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Citation: 22 Geo. Wash. L. Rev. 1953-1954

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NATURE AND SOURCES OF ISLAMIC LAW

MAJID KHADDURI *

CUSTOMARY LAW AND ISLAMIC LAW

Muslim jurists took it for granted that since Islamiclaw was a divinely ordained system, its origin had noth-ing to do with pre-Islamic law. Some went so far as toassert that Islam cancelled all the legal systems that pre-ceded it since the Koran provided a "detailed account ofeverything."' Others, especially the Hanafi jurists, rec-ognized as valid only those pre-Islamic rules and practiceswhich were not expressly abrogated by divine legislation.While the latter school of thought saw no harm in ac-cepting certain pre-Islamic legal principles,' the formerrepudiated the validity of all pre-Islamic doctrines, unlessfor the purpose of showing that no inconsistency existsbetween the two schools the term "substitution" is con-sidered to mean "cancellation," as Ibn Khaldun stated,without giving any value judgment on the validity of pre-Islamic legal systems.3 Neither school, however, gives anadequate interpretation of the origin and development ofIslamic law, much less of the relation of law to Arabsociety. There is ample evidence to show, however, thatIslamic law evolved from Arab customary law and that,after the expansion of the Islamic state, Islam absorbed

* School of Advanced International Studies, The Johns Hopkins University.'Koran, XIII, 3. See also Koran, XVI, 92: "We have revealed to you a

Book explaining everything," and Koran, VI, 39: "... We have-neglectednothing in the Book."

2 The Hanafi and Maliki jurists recognized customary .law, if not abrogatedby the Koran, as valid as Islamic law. The Hanafis maintain that ". . . thelaw preceding us is a law for us." See 15 AL-SARAKHSI, AL-MABSUT 171-172(Cairo 1913).

3 "The Shar," said Ibn-Khaldun, "prohibited the consideration of otherHeavenly Books than the Qur'an [Koran]. The Prophet said: 'do not acceptnor refute the views of the People of the Book; say to them: We believe inwhat is revealed to us and to you; our Lord and yours is one."' IBN-KAImm,AL-MIUQADDIMA 306 (Cairo).

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THE GEORGE WASHINGTON LAW REVIEW

the local custom and practices of conquered territoriesno less than did other religious systems.

The pre-Islamic law of Arabia was embodied in asystem of customary law, comprising legal and moralprinciples, known as the sunna. The sunna grew out ofthe custom of the forefathers and its enforcement by prac-tice established its legal validity. Since the structure ofpre-Islamic Arab society, even in the relatively largecities of Mecca and Medina, had not fully become urban,the character of the customary law of the settled popula-tion did not essentially differ from that of the tribal pop-ulation. Apart from the small Christian and Jewishcolonies which had their own religious laws, the majorityof the Arabs were idolaters; their sunna, accordingly, waspagan in character, based on what a nomadic or semi-nomadic society would need or honor.

The most distinctive feature of this society was the lackof political unity, a characteristic feature in all tribalorganizations. The sheik, or chief of the tribe, was usu-ally selected on the basis of seniority, nobility, and repu-tation for wisdom. His authority rested more on the con-fidence and respect of his fellow-tribesmen than on thepower of the loose machinery of his government. Thechief's most important function was to make decisions onthe basis of custom, enforced by tribal public opinion.But the chief had no authority to issue orders which ex-ceeded the customary law, for he was the executive, notthe legislative, head of the tribe. The chief also repre-sented his tribe in its relations with other tribes, backedin his diplomatic actions by the full powers of his tribes-men.

It follows that the sunna, the common law of a prim-itive social order, developed within a loose political or-ganization to supplement the benign authority of the chief-although it also often ran counter to his authority insuch cases as the dakhala (asylum)-as well as to temperthe austere desert life which provided but meagre re-


A SYMPOSIUM ON MUSLIM LAW

sources for living. Thus, such customary practices asdakhala and najda (hospitality), developed to providefood, shelter, and support to helpless desert travellers.The loose authority of the chief was augmented by suchsevere practices as the vendetta and the cutting off of theright hand of the thief in order to prevent crimes againstthe person by retaliation and to protect private propertyin a society whose loose sense of property rights was tootempting to theft. In spite of strict custom regulatingconjugal relations, such as stoning to death for adultery,the male enjoyed almost free and licentious rights in mar-riage, such as unrestricted polygamy, mut'a (temporarymarriage) and divorce. The male was permitted tomarry the female of the next kin, such as his stepmotherand the wife's sisters. Above all, idolatry had becomesuch an integral part of the customary law that social andeconomic functions were regulated in terms of religiousduties, such as the haj (pilgrimage) and other religiousceremonies. Even the Kahina, similar to the Greek or-acle, performed a social-economic function prescribed byreligion.

