LAW

The emergence of Islamic law originates in a definition of human deeds as understood from a specifically Islamic viewpoint. This could only be developed over time, as notions of good and bad evolved according to the interpretation of the Qur?anic verses, Prophetic sayings, and the Islamic legacy as a whole. The evaluation of the goodness or badness of deeds according to the Islamic point of view was called fiqh (understanding), and the person holding the qualities of knowledge and competence to produce opinions in this respect was called faqih (the knowledgeable who understands well). The consideration of human actions within an Islamic religious context was encouraged by sayings of the Prophet, such as "He whom God favors with good, God makes him the one who understands in religion (faqih)," (Bukhari, Sahih, I, 25) and "there may be some narrators who may narrate the words to some of the receivers who may be able to understand better (afqah) than the narrators themselves" (Tirmidhi, Sunan, V, 34). In the Prophetic era and years immediately following, fiqh was not specifically about practical human deeds, but covered a general range of issues that were of religious concern, such as general religious knowledge and the understanding of the sacred texts. However, the day-to-day practice of Islam at this early stage of development was still being worked out, and fiqh came to be employed for the creation of legal definitions and interpretations of proper behavior. Over time, the role of fiqh was gradually narrowed to the consideration of legally relevant matters, dealing with both personal and public concerns.

Key concepts of Islamic law.

In the second century of Islam, a theoretical foundation for juridical thought evolved, leading to a properly constituted legal system. At this point, fiqh came to concern itself with codifying this theoretical understanding, while still dealing with issues relating to the proper conduct of worship (?ibadat). To complement the now more narrow scope of fiqh, a broader legal context, embodied in the concept of religious law (shari?a), extended the formal Islamic legal order to all aspects of societal life.

Beginning with the initial concept of fiqh, Islamic law organizes the understanding and, thus, definition, of human deeds along a continuum. At one end are those behaviors deserving of the utmost prohibition, and at the other end are those deeds subject to the utmost imperative injunction. At the very center point of the continuum are found the behaviors deemed to be neutral, neither prohibited nor enjoined. Thus, the prohibited and the enjoined share the same quality of being mandatory, whereas acts falling between these two extremes become a matter of scholarly opinion and are therefore less binding.

In evaluating the potentially infinite range of human deeds, criteria of judgment (dalils) were needed. There are two sources of these: the Qur?an and the prophetic sunna. The Muslim community was explicitly referred to these by the Prophet himself, who said, "I have left for you two principles; should you stick to them you will never err" (Malik, Muwatta, II, 899). These two principles were by no means the sole criteria offered by the Prophet. They were supplemented by the practice of shura, for example, which held that authorities should seek the counsel of the wise when running the affairs of the community. In addition, judges were enjoined to employ reasoning in order to make proper decisions. Moreover, legal decision-making had to be carried out within the larger context of Islamic tradition. Finally, the evolution of Islamic law was influenced by politics, war, and other societal events, which variously endorsed, transformed, or replaced traditional practices. All these factors provided the framework within which the development of Islamic society and law occurred during the time of the Prophet and, later, the prominent Companions (the immediate successors of the Prophet).

This early, emerging structure of Islamic society prevailed in the first century of Hijra, which covers the age of the Prophet and largely that of the Companions. The significance of this era was twofold. On the one hand, the Companions were concerned with the preservation of the Qur?anic texts, and were therefore conservative in their application of the Prophet's sayings when substantial legal matters were at stake. On the other hand, the Companions' era was a time in which trends of legal thought and methodology were initiated for the forthcoming generation of Islam's leading thinkers. In the first century of Islam, Medina was the main center for the development of Islamic knowledge and practice, but these were complemented by the work of other competent figures who were appointed to fulfill juridical and administrative duties elsewhere. Among these were Ibn Mas?ud, who served in Iraq, and Mu?az Ibn Jabal and Abu Musa al-Ash?ari, both of whom served in Yemen. In the late decades of the first century, in addition to the ruling political authorities, there were others living throughout the expanding Muslim world who made substantial contributions to juristic thought. Among there were Sa?id Ibn al-Musayyab (d. 713), ?Urwa Ibn al-Zubayr (d. 716), ?Ubeydullah Ibn ?Utbah (d. 717), and Abu Bakr Ibn ?Abd al-Rahman (d. 713) in Medina; and ?Alqamah Ibn Qays (d. 682), Shurayh Ibn al-Harith (d. 679), Masruq Ibn al-Ajda (d. 683), and Ibrahim al-Nakha'i (d. 714) in Kufa.

