Discuss the relative importance of the main sources of Islamic Law
during the formative period of its development.
The issue of the early development of Islamic Law is complicated and confusing for scholars and students alike. The lack of contemporary materials, and unreliability of the sources at hand, make the task more a matter of speculation than research.
Of course, there is an "official" Islamic version of the history of Shari'a, which contains little confusion, because religion cannot be built on uncertainty.
Since the 19-th century, this version has been challenged by the Western scholars. To this point the major impact is Joseph Schacht's (via his badly written, but immensely influential, "Origins of Muhammadan Jurisprudence"), even the title of this essay implies discussion of his theory.
Because his ideas turn upside down the whole basis of Islamic system, they meet appropriate opposition from the Muslim side.
As the Muslims have it, the basis of the Islamic jurisprudence is the Quran, and where no Quranic provision is available, it is based on the actions and sayings of the Prophet Muhammad, faithfully transmitted by the early Muslims to the following generations. The idea is that no interruption occurred in transmitting oral material into written form, even though the transition occurred two centuries later. The science of hadith is seen as perfectly reliable in recording the correct information and filtering out the false pieces. (As I have been told, "Bukhari prayed two rakahs before writing down each hadith"). The need to cover situations not discussed in the available sources was satisfied by carefully extending the existing rulings. Such extensions are done by specialists, and their validity is tested by being approved by the consensus of the scholars.
This system readily glosses over uneasy issues, from the reliability of the oral preservation of items to the methods employed by the scholars in deducting the further rulings.
Schacht's re-examination of the sources led to formulation of a more rational view of the development of Islamic Law.
The starting point in describing his theory could be much praised by him Shafi'i with his hierarchy of the sources of Islamic Law. Shafi'i has laid down that these sources are in four grades: Quran, sunna of the Prophet, ijma - consensus and ra'y - independent reasoning, limited in fact to qiyas - reasoning by analogy. According to the Muslim sources such hierarchy had existed from the very beginning, and Shafi'i had merely set it out in clearer form. Schacht credits Shafi'i with actually creating this hierarchy, which had taken dominant place since his time and influenced all further development of Shari'a.
According to Schacht, in the times before Shafi'i, there were significant differences in the basis on which different groups built their understanding of the Law. Formulation of legal rulings and principles of their deduction varied between various centres of the Islamic Empire. The first major centres were Medina, Syria and Iraq, a little later the centre in Syria came to decline, but importance of Qairawan and Cairo increased. The first important split was between Iraqi and Medinan centres. The dichotomy was clear - the scholars of Iraq used their own powers of deduction (ra'y) to solve the questions, for the Medinese, customary practice (sunna) of the city of Medina, soon to become the "living tradition" the school, was the main guide. To authenticate their claims, each school traced their decisions to earlier authorities, which were different in different localities.
In the second century AH a movement of Traditionists (ahl al-hadith) gained force. These were the people who saw stories and sayings of the Prophet, his Companions and Successors as the only valid example for any decisions.
"The movement of the Traditionists, the most important single event in the history of Islamic Law in the second century of the hijra, was the natural outcome and continuation of a movement of religiously and ethically inspired opposition to the ancient schools of law. The schools of law represented, in one aspect, an Islamic opposition to popular and administrative practice under the later Umayyads, and the opposition group which developed into the Traditionist movement emphasized this tendency. The main thesis of the Traditionists, as opposed to the ancient schools of law, was that formal "traditions" (hadith, pl. ahadith) deriving from the Prophet superseded the living tradition of the school. It was not enough for the ancient schools to claim that their doctrines as a whole were based on the teachings of the Companions of the Prophet who presumably knew the intentions of their master best, or even that their living tradition represented the sunna of the Prophet. The Traditionists produced detailed statements or "traditions" which claimed to be the reports of ear- or eye- witnesses on the words or acts of the Prophet, handed down orally by an uninterrupted chain (isnad) of trustworthy persons. Hardly any of these traditions, as far as matters of religious law are concerned, and be considered authentic; they were put into circulation, no doubt from the loftiest of motives, by the Traditionists themselves from the first half of the second century onwards."(Schacht, "An Introduction to Islamic Law", p.34).