The rise of Islam, though it did not aim at displacingthe prevailing sunna, had far-reaching effects on it. ThatMohammed's aim was at the outset not to alter or violatethe established sunna is demonstrated not only by his ownpersonal conduct in conforming to it (a conduct whichearned him the title of Amin, or honest), but also by hisinsistence, especially in the Meccan period, that his mis-sion was merely to warn people against idolatry and topreach the unity of God. Mohammed's opponents ar-gued, however-not without good reason-that he hadviolated the sunna; for, despite his reiteration that hemerely intended to replace false idols by God, the repu-diation of idolatry itself implied the violation of thesunna, since idolatry was part of the customary law of theland. Law and religion were so closely interwoven inthese primitive societies that an attack on religion would



constitute a violation of law. Thus Mohammed's call toabandon idolatry in favor of the one God inevitably re-sulted in the establishment of the supremacy of God's lawover "idolatrous" law, even though customary law wasnot abolished in toto. The sunna persisted, however, insubstance if not in form, as the basic source of divinelegislation.

II

NATURE OF ISLAMIC LAW

Islam has the character of a jural order which regu-lates the life and thoughts of the believer according to anideal set of revelations communicated to Mohammed, thelast of the Prophets. Thus Islam established its ownorder of right and wrong, embodying its own justice, asthe only correct and valid one. In order to give a rationaljustification for this jural order, Islam, like other reli-gions, asserted that its ideal system proceeded from a highdivine source embodying God's will and justice. Theneed for a rational justification of this assumption is sogreat that man often seeks to satisfy it even at the risk,as Hans Kelsen has said, of "self-deception.'"

In the Islamic legal theory only God, as the source ofultimate authority, has the knowledge of the perfect law.This law, which is represented in the Jewish and Chris-tian religions as the expression of the will of God, or asGod's direct creation, was raised a step higher by theMuslim jurist-theologians-at least after Orthodoxy hadtriumphed over the Mu'tazilites (rationalists)-to be onthe same level as God: the divine law, as embodied inthe Koran, co-existed with God Himself in a heavenlybook, known as the "Mother Book," which may be calledthe Law of Nature.5 In the same way that Natural law

4Ka.SEN, GENERAL TH RY OF LAW AND STATE 8 (1946).5 Koran, XLIII, 3: ". . . And it is in the Mother of the Book with us-

high and wise." See also 1 ABD AL-QAHIR AL-BAGHDADI, KITAB Usui. AL-DIN106-108 (Istanbul, 1928). For a comparison of this view with the natural lawtheory, see 1 OTTO voN GIERKE, NATURAL LAW AND TH4 THEORY Or SOCIETY35 et seq. (Ernest Barker trans.)



was regarded in the West as the ideal legal order con-sisting of the general maxims of right and justice, soIslamic law was in the eyes of the Muslims the ideal legalsystem. As a divine law it was regarded as the most per-fect, eternal and just law, designed for all time and char-acterized by universal application to all men. The ideallife was that lived in strict conformity with this law.

In the Muslim legal theory, the divine law precededboth Society and State; the latter existed for the verypurpose of enforcing the law. If the State failed to en-force the law, however, and thereby obviously forfeitedits raison d'etre, the believer still remained under the ob-ligation to observe the law even in the absence of anyoneto enforce it. The sanction of the law, which is distinctfrom the validity of the law, need not exist. For theobject of the law is to provide for the believer the right"path" (shai'a), or the standard life, regardless of theexistence of the proper authority charged with its enforce-ment. The Muslim jurists, however, agreed-except theKhariji sect--that in theory the Muslim community mustat all times recognize as its head an imam (or caliph),charged with the enforcement of the law, and that thecommunity falls in error if it fails to enthrone one. "Hewho dies without an imam," Mohammed is reported tohave said, "dies the death of a .pagan." But if the imamhimself fails to enforce the law, the Muslims are stillbound to observe the law regardless whether the imam,by the very fact that he failed to fulfill his duties, ceasedto be the head of the Muslim community or not.

The law comprises devotional obligations to God aswell as rules regulating the relations among fellow-believ-ers. If the believer consummated his obedience to thelaw he realizes his ultimate objective in life, namely, theachievement of salvation. This fulfillment of the lawwould constitute his "happy" life-hard as it may seem-

G The first sect in Islam which advocated a return to primitive Islam.



by giving him an inner satisfaction that his next life wouldbe assured in Heaven.

