PART II
Development of Jurisprudence
CHAPTER I
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 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 down 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 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.
SCOPE OF MUSLIM LAW
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 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 to fear but the anger of his opponent. That law of custom we shall find again appearing in the system of 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, 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 recurring 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 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.
MUHAMMAD AS A LEGISLATOR
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 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.