligned themselves with a particular madhhab. Each of the schools came to dominate in different parts of the world, although the rulings of all the schools are followed across the Muslim world without exclusive regional restrictions.

• the Maliki school was founded in the 8th century Medina, and is named after Malik ibn Anas (711-795 CE). Malik worked out of the "ancient school" of Medina and the school's lawyers (Mālikīs) stressed local Medinese community practice (ʿamal) as the lens through which to understand the legal implications of the Qurʾān and the Hadith. At the same time, the Malikīs were open to analogical reasoning (qiyās) and applied juristic discretion (istihsan) to ensure beneficial legal outcomes, and unlike other schools of fiqh, considers the consensus of the people of Medina to be a valid source of Islamic law. (It is followed by Muslims in North Africa, West Africa, the United Arab Emirates, Kuwait, in parts of Saudi Arabia and in Upper Egypt, and was followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily, in earlier times).
• the Hanafi school of fiqh (also known as the the Kufan or Iraqi school) is named after Abū Ḥanīfa an-Nu‘man ibn Thābit who died in 767. A tabiʿi (second generation Muslim) from Kufa Iraq, his legal views were preserved primarily by his two most important disciples, Abu Yusuf (d.798) and Muhammad al-Shaybani (d.805). The Hanafi school based many of its rulings on the earliest Islamic traditions as transmitted by the first generation of Muslims (Sahaba) residing in Iraq -- many Sahaba having moved there after the fourth Caliph, Ali (d.661), transferred the Islamic capital to Kufa. Ali and Abdullah ibn Masud (d.653) formed much of the base of the school, as well as other personalities such as Muhammad al-Baqir, Ja'far al-Sadiq, and Zayd ibn Ali. (It is followed by Muslims in the Levant, Central Asia, Afghanistan, Pakistan, India, Bangladesh, most of Egypt, Iraq, Turkey, the Balkans and by most of Russia's Muslim community.)
• The Shafi'i school was founded by Muhammad ibn Idris ash-Shafi'i (767-820 CE). Whil Ash-Shafii ended up in Egypt in 814 CE, where his leading disciples wrote down his lectures for posterity, he first studied and argued law in Baghdad, advocating the Mālikī school of thought in arguments with Hanafī jurists, debating Muhammad al-Shaybani; before moving to Mecca in 804 CE, where he developed an appreciation of the Hanafī schools of thought; returned to Baghdad in 810 CE, establishing an independent line of legal speculation; and finally moving to Egypt. The Shafi'i school is now followed by Muslims in Saudi Arabia, Eastern Lower Egypt, Indonesia, Malaysia, Jordan, Palestine, the Philippines, Singapore, Somalia, Thailand, Yemen, Kurdistan, and the Mappilas of Kerala and Konkani Muslims of India. It is the official school followed by the governments of Brunei and Malaysia.
• The Hanbali school was founded later than the others -- by Ahmad ibn Hanbal (780-855 CE), and emphasizes the authority of the Hadith and of the precedent set by the Salaf (early generations of Muslims), favoring those over "speculative legal reasoning (raʾy) and analogy (qiyās)". It is followed by Muslims in Qatar, most of Saudi Arabia and minority communities in Syria and Iraq. The majority of the Salafist movement claims to follow this school.
• Even later, smaller and stricter, is a fifth Sunni school, Zahiri, which was founded by Dawud al-Zahiri (who died in 883 CE), and insists on "strict adherence to the literal text (ẓāhir) of the Qurʾān and Ḥadīth". It rejects analogical reasoning (qiyas), pure reason (raʾy) "as sources of jurisprudence" and looks "askance at consensus (ijmāʾ)". It has fewer adherents than the other schools, being followed by minority communities in Morocco and Pakistan.
• Besides the Sunni schools, the Jaʿfari fiqh is the school of Twelver Shia Islam, named after the sixth Shia Imam, Ja'far al-Sadiq who was "active in Medina’s scholarly circles" and died in 765 CE. It differs from the predominant madhhabs of Sunni jurisprudence in its reliance on ijtihad, as well as on matters of inheritance, religious taxes, commerce, personal status, and the allowing of temporary marriage or mutʿa.