In their zeal to establish authority of the sunna of the Prophet some of them went as far as to make "the principle that the sunna prevails over the Koran, but the Koran does not prevail over the sunna". (Schacht, "Origins", p.46).
This movement eventually took over in the school of Medina, where the sunna - customary practice of the community was replaced by the sunna - example of the Prophet, as enacted by the first community to receive his commandments.
The main opponents of the Traditionists became the scholars of Iraq, who still heavily relied on their rationality.
They continued to recognise nominally the weight of the Prophet's example, but were ready to reject an account which did not coincide with their own logic (It was true of others just as much, but the difference was in the technique: from the time the hadith were established as a irrefutable source of information, they were adjusted to fit the desired decisions by interpreting them in a suitable way.), like the early Malikis would prefer custom of Medina to a reported hadith.
Shafi'i is seen as the one who successfully reconciled the two trends, even though it is clear from his system that he was under greater influence of the Ahl al-Hadith, and eager to limit the use of reason.
Quran is the least controversial of the sources of Islamic Law, because even taking into account the scholarly doubts of its authenticity and date, it still has to be recognised as the earliest Muslim religious source to gain undisputed acceptance as a legal guide. This position was clearly held by the Quran by the time of the arguments for and against traditions were made, and the principle that traditions contradictory to the Quran are to be rejected (unless reconciled by re-interpretation) is not a late invention.
Because of the variety of styles and themes in the Quran, the phrases which became recognised as legal rulings are not limited to the later Medinan surahs with a clear legislative purpose. The moral injunctions, like keeping one's oaths (Surah IXX.32-33) (In Goitein, "The Birth-hour of Islamic Law", p.24), are seen as legal rulings too. Even being recognised as an infallible source, its actual use in formulating legal theory was limited, even more so by the theory of abrogation.
The source of true importance in the early times was the local custom of the place where the scholars resided. It is not as clearly declared by the Iraqi school as by the Medinese, but nevertheless evident from a study of their rulings and decisions. It seems, here the meanings of sunna and ijma come close to each other, the first being an established practice in the community, the second being an item on which the community was in agreement.
In this context, the local custom does not merely mean the practice of the people. In fact, it is the views of the local jurists endorsing or rejecting the customs. It is hard to determine to what extent their rulings reflected the judicial precedence set by the qadis - judges, administrators and rulers. The law as it reached us is created by the people who held no official position as lawmakers, unless placed into such position later due to their fame and accomplishments. (Funnily enough, it appears that Islamic legal system at the early stages of its creation had about the same relation to reality as it has today. Following it or not was more of a question of personal piety, in some questions - of an individual, in some - of the judge. It had to be adapted to become a useable system, and it is highly questionable to what extent it has ever been applied at all.)
This is Coulson's account of the above processes:
"The starting point was the review of local practice, legal and popular, in the light of the principles of conduct enshrined in the Quran. ...
From this piecemeal review of existing practice a body of Islamic doctrine was gradually formed in the early schools. It had originated in the personal reasoning, or ra'y, of individual scholars, but as time passed its authority was rested on firmer foundations. With the gradual growth of agreement between the scholars of a particular locality the doctrine was expressed as the consensus of opinion in the school. Then, as the consensus remained firmly established over the course of the years, the concept of the sunna of the school appeared. Sunna, literally "beaten path", had originally meant the actual customary practice, whether of pre-Islamic tribes of the seventh-century Muslims; but in the jurisprudence of the eighth century it had come to bear a different connotation. In the language of the scholars sunna was now the ideal doctrine established in the school and expounded by its current representatives."
His account lacks any doubts as to the date when Quran became an authoritative source, and he does not consider that at any point sunna could mean the pious practice of a local Muslim community in general, not only of its specialists.
Another feature of Islamic law at these early stages was its oral nature. Absolutely all of the material transmitted among the early schools was oral, the time of writing it down is placed by Schacht in the beginning of the 2-d century AH. ("A History of Islamic Law", pp. 38-39)
By the time the law had been written down, it had been affected by other influences, partly loosing its form of a free discourse. One significant determining factor in the appearance of these other influences was competition between the schools.