The law existed independently of Man's own existence.Just as the norms of natural law exist in nature, to be dis-covered by reason, so the norms of Islamic law were "dis-covered" by (or revealed to, in the Islamic conception),Allah's Apostle. The substance of this law, which existedin its perfect and most complete form only in the MotherBook (i.e. "Nature") was communicated to the ProphetMohammed piecemeal, each verse at its proper occasion,and pieced together two decades after Mohammed's deathin a book known as the Koran. Thus the Koran repre-sents the earthly record of the Mother Book, the embod-iment of a universal law or the Law of Nature.7

The divine law represents an effort to rationalize aworld in which the Prophet Mohammed found chaos andconflict and where his goal was order. The law providedguidance not only in establishing an ordered society, butalso in distinguishing what is called husn (beauty)-hence to be followed-and qubh (ugly)-which shouldbe avoided-or, in Western terminology, distinguishingbetween "good" and "evil." The divine law is a systemof obligations (fara'id) which help to show the right"path" (shara) to be travelled by the believer duringhis life-sojourn in order to achieve salvation. This"path," however, narrow as it may seem, has given thebeliever several choices between the strictly enjoined(fard) and the strictly forbidden (haram). For be-tween these two extremes the believer has the libertyof fulfilling certain "recommended" actions (mandub)and of "refraining" (makruh-objectionable) fromothers, but neither is the latter forbidden nor is the former

7 It is contended that in the same way as the Old and the New Testamentsare the Hebraic and Syriac records of God's commands, the Koran representsthe Arabic version of them. (Koran, IV, 162; XII, 1; XX, 112; XLIII, 2).See 1 ABD AL-QAHIR AL-BAGHDADr, op. cit. supra note 5, at 108. For the possi-bility that the Koran might have been revealed in another language, see Koran,XLI, 42-43. Cf. 3 AL-SHATmI, AL-MuwAFAQAT Fi USUL AL-FIQa 391-403(Cairo).



obligatory. Further, between the "recommended" and"objectionable," there is the category of ja'iz to which thelaw is "indifferent" and where the believer has full free-dom of action. For instance, the daily prayers or thefasting of the month of Ramadan are fard; pork, wineand usury are harain; any additional prayer is mandub;certain kinds of fish are makruh; but all other activitieswhich do not fall within these categories are ja'iz.8

The Muslim jurist-theologians assert that the basicprinciple of law is liberty; but this principle is qualifiedby another that human nature is essentially weak and caneasily be led astray unless guided by divine wisdom.Hence the divine law, revealed to the Prophet Moham-med as a set of all-embracing commands, is both authori-tarian and totalitarian in nature. For it includes dogmaas well as social and political principles; these are com-bined to constitute an indivisible unity. Law thus hasthe character of a religious obligation; at the same timeit constitutes a political sanction of religion.

Three fundamental characteristics of the law may bestated on which the classical Muslim jurist-theologiansseem to have agreed. The first is its permanent validity,regardless of place and time. The believers, even if theyreside outside the territory of Islam, are bound by thelaw. For the law was revealed to bind the believers asindividuals, not as territorial groups. Secondly, the lawtakes into consideration primarily the common interestsof the community and its ethical standards; the personalinterests of the individual believers are protected onlyinsofar as they conform to the common interests of Islam.Not infrequently the interests of the individual were sac-rificed for the sake of protecting the common interests ofthe community. For the law laid emphasis on mediationamong individuals rather than on the regulation of theirconflicts of interests. Thirdly, the law must be observed

8 See A. A. A. FyzEE, OUTINZ OF MUHAMmADAN LAW 16 (Oxford; 1941).



with sincerity and good faith. In Islam, as in ancientRome, the law regards the principle of bona fides to bethe underlying basis of the believer's private and publicconduct. Faithlessness, duplicity and dissimulation havebeen repudiated as inconsistent with the objective of thelaw in normal circumstances; the law permits relaxationof certain strict rules only under exonerating and excep-tional circumstances such as when the believer's own lifeshould be subject to extreme peril or he is threatened withdeath. This relaxation of the law is permitted under thegeneral principle of "moderation" by virtue of which thebeliever may strike a balance between his obligationsunder the law and the circumstances permitting their ful-fillment. Fasting during the month of Ramadan, for in-stance, is compulsory for all believers; but this rule, qual-ified by the principle of moderation, permits the postpone-ment of fasting while the believer is travelling (not ex-ceeding three days) and exempts the sick from fasting solong as he is unable to fulfill the obligation. The lawtakes into account the ability of the person to fulfill theobligation; but the non-fulfillment of an obligation, oreven failure to observe the law, does not necessarily implythe supremacy of the believer's interests over the law.For the law, as the ideal divine system, sets the standardsto which the believer has to conform; he may not alteror adapt the law to fit his own interests or convenience.'

III

SOURCES OF LAW

The Muslim community, after :Mohammed's death,inherited a legal order comprising the Islamic jus na-turale and the Arabian jus gentium. Since the propheticfunction was not bequeathed by Mohammed to his suc-cessors, divine legislation came to an end at a time whenthe Islamic state was about to embark on expansion out-

9 See 2 ABN-ISHAQ AL-SHATIBI, op. cit. supra note 7 at 8.



side Arabia. Thus the Muslim community was boundto fall back on customary law, which had supplied sub-stance for divine legislation, in conformity with the Ara-bian way of life.

