THE QADI ABU YUSUF
This method, as we shall see later, was vehemently attacked by his opponents, as was his system in general. Yet that system by its philosophical perfection—due to its theoretical origin—and perfection in detail—due to generations of practical workers—has survived all attack and can now be said to be the leading one of the four existing schools. No legal writings of Abu Hanifa have reached us, nor does he seem to have, himself, cast his system into a finished code. That was done by his immediate pupils, and especially by two, the Qadi Abu Yusuf, who died in 182, and Muhammad ibn al-Hasan, who died in 189. The first was consulting lawyer and chief Qadi to the great Khalifa Harun ar-Rashid, and, if stories can be believed, proved himself as complaisant of conscience as a court casuist need be. Innumerable are the tales afloat of his minute knowledge of legal subtleties and his fertility of device in applying them to meet the whims of his master, Harun. Some of them have found a resting place in that great mirror of mediæval Muslim life, The Thousand and One Nights; reference may be made to Night 296. Through his influence, the school of Abu Hanifa gained an official importance which it never thereafter lost. He wrote for Harun a book which we have still, on the canon law as applied to the revenues of the state, a thorny and almost impossible subject, for the canon law makes really no provision for the necessary funds of even a simple form of government and much less for such an array of palaces and officials as had grown up around the Abbasids. His book is marked by great piety in expression and by ability of the highest kind in reconciling the irreconcilable.
But all the canon lawyers did not fall in so easily with the new ways. Many found that only in asceticism, in renunciation of the world and engaging in pious exercises was there any chance of their maintaining the old standards in a state that was for them based on oppression and robbery. One of these was Sufyan ath-Thawri, a lawyer of high repute, who narrowly missed founding a separate school of law and who died in 161. There has come down to us a correspondence between him and Harun, which, though it cannot possibly be genuine, throws much light on the disappointment of the sincerely religious section. Harun writes on his accession to the Khalifate (170), complaining that Sufyan had not visited him, in spite of their bond of brotherhood, and offering him wealth from the public treasury. Sufyan replied, denouncing such use of public funds and all the other uses of them by Harun—many enough—except those precisely laid down in the codes. On the basis of these, Harun would have had to work for his own living. There are also other denunciations for crimes in the ruler which he punished in others. Harun is said to have kept the letter and wept over it at intervals, but no change of life on his part is recorded. Apparently, with the accession of the Abbasids ascetic and mystical Islam made a great development. It became plain to the pious that no man could inherit both this world and the next.
While Abu Hanifa was developing his system in Mesopotamia, al-Awza‘i was working similarly in Syria. He was born at Baalbec, lived at Damascus, and at Beyrout where he died in 157. Of him and his teaching we know comparatively little. But so far it is clear that he was not a speculative jurist of the same type as Abu Hanifa, but paid especial attention to traditions. At one time his school was followed by the Muslims of Syria and the entire West to Morocco and Spain. But its day was a short one. The school of Abu Hanifa, championed by Abu Yusuf with his tremendous influence as chief Qadi of the Abbasid empire, pushed it aside, and at the present day it has no place except in history. For us, its interest is that of another witness to the early rise and spread of systems of jurisprudence outside of Arabia.
MALIK IBN ANAS
In A.H. 179, three years before the death of Abu Yusuf and twenty-nine after that of Abu Hanifa, there died at al-Madina the founder and head of an independent school of a very different type. This was Malik ibn Anas, under whose hands what we may call, for distinction, the historical school of al-Madina took form. Al-Madina, it will be remembered, was the mother-city of Muslim law. It was the special home of the traditions of the Prophet and the scene of his legislative and judicial life. Its pre-Islamic customary law had been sanctioned, in a sense, by his use. It had been the capital of the state in its purest days. From the height of all these privileges its traditionists and lawyers looked down upon the outsiders and parvenus who had begun to intermeddle in sacred things.
But it must not be thought that this school was of a rigid traditionism. The case was quite the reverse, and in many respects it is hard to make a distinction between it and that of Abu Hanifa. Its first source was, of necessity, the Qur’an. Then came the usage of the Prophet. This merged into the usage of the Successors of the Prophet and the unwritten custom of the town. It will be seen that here the historical weight of the place came to bear. No other place, no other community, could furnish that later tradition with anything like the same authority. Further, Malik ibn Anas was a practical jurist, a working judge. He was occupied in meeting real cases from day to day. When he sat in public and judged the people, or with his pupils around him and expounded and developed the law, he could look back upon a line of canon lawyers who had sat in his place and done as he was doing. In that lies the great difference. He was in practical touch with actual life; that was one point; and, secondly, he was in the direct line of the apostolic succession, and in the precise environment of the Prophet. So when he went beyond Qur’an, prophetic usage, agreement, and gave out decisions on simple opinion, the feeling of the community justified him. It was a different thing for Malik ibn Anas, sitting there in state in al-Madina, to use his judgment, than for some quick-brained vagabond of a Persian or Syrian proselyte, some pauvre diable with neither kith nor kin in the country, to lay down principles of law. So the pride of the city of the Prophet distinguished between him and Abu Hanifa.
But though the speculative element in the school of Malik, apart from its local and historical environment, which gave it unifying weight, was essentially the same as in the school of Abu Hanifa, yet it is true that at al-Madina it played a less important part. Malik used tradition more copiously and took refuge in opinion less frequently. Without opinion, he could not have built his system; but for him it was not so much a primary principle as a means of escape. Yet one principle of great freedom he did derive from it and lay down with clearness; it is the conception of the public advantage (istislah). When a rule would work general injury it is to be set aside even in the teeth of a valid analogy. This, it will be seen, is nearly the same as the preference of Abu Hanifa. The technical term istislah, chosen by Malik to express his idea, was probably intended to distinguish it from that of Abu Hanifa, and also to suggest in the public advantage (maslaha) a more valid basis than the mere preference of the legist.
THE DOCTRINE OF AGREEMENT
Another conception which Malik and his school developed into greater exactitude and force was that of the agreement (ijma). It will be remembered that from the death of Muhammad all the surviving Companions resident in al-Madina formed a kind of consultive council to aid the Khalifa with their store of tradition and experience. Their agreement on any point was final; it was the voice of the Church. This doctrine of the infallibility of the body of the believers developed in Islam until at its widest it was practically the same as the canon of catholic truth formulated by Vincent of Lerins, Quod ubique, quod semper, quod ab omnibus. But Malik, according to the usual view, had no intention of granting any such deciding power to the outside world. The world for him was al-Madina and the agreement of al-Madina established catholic verity. Yet there are narratives which suggest that he approved the agreement and local usage of al-Madina for al-Madina because they suited al-Madina. Other places might also have their local usages which suited them better.