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Book: The Origins of Islamic Jurisprudence, Meccan Fiqh before the Classical Schools

The Origins of Islamic Jurisprudence, Meccan Fiqh before the Classical Schools was written by Harald Motzki and published by BRILL.

The current view among Western scholars of Islam concerning the early development of Islamic jurisprudence was shaped by Joseph Schacht’s famous study on the subject published 50 years ago. Since then new sources became available which make a critical review of his theories possible and desirable. This volume uses one of these sources to reconstruct the development of jurisprudence at Mecca, virtually unknown until now, from the beginnings until the middle of the second Islamic century. New methods of analysis are developed and tested in order to date the material contained in the earliest compilations of legal traditions more properly. As a result the origins of Islamic jurisprudence can be dated much earlier than claimed by Schacht and his school.

The question of when, where, and how Islamic jurisprudence came into being has occupied research in Islamic studies for over a century. Initially, a continuous development starting in the lifetime of the Prophet and ultimately leading into the legal schools of the second and third centuries A.H. (approximately the eighth and ninth centuries A.D.) was assumed. This has also been the Muslim view of things since medieval times. This view was put into question toward the end of the nineteenth century of our era by Ignaz Goldziher, and was refuted definitively by Joseph Schacht in his book The Origins of Muhammadan Jurisprudence, which appeared in 1950. The different opinions are essentially dependent on the state of the sources available. If one considers the Qur’àn as a work which—at least in its earthly form—originated in the lifetime of Muhammad and was put down in writing in the course of about two decades after his death, a hole of almost 150 years yawns between it and the first collections of legally relevant texts which are recognized as authentic, i.e. which really go back to the author or compiler claimed for them. The debate has thus revolved around the question of what historical worth the texts of these works have as sources for the preceding phase.

Schacht’s theory was largely accepted in western Islamic studies and strongly influenced subsequent research. The present study attempts to demonstrate that Schacht’s conceptions, in substantive points, are no longer tenable or are greatly in need of modification— above all, that he estimated the beginnings of Islamic jurisprudence a good half to three-quarters of a century too late. The reservations about Schacht’s conclusions result in part from the nature of his work itself: it contains a number of questionable premises, historical inferences, and methods. This is described in the first chapter of the present study, which contains an outline of the history of research on the subject. For, one can better demonstrate the problems of research, understand Schacht’s approach, and clarify the point at which the present study begins when the earlier, pre-Schachtian, and the more recent studies as well as the critical voices addressing the theses of Schacht and his followers are reviewed.

Decisive arguments, however, are here provided by the utilization of a new source which was not yet at Schacht’s disposal, the Mußannaf of the Yemeni ‘Abd al-Razzàq al-Sanànì (d. 211–826). This work and its author are introduced in the second chapter. It is an important source for the history of law, if only because its author, although a contemporary of al-Shàfiì (d. 204–820), whose work Schacht took as a point of departure, was clearly not influenced by al-Shàfiì. Thus, in contrast to the classic Hadìth collections of the third/ninth century, it represents an earlier stage of the development of the reception of tradition, and is several times more voluminous than comparable older works like the Muwatta’ of Màlik ibn Anas (d. 179–795). However, the special significance of ‘Abd al-Razzàq’s Mußannaf lies in the fact that it contains sources from the first half of the second/eighth century which are lost as independent works or at least have not surfaced until today. It is the principal concern of the second chapter to demonstrate this.

The method of reconstructing sources which is used in this study, and which consists of extracting older texts or tradition complexes out of later works on the basis of the statements of transmission (isnàds), is not new. In Biblical, and especially Pentateuch, research it has a long history reaching into the eighteenth century. And it was students of the Old Testament, such as Julius Wellhausen, who introduced it to western Islamic Studies. These methodological attempts were followed up, supplemented and refined by Heribert Horst, Fuat Sezgin, Georg Stauth, Albrecht Noth, Gernot Rotter, Walter Werkmeister and Khalil Athamina, to name only a few. The principle is acknowledged; differences of opinion persist only on details, like the form of such sources (authored books or not) and the mode of their transmission (written, oral, or a combination). The argument over the textuality or orality of transmission in early Islam, however, miss the historical realities. Gregor Schoeler has pointed this out repeatedly, and the present study confirms it.

The question now presents itself: what meaning do the newly tapped older sources have for the early history of Islamic jurisprudence? It is true that Schacht, in his utilization of the legally relevant tradition collections of the second half of the second/eighth century, like Màlik’s Muwatta’ and the Àthàr of Abù Yùsuf (d. 182–798) and al-Shaybànì (d. 189–805), noticed that they also contain older sources. For example, he assumed that the Àthàr of these two Kufans originated predominantly with their teacher AbùHanìfa (d. 150–767), and that Màlik used a source of Nàfi’s which Schacht dated to the middle of the second/eighth century. But his mistrust of the chains of transmission (isnàds) which precede the individual texts blocked him from undertaking a consistent source analysis aimed at reconstructing the history of transmission. Instead, he relied primarily on the criterion of content and attempted to place the texts chronologically by ordering them “in the overall context of a problem.” He resorted to the isnàd when its statements could be reconciled with the chronology developed through content; otherwise he rejected the isnàd as forged.