The development of Islamic law would have been lesscomplex and the differences among the jurists probablyless controversial and confusing if the Muslim communityhad remained confined to Arabia. The newly conqueredterritories of Persia, Iraq, Syria, and Egypt presentedlegal problems which were not easy to solve by the normsof a law that had developed in Arabia. The early caliphsand their jurisconsults inevitably had to resort to personalopinion (ra'y) to supplement divine legislation and cus-tomary law. Traditions ascribed to Mohammed permit-ting the use of ray as a source of law were cited; 10 but amore authentic document giving evidence to the use ofreason in early Islam is to be found in Caliph Umar'sinstructions to Abu-Musa al'Ash'ari, a qadi (judge) ofBasra, in which the Caliph set forth three sources to beused in legal decisions, namely, the Koran, the prevailingsunna (al-sunna al-muttaba'a) and reason. 1 This doc-ument possesses an additional significance in its use of theterm sunna which bears witness that in the early Islamicperiod the term still meant the Arabian customary law(jus gentium) and that it had not yet acquired the tech-nical sense of Mohammedan traditions (sunna of theProphet).

10 The so-called Mu'adh ibn Jabal's tradition runs as follows: The ProphetMohammed sent Mu'adh as a judge to take charge of legal affairs in Yemen,and asked him on what he would base his legal decisions. "On the Koran,"Mu'adh replied. "But if that contains nothing for the purpose?" asked Mo-hammed. "Then upon your tradition," answered Mu'adh. "But if that alsofails you?" asked Mohammed. "Then I will follow my own opinion," saidMu'adh. And the Prophet Mohammed approved his purpose. A translationof this tradition is given by MACDONALD, DEVELOPMENT OF MusLum TrEOLOGY,JURISPRUDENCE AND CONSTITUTIONAL THmORY 86 (1903), and GOLDzIHER, DIEZAHInUN 8 (Leipzig 1884).

11 For a critical study of the text and a translation of this document, seeMargoliouth, Onar's Instructions to the Kadi, JotmNAx, OF TE ROYAL ASIATICSoc=Y 307-326 (April, 1910).



In the conquered territories of Syria and Iraq the termsunna was indiscriminately used to mean not only thesunna of the Prophet, but also athdr (traditions) fromthe Prophet's companions and successors (tabiun) as wellas local custom. If there were no Koranic rule or sunna,resort was made to ray. But ray proved to be so contro-versial a source of law that it was soon abandoned." Itwas attacked on the grounds that it permitted legislationby man. The jurists, accordingly, had to find othermeans in which "reason" was used to supplement theKoran and sunna.

In Iraq, Abu-Hanifa (A. D. 699-767) distisguishedhimself as the chief advocate of analogy (qiyas) as asource of law, whenever specific Koranic verse or tradi-tion were lacking. His use of traditions was so conscious-ly selective-especially those coming from companionsand successors-that his knowledge of traditions seemedpalpably lacking to his contemporary critics. 3 Abu-Hanif a's reply to those critics was that he always depend-ed on traditions (athdr) in his analogical method, makingno use of ray (personal opinion),'" but in fact his analog-ical reasoning and preferential choice of traditions neces-sarily carried with it personal opinion. In case therewere two traditions bearing on the same subject, Abu-Hanifa's choice is known as istihsan-a procedure inwhich Abu-Hanifa chose the traditions which he thoughtwould be least harmful. 5 Most damaging of the criticismlevelled at Abu-Hanif a's method was his use of casuistry

12 According to Ibn al-Muqaffa, writing during the caliphate of AI-Mansur(753-774 A. D.), no one but the caliph has the right to use ray in matters ofmilitary and civil administration and generally on all matters on which therewere no traditions (athar). See Ibn al-Muqaffa, Risala fi al-Sahaba in RASA'IL.AL-BULAGHA' 121-122 (ed. Kurd Ali, 3rd ed., Cairo, 1946).

13 13 AL-KHATIB AL-BAGHDAD, TAIKH BAGHDAD 415-416, 420-421 (Cairo,1931).

14 1 AL-MUWAFFAQ IBN AHMAD AL-MAKKI, MANAQIB . . . ABI-HANIFA77-78 (Hyderabad, 1903). Cf. 13 AL-KHArm AL-BAGHDADI, TARIKH BAGHDAD390 (1931).

15 ABU-MUZZAFAR ISA, KITAB AL-RAD ALA AL-KHATIB AL-BAGHDADI 79, 102(Cairo, 1932).



(al-hiyal al-shari'yya).16 While the hiyal were intendedto temper the strictness of, or offset the evil consequencescreated by, certain rules and practices, they were, how-ever, often abused-especially by later Hanafi juriscon-suits-for the purpose of evading the law.

