Legal Developments

views updated

Legal Developments


Historical Context . Islam was originally revealed to the Prophet Muhammad in an environment of customary tribal law, not revealed law. But the Qur’an makes clear that, even in the earliest stages of the Muslim community, the Prophet had the power to command. Eventually this power was enhanced by revelation and institutionalized, especially at Madinah after 622. There, the continuing revelation of the Qur’an began to bring an increasing number of legal prescriptions or recommendations, in line with the Constitution of Madinah (622), which made the Prophet Muhammad the arbiter and judge of the whole oasis. Described as having divine origin, these laws were not challenged, and they superseded the previous customary law wherever they differed from it. Indeed, the Qur’an admonished Jews and Christians as well as Muslims to judge only according to the laws God had sent down to them (5: 44–45, 47). The Qur’anic legislation ceased with the death of the Prophet Muhammad in 632, which cut off the introduction of further divine laws into the community. Though legal verses in the Qur’an were revealed over a period of ten years at Madinah, the Qur’an included relatively little legal material overall, most of it concentrated in the latter half of Surah 2 and in Surahs 4, 5, 8, 9, 17, 22, 24, 33, 49, 58, 60, and 65. Also, many of the verses deemed to have legal implications or content provide only general guidelines and exhort to justice rather than prescribe.

The Effect of Expansion . The cessation of direct divine revelation with Muhammad’s death, coupled with the astonishing expansion of the relatively small territory ruled by the Prophet into a great empire under the early khali-fahs, led to profound new legal developments. The early khalifahs and their Arabian Muslim cohorts showed great care in upholding the rulings of the Qur’an, which they looked on as sufficient for a written legal text, for they and their Arabian Muslim brethren were not well versed in the ways of the urbanized empires that had just come under their rule. They preferred simplicity and informality, ruling according to the customs that had come down to them from the Prophet’s time, including those decisions of the Prophet that were remembered and became known as the Sunnah, or the path of the Prophet. During this period most Muslims were still Arabs, and they were far less numerous than the sundry other peoples in the khilafah, who were left to continue governing and policing themselves in their own accustomed ways according to their previously enacted legal systems, including the Roman and the Persian systems, as well as others. Although the early Muslim rulers had to make many legal decisions, most of their time was taken up with various affairs of state, so they did not think of elaborating a written legal system and conducted most of government business in the old languages of those they ruled. Occasionally, they would consult the Companions of the Prophet who were still alive to help them in making a legal decision. But most of the time the khalifahs who ruled until 680, all of whom were Companions of the Prophet themselves, ruled according to their own knowledge and understanding of Islam, and their decisions held binding force in such cases as were brought before them.

The Mawali . Under the reign of the first important khalifah from a generation that had no living memory of the Prophet, ‘Abd al-Malik ibn Marwan (ruled 685–705), the state, reeling from a Byzantine counterattack, began to engage in an ideological campaign to define Islam, which inevitably had an impact on the law. The results of this campaign included the building of new, lavishly decorated masjids, of which surviving examples include the Umayyad Masjid in Damascus and the Dome of the Rock in Jerusalem, the minting of Islamic-Arabic coins (to replace Byzantine and Persian coins that had been used in the khilafah), the institution of Arabic as the official language of government business, correspondence, and offices, and the prohibition of human and animal images throughout the khilafah. The khalifah also engaged in ideological correspondence with recognized scholars such as al-Hasan al-Basri (circa 646–728) of Basrah in Iraq. Interacting with the increasing numbers of non-Arab Muslims (mawali) as well as non-Muslims of diverse nationalities and cultural backgrounds across the khilafah, Arab Muslims were challenged to reflect on the meaning of Islam. Furthermore, the maivali began to play increasingly important roles in the definition and elaboration of Muslim belief and practice. Such a deepening of Muslim thought resulted from the increasing numbers of noncombatant Muslims in the khilafah. From the beginning of Muslim history, of course, there had been some male noncombatants, as is indicated by Qur’anic verse 9: 122, which shows that as early as the Prophet’s time, some people had been designated to stay behind to instruct others in the faith. Nevertheless, the paradigmatic Muslim from a khalifah’s point of view was a fighter for the faith under the khalifah’s command, and that remained the view for most of the Umayyad khilafah, as the struggle to expand the area under God’s rule continued. But, as more people became Muslim, it was not possible to maintain all of the males in the army, and some of the new Muslims were not inclined to such service anyway. These noncombatants, who were most often mawali, began to provide instruction in the masjids. This trend continued at an increasing pace after 702, when the Umayyads, responding to a revolt, demobilized most of the Iraqi Muslims, both Arabs and non-Arabs, from the military. At the same time, the Umayyads put the province of Iraq under Syrian military occupation, centered in the new city of Wasit, which was built between Kufah and Basrah to control both military outposts. These oppressive steps led the Iraqis to agitate for the downfall of the Umayyads and a more egalitarian vision of Islam.

