Development of Muslim Theology, Jurisprudence, and Constitutional Theory

by Duncan Black MacDonald

In the next school we shall find the principle of agreement put upon a broader basis and granted greater weight. Finally, Malik is the first founder of a system from whom a law book, the Muwatta mentioned above, has come down to us. It is not in the exact sense, a manual or code; rather a collection of materials for a code with remarks by the collector. He gives the traditions which seem to him of juristic importance—about seventeen hundred in all—arranged according to subject, and follows up each section, when necessary, with remarks upon the usage of al-Madina, and upon his own view of the matter. When he cannot find either tradition or usage, he evidently feels himself of sufficient authority to follow his own opinion, and lay down on that basis a binding rule. This, however, as we have seen, is very different from allowing other people, outsiders to al-Madina, to do the same thing. The school founded by Malik ibn Anas on these principles is one of the surviving four. As that of Abu Hanifa spread eastward, so that of Malik spread westward, and for a time crushed out all others. The firm grip which it has especially gained in western North Africa may be due to the influence of the Idrisids whose founder had to flee from al-Madina when Malik was in the height of his reputation there, and also to hatred of the Abbasids who championed the school of Abu Hanifa.

But now we pass from simple development to development through conflict. Open conflict, so far as there had been any, had covered points of detail; for example, the kind of opinion professed by Abu Hanifa, on the one hand, and by Malik, on the other. One of the chiefest of the pupils of Abu Hanifa, the Muhammad ibn al-Hasan already mentioned, spent three years in study with Malik at al-Madina and found no difficulty in thus combining his schools. The conflict of the future was to be different and to touch the very basis of things. The muttering of the coming storm had been heard for long, but it was now to burst. Exact dates we cannot give, but the reaction must have been progressing in the latter part of the life of Malik ibn Anas.

HISTORICAL V. PHILOSOPHICAL LAWYERS

The distinction drawn above between traditionists and lawyers will be remembered, and the promise of future collision which always has come between historical or empirical, and speculative or philosophical students of systems of jurisprudence. The one side points to the absurdities, crudities, and inadequacies of a system based upon tradition and developing by usage; the other says that we are not wise enough to rewrite the laws of our ancestors. These urge a necessity; those retort an inability. Add to this a belief on the part of the traditionists that they were defending a divine institution and the situation is complete as it now lay in Islam. The extreme right said that law should be based on Qur’an and tradition only; the extreme left, that it was better to leave untrustworthy and obscure traditions and work out a system of rules by logic and the necessities of the case. To and fro between these two extremes swayed the conflict to which we now come.

In that conflict three names stand out: ash-Shafi‘i who died in 204, Ahmad ibn Hanbal who died in 241 and Da’ud az-Zahiri who died in 270. Strangely enough, the first of these, ash-Shafi‘i, struck the mediating note and the other two diverged further and further from the via media thus shown toward a blank traditionism.

Ash-Shafi‘i is without question one of the greatest figures in the history of law. Perhaps he had not the originality and keenness of Abu Hanifa; but he had a balance of mind and temper, a clear vision and full grasp of means and ends that enabled him to say what proved to be the last word in the matter. After him came attempts to tear down; but they failed. The fabric of the Muslim canon law stood firm. There is a tradition from the Prophet that he promised that with the end of every century would come a restorer of the faith of his people. At the end of the first century was the pious Khalifa, Umar ibn Abd al-Aziz, who by some accident strayed in among the Umayyads. At the end of the second came ash-Shafi‘i. His work was to mediate and systematize and bore especially on the sources from which rules of law might be drawn. His position on the positive side may be stated as one of great reverence for tradition. “If you ever find a tradition from the Prophet saying one thing,” he is reported to have said, “and a decision from me saying another thing, follow the tradition.” An absolutely authentic—according to Muslim rules of evidence—and clear tradition from the Prophet he regarded as of equally divine authority with a passage in the Qur’an. Both were inspired utterances, if slightly different in form; the Qur’an was verbally inspired; such traditions were inspired as to their content. And if such a tradition contradicted a Qur’anic passage and came after it in time, then the written law of the Qur’an was abrogated by the oral law of the tradition. But this involved grave difficulties. The speculative jurists had defended their position from the beginning by pointing to the many contradictory traditions which were afloat, and asking how the house of tradition could stand when so divided against itself. A means of reconciling traditions had to be found, and to this ash-Shafi‘i gave himself. We need not go over his methods here; they were the same that have always been used in such emergencies. The worship of the letter led to the straining of the letter, and to explaining away of the letter.

AGREEMENT AS A SOURCE

But there lay a rock in his course more dangerous than any mere contradiction in differing traditions. Usages had grown up and taken fast hold which were in the teeth of all traditions. These usages were in the individual life, in the constitution of the state, and in the rules and decisions of the law courts. The pious theologian and lawyer might rage against them as he chose; they were there, firmly rooted, immovable. They were not arbitrary changes, but had come about in the process of time through the revolutions of circumstances and varying conditions. Ash-Shafi‘i showed his greatness by recognizing the inevitable and providing a remedy. This lay in an extension of the principle of agreement and the erection of it into a formal source. Whatever the community of Islam has agreed upon at any time, is of God. We have met this principle before, but never couched in so absolute and catholic a form. The agreement of the immediate Companions of Muhammad had weight with his first Successors. The agreement of these first Companions and of the first generation after them, had determining weight in the early church. The agreement of al-Madina had weight with Malik ibn Anas. The agreement of many divines and legists always had weight of a kind. Among lawyers, a principle, to the contrary of which the memory of man ran not, had been determining. But this was wider, and from this time on the unity of Islam was assured. The evident voice of the People of Muhammad was to be the voice of God. Yet this principle, if full of hope and value for the future, involved the canonists of the time in no small difficulties. Was it conceivable that the agreement could override the usage of the Prophet? Evidently not. There must, then, they argued, once have existed some tradition to the same effect as the agreement, although it had now been lost. Some such lost authority must be presupposed. This can remind us of nothing so much as of the theory of the inerrant but lost original of the Scriptures. And it had the fate of that theory. The weight of necessity forced aside any such trifling and the position was frankly admitted that the agreement of the community was a safer and more certain basis than traditions from the Prophet. Traditions were alleged to that effect. “My People will never agree in an error,” declared Muhammad, or, at least, the later church made him so declare.

ANALOGY; THE FOUR SOURCES