Abu-Hanifa's liberal use of analogical reasoning re-flected the need of a new social environment for the de-velopment of a system of law which originated in Arabiabefore its area of validity was widened by the rapid ex-pansion of the Islamic state. Although Abu-Hanif a andhis disciples were more outspoken in the use of indepen-dent opinion, their critics in Iraq and Syria, such as IbnAbi-Layla and Al-Awaz'i, were no less influenced bytheir social environment than Abu-Hanifa. Zufar, oneof Abu-Hanifa's disciples, went, perhaps, beyond thelimits of analogy set by his master, but Abu-Yusuf (died,A. D. 797) and in particular Muhammad ibn Al-HasanAl-Shaybani (died, A. D. 805) were more conservative inthe use of analogical reasoning.

In Medina, Malik ibn Anas (A. D. 717-795) had thereputation of making use of traditions of the Prophet andhis companions to a larger extent than his Iraqi con-temporaries, but in fact those traditions were no lessmixed with local traditions than elsewhere. Malik andthe jurist-theologians of Medina claimed, however, thattheir city was the home of true Mohammedan traditionsand therefore their school was designated as the Schoolof hadiths (traditions). It is reported that Malik com-piled his lawbook, AL-MUWATTA', from several thousandhadiths which he submitted for approval to seventy jurist-theologians. In this digest the hadiths comprised notonly the Mohammedan traditions but also the local sunnaand the practice of the Medinese jurists, which was re-garded as constituting the true Mohammedan tradition.

18 13 AL-KHATIB A I,-BAGHDADt4, op. cit. supra note 13, at 403-404, 408-409(1931).



Malik's procedure in selecting the body of hadiths ac-ceptable to recognized jurists of Medina introduced a newprocedure, which was probably invented by him, namely,the ijmd (consensus). This was in contrast to the Iraqijurists who often disagreed with each other. To Malikthe agreement of the Medina jurists on a rule of lawbased on a hadith (which may have been a local customembodied in a hadith, or by a hadith, lacking in genuine-ness, circulated to sanction it) constituted law. The iimdwas a weapon with which the Hijazi attacked the Iraqijurists (especially the Hanafites) on the ground that theyhad departed from the sunna of the Prophet. Further,Malik developed the principle of istislah, on the basis ofwhich he gave legal opinion designed to serve the com-mon interests and welfare of the community. This pro-cedure was derived from the idea of the consent of thecommunity and may be regarded as a form of consensus.

The ijmd was not accepted without opposition, for itwas feared that it might constitute legislation by man.The jurists, however, modifying Malik's conception ofijma to include all the leading scholars (muitahids), sawthe value of "agreement" and approved of the procedure.This was justified by a hadith ascribed to the ProphetMohammed to the effect that "my people shall never beunanimous in error," and a vague Koranic verse: "follow.. . the way of the believers." (Koran, IV, 115.) More-over, the Prophet said "the learned are the inheritors ofP rophets"-they are therefore the ones who can interpretthe Book (Koran, III, 5).

The jurists of Iraq objected to the narrow Maliki con-ception of ijmi and contended that other provinces of theIslamic world were as capable of arriving at an imd asthe Medina jurists, though in practice they betrayed sim-ilar local prejudices as those of the Medinese. Moreconstructive criticism of local ijmd was reserved forShafi'i (died, A. D. 820), the first and probably thegreatest Muslim systematic legal theorist, who widened



the conception of ijmd and, although he did not com-pletely repudiate the doctrine of the ijmrn of the scholars,advocated in the final revision of his doctrine the consen-sus of the community at large. He -saw in the doctrine ofijmd the safest and highest legislative authority.

In trying to achieve a consistent legal theory, Shafi'iaccepted the unquestionable authority of the Koran, buthe rejected the sunna as a source of law unless the sunnawas an authentic Mohammedan tradition. In this hetried to narrow the use of sunna, which had created con-fusion and disagreement in its various uses, merely toutterances reported on the authority of the Prophet Mo-hammed."' He attached more significance to the unan-imous consensus of the community in arriving at a ruleof law than to a sunna ascribed to a questionable source(often invented by certain vested interests) or based onlocal practice. He also tried to limit the use of analogyto questions of detail when there was no relevant text inthe Koran, no sunna, or consensus. Analogy, he main-tained, cannot supersede the other three sources of law,but rather it must be superseded by them. Neither shouldit be based on a special or an exceptional case; analogymust conform to the general spirit of the law. In takingthis attitude Shafi'i established a balance between thosewho used analogy extensively and those who rejected itas a source of law.

Shafi'i's doctrine of the ijmd as the consensus of thecommunity was short-lived, for not only was it opposedby other schools, but was even qualified by his own fol-lowers. Al-Gazzali, who supported Shafi'i's insistence onunanimous agreement, confined unanimity to fundamen-tals, and left matters of detail to "agreement of the schol-ars." 18 Ibn al-Hamman (died 1456 A. D.), in trying toreconcile the Hanafi with the Shafi'i doctrines, offered a

17 See J. SCHACuT, THE ORIGINS OF MUHA UMADAN JURISPRUDENCE (Oxford,

1950).181 AL-GHAZZALI, AL-MUSTASFA PI USUL AL-FIQH 115-121 (Cairo, 1937).