This study advances the thesis that Schacht’s premise, that portions of the isnàds which extend into the first half of the second/eighth and the first/seventh century are without exception arbitrary and artificially fabricated is untenable, at least in this degree of generalization. A relative chronology of the texts based primarily on aspects of content, and a representation of the development of Islamic jurisprudence constructed upon it, do not lead to definite conclusions. The third chapter attempts to demonstrate this. The central question under consideration is this: Is it possible to find criteria which enable us to determine whether the information about the provenance of the earlier sources contained in ‘Abd al-Razzàq’s Mußannaf is trustworthy or forged?

Using the examples of two strands of sources, it is possible to show that a number of arguments, which I call criteria of authenticity, speak for the credibility of the statements of transmission which are made by the authors or compilers of these sources of the first half of the second/eighth century. The criteria of authenticity on which I fall back relate predominantly to form and not to content, such as the distribution of the texts among sources; the shares of ra’y and Hadìth; the ratios of traditions going back to the Prophet, the ßahàba and the tàbiùn; the use and the quality of chains of transmitters; the terminology of transmission; the existence of personal ra’y; divergent or contradictory comments about texts; indirect transmission found next to direct transmission; uncertainty about exact wording; the reporting of changes of opinion, of contradictions, of cases of ignorance in legal matters, and so forth.

The conclusion that the texts which ‘Abd al-Razzàq’s informants claim to have received from specific people do indeed go back to them makes it possible, in turn, to extract from within these strands of sources older sources which can be dated to the first quarter of the second/eighth century. They supply a firm and extensive textual basis for delineating the state of the development of law towards the end of the first and the beginning second/eighth century. They thus bring us back into a period in which, according to Schacht, only a few reliable traditions existed which can, however, seldom be firmly assigned to historical persons.

By the same method—the determination of criteria of authenticity and forgery—it is possible, starting out from this new textual basis, to venture further back into the first/seventh century. In Islamic terminology this is the generation of the ßahàba, which represents the link to the Prophet himself. There are good arguments that a number of the traditions attributed to this generation are reliable. Occasionally it is even possible to verify among them reports about the Prophet which quite probably are authentic, that is, they were really reported by one of the Prophet’s contemporaries, and their genuineness, that is, that they have a historical kernel, cannot be simply dismissed.

For argumentation and for the development of the criteria of authenticity not all of the major strands of older sources contained in ‘Abd al-Razzàq’s Mußannaf will be used, but only the Meccan ones. The purpose is to combine the critical analysis of the sources with a study of early Meccan legal scholarship, about which next to nothing is known. Thus the third chapter is divided according to the most important legal scholars of Mecca in the first and second Islamic centuries. The findings about those scholars which are derived from the textual material transmitted by them, are then contrasted with the biographical traditions about them. The investigation of the Meccan strands of sources leads to the conclusion that the roots of legal scholarship in Mecca can be traced back to the middle of the first/seventh century, and that their further development up to the middle of the second/eighth century can be ascertained with a stunning wealth of detail that exceeds our dreams.

One issue which has played a large role in the scholarly discussion of the genesis of Islamic jurisprudence since the nineteenth century will be consciously bracketed in the present investigation: the possible influences on Islamic jurisprudence by pre-Islamic non-Arabic systems of law. One reason lies in the conclusions of this study itself. Starting from the assumption that Islamic jurisprudence developed only toward the end of the Umayyad period, scholars have sought its pedigree in Islamic Iraq (Schacht) or Syria (Crone). Our conclusions, conversely, limit the scope for such an influence, temporally, to the end of the first/seventh century (including pre-Islamic times) and, spatially, to the Arabian Peninsula. It is true that, even within these temporal and spatial limits, fertilization by Near Eastern provincial law, which was strongly infused with Roman law, and especially by Jewish legal forms, is conceivable; but since we so far know nothing precise about the dissemination and substance of these laws in the Arabian Peninsula in the sixth and seventh centuries of our era, or about pre-Islamic law in Mecca, concrete proofs of the development of Islamic legal institutions out of other systems of law or of their being influenced by them are difficult to adduce. Patricia Crone has recently attempted this. Her study is extremely ingenious, and shows how one can approach the problem. The dating and localization, however, remain speculative.