By the turn of the first century of Islam, the political authorities had already pursued two main policies relating to the use of the textual sources of Islamic law. First, the standardization of Qur?an began under the reign of Abu Bakr and was later finalized under the reign of ?Uthman. Second, the Umayyad caliph, ?Umar Ibn ?Abd al-Aziz, encouraged the collection of the sayings of the Prophet. In the early decades of the second century, scholarship regarding Islamic law was expanded, giving rise to two schools of juridical thought, one centered in Medina, the other in Kufa. The scholars of Medina included Rabi?at al-Ra?y (d. 753) and al-Zuhri (d. 742), who were early proponents of the pro-hadith school (hadith refers to sayings of the Prophet). Leading scholars in Kufa included al-Nakha?i and his disciple Hammad Ibn Abu Sulayman (d. 738), followed by Abu Hanifa Nu?man Ibn al-Thabit (d. 757), who favored the reasoning approach. These legal trends are also known, respectively, as ahl al-hadith (the people of the hadith line) and ahl al-ra?y (the people of the pro-reasoning line). They were also called the schools of Hijaz and of Iraq, respectively, making reference to their geographical domains.

The line of distinction between these two early trends in legal thought was found in their perceptions of the hadith. For the school of Hijaz, hadith was the actual legacy of the Prophet, and was the ultimate source of both legitimacy and solutions to social problems. This approach was well suited for Medina, which provided a strong Islamic culture of practice starting from the exemplary Prophetic era. By contrast, Iraq was relatively new to Islam. In addition, Iraq was something of a gate for the eastward advancement of Islam, and thus was host to many travellers passing through, each with a competing understanding of the life of the Prophet. This gave rise to multiple hadith, leading to doubt about the accuracy of the narrations. To overcome such doubts, reasoning was applied. Thus, Abu Hanifa of Iraq understood hadith through applying his concept of dhabt (precise preservation). Dhabt was, in his view, the precise understanding of the juristic content of the hadith and its precise transmission. The narrator himself therefore needed to be faqih in order to understand the precise content of what he narrated. Here, the significance of reasoning prevails over the literal transmission of the texts.

Although Medina stood as the center of political power in Islam during the era of the Prophet and in the thirty years that followed, it was later transferred to Syria. There it remained for the entire duration of the Umayyad reign, and it was in Syria where the prominent and influential jurist ?Abd al-Rahman al-Awza?i (d. 764) built his legal career in association with the Hijazi trend of law. Al-Awza?i is famous for his work, called al-Siyar, but this text has been lost to later generations. Nonetheless, it is known that this lost work marked the beginning of a literature that developed later and that dealt with issues of war and peace. It also influenced the work of Abu Yusuf, one of the prime disciples of Abu Hanifa of Iraq. Abu Yusuf wrote al-Radd?ala siyar al-Awza?i (The response to the Siyar of al-Awza?i), and from it one can glean not only Abu Yusuf's counterviews but also al-Awza?i's original theses.

Abu Yusuf's treatise provides insights into interregional activities and the flourishing state of legal thought. Medina, the birthplace of the Islamic society, had a special advantage for traditional Islam and remained a main center of gravity for the Islamic legal scholarship. Medina's dominance in this field is expressed in the concept of ?amal ahl al-Medina (the practice of the Medinese people), which served as an example of proper practice throughout the Islamic world. Jurists were thus enjoined to follow the Medina example when seeking a better understanding of Islamic laws. The vital role attributed to Medina attracted the scholarly attention of several important jurists, such as Shaybani (d. 804), and Shafi?i (d. 819), who eventually argued against it. Shaybani, who was a key jurist of the Iraqi school, studied the hadiths called al-Muwatta?, Malik's collection of mainly legal content. In his own work, Shaybani often mentioned the disagreements of the Iraqi jurists with the views presented by Malik. Furthermore, Shaybani compiled an independent work called al-Hujjah ?ala ahl al-Medina (The argument against the people of Medina).

