Lessons
in Islamic Jurisprudence
Introduction
Muhammad Baqir as-Sadr, one of whose works on Islamic jurisprudence is
translated here, is among the leading modern thinkers in this field. This
introduction seeks to locate his work for the intelligent lay reader by
offering: a discussion of the nature of Islamic law; a discussion of the nature
of Islamic jurisprudence; a discussion of the relation of this system of
jurisprudence to Roman and canon law; and a very brief sketch of the life of
the author.
The Nature of Islamic Law
It is by no means inevitable that law should have become so
central to higher learning among most Muslims in the pre-modern period. For
over a thousand years the great majority of Muslim jurists agreed that out of
over six thousand verses in the Qur’an there were
only five hundred verses with legal content. Most of the “legal” verses concern
‘ibadat, approximately “acts of devotion,” such as
prayer and the pilgrimage. Out of these five hundred verses, there are
approximately one hundred and ninety that deal with non-ritual aspects of the
law; only matters of inheritance are laid out in any detail.
As to why legal culture became central to so many Muslims in
subsequent centuries, I can give only a partial answer. The Qur’an,
according to one very widely accepted reading, by its spirit encourages legal
culture since it speaks repeatedly of the hudud,
literally, “the limits” or “boundaries.” In the Qur’an
this word does not mean “the prescribed punishments,” as it came to mean in
later Islamic law, but “the limits” which circumscribe good behavior; and in
almost all instances hudud in the Qur’an
is best translated as “laws.” For example, in a verse on divorce (and most
mentions of “the limits” are in passages on divorce and fasting), the Qur’an reads, “… these are the laws [hudud]
of God: do not transgress them. Those who transgress them are unjust (or
‘oppressive’).” (II: 229). Another verse on divorce says, “… these are the laws
of God. One who transgresses [literally, “passes beyond them”] has done
injustice [or “acts oppressively”] to him or herself …” (LXV: 2). In earlier centuries the study of Islamic law was called
“the laws/limits and the knowledge [of them],” al-hudud
wa-l-’ilm, or simply the “knowledge” (al-’ilm). And indeed the Qur’an
connects laws and knowledge, in a verse which ends, “…and these are the laws [hudud] of God; he makes them clear [yubayyinu-ha]
to a people who understand/know [ya’lamuna, from the
same root as al-’ilm].” (II: 230).
The Qur’an also offers a number of
statements specifying that certain things are “permitted” (halal)
or “forbidden” (haram). Therefore, given that there
were some “laws” specifically laid down and some things actually classified as
“permitted” or “forbidden,” and given that Muslims were in touch with three
powerful legal systems, the Roman, the Jewish, and the Sassanian
Persian, is it surprising that legally minded Muslims felt it necessary to go
beyond the brief treatment of the law in the Qur’an
to develop a fully fledged legal system?
Yet as this system developed it became clear that it was
something grander than law: it aspired to classify and categorize all human
acts. Later jurists summarized this ambition in a maxim that said, “In the
presence of God there is a ruling or ‘classification’ (hukm)
for every instance of human behavior.” The jurists saw it as their
responsibility (and, to some extent, that of every human being) to derive, from
what they believed to be potential sources of the law, the most likely
classification or categorization of any human act in the eyes of God. He is
“the Lord of the Day of Reckoning,” as the Qur’an
repeatedly says, and it was considered essential to know how
He would reckon the deeds of one’s life, even when they were neither
“forbidden” nor “obligatory.” After long dispute the jurists came to
agree on five “predicates” appropriate for any legal proposition expressing the
ruling (hukm) which evaluates a human act in moral
terms. An act is either “forbidden”, “discouraged”, “permissible” (meaning free
of any moral weight), “recommended”, or “mandatory”. Normally only the
“forbidden” and, in some cases, the “mandatory,” could be matters for
consideration in an Islamic court, and only these matters would be called “law”
according to a widespread Anglo-American tradition. But it should be understood
that the so-called manuals of Islamic law would be considerably slighter if
they contained only matters enforceable by courts. Islamic law proper is
embedded in a moral hermeneutic, or system of interpretation. It can be argued
that even in the Anglo-American system we have laws such as tax laws, the
object of which is to encourage or discourage certain types of behavior in
areas such as personal savings and home ownership, which are of course legally
optional. To give another example, “Good Samaritan” laws encourage help to the
distressed in cases of emergency by reducing liability to the rescuer.
The jurists understand the middle category, “permissible” or
“morally neutral,” to be central to the nature of the law, “The legal
presumption concerning things is their permissibility (’ibaha),”
as the famous maxim says. This word can be translated “license,” from which
point of view the need for “limits” is clear. It can also be understood as
“liberty,” and a person’s fundamental liberty to act as she or he wishes in the
world has been an important concept to many Muslim reformers. Some moral
philosophers in the contemporary West consider such a presumption necessary to
any system of ethics.