After the eleventh century CE it became "effectively impossible" to start a new madhhab. in 13th century Cairo a senior scholar was admonished by the Sultan for allegedly attempting to establish a new school of fiqh.

Revisionist secular history of fiqh

Scholars of Islam outside of the traditional field of Muslim Islamic studies (Ulum al-din), (i.e. Western non-Muslim scholars), mostly accepted the general outlines of the traditional account described above, but in the late 19th century, another theory of how fiqh was formed began to be developed. A revisionist hypothesis was advanced by Ignac Goldziher (1850-1921) and elaborated by Joseph Schacht (1902-1969) in the mid-20th century, and by others scholars (Patricia Crone, Robert G. Hoyland, John Burton, Tom Holland) later on.

Describing revisionism idea

According to the traditional account in "classical manuals of Islamic law", the primary sources of Islamic law are but two (sharia) -- the Quran, and the authoritative example of Muhammad (the sunnah of The Prophet) (as determined by hadith reports) -- because only these sources were revealed by God (waḥy). All other sources of law (such as consensus, analogical reason, public interest, juristic discretion, local customs), are subordinate to the Quran and hadith.

Schacht, on the other hand, argued that Islamic law (sharia) "did not derive directly from the Koran but developed ... out of popular and administrative practice under the Umayyads, and this practice often diverged from the intentions and even the explicit wording of the Koran ... norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage." Another source (The Oxford Handbook of Islamic Law) lists jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs, (in addition to the Quran and hadith) as sources Schacht believed were used in the early Islamic legal system.

Patricia Crone (1945-2015) argues that Sharia law was founded not on traditions of rasul allah -- the messenger of God, Muhammad -- but on the law "of the Near East as it had developed under Alexander." Conquering Muslims "sifted and systematized this law in the name of God, imprinting it with their own image in the process." This provincial law that "the Umayyad caliphate in general and Mulawiya in particular" employed, became what we now call sharia after a "long period of adjustments by the ulama".

Similarly, Robert G. Hoyland argues that a "pre-existing corpus of laws -- a mixture of ancient Middle Eastern and Roman law -- remained current in the Umayyad period, supplemented by ad hoc emendation made by caliphs and their agents." This "ancient Middle Eastern and Roman law" included law "that we think of as very Islamic, like amputation of the hand for theft and the death penalty for apostates". This "corpus of law" was gradually "reworked by Muslim scholars" with some laws being discarded (legal adoption of children and contracts involving non-refundable deposits/earnest money), "in both cases the acceptances and rejections were attributed to Muhammad himself."

"Ancient" schools

Schacht argued that Islamic law that predate the classical manuals of law and classical fiqh of the madhhabs, was embodied in the 'living traditions' of the "ancient schools of law" "expressed in the consensus of the scholars". ("Schools" plural because Mecca, Basra, Kufa, Syria each had a different one, with different legal precedents.)

Islamicist John Burton and Daniel W. Brown also talk of early regional schools. According to Burton, prior to the development of the four sunni Madhhab, fiqh was “regionally organized” with “considerable disagreement and variety of view”. In the second century of Islam, schools of fiqh were noted for the loyalty of their jurists to the legal practices of their local communities, whether Mecca, Kufa, Basra, Syria, etc. (An example of a difference between one ancient school of fiqh -- Medina -- and classical Islamic law was that in Medina a verdict could be based on a single witness and the oath of the claimant, while classical law required two witnesses.) Al-Shafi‘i writes that, `every capital of the Muslims is a seat of learning whose people follow the opinion of one of their countrymen in most of his teachings`.

