Development of Muslim Theology, Jurisprudence, and Constitutional Theory

by Duncan Black MacDonald

But ash-Shafi‘i found that even the addition of agreement to Qur’an and Prophetic usage did not give him basis enough for his system. Opinion he utterly rejected; the preference of Abu Hanifa and the conception of the common welfare of Malik ibn Anas were alike to him. It is true also that both had been practically saved under agreement. But he held fast by analogy, whether based on the Qur’an or on the usage of the Prophet. It was an essential instrument for his purpose. As was said, “The laws of the Qur’an and of the usage are limited; the possible cases are unlimited; that which is unlimited can never be contained in that which is limited.” But in ash-Shafi‘i’s use of analogy there is a distinction to be observed. In seeking to establish a parallelism between a case that has arisen and a rule in the Qur’an or usage, which is similar in some points but not precisely parallel, are we to look to external points of resemblance, or may we go further and seek to determine the reason (illa) lying behind the rule and from that draw our analogy? The point seems simple enough and the early speculative jurists sought the reason. For that they were promptly attacked by the traditionists. Such a method was an attempt to look into the mysteries of God, they were told; man has no business to inquire after reasons, all he has to do is to obey. The point thus raised was fought over for centuries and schools are classified according to their attitude toward it. The position of ash-Shafi‘i seems to have been that the reason for a command was to be considered in drawing an analogy, but that there must be some clear guide, in the text itself, pointing to the reason. He thus left himself free to consider the causes of the divine commands and yet produced the appearance of avoiding any irreverence or impiety in doing so.

Such then are the four sources or bases (asls) of jurisprudence as accepted and defined by ash-Shafi‘i—Qur’an, prophetic usage, analogy, agreement. The last has come to bear more and more weight. Every Shafi‘ite law book begins each section with words to this effect, “The basis of this rule, before the agreement (qabla-l-ijma), is” Qur’an or usage as the case may be. The agreement must put its stamp on every rule to make it valid. Further, all the now existing schools have practically accepted ash-Shafi‘i’s classification of the sources and many have contended that a lawyer, no matter what his school, who does not use all these four sources, cannot be permitted to act as a judge. Ash-Shafi‘i has accomplished his own definition of a true jurist, “Not he is a jurist who gathers statements and prefers one of them, but he who establishes a new principle from which a hundred branches may spring.”

DA’UD AZ-ZAHIRI

But the extreme traditionists were little satisfied with this compromise. They objected to analogy and they objected to agreement; nothing but the pure law of God and the Prophet would satisfy them. And their numbers were undoubtedly large. The common people always heard traditions gladly, and it was easy to turn to ridicule the subtleties of the professional lawyers. How much simpler, it struck the average mind, it would be to follow some clear and unambiguous saying of the Prophet; then one could feel secure. This desire of the plain man to take traditions and interpret them strictly and literally was met by the school of Da’ud az-Zahiri, David the literalist. He was born three or four years before the death of ash-Shafi‘i, which occurred in 204. He was trained as a Shafi‘ite and that, too, of the narrower, more traditional type; but it was not traditional enough for him. So he had to cut himself loose and form a school of his own. He rejected utterly analogy; he limited agreement, as a source, to the agreement of the immediate Companions of Muhammad, and in this he has been followed by the Wahhabites alone among moderns; he limited himself to Qur’an and prophetic usage.

In another point also, he diverged. Ash-Shafi‘i had evidently exercised a very great personal influence upon his followers. All looked up to him and were prepared to swear to his words. So there grew up a tendency for a scholar to take a thing upon the word of his master. “Ash-Shafi‘i taught so; I am a Shafi‘ite and I hold so.” This, too, Da’ud utterly rejected. The scholar must examine the proofs for himself and form his own opinion. But he had another peculiarity, and one which gained him the name of literalist. Everything, Qur’an and tradition, must be taken in the most exact sense, however absurd it might be. Of course, to have gone an inch beyond the very first meaning of the words would have been to stray in the direction of analogy. Yet, as fate would have it, to analogy, more or less, he had in the end to come. The inexorable law that the limited cannot bound the unlimited was proved again. “Analogy is like carrion,” confessed a very much earlier traditionist, “when there is nothing else you eat it.” Da’ud tried to make his meal more palatable by a change in name. He called it a proof (dalil) instead of a source (asl); but what difference of idea he involved in that it is hard to determine. This brought him to the doctrine of cause, already mentioned. Were we at liberty to seek the cause of a divine word or action and lead our “proof” from that? If the cause was directly stated, then Da’ud held that we must regard it as having been the cause in this case; but we were not at liberty, he added, to look for it, or on it, as cause in any other case.

