Development of Muslim Theology, Jurisprudence, and Constitutional Theory

by Duncan Black MacDonald

CHAPTER II

The Abbasid revolution; the compromise; the problem of the Abbasids; the two classes of canon lawyers and theologians; the rise of legal schools; Abu Hanifa; his application of Legal Fiction; istihsan; the Qadi Abu Yusuf; Muhammad ibn al-Hasan; Sufyan ath-Thawri; al-Awza‘i; Malik ibn Anas; the Usage of al-Madina; istislah; the doctrine of Agreement; the beginning of controversy; traditionalists or historical lawyers versus rationalists or philosophical lawyers; ash-Shafi‘i, a mediator and systematizer; the Agreement of the Muslim people a formal source; “My People will never agree in an error;” the resultant four sources, Qur’an, Usage, Analogy, Agreement; the traditionalist revolt; Da’ud az-Zahiri and literalism; Ahmad ibn Hanbal; the four abiding schools; the Agreement of Islam; the Disagreement of Islam; iurare in verba magistri; the degrees of authority; the canon and the civil codes in Islam; their respective spheres; distribution of schools at present day; Shi‘ite law; Ibadite law.

That great revolution which brought the Abbasid dynasty to power seemed at first to the pious theologians and lawyers to be a return of the old days. They dreamt of entering again into their rights; that the canon law would be the full law of the land. It was only slowly that their eyes were opened, and many gave up the vain contest and contented themselves with compromise. This had been rare under the Umayyads; the one or two canon lawyers who had thrown in their lot with them had been marked men. Az-Zuhri (d. 124), a man of the highest moral and theological reputation who played a very important part in the first codifying of traditions, was one of these, and the later pious historians have had hard work to smooth over his connection with the impious Umayyads. Probably—it may be well to say here—the stories against the Umayyads have been much heightened in color by their later tellers and also az-Zuhri, being a man of insight and statesmanship, may have recognized that their rule was the best chance for peace in the country. Muslims have come generally to accept the position that unbelief on the part of the government, if the government is strong and just, is better than true belief and anarchy. This has found expression, as all such things do, in traditions put in the mouth of the Prophet.

THE PROBLEM OF THE ABBASIDS

But while only a few canonists had taken the part of the Umayyads, far more accepted the favors of the Abbasids, took office under them and worked in their cause. The Abbasids, too, had need of such men. It was practically the religious sentiment of the people that had overthrown the Umayyads and raised them to power; and that religious sentiment, though it could never be fully satisfied, must yet be respected and, more important still, used. There is a striking parallel between the situation then, and that of Scotland at the Revolution Settlement of 1688. The power of the Stuarts—that is, of the worldly Umayyads—had been overthrown. The oppressed Church of the Covenant—that is, the old Muslim party—had been freed. The state was to be settled upon a new basis. What was that basis to be? The Covenanting party demanded the recognition of the Headship of Christ—that the Kirk should rule the state, or should be the state, and that all other religious views should be put under penalty. The old Muslim party looked for similar things. That religious life should be purified; that the canon law should be again the law of the state; that the constitution of Umar should be restored. How the Covenanters were disappointed, how much they got and how much they failed to get, needs no telling here.

Exactly in the same way it befell the old Muslims. The theological reformation was sweeping and complete. The first Abbasids were pious, at least outwardly; the state was put upon a pious footing. The canon law also was formally restored, but with large practical modifications. Canon lawyers were received into the service of the state, provided they were adaptable enough. Impossible men had no place under the Abbasids; their officials must be pliable and dexterous, for a new modus vivendi was to be found. The rough and ready Umayyad cutting of the knot had failed; the turn had now come for piety and dexterity in twisting law. The court lawyers learned to drive a coach and four through any of the old statutes, and found their fortunes in their brains. So the issue was bridged. But a large party of malcontents was left, and from this time on in Islam the lawyers and the theologians have divided into two classes, the one admitting, as a matter of expediency, the authority of the powers of the time and aiding them in their task as rulers; the other, irreconcilable and unreconciled, denouncing the state as sunk in unbelief and deadly sin and its lawyers as traitors to the cause of religion. To pursue our parallel, they are represented in Scotland by a handful of Covenanting congregations and in America by the much more numerous and powerful Reformed Presbyterian Church.

It is a significant fact that with the lifting of the Umayyad pressure and the encouragement of legal studies—such as it was—by the Abbasids, definite and recognized schools of law began to form. What had so long been in process in secret became public, and its results crystallized under certain prominent teachers. We will now take up these schools in the order of the death dates of their founders; we will establish their principles and trace their histories. We shall find the same conceptions recurring again and again which have already been brought out, Qur’an, tradition (hadith), agreement (ijma), opinion (ra’y), analogy (qiyas), local usage (urf), preference (istihsan), in the teeth of the written law—till at length, when the battle is over, the sources will have limited themselves to the four which have survived to the present day—Qur’an, tradition, agreement, analogy. And, similarly, of the six schools to be mentioned, four only will remain to the present time, but these of equal rank and validity in the eyes of the Believers.

ABU HANIFA

The Abbasids came to power in the year of the Hijra 132, and in 150 died Abu Hanifa, the first student and teacher to leave behind him a systematic body of teaching and a missionary school of pupils. He was a Persian by race, and perhaps the most distinguished example of the rule that Muslim scientists and thinkers might write in Arabic but were seldom of Arab blood. He does not seem to have held office as a judge or to have practised law at all. He was, rather, an academic student, a speculative or philosophical jurist we might call him. His system of law, therefore, was not based upon the exigencies of experience; it did not arise from an attempt to meet actual cases. We might say of it, rather, but in a good sense, that it was a system of casuistry, an attempt to build up on scientific principles a set of rules which would answer every conceivable question of law. In the hands of some of his pupils, when applied to actual facts, it tended to develop into casuistry in a bad sense; but no charge of perverting justice for his own advantage seems to have been brought against Abu Hanifa himself. His chief instruments in constructing his system were opinion and analogy. He leaned little upon traditions of the usage of Muhammad, but preferred to take the Qur’anic texts and develop from them his details. But the doing of this compelled him to modify simple opinion—equivalent to equity as we have seen—and limit it to analogy of some written statute (nass). He could hardly forsake a plain res iudicata of Muhammad, and follow his own otherwise unsupported views, but he might choose to do so if he could base it on analogy from the Qur’an. Thus, he came to use what was practically legal fiction. It is the application of an old law in some sense or way that was never dreamt of by the first imposer of the law, and which may, in fact, run directly counter to the purpose of the law. The fiction is that it is the original law that is being observed, while, as a matter of fact, there has come in its place an entirely different law. So Abu Hanifa would contend that he was following the divine legislation of the Qur’an, while his adversaries contended that he was only following his own opinion.

But if, on the one hand, he was thus limited from equity to legal fiction, on another he developed a new principle of even greater freedom. Reference has already been made to the changes which were of necessity involved in the new conditions of the countries conquered by the Muslims. Often the law of the desert not only failed to apply to town and agricultural life; it was even directly mischievous. On account of this, a consideration of local conditions was early accepted as a principle, but in general terms. These were reduced to definiteness by Abu Hanifa under the formula of “holding for better” (istihsan). He would say, “The analogy in the case points to such and such a rule, but under the circumstances I hold it for better to rule thus and thus.”