Constructing the Law: Between “Rationalism” and “Tradition”

This overview over the dynamics of Islamic law during the first three centuries is crucial also for understanding the ideological-intellectual scenery of the law: From the late eighth century to the beginning of the tenth century (the formative period), there raged fierce controversy between those who would found their jurisprudence exclusively on

311 Schneider, Das Bild des Richters (1990), p. 217.

312 Ansari, “Islamic Juristic Terminology” (1972), pp. 288-294, especially p. 294; Peters, “Individual Effort of Legal Reasoning”, Oxford Encyclopedia of Legal History (2009), III, p. 224.

ḥadīth and those who reserved a leading place for rationality.³¹³ The principal division among Muslim jurists of that time was therefore that between the so-called

“traditionalists” (aṣḥāb al-ḥadīth) and the so-called “rationalists” (aṣḥāb al-ra’y), between proponents of scriptural authority in law and theology and authority based on reason.

The traditionalists based their understanding of law on ḥadīth reports from earlier authorities. Calling them traditionalists is related to the problematic translation of ḥadīth as “tradition”, not necessarily because the reports themselves had established any tradition. ³¹⁴

The juridicial program of the adherence of ḥaḍīth (aṣḥāb al-ḥadīth) was to collect ḥadīth as precedence, so that all later legal cases could be based on precedence rather than having to systematically refer to human reasoning.

Traditionalists have tried to minimize reliance on human reasoning, even when that meant to base their jurisprudence on disputed ḥadith or on ḥadīth reports from others than the Prophet.³¹⁵ The textual basis of the traditionalists did include ḥadīth reports from Companions and Successors, so that they could base every single item in their doctrine on a previous report (ḥadīth).³¹⁶ Their idea was that one should not adopt juridical positions contrary to what the predecessors were known to have adopted,³¹⁷ and keep to the original intent of scripture.

However, it would be imprecise to say that the traditionalists rejected all use of reason, for they too were aware of new cases arising: reason and analogy were then to be restricted in their application to preferences expressed when more than one ḥadīth was reliably reported from the observing ancestors concerning some question.

The rationalists (rather than a self-description, this term was used by the traditionalists against the “other” camp) advocated for a substantive legal reasoning that for most part does not ground itself in ḥadīth as a legal source. ³¹⁸ Non-reliance on ḥadīth was thus central in their position and in the critique launched by the tradtionalists (often a

313 Melchert, The Formation (1997), p. 2-7 dealing with the difficulties the categories of “traditionalists”

and “rationalists” bring along, as surely traditionalists also brought about a lot of innovation while rationalists surely also founded their understanding of law on ḥadīth.

314 Melchert, The Formation (1997), p. 2.

315 Melchert, The Formation (1997), p. 15.

316 Melchert, The Formation (1997), p. 15.

317 Melchert, The Formation (1997), p. 18.

318 Hallaq, Origins (2005), p. 74.

description) against the rationalists.³¹⁹ The traditionalists attacked the rationalists for relying on discretionary reasoning (ra’y) instead of ḥadīth and purposely changed the meaning of discretionary reasoning (ra’y) into ‘‘arbitrary reasoning’’ or ‘‘fallible human thought’’, i.e., a way of thinking that failed to consider the authoritative texts, which were increasingly acquiring a reputation as a more secure source of legal knowledge.

According to the traditionalists, a single Prophetic voice on which all Muslims could rely, was superior to the personal reasoning of individual jurists whose fallibility could be shown by the fact of their widely diverse opinions on any given question.³²⁰ The rationalists, however, rejected as too uncertain ḥadīths who had only one transmitter (akhbār al-āḥād) that constituted a large part of the traditionalists’ jurisprudence, and instead developed complex legal reasoning, in which they adopted the analogical extension of known rules to new cases occupied a central position.

At the risk of falsification through generalization, it might be said that these positions between tradition and reason influenced the later emerging contours of the schools:

While the Ḥanafīs were largely considered rationalists, the Mālikīs and Hanbalīs were known as traditionalists, and the later Shāfi῾ī’s tried to synthesize between these positions. More precisely, however, it needs to be emphasized that many legal scholars found individual ways to integrate combined and modified methodologies into their works. ³²¹ Early writings reveal that legal disputes, and rivalry, on these matters were particularly sharp between the Shāfi῾ī’s and their principal intellectual adversaries, the Ḥanafīs.³²² By extension, the prime texts on the normative foundations of judicial consultation and their links to legal reasoning analyzed in this work come from Khaṣṣāf, a Ḥanafī, and from Shāfi῾ī, eponym of the Shāfi῾ī school, each with excerpts of texts that became relevant for their respective school traditions.

319 Hallaq, Origins (2005), p. 74.

320 Hallaq, Origins (2005), p. 74-75.

321 For a long time, adherents of discretion (aṣḥāb al-ra’y) were linked to the jurists of Iraq (ahl al-῾Irāq) while the adherents of traditions (aṣḥāb al-ḥadīth) were linked to the jurists of Medina (ahl al-Madīna), methodological opposition would have been only an aspect of an opposition between regional schools. C.