Each school, of course, claimed greater authenticity for their founding scholars, and one of the ways to support their decisions was to attribute it to an even more "authentic" earlier authority. These earlier authorities were Successors and Companions of the Prophet, for example in Kufa the authority for the rulings was Ibn Mas'ud, a companion of the Prophet who had come to live in Kufa, and thus directly connected to the beginning of Islam in the city. Other authorities were referred to by the school of Medina. This led to development of the hierarchy, where closeness to the Prophet took priority, so the precedents reported from the Prophet came first, then from his close Companions, and so on. Schacht considers the whole body of the Prophetic hadith forged, by attributing statements and accounts from later authorities backwards. The ladder of authorities up to the Prophet had become fixed by Shafi'i. He gave absolute priority to the Prophetic accounts, so that unlike the "ancient" schools, a single hadith from the Prophet could negate a dozen from others. Because of the importance he placed on the hadith, he paid attention to the criteria for determining their reliability. For him this meant promoting development of isnad ( the chain of transmitters) criticism. Indeed, transmission of the hadith presents stunning examples of inaccuracy of the early reports, lack of proper relation between the sources, and outright forgery too.
While in the earlier times hadith were used depending on the suitability of their meaning to the teachings of the school, from Shafi'i's time, hadith were (claimed to be) valued according to the reliability of the individuals who transmitted it.
Another transition has affected the meaning of ijma, from what seemed to mean "the practice of the pious people in a certain community", to being restricted to the opinion of specialists of the school, and later on it was for the most part further limited to those specialists of the school who belonged to the classical period.
Shafi'i's fixing of the sources meant that very little flexibility was left in the Law, eventually leading to its stagnation. Quran and hadith were firm guidance, ijma of the scholars of each school was an authoritative source for the decisions not covered by the first two sources, and the only reasoning left for further development was qiyas - deducting decisions analogical to the ones already in place.
Still, there were options left as to how qiyas can be used, even though Shafi'i himself specified that it has to be used only if the situations are strictly analogous. In reality, it could be freely used to turn the desirable into the recommended.
All the above shows the movement of Islamic jurisprudence from free discourse to fixed format, from reliance on individual authorities to reliance on written sources (In fact, reliance on written sources has never become an overall standard in any Islamic discipline. All of them retained at least partly the tradition of oral transmission, with quotations from Quran, sunna (hadith) and classic masters used as supportive evidence).
While the processes represented by the scholarly theories are likely to be correct, I personally do not agree with the outright rejection of the Islamic view where the sources are said to have the same value from the beginning. It is very likely that the earlier accounts which appear in the form of juristic responses to certain problems simply omit what was the common knowledge, and therefore references to the Quran, the Prophet and his Companions don't make their way into the texts. Indeed, the scholars make the human memory seem frustratingly short, so that in about two hundred years since the beginning of the Muslim conquests such a complete cultural and religious change took place, that our modern swift ideological changes do not seem so unprecedented in history.
The fact of omission of the commonly known material is mentioned by Norman Calder, in a different context (He mentions it when explaining why the early juristic works seem to deal only with disputed, unclear or complicated cases, "Studies in Early Muslim Jurisprudence", p.48; quotation from Daube, "Roman Legislation", 30: "Ancient lawgivers do not usually state that which goes without saying".) He does not extend this phenomena further, to include the reference to the sources. In fact, he bases his analysis on the assumption that processes in the juristic development were necessarily subsequent to one another, as if there was no possibility of the parallel development of different trends in different locations, so that references to the traditions became a norm in Cordoba earlier than in Qairawan. Even in the same location, manuals dealing with the scholars' answers to complicated questions could be written down at the same time as collections of hadith, or at least I would speculate that it is possible.
As I have mentioned before, there is plenty of opposition to Schacht's theory and its further development, especially from the Muslim side. One example is 'Azami, "On Schacht's Origins of Muhammadan Jurisprudence". He refutes point by point each piece of supportive evidence Schacht uses, but does not come up with a reasonable theory of his own. This very much reflects the general picture of a big split between several versions of the Islamic view and the theories rejecting it completely. To this moment, attempts at reconciling the two seem more like appeasing the Muslim side, sensitive to "blasphemous Orientalists". With the extreme scarcity of sources, it is hard to make a revelation in this field, and any theory necessarily contains a fair amount of speculation (this is why I am not ashamed to add mine).
What I have written follows more or less the current academic view of the subject, because of its rational basis. I do hope a new, more satisfactory, theory will be formulated soon.