Shafi?i, too, had studied the Medinese and the Iraqi notions of law. He took a position against both, arguing for the elimination of regional concepts and promoting instead an overarching, ecumenical system of legal thought. In Shafi?i's point of view, the Iraqi concepts were inaccurate or inconsistent, while the Medina-based Hijazi school was too regionally specific. The diversities in legal thought that arose through these interregional argumentative dialogues gradually paved the way for the evolution of a supra-regional system of legal thought, an evolution inspired by Shafi?i's leadership.

In the first half of the second century, the Iraqi-led legal trend was mostly identified with Abu Hanifa and, thus, with a more free use of reason. He recognized three sources of Islamic law: the Qur?an undisputedly came first, followed by the hadith of the Prophet and then the ijma?, which is the consensus of the Companions. Abu Hanifa had a relatively cautious and restrictive attitude toward accepting hadiths, giving greater weight to the juristic contents of the sayings than to the literal understanding of the words themselves. He treated the diverse opinions of the Companions as various options that needed to be evaluated before choosing one from among them. He held that the methodological key to this evaluation was a methodology called qiyas (analogical reasoning), which required that a jurist look to previous cases for precedents when determining the outcome of a current case. Through this method of qiyas, the jurist could establish connections between the present and the past and thus produce systematic juristic opinions, but it sometimes failed, when similar cases could not be found, or their similarities were only superficial. At such times, Abu Hanifa would abandon qiyas and instead employ free reasoning, or istihsan. He described his approach to legal thought in the following terms.:

What comes from the Companions [in disagreement] we do not abandon altogether. . . [we chose from among their varying opinions]; and what comes from the Successors we ignore them. (Ibn al-Qayyim, I Lam, IV, 123)

This statement shows Abu Hanifa's lack of interest in the narrated opinions of the Successors of the Companions. It also demonstrates his confidence in the reasoning abilities of jurists of his own generation. This confidence in the reliability of free reasoning allowed Iraqi jurists to override textual or systematic limitations. Iraqi jurists also opposed the Umayyad political power based in Syria, which meant that they were not employed by the government and thus did not have to compromise their methodology to suit the practical limitations that such political affiliation might impose. However, this freedom from political constraint would not last for long.

Early schools of law.

In about 750 c.e., the Umayyads were overthrown by the Abbasid revolution, and the center of power in the Muslim world moved from Damascus to Baghdad. The new regime sought to bring a new order to Islamic society. This need for change was most felt by Ibn al-Muqaffa? (d. 757), the chief advisor to the Abbasid caliph Abu Ja?far al-Mansur, who diagnosed an intolerable state of disorder in the judiciary and decried the injustices that the people were suffering. Ibn al-Muqaffa? asked the caliph to take control of the matter by imposing consistency in judicial administration and a coherent system for the application of laws. He further urged the caliph to codify the law, making it possible to perpetuate the legal system. In addition, he advised the caliph on the selection of the team of jurists who should be assigned these tasks, making a strong case for the use of Iraqi scholars over those from other regions.

The Abbasid regime followed the recommendations of Ibn al Muqaffa?, and in time managed to overcome the reluctance of famous jurists to serve the government that had long characterized the scholars of the Iraqi school. Abu Yusuf was appointed to the newly created post of qadi al-qudat (chief judge) and was granted discretionary power over the administration of the entire judiciary. First among his tasks was the grand project of codifying the laws and policies of the new judicial and fiscal order, thus demanding a degree of textual orientation never previously confronted by the Iraqi school of law. Abu Yusuf's thought on finance is contained in his Kitab al-Kharaj (The book of taxation), which was written during the reign of Caliph Harun al-Rashid. (Abu Yusuf's other main works are Kitab al-Athar, Ikhtilaf Abu Hanifa wa Ibn Abi Laila, and al-Radd ?ala Siyar al-Awza?i).