Melchert nevertheless showed that this dichtomoy had to be revised. Across the study of three legal works of the third/tenth century, C. Melchert showed that the equation of jurists of Iraq with the adherents of discretion vs. the jurists of Medina as adherents of traditions to a great extent ill founded. J. Schacht had already shown that the Medinese and Iraqis were originally coining the concept of the “Sunna of the Prophet”. Schacht, “A Revaluation of Islamic Traditions” (1949), p. 144. Indeed the writings of Khalīfa b.

Khayyāṭ and of Ibn Sa῾d show the development of circles of supporters of ḥadīth in Medina and Mecca as well as in the Iraqi cities of Kūfa and Basra. This differentiation seems therefore representative of different legal methodologies within regional schools, rather than vis-à-vis regional schools. Melchert, “How Hanafism Came to Originate in Kufa” (1999), p. 346. See also Tillier, Les Cadis (2009), p. 144.

322 Lowry, “Shāfi῾ī”, OxfordEncyclopedia of Legal History (2010), IV, p. 235.

The question on the sources and methods of law were not only scholarly discussed but also reflected in letters by and for caliphs on the sources to be used in adjudication: The letter of caliph ῾Umar Ibn Al-Khatab to Abū Mūsa al-Ash῾arī (an early companion of the Prophet Mohammed who was governor of Kufa and Basra), probably dating from the beginning of the second century³²³, is possibly the first document that mentions that the qāḍī must base his judgment on Qur' ān, Sunna, then analogy (qiyās).³²⁴ If the letter is not a later back-projection on the sources of the law, caliph ῾Umar could be seen as early an early approval for judges to rely, next to the divinely inspired sources, also on a non-scriptural way to derive the law.

More detailed is another early documentation, the letter of Basran qāḍī and legal scholar

῾Ubayd Allāh b. al-Ḥasan al-῾Anbarī (d. 168/ 784-5) to caliph al-Mahdī in 159/775-776.

325 In his letter, Al-῾Anbarī lays out guidelines for the administration of the Empire regarding four administrative matters: the defence of the frontiers of the state (thughūr), 2) the systematic appointment of judges (ḥukkām) and the laws administered by them; 3) the even-handed levying of land tax (fay’ and kharāj), as well as 4) proportional taxation on trade (ṣadaqāt). Significantly for this study, al-῾Anbarī addresses not only questions of appointment of judges but also those of the sources of adjudication. ³²⁶ First of all comes the Qur’ān; then it is the Sunna of the Prophet which has to be referred to for the judgments (aḥkām); and in case the Sunna too has nothing to offer on the matter at hand, the decision is to be made in accordance with what the leading jurists have agreed upon

323 On the dating of the letter, see Serjeant, “Caliph ῾Umar’s Letters” (1984), p. 78; Serjeant, “Sunna, Qur’ān, ῾Urf“ (1995), p. 43. See also Zaman, “The Caliphs, the ῾Ulamā’, and the Law” (1997), p. 12.

Tillier, Les Cadis (2009), p. 623.

324 The letter is cited in full in Khaṣṣāf, Adab al-qāḍī, sec. 24, p. 44-45.

325 On al- ʽAnbarī, see Wakīʽ, Akhbār al-quḍāṭ, II, pp. 88-123; Khalīfa b. Khayyāt, Ta’rīkh, pp. 457, 462, 470, 472, 473; Ibn Ḥajar, Tahdhīb, VII, pp. 7-9. For further references to the sources on him, see the editor’s footnote in al-Dhahabī, Ta’rikh al-Islām, ed. ʽAbd al-Salām Tadmurī (1987), X, p. 344, n.1. For a brief but illuminating study of al- ʽAnbarī, see van Ess, “La liberté du juge dans le milieu basrien du VIIe siècle (IIe siècle de l’hègire)” (1985), pp. 25-35; further elaborated in idem, Theologie und Gesellschaft (1992), II, pp. 155-164.Wakīʽ, Akhbār al-quḍāt, II, p. 97-107.

326 The letter is entailed in Arabic in Wakī῾, Akhbār al-quḍāṭ, II, p. 100-105 (probably as the only source for the letter); a French translation of the ῾Anbarī’s letter in Tillier, Les Cadis (2009), p. 190. Legal doctrines (and political context) elaborated by ῾Ubayd Allāh b. al- Ḥasan al-῾Anbarī briefly laid out by Tillier, “ Un traité politique” (2006), p. 144; van Ess, “La liberté du juge” (1985), p. 28-29, idem, Theologie und Gesellschaft (1992) II, p. 167; Zaman, Religion and Politics (1997), p. 85-91, Crone/Minds, God’s Caliphs (1986), pp. 93, 98, 103; Bligh- Abramski, “The Judiciary (Qāḍīs) as a Governmental-Administrative Tool in Early Islam” (1992), pp. 51, 66-67, 70; Tillier, Les Cadis (2009), p.

585.

