Islamic History, part 29a: Early Islamic Law (c. 700 – c. 850) — Abu Hanifah and Malik

Islamic History Series

This has been a long time in coming, and there’s a simple reason for it: I haven’t had the time to write it. Sorry. Here’s the thing: the study of Islamic Law is its own discipline and it’s one that I don’t have a whole lot of familiarity with. I can give you short bios on the founders of the four Sunni madhhabs and a short description of what distinguishes each of those legal schools from the others, but I assume you’d like a little more depth than that, and I’ve had to go do extra research (serious research, not just going back to a book to jog my memory or check my facts) to get that depth, which, frankly, I just haven’t had a lot of time to do. On the other hand, I realized that depending on how long I can continue this series, we’ll need to have at least a basic understanding of the law in order to make sense of later developments. So I’ve been working on this when I could, and, finally, it’s done.

Anyway, with the key terms out of the way, let’s talk history. Specifically, because I think it’s the best way to make sense of the material, we’ll talk a little about the development of the law in the second half of the 7th century, then move on to biographies of the founders of the four major surviving Sunni madhhabs.

It probably goes without saying that the demand for legal interpretation wasn’t all that high when Muhammad was still alive. For one thing, who’s going to try to interpret the revelation while the guy who actually received that revelation was still alive? For another thing, the community was small enough at this point that whatever major questions arose could legitimately be dealt with by Muhammad himself, if they escalated that far. Immediately after Muhammad’s death, the community was able to rely both on the Qurʾan (which eventually coalesced into a standard written form but was always prevalent in oral tradition) and on the example of Muhammad’s life (the Sunna) as remembered by those who knew him best, his immediate companions, and then as remembered by those who were the companions of the companions. Arab custom and tradition also helped hold the growing community together.

But this wasn’t tenable; as the community grew and expanded (and as time went on) the need to adapt religious law to new situations and challenges meant more and more interpretation was needed. The early caliphate was a vast, sprawling empire that had very little bureaucratic development, but an empire needs laws, and an empire full of “Muslims” needs some basic, universal framework of what it means to be “Muslim,” otherwise you have chaos. It faced situations that had no immediately apparent analogue in the Qurʾan or Sunna, and its diversity of peoples (and the degree to which the Arab ruling classes were now spread across its vast territory) meant that Arab tribal custom wasn’t going to cut it either. Yet while the community was growing and expanding, the people best qualified to interpret the law (those who knew Muhammad best) were growing old and dying. For early Shiʿa, who believed in the idea of an innate knowledge, ʿilm, that was passed from father to son in Muhammad’s line (via Ali), this wasn’t really a problem, since whoever possessed the ʿilm was rightfully the paramount legal authority and could make new law as needed. But for Sunnis, who lacked such a figure and relied instead on tradition and community consensus, it mattered which tradition and which community’s consensus we were using.

There was probably (though obviously we have no way to know for sure) a real chance that the Arab conquerors would assimilate into the communities they conquered and lose their distinctive culture and the nascent religious movement they were carrying with them. But instead, things went the other direction, and the Arabs, united mostly by language and faith, and insulated somewhat from the surrounding world by the smart (in hindsight) decision to build new garrison cities rather than let the army live among the peoples it conquered, created a whole socio-legal framework to define their new society and unite it. In the process, the what we know as Islam developed out of a single text and the teachings of the man who first recited that text into a full-fledged religious tradition. And, crucially and uniquely, this all happened largely outside the control of the caliphs, the political and sometimes spiritual authorities, plus the caliphs were actually bound by it (hey, rule of law, who knew?), or at least could be discredited for not following it. That’s the Sharʿiah. We’re conditioned nowadays to think of Sharʿiah as something sinister, barbaric, backward, and frozen in time, and it’s really a shame, because we fail to realize what a monumental achievement its creation was, and the fact that it was actually a product of thoughtful consideration and forward-thinking. But I digress.

What we’re going to cover is the very simplified (but still very long, unfortunately) version of this extremely complex process, filtered specifically through the lives and teachings of a handful of great legal and religious scholars who founded the most influential legal schools of thought (madhhabs). These schools largely grew out of particular regional traditions, though they are identified by the names of their most famous theorists. Two of the earliest important figures in Islamic Law were Abd al-Rahman al-Awzaʿi (d. 774) and Abu Hanifah (d. 767), who each argued for the purity of their own regions’ legal traditions (Syria for al-Awzaʿi and Kufah, in Iraq, for Abu Hanifah). Awzaʿi, whose madhhab was eventually overtaken by other schools and is no longer extant today, was born in Damascus and became for a time the preeminent legal scholar there and in the Maghreb and al-Andalus. His writings haven’t survived, but writings about his writings have, and so we know that he placed great emphasis on the tradition of the Islamic community as it had developed since Muhammad and right into his own time. Given that he was born in 707, came of age right about the time when the Umayyads began to decline and Syria started to lose its prestige, and died in 774 after the Abbasids had shifted the empire’s center of gravity to Iraq, it’s probably no surprise that this emphasis on the ongoing tradition of the community privileged the traditions of Syria that had developed around the Umayyad court at Damascus.