A kindred concept is “the presupposition of innocence,”
which partly overlaps with the Anglo-American presumption of innocence. When
born, every person’s legal standing (dhimma) is
innocent/free of guilt (
The Historical Development of Islamic Law
The above account of the way in which Islamic law developed
is too stylized to be fully historical; it represents the attempts of later
jurists to tidy up the history of a very lively intellectual debate which, like
any other such formative episode, was filled with disagreement and took place
under the pressure of real concerns. Fortunately, a fair amount of material on
these early debates survives. (It is one of the merciful aspects of Islamic law
that its extended treatments carry the history of virtually all opinions of
previous jurists of any importance into later works, a display of learning that
allows the author to show that he has considered discarded opinions, as well as
– on rare occasions – to adopt an earlier opinion.)
It would seem both from the Qur’an
and its commentaries that many of these early debates had to do with the way in
which Islamic law should understand itself over and against other law or laws.
Verses 42 through 50 of Surah V (al-MShari’aida) are held by most Muslim biographies of the
Prophet to relate to an incident (supposed by Muslim commentators to have
occurred in the fifth year of the Prophet’s authority in Medina) when some of
the Medinese Jews came to the Prophet asking him to
arbitrate among them. In verse 44 the Prophet is told, “In truth we have
revealed the Torah in which is guidance and light, by which the Prophets who
submitted to God judged the Jews; and the rabbis and sages judged by such of
God’s Book as they were bidden to observe … .” Verse
48 goes on to explain that God has revealed laws for each community, “To each
of you we have given a law and a way. Had God wished it He would have made you
a single [legal] community [’umma] …
.” (This divinely willed legal plurality was, of course, why Muslims
generally tolerated religious communities founded before the coming of Islam.
They always had the option of considering these communities as “pagans,” a
category of persons that the Qur’an and the Prophet
did not tolerate within
The expansion of Muslim rule brought legal questions that had
to be sorted out immediately, and the Islamic legal tradition would later
consider the decisions on these legal questions to be an exercise in ijtihad, the effort to derive rulings from their proper
sources. ‘Umar, the second caliph (from 13 A.H./634 A.D. to 23 A.H./644 A.D.) had to choose between
precedents. The Prophet had made different arrangements with different Jewish
and Christian communities in
While the first four caliphs had an enormous share in making
the decisions which would become law, their successors, the dynasty of Umayyad
caliphs, continued to promulgate their own rulings as binding legal decisions
for matters as various as marriage, the law of sale, and blood-money. The
well-known “fiscal rescript” written by ‘Umar II (caliph from 99 A.H./717
A.D. to 101 A.H./720 A.D.), usually counted as the most pious of the Umayyads, shows this caliph ruling on the tax status of
converts and kindred matters. Even subordinate Umayyad officials could make
rulings which might find subsequent authority in the law. When an Arab general
invaded the
Gradually the caliphs lost the power to make legal rulings.
Yet they retained until the very end the theoretical authority to appoint
judges and to hold their own court, the mazalim, or
court to judge “contraventions of justice.” The jurisdiction of this court was
very wide. Although in theory there is no appeal from the ruling of a qadi, in practice cases were appealed to the mazalim court. Moreover, it functioned as an important
court of appeal from decisions in administrative law and against the
misbehavior of administrators, matters with which most qadis
were unwilling to deal. Yet the mazalim jurisdiction
never reached out to the masses who lived under the
caliph’s rule; it did not, for example, develop “delegated” judges, as the qadis did in order to have sitting judges in remote towns.
The mazalim remained an active but idiosyncratic
expression of the ruler’s desire to be seen personally as the last resort in
the search for justice.
The authority of the Umayyad caliphs to make law or even in
any way to govern had been challenged from the start, in significant part by
the “Partisans” or Sh,’a, of ‘Ali ibn
‘Abi Talib3 the first cousin and son-in-law of the
Prophet, and some of these Shi’is felt that ‘Ali had
been explicitly appointed by the Prophet as his successor. The Kharijites, in contrast, opposed both ‘Ali and the Umayyads because they had all committed “sins” and the Kharijites would accept no sinful ruler. (The ‘ibadis, descended from one branch of the Kharijites, and now to be found principally in Uman and North Africa, have their own school of law.) The
pious opposition to the Umayyads not only shrank the
caliph’s authority to promulgate legal rulings, it also created a number of
circles in which a more intense discussion of religious matters took place, and
their members were the forerunners of the ulema, the
specialists in religious learning so prominent in the later Islamic Middle
East.
