On Schacht’s Origins of Muhammadan Jurisprudence

243 Pages·31.337 MB·English

by  M Mustafa al-Azami

ON SCHACHT'S
ORIGINS OF MUHAMMADAN
JURISPRUDENCE
by
M. Mustafa al-Azami
SUHAIL ACADEMY LAHORE
PAKISTAN
Copyright ©Muhammad Mustafa Azmi 2004
All rights reserved.
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Published in Pakistan with the permission of the copyright owner
Printed at the Carvan Press, Darbar Market, Lahore for
Muhammad Aslarn Suhail
Produced and distributed by
Suhail Academy, Chowk Urdu Bazar, Lahore, Pakistan
First published in 2004
Cataloguing in Publication Data: I. Muhammad Mustafa al-Azami
2. On Schacht's Origins of Muhammadan Jurisprudence 3. Islam- Law
4. Jurisprudence- Interpretation. History 5. Hadith- Early Texts
Pp. X +238, Size, em 22.5 x 14.5
ISBN 969-519-067-7
Table of Contents .
Page
Key toAbbreviations
Introduction .
PART ONE:Law and Islam.. . ... ......... .......... ... ..... 5
Chapter 1: The Place ofthe LawinIslam. . . ............... ... 7
The Role ofthe Prophet inIslamic Law 13
Schacht onLawinIslam and the Prophet's
Role 15
Chapter2: Islamic Lawinthe First Century A.H. 19
The Judicial Activities ofthe Prophet 20
Legal Codes and judgments 22
First-Century Legal Literature 24
PART TWO: TheSunna oftheProphet and Islamic Law 27
Chapter3: The Sunna: ItsMeaning and Concept.... ... ... ... 29
The Early Concept ofthe Sunna 29
The Word Sunna: ItsMeaning and Usage 30
Other Meanings ofthe Word Sunna 31
Schacht's Theory ofthe Early Concept ofthe
Sunna 36
Ibn Muqaffa' 41
The Medinese School 43
The Syrian School 51
The IraqianSchool 52
Chapter 4: The LivingTradition isMore Authoritative
than the Sunna ofthe Prophet.. ..... . . . 55
The Medinese and the LivingTradition 56
The Syrians and the LivingTradition 64
The Iraqians and the LivingTradition 66
ChapterS: The Authority ofthe Sunna ofthe Prophet
inthe Ancient Schools ofLaw........ . .... . .. 69
The Attitudes ofthe Medinese, Syrian,
and Iraqian Schools 69
Abu Yusuf and the Sunna ofthe Prophet 70
Shaibani and the Sunna ofthe Prophet 71
The Attitudes ofthe Ancient Schools ofLaw
According toSchacht 72
Schacht's Concept ofthe Antitraditionists 73
Weaknesses inSchacht's Thesis 76
Schacht on the Medinese School 79
Schacht on the Iraqian School 85
Schacht onAuza'i's Attitude 90
Further Questions onthe Methods ofthe
Antitraditionists 91
Chapter 6: The Sunna ofthe Prophet inTransition 96
Wasthe Sunna ofthe Prophet Imposed on
the Old Idea ofSunna'l 100
Was the Living Tradition Projected Back
into the Prophet? 105
Opinions ofCompanions Allegedly Ascribed
tothe Prophet 105
Chapter 7: On the Growth ofLegal Tradition 109
The Diffusion ofAhadith 109
Method ofLearning Ahaditb 110
Precautions Against Errors and Forgeries 111
ACritique ofSchacht's ViewRegarding
Ahaditb 115
Inconsistencies Both inTheory and in
Use ofSource Material 117
Unwarranted Assumptions and Unscientific
Research Methods 118
Mistakes ofFact 122
Ignorance ofPolitical and Geographical
Realities 122
Misunderstanding ofthe Quotation Methods
ofEarly Scholars 122
An Examination ofSchacht's Examples 122
Chapter 8: The Isruid System: ItsValidity and
Authenticity 154
Beginning and Development ofthe