In the decade since the publication of the original German edition of the present study, two books with a similar title have been published: Norman Calder’s Studies in Early Muslim Jurisprudence (1993) and Yasin Dutton’s The Origins of Islamic Law (1999). They deal with the emergence of the juridical schools associated with the names of early legal scholars such as AbùHanìfa, Màlik and al-Shàfiì, i.e. the stage of development that followed the period on which the present study focuses. Both books, which are valuable in themselves, ignore the results of the present study. Dutton considers Màlik’s Muwatta’ as “our earliest formulation of Islamic law” and as “our earliest record of that law as a lived reality.” He is concerned only with the interpretation of the Muwatta’ and the description of the state of juridical development which it reflects. The period before the Muwatta’ remains outside his scope and is only perfunctorily touched on in the conclusions. For Calder “Islamic jurisprudence is an organic product of Arabic-speaking Muslim society in the third century.” He claims that “the instability or creativity of oral or notebook traditions, ” “organic texts, pseudoepigraphy, and long-term redactional activity” prevent us from recovering earlier stages of history and, for that reason, he doubts whether ‘Abd al-Razzàq’s Mußannaf really goes back to him and whether it can be used as a basis for the history of Islamic fiqh in the second/eighth century. This is an “ideological” statement which is based neither on a literary analysis of the Mußannaf nor on a critical dialogue with the literary analysis which I have presented of this work. Calder’s theories and literary analyses of juridical texts certainly raise crucial issues but they are in many respects not convincing, as some reactions to his book have already shown.

The present book tries to leave aside generalizing preconceptions about the reliability of textual elements, such as isnàds and mutùn, or of genres of sources, such as Prophetic hadìths or biographical reports; and it does not take for granted special characteristics of the transmission process such as stability, creativity, organic growth, and the like. It analyzes the sources with the same goal that my teacher, the late Albrecht Noth, formulated in his source-critical study of the early Arabic historical tradition: ‘[to] establish reliable criteria according to which individual traditions or groups of traditions can be assessed—not only for their ‘historicity,’ but in other ways as well.” If this study can contribute to bringing back the debate on the origins of Islamic jurisprudence and early traditions in general to a more “philological” level of interpreting the texts—“philological” does not necessarily mean “uncritical” or “essentialist”—then it will have fulfilled its purpose.

Harald Motzki, Ph.D. (1978) in Islamic Studies, University of Bonn, is Professor of Islamic Studies at Nijmegen University. He has published extensively on Islamic social and legal history and on Muslim traditions.

Table of Contents
I.    The Beginnings of Islamic Jurisprudence in the Research of the Nineteenth and Twentieth Centuries  
A.    Early Research
B.    More Recent Research

II.    New Sources for the History of the Beginnings of Islamic Jurisprudence
A.    ‘Abd al-Razzàq’s Mußannaf—The Work and Its Sources
1.    The Edition
2.    The Sources of the Work
B.    The Author and His Work in the Light of the Biographical Sources
C.    The Mußannaf—A Source for the Legal History of the First half of the Second/Eighth Century
 III.    The Development of Islamic Jurisprudence in Mecca to the Middle of the Second/Eighth Century
A.    The State of Research
B.    “Atà” Ibn Abì Rabàh
1.    The Main Source: Authenticity and Mode of Transmission
a.    External Formal Criteria of Authenticity
b.    Internal Formal Criteria of Authenticity
c.    The Results of the Test of Genuineness
d.    Written or Oral Reception?
2.    Characteristics of “Ahà”’s Legal Scholarship and Its Significance for the History of Islamic Jurisprudence
a.    General Characteristics
b.    “Ahà”’s Sources
C.    ‘Amr Ibn Dìnàr
1.    The Main Sources: Authenticity and Mode of Transmission

a.    Ibn Jurayj’s Tradition from ‘Amr Ibn Dìnàr in the Mußannaf of ‘Abd al-Razzàq
b.    Ibn ‘Uyayna’s Tradition from ‘Amr Ibn Dìnàr
2.    Characteristics of ‘Amr Ibn Dìnàr’s Legal Scholarship and Its Significance for the History of Islamic Jurisprudence
a.    General Characteristics
b.    ‘Amr Ibn Dìnàr’s Sources
D.    Ibn Jurayj
1.    The Provenance of Ibn Jurayj’s Tradition Material
a.    Ibn Jurayj’s Meccan Sources
b.    Ibn Jurayj’s Medinan Sources
c.    Ibn Jurayj’s Iraqi Sources
d.    Ibn Jurayj’s Syrian Sources
2.    The Value of Ibn Jurayj’s Sources for the History of Early Islamic Jurisprudence
a.    The Authenticity of Ibn Jurayj’s Tradition
b.    Characteristics of Early Legal Centers
c.    The Use of the Isnàd
d.    Ibn Jurayj’s Anonymous Traditions
E.    The Early Meccan Legal Scholars in the Light of the Biographical Sources
1    “Atà” Ibn Abì Rabàh
2.    ‘Amr Ibn Dìnàr
3.    Ibn Jurayj
4.    The Source Value of the Biographical Material about the Three Legal Scholars
F.    A Historical Overview
1.    The Beginnings
2.    The Last Third of the First/Seventh Century
3.    The First Quarter of the Second/Eighth Century
4.    The Second Quarter of the Second/Eighth Century
5.    The Second Half of the Second/Eighth Century

  IV.    The Beginnings of Islamic Jurisprudence

Bibliographic Information

Title: The Origins of Islamic Jurisprudence, Meccan Fiqh before the Classical Schools

Author: Harald Motzki

Publisher: BRILL

Language: English

Length: 326 pages

ISBN: 9789004121317

Pub. Date: October 2001

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