Muhammad al-Shaybani, another preeminent disciple of Abu Hanifa, was also employed by the new Abbasid regime, serving as judge and as a teacher of jurisprudence. Shaybani, though lower in rank than Abu Yusuf, was a more prolific writer, and thus achieved more real advances for the Hanafi School of law. His main works, known collectively as Zahir alriwaya (The reliable narrations), consist of the following titles: al-Asl, al-Jami? al-kabir, al-Jami? al-saghir, al-Siyar alkabir, al-Siyar al-saghir, and al-Ziyadat. In general, these works cover a wide range of religious-legal issues, such as prayer, tax, marriage, divorce, commerce, and punishment, with the exception of al-Siyar al-kabir and al-Siyar al-sighir, which are thematic of laws of war and peace. Also, these works that represent early Hanafite legal thought were collected by al-Hakim al-Shahid al-Marwazi (d. 955) in the tenth century and presented under the title of al-Kafi. They were later reinterpreted and elaborated upon by Sarakhsi (d. 1090) under the title of al-Mabsut. Shaybani's work, as well as Sarakhsi's commentary, discloses the evolution of law in Iraq, starting with the free use of reason as championed by Abu Hanifa and his predecessors and moving toward greater textual orientation and structural regulation. This trend toward the institutionalization of juristic principles can be attributed to two factors: the accession of leading post-Abu Hanifa Iraqi jurists into the official power circles and, later, to the indelible impact of al-Shafi?i (d. 819).

Al-Shafi?i came to dominate the next phase of the evolution of Islamic legal theory. He limited the legitimate sources of juristic knowledge to four: the Qur?an, the sunna, ijma?, and qiyas. He utterly rejected the principle of istihsan that had been advanced by Abu Hanifa. Shafi?i's approach to each of the four approved sources emphasized the development of a centralized perception of Islamic law, and rejected the validity of regional variations that contradicted this unitary conception of the law. Moreover, in his work titled al-Risala, he argued that the only language suitable for Islamic scholarship was Arabic: "[T]he entire book of God came down in none but the Arabic language" (Shafi?i, Risala 40).

Shafi?i's emphasis on Arabic as the language of the Qur?an meant that translations of the Qur?an into other languages were not equivalent of the Qur?an. From this it follows that not only scripture and scholarship, but also the prayers of the faithful, must be in Arabic, for the language was held to be an essential element. This position was in outright contrast with that of Abu Hanifa, who approved of the recitation of the Qur?an in Persian in prayers. As Shafi?i's literalist approach gained ascendency, Abu Hanifa's disciples were forced to reinterpret their mentor's position (that prayer in Persian was permissible) as exclusive and temporary, applicable only in certain exceptional cases until people could learn the proper Arabic recitation of the Qur?anic verses.

Shafi?i's sunna of the Prophet was twofold. He considered the further sacralization of the Prophet, whose sayings were divinely inspired, and held that the authenticity of the sayings' transmission through narrators was directly dependent upon the literal faithfulness of their narrations. In other words, it was the letter of the narration, rather than the content, that was paramount in determining the legitimacy of the narrations and recitations of the sunna. This approach contradicted the Medinese perception of the sunna which was more concerned with Medina tradition and practice as it reflected the legacy of the Prophet, and it differed from previous Iraqi legal trends, which judged the authenticity of hadiths on their content as distinct from their sole letter. Shafi?i's literalist understanding had an enduring impact upon the Hafanite legal thought. For instance, Abu Bakr al-Jassas (d. 980) of the Hanafi School was forced to attempt to distinguish among the words of the Prophet, conceding that at least some of the Prophet's utterances were divinely revealed or inspired, whereas others reflected his "ordinary" or more humanly derived opinion.

Shafi?i's approach to the ijma? is perhaps the most polemic of all. In the Shafi?ite view, the ijma? should mean the consensus of the entire umma (community), and this is not possible unless it is with the participation of each and every Muslim individual. This perception of ijma? contrasts with the perception held by the Medinese jurists, who restricted their understanding of ijma? to the consensus of the scholars of Medina, as it was reflected in the practice of the Medinese people. It also contradicted earlier Iraqi perceptions of ijma?, which called for the consensus only of the jurists of the Iraqi legal trend. However, Shafi?i's arguments were more explicitly directed against the views of his nearer contemporaries, the Iraqi jurists of the post-Abu Hanifa period.

Shafi?i's argument boils down to the claim that true consensus of all Muslims or even merely of all jurists on a juristic personal opinion (ijtihad) cannot be reached. At best, it can only be apparent, because a verbalized consensus could easily mask silent disagreements. In his view, the only viable ijma? is to be found in the already existing acceptance, by each and every Muslim, of obligatory matters such as belief in the necessity of prayer. Obviously, this conception of ijma? is better suited to theological purposes governing elements of faith than to legal ones, which are more concerned with matters of behavior.