Schacht argued that the real architect of the Islamic jurisprudence we know today was Al-Shafi‘i (d. 820 CE/204 AH), who formulated the idea of the "overriding importance of prophetic tradition" and other elements of classical legal theory in his work al-risala.

As the doctrine of Al-Shafi‘i (d. 820 CE/204 AH) began to prevail in Islamic law, the ancient schools did not abandon their law but competed for religious authority by "projecting" the precedents for their legal "decisions back to early Muslim authorities" -- at first claiming the second generation of Muslims (the "successors") had ruled the same way, then claiming the first generation, Muhammad's contemporaries ("the Companions") had, "and finally" crediting "the Prophet". This meant making up/fabricating chains of transmission of the hadith.

Thus, according to Schacht, despite the efforts of hadith scholars to weed out fabrications, most canonical hadiths did not originate with Muhammad but were actually created at a later date.

As this was happening the ancient schools evolved into "personal schools associated with eponyms" -- Abu Hanifa for Iraq which eventually became the Hanafi school of fiqh, Malik b. Anas for the Medinese which eventually became the Maliki school, etc., the madhhabs that have survived until today.

USE THIS SOMEHOW?

!-- the initial Muslim efforts to formulate legal norms

regarded the Quran

and Muhammad's hadiths as just one sources of law. -->

Evidence for revisionism

Islamic historians offer evidence to argue that rather a faithful and continuous transmission of sharia law based on the Quran and hadith from the beginning of Islam to the time of the maddhab, sharia law was a later, (third Islamic century), invention of the ulama legal scholars, and that this explains in part the scarcity of literature from the Umayyad period.

hadith were not used early in Islamic law

Schacht bases his theory that the early legal school must have looked to traditions of the second generation of Muslims (Tabi'un) more than to the first (the companions), and that the prophetic traditions (hadith) were used for legal arguments later still, on the grounds that

• the traditions of successors were more heavily used than traditions of the companions in legal texts. and
• that the injunctions of the Prophet contained in later hadith collections were not used in early legal arguments were they would have been relevant, probably because (Schacht argues) they were not truly recorded sayings/doings of the Prophet and did not exist at that time having been made up later. Hadith were formalized and isnads regularly used "only after the second Islamic century", according to Schacht.

Robert Hoyland quotes early Islamic scholars who specifically deny common use of hadith of Muhammad in their time (something that would have highly unlikely if hadith were being used to make legal decisions at that time):

• "I spent a year sitting with Abdullah ibn Umar (son of the second Caliph, d.693) and I did not hear him transmit anything from the prophet";
• "I never heard Jabir ibn Zayd (d. ca. 720) say 'the prophet said ...' and yet the young men round here are saying it twenty times an hour".

Sunnah was used, but often not sunnah of the prophet

Historian Daniel W. Brown emphasizes that classical Islamic law's ideas about sunnah (that it was only the sunnah of Muhammad, is derived from hadith judged authentic, and unlike other sunnahs was divine revelation) differed considerably from those of the early Islamic community; (Brown does not argue that many hadith found in classical collections must have been fabricated. Evidence that among this community the sunnah of the Prophet was not the sunnah, but one of "several several potential sources of religious authority" include:

• when asked about appointing a successor, the second Rashidun caliph, Umar b. al-Khattab, told Muslims that "he could either follow the Prophet and leave the matter open or follow Abu Bakr (his predecessor) and make an appointment; either course of action would be sunna".
• Ali the forth rashidun caliph reported that "Muhammad and Abu Bakr both applied 40 lashes as a penalty for drinking while Umar applied 80; "in the words of the tradition, 'All this is sunna'"
• Abu Yusuf then writes, "Our companions are agreed that the punishment for drinking wine is 80 stripes."
• On his deathbed, Umar instructed the other companions about the sources "from which they should seek guidance when he is gone: the Quran, the Muslims who emigrated to Medina with Muhammad (known as mujahirun), those in Medina who welcomed the Muslims (ansar), the people of the desert, and finally the protected communities of Jews and Christians (ahl al-dhimma), but makes no mention of the Sunna of Muhammad.

