Development of Muslim Theology, Jurisprudence, and Constitutional Theory

by Duncan Black MacDonald

QUR’AN; USAGE OF MUHAMMAD

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 second 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 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 fell gradually into disuse; a closer search was made for decisions of that founder which could in any way be pressed into service; a method of analogy, 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.

LEGAL CLASSES OF ACTIONS

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

SUNNA; HADITH

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 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, “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 same 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, 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.

TRADITIONS IN LITERATURE

It is to the formation of these books of traditions, or, as we might 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.H. 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 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.

THE MUSNADS