Administration . Meanwhile, because of the growing urbanization of Kufah, Basrah, and other cities, most of which had started out as military camps, the government had to take a greater role in administration than had been the case earlier, including settling disputes and enforcing the law in general. Because Muslims wanted to be governed by God’s law alone, it was not suitable for new Muslims outside Arabia to continue being governed by the non-Muslim laws of their previous rulers. Because of the need constantly to expand and elaborate the Muslim law, it became impossible for the khalifah and his governors to hear all legal cases as they had done at first, because they did not have the time, nor often the expertise, nor the interest. Thus, they began to seek out local Muslim legal experts, who were the very same group that had already been cultivating a greater knowledge of Islam in the masjids. Some of these experts became first legal advisers, then later actual judges, before the end of the first century. The judges continued to be in touch with the scholars of the masjid circles, however, and they would undoubtedly consult these others on occasion. Reliance on the Qur’an as the first source of law and the remembered Sunnah as the second continued to form the basis of legal practice, but often cases arose where neither of these sources was sufficient. For this reason and because the social and economic situations of the different cities of the khilafah differed enormously, the local schools of law began to diverge somewhat in their interpretations.

In Iraq at Kufah in particular, rational elaboration of the law through the considered opinion of the jurist was considered a legitimate means of extending the scope and detail of the law. This situation existed at the end of the Umayyad khilafah in 750.

Jurists and the Abbasids . While the new Abbasid dynasty was no less autocratic in its expectations and aspirations than its Umayyad predecessor, the political situation did not allow the Abbasids to rule freely or securely. The Abbasids lacked legitimacy in the eyes of many because they had seized power. Their claim to represent the Prophet’s family was severely undercut when they were revealed to be descendants of the Prophet’s uncle rather than the Prophet himself. While they tried to compensate for their lack of legitimacy by adopting grandiose titles implying messianic links, the falseness of such claims was readily apparent, for they were unable to come up to messianic expectations and rule perfectly. Thus, to gain support, they had to make concessions to parties who were not their backers, including the nascent body of jurists. The second Abbasid khalifah, al-Mansur (ruled 754–775), despite the urging of his Persian prime minister, declined to promulgate a khalifal legal code and left the setting down of the law to private jurists. The importance of this decision for Muslim law can scarcely be overemphasized. Juristic scholars who were also religious leaders and largely outside of the control of the state were able to establish their primacy over the government, contrary to the usual legal model in empires, such as the Byzantine, where the Emperor Justinian I (ruled 527–565) had instituted a set of legal codes that he had personally approved and which has remained the main and final expression of Roman law.