It is evident that here we have to do with an impossible man and school, and so the Muslim world found. Most said roundly that it was illegal to permit a Zahirite to act as judge, on much the same grounds that objection to circumstantial evidence will throw out a man now as juror. If they had been using modern language, they would have said that it was because he was a hopeless crank. Yet the Zahirite school lasted for centuries and drew long consequences, historical and theological, for which there is no space here. It never held rank as an acknowledged school of Muslim law.

We now come to the last of the four schools, and it, strange as its origin was, need not detain us long. The Zahirite reaction had failed through its very extremeness. It was left to a dead man and a devoted Shafi‘ite to head the last attack upon the school of his master. Ahmad ibn Hanbal was a theologian of the first rank; he made no claim to be a constructive lawyer. His Musnad has already been dealt with. It is an immense collection of some thirty thousand traditions, but these are not even arranged for legal purposes. He suffered terribly for the orthodox faith in the rationalist persecution under the Khalifa al-Ma’mun, and his sufferings gained him the position of a saint. But he never dreamed of forming a school, least of all in opposition to his master, ash-Shafi‘i. He died in 241, and after his death his disciples drew together and the fourth school was founded. It was simply reactionary and did not make progress in any way. It minimized agreement and analogy and tended toward literal interpretation. As might be expected from its origin, its history has been one of violence, of persecution and counter-persecution, of insurrection and riot. Again and again the streets of Baghdad ran blood from its excesses. It has now the smallest following of the four surviving schools.

PRINCIPLES OF UNITY AND VARIETY

There is no need to pursue this history further. With ash-Shafi‘i the great development of Muslim jurisprudence closes. Legislation, equity, legal fiction have done their parts; the hope for the future lay, and lies, in the principle of the agreement. The common-sense of the Muslim community, working through that expression of catholicity, has set aside in the past even the undoubted letter of the Qur’an, and in the future will still further break the grasp of that dead hand. It is the principle of unity in Islam. But there is a principle of variety as well. The four schools of law whose origin has been traced are all equally valid and their decisions equally sacred in Muslim eyes. The believer may belong to any one of these which he chooses; he must belong to one; and when he has chosen his school, he accepts it and its rules to the uttermost. Yet he does not cast out as heretics the followers of the other schools. In every chapter their codes differ more or less; but each school bears with the others; sometimes, it may be, with a superior tone, but still bears. This liberty of variety in unity is again undoubtedly due to the agreement. It has expressed itself, as it often does, in apocryphal traditions from the Prophet, the last rag of respect left to the traditionist school. Thus we are told that the Prophet said, “The disagreement of My People is a Mercy from God.” This supplements and completes the other equally apocryphal but equally important tradition: “My People will never agree upon an error.”

But there is a third principle at work which we cannot view with the same favor. As said above, every Muslim must attach himself to a legal school, and may choose any one of these four. But once he has chosen his school he is absolutely bound by the decisions and rules of that school. This is the principle against which the Zahirites protested, but their protest, the only bit of sense they ever showed, was in vain. The result of its working throughout centuries has been that now no one—except from a spirit of historical curiosity—ever dreams of going back from the text-books of the present day to the works of the older masters. Further, such an attempt to get behind the later commentaries would not be permitted. We have comment upon comment upon comment, abstract of this and expansion of that; but each hangs by his predecessor and dares not go another step backward. The great masters of the four schools settled the broad principles; they were authorities of the first degree (mujtahidun mutlaq), second to Muhammad in virtue of his inspiration only. Second, came the masters who had authority within the separate schools (mujtahidun fi-l-madhahib) to determine the questions that arose there. Third, masters of still lesser rank for minor points (mujtahidun bil-fatwa). And so the chain runs on. The possibility of a new legal school arising or of any considerable change among these existing schools is flatly denied. Every legist now has his place and degree of liberty fixed, and he must be content.