‘Abu Hanifa (d.
150/767) was both prominent in and typical of these circles. He is accounted
the founder of the Hanafi school of law named after
him, although how much ‘Abu Hanifa was a Hanafi is far from clear. One story – very possibly a
legend – has an Umayyad governor flog him for refusing appointment as a qadi. It seems without question that he supported the
political claims of the family of ‘Ali. He died in prison in
The distance between the “pious opposition” and government
also accounts for the development of the independent fatwShari’a
or opinion, so similar to the responsa which exist in
Roman and Jewish law. Conscientious Muslims went to the legally minded among
the forerunners of the ulema and got opinions,
including opinions on matters not ordinarily dealt with by courts. The Umayyad
state, aware of this interest, appointed muftis, givers of responsa,
somewhat similar to the jurisconsults in the Roman
system. Although later dynasties often appointed muftis, many muftis sought to
remain and succeeded in remaining largely independent because people were free
to choose their authorities and because a mufti who kept his distance from the
government gained prestige among ordinary Muslims. The independence of the
mufti was a significant part of the formation and persistence of a
semi-independent community of jurists.
In time these communities of legal thinking developed
regional differences. Malik ibn
‘Anas (d. 179 A.H./796 A.D.), often called simply “the Imam of Medina,” was
the most able member in his generation among the circles that discussed Islamic
law in
It was also in Medina that two of the Imams of the Twelver Shi’is, Muhammad al-Baqir (d. sometime between
114/732 and 118/736) and his son Ja’far as-Sadiq (d. 148/765), made a
significant contribution to Islamic law in general as well as developing a more
specifically Shi’i school of law. Muhammad al-Baqir’s disciples included prominent Sunnis such as al-’Awza’I and ‘Abu Hanifa, both
founders of law schools. Muhammad al-Baqir’s legal
views were written down by his circle and passed into Shi’i
law. Ja’far as-Sadiq held
an even higher position of respect and prominence in legal discussion among
Muslims in general and both he and his father are counted as reliable
transmitters of hadith among Sunnis. Ja’far as-Sadiq gave a very large
number of legal rulings which served to orient the Shi’i
tradition.
Another source for regional difference was the pre-Islamic
underlay of regional schools. The influence of this underlay is downplayed in
many Muslim accounts of the development of Islamic law, but unnecessarily so.
The Prophet during his “farewell” pilgrimage in 10/632 carefully went through
the rituals of the pilgrimage, understood to have been established by Abraham,
and made clear both in action and description what was authentic and what was
unacceptable pagan accretion. This method of developing the law is called
“confirmation” (taqrir) by the jurists, and it is
supported by the first part of one of the verses already cited. Verse 48 of the
fifth Surah of the Qur’an
begins, “We have revealed to you the Book in truth [or, “with the truth”],
confirming [musaddiqan] that Scripture which already
exists … .” In a widely respected letter ascribed to
‘Ali ibn ‘Abi Talib and written as instructions to Malik
al-’Ashtar, his appointee as governor of
Yet the desire to see Islamic law as a separate system over
and against earlier systems outweighed the interest in carefully recording when
“confirmation” took place after the Prophet’s death. Christians, who at first
had little reason to think they should develop a legal system, soon created a
whole system of bishops’ courts, then took and triumphantly reshaped Roman law
to their own ends. A fair number of the axioms which were central to Roman law
are to be found in Islamic law. Even if these maxims are present not because of
borrowing but because of the common conclusions of developed law, isn’t their
presence a confirmation that other legal systems strove to achieve the same
goals as did Islamic law? And yet, unnecessarily, the traditional narrative of
Islamic law allowed little place for interest in continuities and parallels.
In any case, it is clear that Islamic law was overwhelmingly
jurist-made law; and by the second half of the second/eighth century
full-fledged jurists emerged. In the case of Muhammad ibn
‘Idris ash-Shafi’i (d. 204/820), usually called al-’Imam ash-Shafi’i, we have not only a powerful jurist but also,
according to later Muslim tradition, the founder of jurisprudence, the
discipline of deriving law from its proper and appropriate “roots” or sources
(’us ul al-fiqh). It should
be noted that Shafi’i, like Malik
and Abu Hanifa, was at one time a partisan of the ‘Alid cause.
In his celebrated Epistle he attempted, as an historian of
the subject says, “a systematization, a codification, and, up to a point, a
rationalization of understanding the Law.”5 It is Shafi’i
who clarifies that the subject of the law is the legally capable individual
considered as someone who is subject to moral obligation (mukallai
legal agent), and that for every act there is a ruling (hukm).