Isnad System 154
Schacht and the Isnad System 165
Origins ofthe System 166
Arbitrary and Careless Creation ofIsntids 168
General Uncertainty 177
Gradual Improvement ofIsniids 182
Creation ofAdditional Authorities 188
Family Isnad 196
The Common Link inaChain 197
lfadith Barira 200
Appendix 1: The Use ofIsnadinSirah and Hadith-Fiqh Literature 206
Ibn Ishaq 206
Abu Hanifah 206
Malik 208
Abu Yusuf 209
Shafi'i 211
Appendix 2: Materials ofAppendix 1inArabic 213
c;,..1.. 226
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Bibliography 227
Index 233
Abbreviations Used inthe Footnotes
A.D. Abu Dawud,Sunan
Annales Tabari, Annales
Auza'I Abu Yusuf, Al-Radd 'aliiSiyar al-Aura'i
A. Y. Abu Yusuf, Athiir. Numbers refer to Hadith number.
Bu Bukhari, Sahih
Hanbal Ahmad binHanbal, Musnad
Hujja Al-Shaibani, Al-Hujja'ala ahl al-Madina
Ibn Abi Laila Abu Yusuf,lkhtiliif Abi Hanifa wa lbn Abi Laila
Ibn S'ad A,- Tabaqat al-Kabir
Ikh Shafi'i,lkhtiliif al-Haditk
Introduction Schacht, An Introduction to Islamic Law
Kharaj Abu Yusuf ,Kitab al-Kharaj
Mu Muslim, Safiih
Mud Sahnun, Al-Mudawwana al-Kubra
Musannaf 'Abdur Razzaq al-Sanani, Musanna]
Muw Malik bAnas, Muwatta'
Muw. Shaib. Shaibani, Muwatta'
Origins Schacht, Origins of Muhammadan Jurisprudence
Risala Shafi'I, Risala
Studies Al-A'zami. Studies illEarly Hadith. Literature
Tahd Ibn Hajar Tahdhib al-Tahdhib
Taqrib Ibn Hajar Taqrib al-Tahdhib
Tir Tirrnizi,Sunan
Tr Tr asused bySchacht inhisbook, Origins of
Muhammadan Jurisprudence inchapterizing certain
books.
Umm Shafi'I, Kitab ol-Umm
Zurqani Commentary 011\1'dik's Muwatta'
INTRODUCTION
The Muslim view isthat the origins ofthe Islamic legal code are rooted in
the Qur'fin ,the sunna of the Prophet, consensus, and analogy. This view,
especially regarding the role of the sunna, was first challenged about a
hundred years ago bysuch Western scholars asCSnouck Hurgronje and
Ignaz Goldzihet, But it was only in this century, with the publication of
An Introduction to Islamic Law (1964) and Origins of Muhammadan
Jurisprudence (1950) byJoseph Schacht that the doubts about the validity
of the classical account came to be articulated inacomprehensive theory
which claimed to destroy it.
Schacht's Origins of Muhammadan Jurisprudence has won high
acclaim among leading Orientalists. H. A. R. Gibb. forexample, consid-
ers that "it will become the foundation for all future study of Islamic
civilization and law, at least in the West"! and N. J. Coulson says that
Schacht "has formulated a thesis of the origins of Shari'a law which is
irrefutable in its broad essentials."? It has also strongly influenced many
other Orientalists, notably J. Robson, Fitzgerald, J.N. D. Anderson, and
C E. Bosworth, and has had a similar impact upon modem Muslim
writers on Islamic law such as Fazlur Rahman, A. A. A. Fyzee, and
others."
Schacht's main thesis may be summarized thus:
I. Law assuch felloutside the sphere ofreligion. The Prophet did not
aim to create a new system ofjurisprudence. Hisauthority was not
legal. As far as believers were concerned, he derived his authority
from the truth of his religious message; skeptics supported him fOT
political reasons.