Brown also found that sunnah and hadith were not linked in the minds of "many early Muslims", but "remained conceptually independent". Sunnah connoted not "a set of specific, identifiable precedents", as it does to modern Muslims readers, "but a general appeal to principles of justice".

• 3rd and 4th century historian Al-Tabari (and 20th century historians Patricia Crone and Martin Hinds) write (according to Brown) that the phrase "sunnat al-nabawiyya" (sunnah of the Prophet) or "Kitab Allah was sunnat nabiyyihi" (book of God and sunnah of the prophet), were used in early Islam not in connection with hadith but as "oaths or slogans" of rebels, "regardless of the particular ideology of the rebels" (according to Crone and Hind). (Brown found that Al-Tabari wrote of "the sunnah of God, the sunnah of Muslims, the sunnah of Abu Bakr and Umar, and, surprisingly infrequently" of the sunnah of the Prophet.)
• In the Risala fi'l-Qadar of Al-Hasan al-Basri, references to the sunna of the Prophet are "empty of references to specific cases" (according to Brown) despite the fact that the caliph had made a specific request for "a transmitted report (riwaya) from any one of the companions of the Prophet of God". On the theological "controversy over free will and determinism", al-Hasan admits it was "a new development".
• this "same pattern of vague, formulaic references to sunna and clear dissociation between sunna and hadith" was also the case in
  • Kitāb al-Irjāʾ of al-Hasan b. Muhammad b. al-Hanafiyya,
  • the first letter of Abdallah ibn Ibad to Abd al-Malik ibn Marwan,
  • and the Risāla of Abu Hanifa addressed to ʿUthman al-Battī."

Brown states that the first extant writings of Islamic legal reasoning were "virtually hadith-free" but this practice faded gradually and legal works began incorporated Prophetic hadith over the course of the second century.

Brown differs with some revisionists in stating that the lack of mention of hadith transmission in connection with sunnah" was not because hadith reports did not go back to the first century A.H. and "quite probably" to the Companions of the Prophet themselves, but for whatever reason promoters of Sunna of the Prophet and experts in hadith were usually considered two distinct groups at that time.

Robert Hoyland argues that certain Umayyad documents and inscriptions indicate an Umayyad belief that "the era of prophets was at an end and that caliphs now acted as God's agent's on earth." An Umayyad inscription about the designation of royal heirs and an inscription by Muawiyah I in West Arabia includes a plea for God's forgiveness, strength, and support and "to let the faithful profit by him", i.e. profit by Muawiyah, but no mention of Muhammad.

Evidence that Quran was sometimes ignored in early Islamic law

Joseph Schacht gives some examples of the difference between Quranic punishments and regulations and the practices of early Islam.

Punishment for theft

Schacht writes that John of Damascus makes reference to the law-givers of Islam -- by which he means the governors and their agents, the judges, rather than scholars of Islamic law. John repeatedly describes flogging as the punishment for theft (indicating according to Schacht that this could not have been a mistake) rather than the Quranic punishment of cutting off of the hand (in surah 38)

for Drunkenness

"A governor, at the end of the first century A.H., punished drunkenness not by flogging but by the death penalty, the punishment for drunkenness had not yet been fixed at that time".

`idda in divorce law

“The frequency of divorce with immediate re-marriage led to many cases of contested paternity in pre-Islamic Arab society and even during the first century of Islam. introduced the `idda, a waiting period during which a divorced woman and widow were barred from re-marrying. But this rule was still disregarded in the middle Umaiyad period, as Aghani, xi. 140 shows.

USE THESE IN OTHER ARTICLES!!!!

Closer in time is better

Prophets are special. "Here we have a manifestation of the idea, ubiquitous in Islamic thought, that the closer an individual is to the source of an event, the more authoritative is their interpretation of that event; because they were closest to the event of revelation, prophets are naturally its most capable interpreters."