He discusses the need to rank in order of priority the “roots” or foundations
of the law and the need to systematize analogical reasoning (qiyas). In making the Sunna
(which means, among other things, the “practice” of the Prophet) a proper
source (‘asl) alongside the Qur’an,
he stipulated that the jurist is to accept only a properly established account
(hadith, khabar) about what
the Prophet said, did, or gave tacit assent to, to the exclusion of mere local
tradition, which his teacher Malik had accepted. His
insistence on a strict study of analogy was a rejection of the freer forms of
legal reasons such as commonweal, to which ‘Abu Hanifa
had frequent recourse. In short, he sought to rein in the various schools of
Islamic law, partly in a traditionalist direction, in that he set scriptural prooftext so far ahead of other sources of law, and partly
in an innovative direction, with his demand that legal arguments be justified
and (as in the case of analogy) be well developed.
It was too late. The substantive law (that is, the law as
written down by specific jurists with the intention that it be generally
adopted) was already too developed, and the existing schools too conscious of
their tradition, to yield to the challenge of the new rules proposed by Shafi’i. For a century Shafi’i’s
Epistle remained without progeny. But when jurists turned to writing
jurisprudence, the sophistication of Shafi’i’s
program was an overwhelming influence and eventually all the law schools wanted
to represent themselves as fitting into some form of Shafi’i’s
system. We will return to the development of jurisprudential writing below.
Shafi’i demanded that hadith or khabar, narratives as
to what the Prophet did and said and tacitly assented to, be properly
accredited. In this demand he was at the forefront of a movement for hadith criticism which resulted in the writing of
“canonical” hadith books in the third/ninth century
among the Sunnis (and in the fourth/tenth and fifth/eleventh centuries among
the Twelver Shi’is).
Although it took centuries to achieve near-consensus as to which hadith collections were canonical, two achieved instant
recognition among Sunnis, those of al-Bukhar, (d. 256/870) and Muslim ibn al-Hajjaj (d. 261/817). Both aimed
to present only such hadith as had a reliable chain
of transmitters extending back to the Prophet. (Hadith
rather confusingly was used for a single narrative or as a collective plural.)
To be reliable, a transmitter had to be known to be of good character and
likely to have met both the preceding and succeeding links in the chain. Many
early scholars had presented hadith with “imperfect”
chains of transmission or even without any chains. Non-Muslim scholars (and
recently some Muslim scholars) have suggested that a fair body of hadith acquired its Prophetic pedigree in the century and a
half before the “canonical” books appeared. In any case, even the collections
of Bukhar,
and Muslim ibn al-Hajjaj
have hadiths with incomplete chains of transmitters.
By their arrangement of chapters Bukhar, and Muslim show the growing concern of the jurists for
reliable legal material, as both use sub-headings somewhat similar to those of
the law books.
Throughout the centuries there has been a dispute about the
standing of accounts that did not come down through wide-scale transmission,
but from a small number-even a single-line of reliable transmitters. Some of
these hadith are constantly invoked in the law books.
For example, the hadith that says: “The believers
must fulfill the lawful conditions in [their contracts] [al-mu’minun
‘inda shurutihim]” is such
a “solitary” or “idiosyncratic” hadith, even though
it is continually invoked in the chapters on sale in the law books. Some of the
“idiosyncratic” hadiths were too important to the law
to be shoved overboard. Ibn as-Salah
ash-Shahrazur, (d.
643/1245) in his introduction to the hadith sciences,
still considered the most authoritative book on this subject, points out that
if wide-scale transmission demands transmission from a large number of the
Companions of the Prophet as well as multiple transmitters in later
generations, then only one hadith of the many
hundreds of thousands in existence would qualify.6
Hadith came to rank with the Qur’an as a source of law. The hadith
was treated according to the rules developed by the Qur’an
commentators for dealing with the seeming contradictions between Qur’an verses. Some verses in the Qur’an
allow the drinking of wine, but one forbids it. The commentators tried to
establish when each verse was revealed. From this chronological framework one
could determine that prohibition of wine-drinking came later and “abrogated”
the verse permitting wine-drinking. Correspondingly, there were abrogated and
abrogating hadith.
The virtually equal status of reliable hadith was a boon to the jurists, who had so little law from the Qur’an alone; but it created intellectual problems. Whereas the text of the Qur’an was fixed (except as to minor and clearly established questions such as different pronunciations of certain words), the scholars of hadith accepted as equally sound reliably transmitted hadiths with the same meaning but different wording. (Strangely, other textual criticism of the hadith was limited; it was not a subject for concern in hadith-criticism that the hadith foretell “heretical” movements such as the Murji’ites and Kharijites of the early period but do not foretell later heresies.) The standing of sound hadiths, which collectively describe the Sunna, or practice of the Prophet, was so high that some jurists held that the Sunna could abrogate the Qur’an.