RESPONSA PRUDENTIUM; OPINION
But most important of all was a liberty suggested by that system to the Muslim jurisconsults. This was through the part played in the older school by the Responsa Prudentium, answers by prominent lawyers to questions put to them by their clients, in which the older law of the Twelve Tables was expounded, expanded, and often practically set aside by their comments. Sir Henry Maine thus states the situation: “The authors of the new jurisprudence, during the whole progress of its formation, professed the most sedulous respect for the letter of the code. They were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by placing texts together, by adjusting the law to states of fact which actually presented themselves, and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamt of by the compilers of the Twelve Tables, and which were in truth rarely or never to be found there.” All this precisely applies to the development of law in Islam.
EQUITY; LEGAL FICTION
The part of the Twelve Tables was taken by the statute law of the Qur’an and the case law derived from the Usage of Muhammad; that of the Roman Iurisprudentes by those speculative jurists who worked mostly outside of al-Madina in the camp cities of Mesopotamia and Syria—the very name for lawyer in Arabic, faqih, plural fuqaha, is a translation of prudens, prudentes; and that of the Responsa, the answers, by the “Opinion” which they claimed as a legitimate legal method and source. Further, the validity of a general agreement of jurisconsults “reminds us of the rescript of Hadrian, which ordains that, if the opinions of the licensed prudentes all agreed, such common opinion had the force of statute; but if they disagreed, the judge might follow which he chose.” The Arabic term, ra’y, here rendered Opinion, has passed through marked vicissitudes of usage. In old Arabic, before it, in the view of some, began to keep bad company, it meant an opinion that was thoughtful, weighed and reasonable, as opposed to a hasty dictate of ill-regulated passion. In that sense it is used in a tradition—probably forged—handed down from Muhammad. He was sending a judge to take charge of legal affairs in al-Yaman, and asked him on what he would base his legal decisions. “On the Qur’an,” he replied. “But if that contains nothing to the purpose?” “Then upon your usage.” “But if that also fails you?” “Then I will follow my own opinion.” And the Prophet approved his purpose. A similar tradition goes back to Umar, the first Khalifa, and it, too, is probably a later forgery, written to defend this source of law. But, with the revolt against the use of Opinion, to which we shall soon come, the term itself fell into grave disrepute and came to signify an unfounded conclusion. In its extremest development it went beyond the Responsa, which professed always to be in exact accord with the letter of the older law, and attained to be Equity in the strict sense; that is, the rejection of the letter of the law for a view supposed to be more in accordance with the spirit of justice itself. Thus, Equity, in the English sense, is the law administered by the Court of Chancery and claims, in the words again of Sir Henry Maine, to “override the older jurisprudence of the country on the strength of an intrinsic ethical superiority.” In Roman law, as introduced by the edict of the Prætor, it was the law of Nature, “the part of law ‘which natural reason appoints for all mankind.’” This is represented in Islam under two forms, covered by two technical terms. The one is that the legist, in spite of the fact that the analogy of the fixed code clearly points to one course, “considers it better” (istihsan) to follow a different one; and the other is that, under the same conditions, he chooses a free course “for the sake of general benefit to the community” (istislah). Further scope of Equity Muslim law never reached, and the legitimacy of these two developments was, as we shall see, bitterly contested. The freedom of opinion, with its possibility of a system of Equity, had eventually to be given up, and all that was left in its place was a permissibility of analogical deduction (qiyas), the nearest thing to which in Western law is Legal Fiction. In a word, the possibility of development by Equity was lost, and Legal Fiction entered in its place. But this anticipates, and we must return to the strictly historical movement.
During the first thirty years after the death of Muhammad—the period covered by the reigns of the four theocratic rulers whom Islam still calls “the Four Just, or Rightly Guided Khalifas” (al-Khulafa ar-rashidun)—the two twin studies of tradition (hadith) and of law (fiqh) were fostered and encouraged by the state. The centre of that state was still in al-Madina, on ground sacred with the memories of the Prophet, amid the scenes where he had himself been lord and judge, and under the conditions in which his life as ruler had been cast. All the sources, except that of divine revelation, which had been open to him, were open to his successors and they made full use of all. Round that mother-hearth of Islam was still gathered the great body of the immediate Companions of Muhammad, and they formed a deliberative or consulting council to aid the Khalifa in his task. The gathering of tradition and the developing of law were vital functions; they were the basis of the public life of the state. This patriarchal period in Muslim history is the golden age of Islam. It ended with the death of Ali, in the year 40 of the Hijra, and the succession of Mu‘awiya in the following year. “For thirty years,” runs a tradition from the Prophet, “my People will tread in my Path (sunna); then will come kings and princes.”
GROWTH OF CANON LAW
And so it was; Mu‘awiya was the first of the Umayyad dynasty and with him and them Islam, in all but the name, was at an end. He and they were Arab kings of the old type that had reigned before Muhammad at al-Hira and Ghassan, whose will had been their law. The capital of the new kingdom was Damascus; al-Madina became a place of refuge, a Cave of Adullam, for the old Muslim party. There they might spin theories of state and of law, and lament the good old days; so long as there was no rebellion, the Umayyads cared little for those things or for the men who dreamt them. Once, the Umayyads were driven to capture and sack the holy city, a horror in Islam to this day. After that there was peace, the peace of the accomplished fact. This is the genuinely Arab period in the history of Islam. It is a period full of color and light and life; of love and song, battle and feasting. Thought was free and conduct too. The great theologian of the Greek Church, John of Damascus, held high office at the Umayyad court, and al-Akhtal, a Christian at least in name, was their poet laureate. It is true that the stated services of religion were kept up and on every Friday the Khalifa had to entertain the people by a display of eloquence and wit in the weekly sermon. But the old world was dead and the days of its unity would never come again. So all knew, except the irreconcilable party, the last of the true Muslims who still haunted the sacred soil of al-Madina and labored in the old paths. They gathered the traditions of the Prophet; they regulated their lives more and more strictly by his usage; they gave ghostly council to the pious who sought their help; they labored to build up elaborate systems of law. But it was all elaboration and hypothetical purely. There was in it no vitalizing force from practical life.
From this time on Muslim law has been more or less in the position held by the canon law of the Roman Church in a country that will not recognize it yet dares not utterly reject it. The Umayyads were statesmen and opportunists; they lived, in legal things, as much from hand to mouth as Muhammad had done. He cut all knots with divine legislation; they cut them with the edge of their will. Under them, as under him, a system of law was impossible. But at the same time, in quiet and in secret, this canon law of Islam was slowly growing up, slowly rounding into full perfection of detailed correlation. It was governing absolutely the private lives of all the good Muslims that were left, and even the godless Umayyads, as they had to preach on Fridays to the People of Muhammad, so they had to deal with it cautiously and respectfully. Of the names and lives of these obscure jurists little has reached us and it is needless to give that little here. Only with the final fall of the Umayyads, in the year of the Hijra 132, do we come into the light and see the different schools forming under clear and definite leaders.