2


16 THE GEORGE WASHINGTON LAW REVIEW

formula which reduced "ijmi" to agreement of the schol-ars in one generation, but saw no need for the expiry ofthe generation (as others contended) before an ijmd couldbe reached.

The fundamental weakness in Shafi'i's doctrine of uni-versal agreement was procedural, namely, the lack of anadequate method which would provide means for thecommunity to arrive at an ijmd. Indeed, the whole doc-trine of ijma, whether based on the consent of the com-munity or the scholars' agreement, suffered from this pro-cedural defect. Its critics, especially Al-Nazzam, aMu'tazilite, attacked it mainly because of the difficultyof securing agreement among scholars who were scatteredfar and wide throughout the Islamic empire."9 Some ofthe jurists offered a corrective by arguing that if a fewscholars reached an agreement and no objection wasraised by others (ijmd al-sukut), or if the majority agreedand only a few raised an objection, agreement becomesbinding upon the community." While this narrowed thepossibilities of disagreement, the process itself remainedundefined. No precise definition of the ijmd was evergiven nor the qualification of a scholar ever agreed uponby the jurist-theologians.

IV

SCHOOLS OF LAW

The controversy over the "sources" of law resultedfrom the termination of revelation-Mohammed's chiefprophetic function-without providing a rule for furtherlegislation. A more serious issue that had arisen, how-ever, revolved on the question of succession, because Mo-hammed's sudden death left the matter undecided. Thesetwo lacunae in Mohammed's jural heritage profoundlyaffected the political and legal development of the Islamic

19 IaN AL-HAUMAN, AL-TAHRIR 399, 401 (Cairo, 1934).20 1 AL-GHAZZALI, op. cit. supra note 18, at 121 et. seq.



state-the one created the greatest schism in Islam, thatof the Shiah, and the other, confusion and diversity inthe legal system.

All the jurist-theologians agreed that the Koran, em-bodying the infallible revelations, was an unquestionablesource of law. But here agreement ended, since the Koranprovided no clear guidance for further legislation. As aresult, the controversy that followed was essentially oneof the sources, rather than the substance, of legislation.The character of this controversy was not, strictly speak-ing, legal; at bottom it was theological, since an inquiryinto what would constitute an authoritative "supplement"to the Koranic revelations is a doctrinal, not a legal ar-gument.

The confusion and diversity in the initial stages of thedevelopment of Islamic law were opposed by the earlyjurists, arguing that the Koranic injunctions repudiateddisagreement in the matters of religion.2 Probably thefirst Muslim publicist who saw the futility of "disagree-ment" in the development of law was Ibn al-Muqaffa,who, while in the service of the caliph al-Mansur (753-774 A. D.), addressed to the caliph a treatise in whichhe suggested putting an end to the then existing anarchyof the law by its formal codification into a coherentsystem.

The later jurists, however, favored "disagreement"rather than uniformity, a tendency reflecting the force oflocal particularism and precedents. Traditions ascribedto Mohammed in support of disagreement were cited, themost important of which runs as follows: "the disagree-ment of my nation is a mercy."

This freedom in legal speculation set on foot the move-ment to develop a variety of schools, each led by a dis-

21 Koran, III, 101; XCVIII, 4. For details on the early jurists' criticismof disagreement, see J. SCHACHT, op. cit. mipra note 12, at 95; and GOLDZI=R,DIz ZAHIPaTEN 98 (Leipzig, 1884).

22 IBN AL-MUQAFFA, op. cit. .Lupra note 7, at 117-134.



tinguished mujtahid, around whom a number of disciplesgathered and discussed questions of law. Although theseleading jurists often attacked each other, as in the case ofAbu-Hanifa and his critics, there was on the whole a tol-erant attitude on the part of the Muslim community to-wards their leading jurists, believing that in spite of theirdifferences on matters of positive law (furu) they allsought the truth, each according to his light.23 But lackof direction in the ijtihad (independent judgment) and"disagreement". tended to multiply the schools and toaccentuate the rivalry among their followers. Duringthe second and third centuries of the Islamic era (theeighth and fiinth of the Christian era) the Islamic Worldwas abounding with a great number of schools of law,major and minor. But at this stage no sharp distinctionwas yet recognized between them. These schools variedfrom the liberal Hanafite and Mu'tazilite jurists-per-mitting large measures of independent judgment-to theconservative Zahirite and Hanbali jurists who, not onlyrejected ijtihad, but also insisted on a literal interpreta-tion of the Koran and hadith. Each school consisted atthe outset of a group of disciples who followed their mas-ter in giving certain answers to specific questions, prac-tical or speculative. It was not until the latter part of thesecond century of the Islamic era, as a result of Shafi'i'ssystematizing efforts, that the technical term madhab(school of law) was applied to the followers of Shafi'i.Before that it was fashionable to call the followers of eachjurist his ashdb (singular "sahib"). Probably both Malikand Abu-Hanifa died without realizing that they werethe future founders of schools called after their names.During their life their followers were usually referredto respectively as the "people of tradition" (ahl al-hadith)and the "people of opinion" (ahl al-ra'y). In the caseof the latter school the reference was made to the Iraqi