Schools of Law . In the eighth century, as Islam spread along with literacy and book publishing, the Abbasid khal-ifahs were less able to exercise the same degree of censorship over the teaching of Islam that the Umayyads had. Thus, the regional schools of law (fiqh) that had been developing came out into the open, especially in Iraq, which had become the metropolitan province of the khilafah after the Abbasids moved their capital to Baghdad in 763. The Iraqi school of law tended to be favored by the Abbasid khalifahs because it was the school prevalent in their capital. Most of the inhabitants of Kufah eventually moved to Baghdad, and the Kufan school of law continued in Baghdad, becoming the school of the khalifal center. The Abbasid khalifahs hoped to be able to exert some influence on this school and through it over the schools of the other provinces as well. Thus, while Abu Hanifah (699–767), the founding father of the Kufan school, spent the last four and a half years of his life in the khalifah’s prison for political opposition, his students and successors Abu Yusuf (732–798) and Muhammad ibn Hasan al-Shaybani (750–805) accepted judgeships from the khalifah. Indeed, it appears that around 786 the Abbasid khalifah Harun al-Rashid appointed Abu Yusuf as the supreme judge of the khilafah, implying that Abu Yusuf had authority over all the judiciary in all the provinces, which had hitherto been independent. This appointment appears to have been an attempt at judicial centralization, but it did not work, and the khilafah continued to disintegrate politically over the next century and a half. The appointment was also a significant devolution of the khali-fah’s powers, for before this time the khalifahs themselves had held the supreme judicial authority.

Madinah . Some other locales resisted the nascent dominance of Baghdad. First among them was Madinah, the city of the Prophet, where Muhammad had spent his last ten years molding his community. From the beginning, Islam had been primarily molded and practiced in Madinah. Although the Prophet was from Makkah and the Ka’bah was there, Makkah played little role in the subsequent development of Islam, because the Prophet and his followers had migrated to Madinah when the early community was still quite small, possibly not exceeding a couple of hundred people. It was in Madinah that the Muslim community first became established on a firm basis, and Madinah remained the capital under the first three khalifahs. Even when the capital moved elsewhere after 656, Madinah remained the place where the overwhelming majority of the Companions and their descendants continued to reside. In such an atmosphere, and deprived of all political and military role in the khilafah, the inhabitants of Madinah naturally assumed that their practice of Islam was the norm with which all others should agree. As the residents of the authentic center of Islam, the Madinans did not accept that anyone coming from another place could have a knowledge of Islam superior to their own. Such thinking was reinforced by the awe felt by pious pilgrims going to Makkah on the hajj, almost all of whom stopped in Madinah on the way to and from Makkah. Pilgrims with scholarly intentions would often linger at Madinah to hear the authentic early tradition from the descendants of the Companions. Thus, it came as quite a shock when, after the fall of the Umayyads, the nascent Iraqi school began disagreeing with the Madinans on various points of practice and asserting its own superiority.

Logical Argumentation . Finding their legal positions unwelcome in Madinah, the Iraqis—who were more sophisticated and urbane than the Madinans and better practiced in polemic from a century of opposition to Umayyad oppression in Kufah—resorted to various kinds of argument to best their opponents. One method was to demonstrate the intellectual superiority of their position through logic, but the Madinans, in defiance of rationalizing arguments, relied on the Sunnah of the Prophet as represented in the living practice of their city, inherited in an unbroken chain from the Prophet. In this atmosphere, the Iraqis referred to their own traditions going back to the Prophet and documented every step of the way. The Iraqi scholar Muhammad ibn Hasan al-Shaybani even came to Madinah to study with Malik (circa 712–795), the chief exponent of the Madinan school. On returning to Iraq, al-Shaybani then produced a version of Malik’s teaching, called al-Muwatta’ (The Trodden Path), which replied to the positions taken by Malik on various issues. In another work, Kitab al-hujjah ‘ala ahl al-Madinah (The Book of Proof against the People of Madinah), al-Shaybani further elaborated his objections to the Madinan version of the law.

Al-Shafi’i. Attempting to resolve the growing dispute between the legal schools of Iraq and Madinah, the Madinan scholar al-Shafn (767–820), who had also been a student of Malik, undertook to propose a solution that he hoped all parties would accept. He organized the sources of the law under a few headings and then arranged these in a hierarchical order, so that there should be no dispute about what the correct view on any point should be. First came the Qur’an, then the Sunnah of the Prophet as expressed in hadiths, then the consensus of the scholars, then analogical reasoning from known laws in order to apply their principles to new situations. Al-Shafi‘i’s organization of the principles for deriving the law and of its sources eventually found wide acceptance and became a central part of Sunni Islam. But the establishment of a set of principles for deriving the law did not eliminate or even reduce the legal disputes between the schools; instead it led to a new framing of arguments by the parties. The followers of al-Shafi’i, unable to cooperate with any of the major existing schools, formed their own school, further contributing to the multiplicity of schools of the law.