2. The ancient schools of law, which are still the major recognized
schools today, were born inthe early decades of the second century
A.H. By sunna they originally understood the "living tradition"
(al-tamr at-mujtama'alaih), that is, the ideal practices of the com-
munity expressed inthe accepted doctrine ofthe school of law. This
early concept of sunna , which was not related to the sayings and
I H.A. RGibb,Journal ofComparative Legislation andlnternational Law, 3rdscries, vol.
34,parts 3-4(1951), p. 114.
2 N.J.Coulson, A History ofIslamic Law (Edinburgh 1964),p.4.
3 Fazlur Rahman, Islamic Methodology inHistory, (Karachi, 1965),pp. IG--IL A. A. A.
Fyzee, Outlines of Muhammadan Law, (Oxford 1964),.pp. 26-28. Schacht's Origins has
become thebibleofOrientahsts tosuchanextent thatwhenthelateAmin AJ-M3$fichose
acritical study ofthe work asthesubject ofhisPh.D. thesis, hisapplication wasrejected
bythe University of London; he fared no better atCambridge University. See Mus!afli
Siba'I, As·Sunna waMakiinatuhii (Cairo, 1380/1961),p.27.
1
deedsof the Prophet, formed the basisofthe legaltheory ofthese
schools:'
3. These ancient schools of law gave birth to an opposition party,
religiouslyinspired, that falselyproduced detailed information ab-
out the Prophet in order to establish a source of authority for its
viewsonjurisprudence.
4. The ancient schools of law tried to resist these factions, but when
they saw that the alleged traditions from the Prophet were being
imposed more and more on the early concept ofsunna , they con-
cludedthat "the best they coulddowastominimizetheir import by
interpretation, and to embody their own attitude and doctrines in
other alleged traditions from the Prophet"> - that is,they joined in
thedeception.
5. Asaresult, during the second andthirdcenturies A.H. itbecame the
habit ofscholars to project their ownstatements into the mouth of
the Prophet.
6. Hardly any legal tradition from the Prophet can, therefore, be
considered authentic.s
7. Thesystemofisnad? ("chain oftransmitters"), usedforthe authen-
tication of hadith. documents, has no historical value. It was in-
vented by those scholars who were falsely attributing their own
doctrines back to earlier authorities; assuch, it isuseful only as a
meansfordating forgeries.
Schacht argues that the picture painted by Muslim scholars of the
origins of Islamic law, "concealed rather than revealed the truth; and I
trust that the sketch by which I have tried to replace itcomes nearer to
reality." Ifthat isindeed the case, notonlytheearlylegalhistory ofIslam
but its early literary history as a whole would be demolished, and the
honesty and integrity ofalmost allMuslimscholarsofthe early centuries
wouldbecalledinto serious question. Itistheaimofthisbook toexamine
suchcharges.
Thequestion that immediately posesitselfisthe meansSchacht usedto
produce findingssostartlingly atvariance withtheMuslimview.Notonly
withtheMuslimviewbut even against thehistorical factsknown toevery
readerofIslamic history. Asanexample, IcitethecaseofIbn Hanbal and
hisclashwiththe dogma and creeds oftheCaliph and Mu'tazila sect. He
asked the Caliph to bring forward a single haditn of the Prophet that
supported theofficialview. But the Caliphwithallhispower and anarmy
of learned scholars was unable to produce one. The fact that it was
impossibletofabricate ahaditn ontheauthority oftheProphet that could
gounnoticed bythe scholars speaks for itself.
• See Origins p. 80. According to Schacht, "Shafi'I was the first lawyer to define sunnaas
the model behaviour ofthe Prophet" (ibid. p. 2).
,Imroducnon,pp.35-36.
6 Ibid., p.34.
7 For adetailed discussion ofisniid,see below Chapter 6.
2
Schacht hadtwomethods at hisdisposal: either todrawhisconclusions
from astudy ofthe original sources ofIslam, especially the Our'an, or to
usethe writingsofearlyscholars assources. Headopted thelatter course.