23 1 Ar-SrA'RANi, KITAB AI,-MIZAN,6-7 (Cairo, 1932).



jurists, not to the Hanafites only, and in this frame ofreference the followers of Ibn Abi-Layla (a great rivalto Abu-Hanifa), Sufyan al-Thawri and Ibn-Shubrumawere included.

In the fourth century of the Islamic era, however, onlyfour schools (madhahlib) were recognized as orthodox,namely the Hanafi, Maliki, Shafi'i and Hanbali schools.The door of ijtihad was closed and the efforts of the juristswere reduced to taqlid (literally, "imitation") or sub-mission to the canons of the four schools. The writingsof the founders of these schools (or their disciples) be-came the standard textbooks for all students of law andany effort to depart from them was denounced as bid'a(innovation). The ephemeral triumph of the Hanbalitesover other more liberal schools of law and theology meantthat the doctrine of taqlid had become dominant in Mus-lin thought, since the Hanbalites opposed not onlyijtihad, but also rejected all forms of qiyas and sought tofind all the answers to their problems in the hadith.Even the ijma-, which had been established as an infallibleprinciple, ranked in their eyes inferior to a weak hadith.

The rigidity and austere life required by the Hanbalischool was opposed by many persons in authority whosupported the Hanafi and Shafi'i schools. The Hanbaliswould accept neither positions in the State nor gifts fromsupporters-two important factors which were fully ex-ploited by their opponents and weakened the Hanbalifollowers."4 Thus the Hanbali teachings were abandonedin favor of other schools, in spite of occasional revivalsof Hanbalism by a number of influential jurist-theolo-gians, until in the eighteenth century of the Christian erathe teachings of Ibn Taymiyyah (A. D. 1260-1327), agreat Hanbali jurist who revived interest in Hanbalism,were adopted by the Whahhabi movement of Arabia asthe official creed of the movement.

24 See 1 IBN RAJAB AL-BAGHDADz, HiSinrs DES HANBALIM 10-11, 189(Arabic text, Damas, 1951).



Outside Arabia the Hanafi and Shafi'i canons becamedominant in Iraq, Syria, Egypt and Turkey, and theMaliki school, shrinking in the Hijaz, spread all overNorth Africa and Spain, before the latter was restored toChristian rule. But there was, and still is, no restrictionon the Muslim to change his allegiance and religiouspractices from one school to another during his lifetime.A number of distinguished jurists as well as men in au-thority had with facility, and without incurring socialcriticism or prejudice, changed their allegiance from oneschool to another.25 It was even possible to find in thesame family one member belonging to one school and theother to another school; and in a certain family of fourchildren, each purposely belonged to a different school."

V

THE SHIAH DOCTRINE

The Sunni sectarian division in Islam includes the fourschools of law previously considered. The Shiah com-prises a heterodox group the historical importance ofwhich requires separate treatment. The underlying differ-ence between the Shiah and Sunni legal theory is the doc-trine of the imamate (the Shiite term for the caliphate)which narrows the qualifications of the candidate for thisposition not merely to the tribe of Quraysh, the qualifica-tion required by the Sunni, but still further to ahl at-bayt,the descendants of Ali and Fatima." The Shiah acceptthe legitimist right of Ali to the imamate as an article offaith; for, it is held, Ali was designated by Mohammedand after him his descendants in direct line. This desig-nation, made at a special occasion, entrusted Ali withdivine authority; at the same time it clothed him with a

25 1 AL-SHAR'RANI, op. cit. supra note 23, at 36-40.26 See GoLuZHER, LE DOGME Er La LoI DE L'IsLAM 42-43 (trans. Felix Arin,

Paris, 1920).27 Ali was the cousin and son-in-law of Mohammed; Fatima was the daughter

of Mohammed and wife of Ali. The Shiah are today concentrated in Iran andsouthern Iraq.



secret knowledge (ta'wil), empowering him to interpretthe Koran as well as to make-to some even to abrogate-the law. This esoteric knowledge Ali passed on to hissons from generation to generation."