Ibn Hanbal . The opposition of traditionalists to the somewhat rationalist methodologies of ihe ftqh schools led to the formation of a traditionalist movement whose most important member was Ahmad Ibn Hanbal (780–855). This movement, which also wanted to preserve Muslim unity, long denied that it was a legal school as such, preferring to say that it was only keeping to the tradition of the Prophet. Thus, the traditionalist school exhibited a degree of literalism in its interpretations and often showed concern with correct creedal beliefs. But even Ibn Hanbal, who had also been influenced by the proto-Hanafi Abu Yusuf, admitted that reason had a role in law. This position led to the rise of a more radically literalist school of tradition, the Zahiri school of Dawud ibn ‘Ali ibn Khalaf (circa 817 –884), which laid emphasis on only following the clear, obvious primary meaning of a text, using no rational interpretation or reasoning by analogy. The teachings of this school were too strict for it to gain anything but a limited and temporary success, primarily in Iraq and in Spain.

Fiqh . During the period 800–1000, the formal schools of fiqh gradually crystallized. While this formalization was taking place, many scholars seemed to have held independent positions and did not follow any particular school, and several schools flourished that eventually became extinct, including those of the Syrian al-Awza’i (706–774), the Kufan Sufyan al-Thawri (716–778), the Egyptian Layth ibn Sad (713–791), and the Baghdadi Ibn Jarir al-Tabari (839–923). By around 1000, the predominant Iraqi school of fiqh had become the Hanafi; the Maliki school was pre-eminent in Madinah, and the Shafi’i school was the most influential in Egypt. Each of these had gradually absorbed its opponents and later become prevalent in particular geographical areas. The coalescence of the Hanafi school was considerably facilitated by the

association of Abu Yusuf and later Hanafi jurists with the Abbasid state; however, after the Abbasids had succumbed to the rule of the Shi’i Buyids in 945, that connection was severed. Later in the thirteenth century, however, the Hanafi school was often the official school in much of the Muslim East, especially under governments of Turkish origin, such as the Ottomans and the Sultanate of Delhi in India. An early association of the Maliki school with the much smaller Umayyad emirate of Spain began in the early 800s and extended to North Africa after the expulsion of the Shi’i Fatimids by 1048. Farther east, the Sal-juks favored the Shafn school from the beginning of their sultanate in 1037. Finally, in response to the Saljuk conquest of Baghdad in 1055, the Abbasid khalifahs, in order to maintain some independence, adopted the Hanbali school and even produced writings supporting it. Thus, in a long series of steps, the schools of law gained official recognition, began to recognize each other after heated rivalries, and were limited to just four Sunni schools.

Shi’i Schools . The development of the Shi’ and other non-Sunni schools tended to follow developments among the Sunni majority. The Shi’a, on the whole, was mainly a political movement in the earliest period. After the killing of Zayd ibn ‘Ali (699–740) and his son Yahya (died 743) in revolts against the Umayyads, Zayd’s followers adopted a quietist stance, emphasizing their master’s legal teachings, which eventually were formalized as a school of law. Meanwhile, the Ja’fari, or Imami (Twelver), Shi’is continued their political claims, coupled with rather radical departures in belief, and formed their own school, which was traced back to Ja’far al-Sadiq (died 765), the sixth imam.


Jonathan E. Brockop, Early Maliki Law: Ibn ‘Abd al-Hakam and His Major Compendium of Jurisprudence (Leiden: Brill, 2000).

N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).

Yasin Button, The Origins of Islamic Law: The Quran, the Muwatta and Madman ‘Amal (Richmond, U.K.: Curzon, 1999).

Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge: Cambridge University Press, 1997).

Ahmad Hasan, The Early Development of Islamic Jurisprudence (Islamabad: Islamic Research Institute, 1970).

Mansour Hasan Mansour, The Maliki School of Law: Spread and Domination in North and West Africa 8th to 14th Centuries C E. (San Francisco: Austin &Winfield, 1995).

Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964).