Ihave, therefore, carried out a rigorous study ofthese writings to deter-
mine what there mightbe inthem that ledSchacht tohisconclusions.
Itwillbe argued that, inbroad terms, the writings ofthe early scholars
support the classical picture; Schacht has apparently failed to consult
some ofthemostrelevant literature; heoften misunderstands the texts he
quotes; the examples heusesfrequently contradict the point heisattemp-
ting tomake; onoccasion hequotes out ofcontext; and, most important,
heapplies unscientificmethodology forhisresearch, thusdrawingconclu-
sions that are untenable when the evidence of the text as a whole is
weighed. The arguments will be illustrated by using detailed, direct
quotations from the early sources while scrutinizing the methodology
applied bySchacht.
The book isdivided into two parts. In the first part, which isdivided
into twochapters, IdiscussSchacht's viewsonlawan<l!tsplaceinIslam in
the light of the specific injunctions laid down in the Qur'an. It will be
shown that, in theory at least, law did not fall outside the sphere of
religion and that the Prophet created adistinct legalsystem whichwasin
use inthe firstcentury A.H..
The second part isdivided into sixchapters. Chapter 3deals with the
early concept of the sunna. The next, Chapter 4, discusses Schacht's
thesis that the ancient schools of lawconsidered the generally agreed-on
practice - the "living tradition" - more authoritative than traditions from
the Prophet. Chapter 5cites examples from the writings of the time to
show that the ancient schools oflaw, farfrom being resistant tothesunna
ofthe Prophet, infactbased their decisions on itontheir best knowledge.
Chapter 6 is a critical study of the examples Schacht adduces in his
attempt to show how what he calls the fabricated sunnas of the Prophet
imposed themselves on the original idea ofsunna, and how the ancient
schools oflaw,havingbeen defeated bythe traditionists, began toproject
their owndoctrines into the mouth ofthe Prophet. Chapter 7consistsofa
detailed discussion ofthe examples produced bySchacht indefense ofhis
theory that the entire hadith literature wasaninvention ofthesecond and
third centuries. InChapter 8there isasimilar discussion ofthe examples
Schacht uses toimpugn the validity ofthe isniid system. Itargues that he
failed to understand the difference between the wayisnad wasquoted in
thesira and Fiqh-hadith literature and itsuseinhadith.literature.
One of the factors that might have caused many mistakes by modem
scholars isthe lackofdeep understanding ofearly scholars, their literary
style, and their methods of quotation. This problem isdiscussed in my
book, Haditn Methodology and Literature, pp. 74-79,whichshowswhat
the early authors ofHadith books recorded intheir books on the author-
ityof their teachers; apparently verbal narrations were drawn from the
books oftheir teachers. These sources therefore maybelegitimately used
3
totrace therecords ofthe narrations and doctrinesofearlyauthorities.
There are twoappendices. One givesexamplesofisniid from Sira and
Fiqh-Hadith. literature (in English) that indicate thestylesofearly scho-
larsoflaw andbiographers ofthe Prophet usingIsnad. Theother consists
ofthesamematerial asAppendix 1inArabic tofacilitatecomparison for
research scholars.
There isacertain overlap inthe examples usedinthevariouschapters.
In this I follow Schacht. who uses the same examples in many places.
although because he frequently refers to page numbers rather than
specifying the actual example under discussion. this may not always be
readily noticeable to the reader. 8 Moreover, I consider it sufficiently
important totreat eachaspect ofSchacht's theorycomprehensively, even
at the expense ofsome repetition. Ihope the reader willbear with me if
some of my arguments seem lengthy. Indeed. they would have been
lengthier still if I had not confined myself to the most crucial points
regardingsunna inSchacht's writing Acritique ofalltheareasinconten-
tion wouldfillmanyvolumes.
" See,forexample,Khiyiiral·Majli\ pp. 64,160.167.184.and256
4