Shafi?i's refutation of the ijma? of all jurists may be valid on grounds of logic, but it renders the concept irrelevant for legal purposes. Nonetheless, both al-Jassas and al-Sarakhsi were forced to contend with its implications. They responded by dividing the ijma? into two main types. The first follows Shafi?i's formulation, including all Muslims, whereas the second refers specifically to consensus among the jurists alone.

Shafi?i's approach to the qiyas rests in his rejection of istihsan. The legitimacy of qiyas arises from the fact that it relates new cases to previous ones. In this retrospective process, the qiyas ultimately draws the jurist back to the prime sources of juristic knowledge: the Qur?an, the sunna of the Prophet, and the ijma?. On the other hand, the Shafi?ite school of legal thought considers istihsan as disconnection from the letter of these three recognized sources of knowledge because, in contrast to qiyas, it involves the use of free reason without reference to the legitimate origins of law. Also, there can be no legitimacy accorded to the free use of reason when consensus is restricted to the scope of the nusus (the sacred texts), as in Furud and Muharramat (which are held to stem from a divine origin), the sunna of the Prophet (considered to be divinely inspired), and the Qur?an. Yielding to the pressure from the Shafi?ite position regarding the use of istihsan, and the Hanafite School eventually replaced the term istihsan with the designation "hidden qiyas" to signify that istihsan was just another type of qiyas.

Shafi?i rejected istihsan because it was the product of the human mind, rather than deriving from the nusus. This position attracted the attention and admiration of Dawud al-Isfehani (d. 883), because of the distinction it drew between divine and human decisions. Eventually, Dawud noticed that qiyas, too, involved human reasoning. Thus, he took a radical step further than the Shafi?i, rejecting the qiyas in addition to the istihsan. This line of legal thought is known as the Zahiri (literalist) School of Law, because its theory strives to prove that legitimacy in religious law is confined to the literal scope and contents of the nusus and the ijma? that are in agreement with the Qur?an, and the hadiths, too, are held to be literal narratives of the acts and practice of the Prophet, devoid of interpretation. This line of thought is sharply opposed to the use of ta?lil (reasoning) in shar? (legislation with religious overtones). The Zahiri School, zealously defended and systematized by Ibn Hazm, thus insists that human reason cannot be part of decision-making in religious law.

Ahmad Ibn Hanbal (d. 855), an admirer of Shafi?i for his emphasis upon the hadith, became an inspiring source for a distinctly hadith-oriented trend of law called the Hanbali School. Ibn Hanbal is famous for his nonconformist position against the official pressure of the "rationalist" Abbasid regime (particularly of al-Ma?mun and al-Mu?tasim), which ordered him to speak in support of the theological belief that the Qur?an was makhluq (created). Ibn Hanbal was a respected hadith scholar, but he was not particularly famous as a jurist. Indeed, the hadiths he presents in his main work, al-Musnad, are overwhelmed by the citations of the names of their narrators. However, his position, and his focus on hadith, helped inspire a certain pro-hadith line of legal thought.

The Hanbali School of Law in proper terms was systematized in the great work of Ibn Qudame (d. 1223), al-Mughni. Prominent scholars belonging to this legal school include such jurists as Ibn Taymiyya (d. 1328) and Ibn al-Qayyim al-Jawziyya (d. 1350). The Hanbali line of legal thought still holds enormous influence throughout most of Gulf region, and in Saudi Arabia, in particular.

Shafi?i's role in the development of Islamic legal theory was decisive in challenging the regional schools of law and their diverse methodologies, and in motivating them to evolve their concepts and terminology toward a centralized Islamic legal thought. In the formative period of Islamic law, the Medinese legal trend had been basically expressed by the Muwatta? of Malik and further substantiated by the voluminous work of Sahnun (d. 854), al-Mudawwana, which focused on the concept of Medinese practice. Meanwhile, the Iraqi legal trend evolved from being primarily rationalistic into being the gradually centralizing and relatively conservative Hanafi School of Law, in line with the prevalent Shafi?ite influence. The Hanbali School of Law was itself systematized long after the death of Ibn Hanbal, gaining a strong place in the history of Islamic law. The Zahiri legal trend, on the other hand, was denied legitimacy and was ultimately excluded from the Sunni arena of Islamic law, principally because of its rejection of qiyas. In today's Islamic law, the four "legitimate sources" of juristic knowledge, set forth by Shafi?i, provide the minimum of the compulsory criteria to be satisfied for any legal trend to take place within the context of Sunni legal theory.

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Osman Tastan