Muhammad's special status

Why is sunnah so important? "In other words, Muslims only know that Quran is revelation because of Muhammad's testimony to this fact. If the Prophetic word is to to be trusted, then the Quran itself is open to suspicion."

How and why Classical Islamic law arose

Why a hierarchy of Quran, prophetic sunnah and non-prophetic sunnah arose?

How did the sharp distinctions in the hierarchy of Quran, hadith (both of primary importance), sunnahs of the companions and early caliphs (little or no importance as a source of authority) develope? Prior to Al-Shāfīʿī there was a "loose, unsystematic" relationship between relationship between the sources, which were "primarily" used "for moral edification", not law.

DECOPYRIGHT THIS

But as the religious and political environment became "increasingly complex", "the need arose to find firm support for one's own views and ways of undermining the evidence of one's opponents. This required the establishment of a hierarchy of revealed material whereby the evidence one liked could be justified and the evidence of one's opponents could be dismissed. The mass of 'revealed' material had to be systematically differentiated. It was out of this contingency that the nascent disciples of jurisprudence (usul al-fiqh), hadith criticism (ulum al-hadith) and abrogation (al-naskih wa'l mansukh) emerged."

Al-Shāfīʿī and triumph of hadith

In the second century of Islam, when al-Shafiʿi was establishing the final authority in Islamic law of the hadith of Muhammad over sunnah of everyone other than Muhammad (caliphs and companions), and over methods of legal reasoning (qiyas and istihsan), he engaged in polemical argument with two other groups:

• ahl al-raʿy (legal pragmatists) -- who championed region-based schools of law and jurisprudence that regarded between Prophetic sunna as one source of law among many, that they did not distinguish between sharply. They "upheld the conclusions of their own methods of legal reasoning in the face of contradictory hadith".
• ahl al-kalām (speculative theologians about whom we know mainly through al-Shafiʿi's writing)) -- rejected the authority of hadith because they rejected almost all hadith reports because they rejected any reports about which there was "the smallest doubt". a , Ahl al-Kalam "tended" to regard any question "not referred to in the Qur'an" as "having been left deliberately unregulated by God."

his group was known as

• Aṣhāb al-ḥadith (partisans of tradition)

Did hadith triumph in theory but not practice?

Daniel W. Brown argues that with the triumph of the doctrine of Al-Shāfīʿī, "in theory Prophetic sunnah was ascendant, even over the Qur'an", but in "substantive matters", the actual law of the madhhabchanged little. Workarounds used to to protect "actual legal points" by "shielding" them from revision included

• that not everything the Prophet said "had legal intent";
• that not every prohibition or requirement actually prohibited or required behavior because some behavior was simply discouraged or encouraged;
• the context of a hadith also could change its meaning (a hadith reporting that "the dead suffer from the mourning of their relatives", actually a confusion of two hadiths, "the woman was suffering" and "her relatives are mourning over her");
• supporters of law based on hadith of Companions or Successors of the prophet expanded isnads of these non-prophetic hadith to reach back to the Prophet.
• the science of hadith criticism,
  • which was used to "tear apart" the isnads of hadith contradicting a ruling of fiqh being defended.
  • which the principle of ijma or consensus of scholars in favor of a ruling of fiqh, was used to "place a shield around existing legal doctrine".

The tension between the classical theory of supremacy of hadith and actual practice of resisting application of hadith would manifest itself in periodic outbursts of traditionists who sought to overrule or transcend madhhab fiqh and base practice of Islamic law "exclusively on hadith, literally understood".

Ulama and reasons for sunnat al-nabi coming to the fore

Historian Tom Holland also argues against the doctrine that schools of fiqh simply developed and refined what had been passed down to them from Muhammad. Instead (he argues) the caliph dominated law making during the Umayyad era until its end when it was the ulama who grounded the law "and very publicly so, in the life and times of the Prophet himself", to trump the authority of the Caliph.