Modern distribution of Islamic madhhabs (via)

We know much more about Abu Hanifah, whose Hanafi school is one of the four major madhhabs that survives to the present day. He was born in Kufa in 702 or thereabouts, and his great-grandfather had probably been a Sasanian military commander. Abu Hanifah’s teachings stressed the importance of legal reasoning, or raʾy, in formulating law. He and his students would start from a commonly accepted legal principle and gradually, through a series of hypotheticals and analogies, test that principle to its furthest point to see where it holds up and where it fails. Abu Hanifah believed that this kind of reasoning was a legitimate source of law after the Qurʾan and hadith, and that its conclusions could even overrule hadith (if the two were in conflict) despite the fact that the hadith were supposed to be the teachings of Muhammad (though even in Abu Hanifah’s time it was recognized that hadith reports may be mistaken or outright falsified). In practice, Abu Hanifah’s reasoning resembled the traditions of the Kufan community, as you’d expect from a guy who had been born and raised within that community. He actually argued that the local tradition was crucial in determining which hadith were controlling and which weren’t; hadith that hadn’t been accepted by a community as part of its tradition couldn’t be considered legally binding/normative, even if they were deemed accurate from a purely historical sense.

Opponents of Abu Hanifah’s teachings argued that human reasoning couldn’t possibly overrule the words of Muhammad, in part because reason was too ephemeral to be a basis for the law. What happens, for example, if you formulate a legal principle around one scholar’s reasoning, but then some other scholar comes along whose reasoning is stronger and leads to wildly different conclusions? Worse, what happens if some very smart but totally rotten person comes along and uses his or her superior reasoning skills to make a strong argument for doing the wrong thing? That seems like it could cause a big headache, right? Normative law, and I’m not just talking about Sharʿiah, is supposed to be a reasonably stable thing, at least in its core principles (if, say, you woke up tomorrow and our legal system had collectively decided that killing another person is OK in principle–not just in specifically-defined cases, but in general–that would probably disrupt society just a bit). In fact there are texts that survive from the mid-8th century, contemporary with Abu Hanifah, that complain that all this legal reasoning was paralyzing the caliphate’s judicial apparatus, thanks to all the conflicting legal opinions floating around. Surely, this argument goes, it’s better to rely mostly on tradition, since that isn’t likely to vary from day to day or theorist to theorist.

This was the argument of the Medinan school, whose leading figure was a scholar named Malik b. Anas (d. 796), the founder of the Maliki madhhab. Malik was born in Medina in 711 (give or take), and so while he was too young to have known the direct companions of the Prophet, he grew up surrounded by the descendants of those companions. Medina itself, really, was a monument to Muhammad’s life and prophetic career. Malik and his fellow Medinan scholars argued that they were thus the direct heirs to Muhammad’s teachings and should be given deference by the rest of the community. The Medinan school wasn’t entirely opposed to raʾy, and in fact it’s likely that one of Malik’s most important teachers spent some time studying Abu Hanifah’s system in Iraq. But Malik and his contemporaries held that only the raʾy of Muhammad and his companions could be considered reliable. New interpretations of the law by people living a century after Muhammad’s death, no matter how well-reasoned they might seem, couldn’t be relied upon as correct legal theory. Other theorists, particularly in Mecca, argued that all raʾy was a corruption brought about by the influence of conquered foreigners.

In the 760s, Malik was reportedly tasked by the Caliph al-Mansur with codifying some kind of fixed legal tradition so as to tamp down on independent reasoning. He took what was to that point a mostly oral tradition and crafted his most important work, known as the Muwattaʾ. The name means “the well-trodden path,” reflecting the fact that this was Malik’s codification of the traditions and practices of the Medinan community. Of course, he had to oversimplify Medina’s scholarly milieu quite a bit in order to make this work, and so what you get in the end is a text that is very much about Malik’s own theories, described as the “Medinan tradition.” The Muwattaʾ was the first text to put hadith explicitly to use in the discipline of jurisprudence. Malik spent years painstakingly pouring over thousands of hadith that were already considered “sound,” or accurate, because his personal standards for accuracy were so high. The influential legal theorist al-Shafiʿi (we’ll get to him in a moment) considered the Muwattaʾ to be the greatest, most authentic text ever written apart from the Qurʾan. Its importance even surpasses its considerable impact on the development of Islamic jurisprudence; it is actually a formative text in the development of Arabic literary tradition, or rather in the transition from a society where ideas were primarily transmitted orally to one where they were primarily transmitted via the written word.

OK, so, we’re almost at 2000 words and we’ve still got two of the four figures to cover, so I’m making the choice to split this into two parts. You can find part 2 here.

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