(mā ajmaʽa ʽalayhi al-aʽimma al-fuqahā’), i.e. with consensus.³²⁷ As an ultimate recourse in case of silence of the previous three sources of law, however, the adjudicator is to have recourse to his interpretive efforts (ijtihād), in consultation with the scholars (ahl al-ʽilm).³²⁸ Al-῾Anbarī clarifies that many judicial decisions of his time are not based on Qur’ān or Sunna but rather on the qāḍī’s independent legal reasoning (ijtihād).³²⁹

Both letters, probably the earliest and only ones by or for the political authorities on sources and methods in adjudication, are important in that they see the necessity for legal reasoning as non-scriptural source of law for adjudication, one in the more confined way of analogical reasoning, the other in the generic term for legal reasoning (ijtihād).³³⁰

This brief overview over the evolving nature of Islamic law and the debates Muslim jurists had about the course of law, showed that Islamic law is more than the delineation of the direct consequences of divine law.³³¹ The authority of Islamic law is not solely the authority of the text. Precisely in the absence of text, in the face of uncertainty, it is the authority of the jurist that makes authoritative law. This authority was accompanied by ongoing questions over how to construct the foundations of law and which were the

327 For the use of this, and similar, expressions, which were used before the technical term “ijmāʽ” as consensus came into dominant use, see Ansari, “Islamic Juristic Terminology” (1972), pp. 282 ff.

328 Wakīʽ, Akhbār al-quḍāt, II, p. 101.

329 Wakī῾, Akhbār al-quḍāt, II, p. 101.

330 The question of the authenticity of al-῾Anbarīs letter has been raised with some suspicion. The reference to the four sources theory of Islamic law that the qāḍī is to be conform to, is espoused a generation before Shāfi῾ī (d. 204/ 820). Zaman, Religion and Politics (1997) p. 88-89; On al-Shāfiʽī’s hierarchy of the sources of law, see Schacht, The Origins of Muhammadan Jurisprudence (1950), pp. 134-136.; Calder,

“Ikhtilāf and Ijmāʽ” (1983), pp. 77-79. That it was al- Shāfiʽī who shaped once and for all the future course of Islamic jurisprudence, as Schacht would have it, has been questioned and revised, however, see: Hallaq,

“Was al-Shāfiʽī the Master Architect” (1993), pp. 587- 605. Melchert, “The Formation” (1997), pp. 351-366. But al-Shāfiʽī did not invent the four-fold schema compromising the Qurʽān, sunna, and ra’y. A somewhat similar schema (with the absence of consensus, however) occurs in the longer of the two versions of the letter the caliph ʽUmar I is supposed to have written to Abū Mūsā al-Ashʽarī. Serjeant has argued that this version of the letter in fact originated in the early second century A.H., which means that we must also “date [the] existence of the theory on Qur’ān- sunna- qiyās- ra’y to early in the second century A.H.”, Serjeant, “The Caliph ʽUmar’s Letters” (1984), p. 78. To Wāṣil b. ʽAṭā’, the “founder” of the Muʽtazila, is also attributed a four-fold schema of “ kitāb nāṭiq wa khabar mujtamaʽ ʽalayh wa ḥujjat ʽaql wa ijmāʽ”, these, to him, were the criteria for the discernment of the truth (al-ḥaqq), and he is said to have originated it. Abū Hilāl al-ʽAskarī, al-Awā’il, ed. Muḥammad al-Miṣrī and Walīd al-Qaṣṣāb, Damascus (1975), II, p. 135, cited in van Ess, “L’autorité de la tradition prophetique”, pp. 213-216, and ibid.: “ Le contexte ne laisse pas douter que Wāṣil pense au ḥadīth… L’enumeration correspond au scheme quadripartite des uṣūl al-fiqh classiques, la preuve rationelle tenant la place du future qiyās.” Al-ʽAnbarī plea for conformity of the decisions to the Qur’ān, the Prophet’s sunna, and the scholar’s agreed opinion is thus not exceptional, for it had already surfaced in the thinking of the scholars of the age and milieu to which he belonged. Zaman, Religion and Politics (1997), p. 89.

331 See also Tomeh, “Persuasion and Authority” (2010), p. 143.

331 See also Tomeh, “Persuasion and Authority” (2010), p. 143.

better hermeneutical approaches to choose. The question whose authority would eventually trump amongst legal authorities that had to make judicial decisions in ambigious or difficult cases thus is intrinsically bound to the status of the law itself.

The science of legal theory (uṣūl al-fiqh) was gradually developed to aid jurists in their efforts to extend the scope of the law within and beyond the texts of revelation, particularly for cases ungoverned by the law. Significantly, jurists were conscious that the conclusions arrived at by their interpretive science could only be probable, never certain.³³² Precisely because of the consciousness for the uncertainty in determining the law, the question of authority of legal personae in applying, making the law in the face of uncertainty becomes crucial.

The core part of this chapter (Chapter Two, V.2.) thus is centred right at the heated debates about the making of legal theory in general and the use and scope of legal reasoning in particular. Judicial consultation was evidently particularly pertinent in a legal system that allowed itself so many debates on methodological challenges and

“mutual orthodoxies”.³³³