Crone and Hinds agree that in Umayyad era secular and spiritual power were united in the person of the caliph. Legal verdicts rendered by caliphs "did count as sacred law, as is clear from the very fact that they are to found in Hadith. Hadith is a record of authoritative rulings, not of historical ones". (Early hadith not being strictly saying and doings, etc. of Muhammad. Classical law did not consider Caliph rulings in general to "count as sacred law". Only rulings by the four Rashidun caliphs -- who were "companions" -- and Umar II -- who was exceptionally pious -- were qualified to issue verdicts in Islamic law in the eyes of the ulama.) There were no special religious scholars. Religious scholars came into being only later and conquered the spiritual power from the caliphs.

Influence of the conquered people

Why the non-hadith law happened

The Muslim/Arab invaders of Palestine, Syria, Iraq, Iran and Egypt conquered much more populous agricultural and urban societies (historian Robert Hoyland estimates that the Arab (though not all Arab or Muslim) invaders numbered around 250,000-300,000, while the conquered were some 25-30 million. making the ruling class about 1% of the ruled). The desert-dwelling traders, herders and raiders, who conquered them might not have found themselves not in a position to impose new laws.

Hoyland recons that while for the first fifty year the Arabs lived apart from their subjects in garrison towns, they shared these with prisoners of war non-Arab slave or servants, tutors, scribes, wives, concubines. As the first generation of conquerors died off, their descendents grew up far away from their father's homeland in Egypt, Syria, Iraq and Iran among the non-Arabs who outnumbered them. Consequently "it was not long before blood was mixed, boundaries blurred, and religion and society fast transformed," with the new converts "shaping the culture and ideology" of Islam more than passively accepting it.

According to Holland, the early Ulama (the class of guardians, transmitters and interpreters of religious knowledge in Islam) were overwhelmingly comprised of conquered peoples -- namely Zoroastrians and Jews -- who converted to Islam. The actual conquering Arab warriors were overwhelmingly illiterate, while there was a strong scholarly tradition among the conquered Zoroastrians in the form of Mobad, and rabbis among the conquered Jews. Holland argues the ex-Jewish and Zoroastrian scholars were strongly motivated to applying their scholarship to develop religious law to curtail the power of the "haughty Arab elite" and "trump the forbidding authority of the Khaifat Allah". To this end they transform a "jumble of beliefs and doctrines" into a systematic Islamic law.

REPITITION

individual descendants of conquered people

According to Hoyland, "many of these converts -- and even more so their descendants, who had been born into Islam -- wanted to explore and expound their new religion and to reconcile it with their former faith and culture." Exploration in the form of scholarship was also "a way for newcomers and the lowborn to attain respect and status". He relates a tale of Caliph Abd al-Malik bemoaning the fact that non-Arab religious expertise was such that they would "predominate over the Arabs to such an extent that they will preach to them from the pulpits, with the Arabs down below listening".

Some of the most famous of these scholars (who were all born during the "Islamizing" period of the reigns of Abd al-Malik ibn Marwan and Al-Walid I) included

• Muqatil ibn Sulayman (d.767), "a captive from Bakh, author of the earliest extant Quran commentary";
• Yazid ibn Abi Habib (d.746), "son of a captive from Nubia, the top legal authority in Egypt of his generation";
• Ibn Ishaq (d.767), "grandson of a captive from 'Ayn al-Tamr in Iraq, author of the most famous biography of Muhammad";
• Ibn Jurayj (d.767), "grandson of a captive from Anatolia, a prolific collector of sayings of Muhammad";
• Abu Hanifa (d.767), "grandson of a captive from Kabul, eponymous founder of a law school";
• Hammad Ar-Rawiya (d.772), "son of a captive from Daylam, an expert on ancient Arabic poetry".