This doctrine, regarding Ali and his descendants as therepository of the Islamic truth, was further elaboratedby Ali's devoted followers to invest him with superhumanqualities, raising him and his descendants to a level higherthan fallible human beings. To certain extremists, Mo-hammed is slightly eclipsed by Ali, and to the Ali-illahis-who regarded Ali as God-God's revelations, miscar-ried by the Angel Gabriel to Mohammed, were originallyintended for Ali. To the majority of the Shiah, however,Ali was to rule by Divine Right, armed with authoritativeknowledge bequeathed to him from Mohammed-aknowledge which placed him beyond the reproach ofhuman beings. He and his descendants formed, in con-trast to the Sunni caliphs, a caste not only of infallible,but also impeccable, imams.

Differences of opinions on the nature of the imamate,itself the cause of dissension in Islam, gave rise to sub-divisions within the Shiah sect. Apart from the Zaydis,who permit the election of the imam from among Ali'sdescendants, the principal sub-divisions are two, the so-called Twelvers and Seveners. This division took placeafter the death of the sixth imam, Ja'far al Sadiq (died765 A. D.); the Twelvers supported Imam Musa al-Kazim and the Seveners supported the claim of his elderbrother Isma'il (died 763 A. D.). The minority followedIsma'il, whose descendants established the Fatimid cal-iphate in Egypt (972-1171 A. D.), and these Seveners arenow to be found only in India, Central Asia, Syria andthe Persian Gulf. These are often called the Isma'ilis.

The majority of the Shiah, the Twelvers, were, andstill are, supporters of the imamate of Musa al-Kazim

28 AL-HILLI, AL-BABu'L-HADi ASHAR 62-81 (trans. W. M. Miller, London,1928).



and his descendants to the disappearance of the twelfthimam Muhammad ibn al-Hasan al-Askari in 87+ A. D."0

No other imam has been selected since the disappearanceof Muhammad, because his absence (ghayba) did notmean that he had perished; his spirit, it is held, is stillwith his fold. The doctrine of the ghayba (absence ofthe imam) and his final return as the mahdi (messiah),to dispense justice and righteousness in a world now fullof sin, form the basis of the Twelvers' creed. During theimam's absence, the creed and the law have been inter-preted by the mujtahids (scholars) who acted as agentsof the imam. Owing to continual persecution under suc-ceeding Sunni caliphs and sultans (mainly because theShiah were opposed to the Sunni caliphate), the Shiahdeveloped the doctrine of kitman or taqiyya (dissimula-tion) which permitted the members of this sect to hidetheir belief if necessary for their protection. This prin-ciple is based on a vague Koranic injunction,"0 but themujtahlids have regarded it as an integral part of theircreed.

The Shiite concept of law is more authoritarian andfar more detached from social reality than the Sunniconcept. This is so not only because the final authorita-tive interpretation of the law has been placed in the imam,but also because of his infallibility and his possession ofan esoteric knowledge of the true meaning of the law.Not even the absence of the imam helped to transform thischaracter of the law, for the mujtahids acted only asagents of the imam, not as free representatives who fol-lowed their independent judgments. Thus ijtihad inShiite law has different meaning from the Sunni concept,at least before the closure of the door of ijtihad."

2 9 Born in A. D. 873, Mohammed is said to have disappeared in mysteriouscircumstances when he entered a cavern in search of his father who died atSamarra, then capital of the caliph. From that cavern the child never returned,but the Shiah believed that he is still alive and will return as the Mahdi-Iinam.

80 Koran, III, 27.31 Cf. A. A. A. FYZE, op. cit. supra note 8, at 35, (Oxford, 1949).



In the Shiite, as in the Sunni, legal theory the Koranis accepted as an unquestionable source of law; 2 but thehadith is not accepted unless related by an imam recog-nized by the Shiah. The ijmd is rejected because neitherthe community nor even the scholars have the final legalauthority to interpret the law. Analogical reasoningplays a less significant part in the law, at least in contrastto the more liberal Sunni schools, because the mujtahid'sopinion must be supported by a tradition or the precedentof an imam.

The differences between the Shiite, and Sunni law inmatters of detail (furu) are hardly more marked thanthose between one Orthodox Sunni school of law and an-other. Apart from the doctrine of the imamate, and theconsequential emphasis on the authoritarian character ofthe law, the Shiite system might have constituted a fifthmadhhah, or school of law. However, the revolutionarycharacter of Shiite opposition tended to accentuate theSunni-Shiite schism and rendered the recognition of theirdoctrine as Orthodox exceedingly difficult."

32 Some of the Shiite extremists accused Caliph Uthman of deliberate sup-pression of certain Koranic verses favorable to Shiabism, but the majority ac-cepted the same Koran as the sunna, although they admit that it does not repre-sent the original version.

3 3 LAMMENs, ISLAM: BELIEFS AND INSTITUTIONS 151-152, (trans. Sir Denison

Ross, London, 1929) ; and GIBB, MODERN TENDs IN ISLAM 12, (Chicago, 1947).


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