doctrines of conquered people that may have influenced Islamic law

Holland argues the influence of Jewish and Zorastrian converts could explain the tenants of Islamic Sharia and/or Sunna not in the Quran, but found in:

• Zorastrianism
  • that apostates should be executed, ...
  • that prayers should be offered up five times a day (not just three. Holland notes that Quran verse 24:58 mentions three prayers: Dawn, Noon and Night (note 62) or
  • that pious Muslim should use miswak --- a twig of the arak tree -- to brush their teeth;
• Judiaism --
  • such as the tendency of Jewish law (halakha) "to regulate every dimension and aspect of human existence";
  • the practice -- that "only rabbis, had ever previously deployed" -- of authenticating prophetic sayings of the Oral Torah by creating a chain of transmission listing who passed down the prophet's saying to the present (known as isnad in Islam); and
  • prescribing capital punishment by stoning for adultery (the Quran calls only for lashing for adulterers).24:2 (Deuteronomy 22:21 of the Jewish Torah calls for stoning to death of women who have been found to have had sex before marriage).
  • Hoyland describes the "structural similarity with Judiaism" of sharia as "a comprehensive religio-legal system regulated by scholars on the basis of scripture and oral tradition from a prophet"

Holland believes that Jewish influence would also explain why "the earliest and most influential school of Islamic law" should have been founded barely thirty miles from "the great Talmudic school of Sura" near Kufa.

Robert Hoyland finds influence on Islamic law from the imperial states the Rashidun/Umayyad empire replaced:

• Byzantine law -- sharia law may well have followed the "model" of the Byzantine empire in making three different classes of religions:
  • a state religion, privileged and supported: Christianity in Byzantium, Islam in the Arab Empire);
  • a class of tolerated religions: Jews in Byzantium who were (in theory) protected, but forbidden under Roman law to do things like build new synagogues, give testimony against Christians, defame Christianity, etc.); in the Arab Empire "people of the book" (Ahl al-Kitab) were protected but subject to a special tax and regulations similar to Roman ones;
  • a class for "illicit" religions: pagans; faced "severe constraints" in Byzantium; and in the Arab Empire were in theory compelled to either convert to Islam or die.
• Sasanian Persian regulations -- Hoyland argues that the "raw materials" for sharia law ban on non-Muslims imitating Muslims came in part from Sasanian Persian regulations to distinguish between commoner and noble (commoners being forbidden to imitate the headgear, overcoats, belts, shoes, and hairstyles" of the nobles).

Hoyland emphasizes that "The laws that were in place in the Middle East the day before the Arab conquests were still in use the day after, and this pre-existing corpus of laws -- a mixture of ancient Middle Eastern and Roman law -- remained current in the Umayyad period, supplemented by ad hoc emendation made by caliphs and their agents." But "many rulings that we think of as very Islam, like amputation of the hand for theft and the death penalty for apostates" are "ancient Middle Eastern and Roman law ... were applied in the region long before Islam ... this corpus of law remained current after the Arab conquests and was taken over and reworked by Muslim scholars. .... Some of these item were maintained while other, such as the adoption of children and contracts involving earnest money (non-refundable deposits) were rejected; in both cases the acceptances and rejections were attributed to Muhammad himself."

Reaction to revisionism

While the origin of hadith remains a subject of scholarly controversy, the theory (of Goldziher and Schacht) has given rise to objections, and modern historians generally adopt more cautious, intermediate positions, and it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities.

See also

• Outline of Islam
• Glossary of Islam
• Index of Islam-related articles
• Ja'fari jurisprudence
• Abdallah al-Harari
• Bahar-e-Shariat
• Mizan, a comprehensive treatise on the contents of Islam written by Javed Ahmed Ghamidi.
• Palestinian law
• Ma'ruf
• Sources of Islamic law
• List of Islamic terms in Arabic
• Urf

References

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Category:Arabic words and phrases in Sharia Category:Islamic terminology