The period under study, the early Abbasid period from 132/750-247/883-4, saw the emergence of a centralized, professionalized and bureaucratized judicial system as well as the rising production of the methodological study of law by scholars of law in what later came to be known as schools of law. Both developments lead to a rise of two elite personae that had to guard their authority vis-à-vis each other, despite the fact that they largely emerged from one and the same social and educational group. Significantly, this period did not establish evidence of formal regulations of legal authorities vis-à-vis each other. Neither rulers, nor officials nor recognized bodies of scholars determined a legal hierarchy that Muslims must accept - other than the worldly primacy of the caliph. The formative period is also relevant in that right after the death of the Prophet Muḥammad, who had acted as the primary interpreter of the text of revelation, the Muslim community debated how best to acquire an understanding of the Sharī῾a and how to develop a body of law for the Muslim community. Whose prerogative should the interpretation of Islamic law be? The formative period was one in which this question was particularly heavily debated.
a. Periodization of Law: The Early Abbasid Period
The Abbasid caliphate’s self-image was a driving force for the major innovations and reforms affecting legal personae, be they in the judiciary or the scholarly field: After their successful revolution taking over power from the Umayyads in 132/750, the Abbasids needed to live up to their promise that, unlike their predecessors, they are an Empire that serves justice. The Abbasid revolution had drawn mass support from the idea that rule by the house of the Prophet would bring true Islam and the end of injustice and oppression. Thus legitimacy and authority of the Abbasids was closely connected to a just and respected judiciary to which they have paid much attention.
There is much discussion and debate about the appropriate periodisation of various phases in Islamic legal history.182 Though dividing and labelling history into periods
182 J. Schacht’s history of Islamic law left a lasting mark on periodization, though the accompanying narrative has meanwhile been given much more nuances in some cases, or opposedly different bents in other cases. He divides Islamic legal history in formative (7-9th century C.E.), classical (9-10th century C.E.) and conformist (10-18th century), Schacht, An Introduction to Islamic Law (1964), p. 15-75. The formative period, so Schacht, lasted from the death of the Prophet in 632 C.E. to the middle of the ninth
remains a tricky undertaking, it may well be argued to identify the period from the death of the Prophet in 632 C.E. towards the middle of the ninth century as formative as Muslims came to settle main points on the sources and methodology of Islamic law.
Politically speaking, the coming of the Abbasid reign marked a decisive political break with the Umayyad past and both contemporaries and later writers saw it as a new beginning183, especially with reference to the politics of administering justice in the Empire on the one hand, and fostering good relations with Islamic legal scholars to boost Abbasid legitimacy. The first two centuries of Abbasid rule were characterized by a relative political continuity as represented by the caliphate as the sole source of worldly authority. Having said this, recurrent uprisings, civil wars as well as the influence by sectarian184 and military parties frequently tested the stability and unity of the Empire.185
The period in question is formative also with regard to administrative rules and regulations. Iraq, the central land of the Abbasid caliphate, was the laboratory for two systems that were central for the history of governance in Islam. The caliphate in its revitalized form meant that administrative reforms of the first Abbasids allowed a strengthening of central power, both political and judicial. By extension this meant a centralization, professionalization and bureaucratization of the judiciary, imbued with imperial state authority delegated by the caliph himself. Concurrently, during these two centuries, Islamic law took the "classical" form which continued to act as reference later:
The four great eponyms of Islamic law, Abu Ḥanifa, Mālik b. Anas, Shāfi῾ī and Aḥmad b. Hanbal, all practised during this time. Distinct schools of law (madhhabs) were gradually formed, in which some jurists lay the written foundations for Islamic normativity. Although the fluid nature of substantive doctrines associated with the earliest schools has given occasion to studies on whether the assembly of divergent
century. During this period, Muslim came to settle main points on the sources and methodology of Islamic law. To label this period “formative” is not to deny that Muslim scholarly thought maintained to evolve in important ways after it.
183 Kennedy, The Early Abbasid Caliphate (1981), p. 16.
184 Shortly after the Abbasid revolution, Shī῾ite doctrines of the rightful leadership (imamate) which has been the basis of Shī῾ite thought ever since, were elaborated and found a substantial following. Kennedy, The Early Abbasid Caliphate (1981), p. 16.
185 The making of the Abbasid Empire plays a role. Obviously, the Abbasid reign was anything but static throughout its five hundred years, until the Mongols sacked Baghdad in 1258. Even the early Abbasid period is marked by periods of transitions after change of dynasty, civil war, or rebellions and Abbasid reign remained regularly contested by its opposition. Though this dynamism cannot be captured throughout this work it is the stage on which Abbasid affairs take place.
views deserves the label “school”, or “Ḥanafī school”, for instance.186 This commendable call for a more nuanced and cautious use of demarcation lines does not exclude the fact that the law, the law-making agents and their struggle for what the law should be, was already taking place in full force. This is also why the period saw the rise of decentralized scholars of Islam (ulamā’) as a visible and increasingly influential religio-legal elite who left their imprints both on judges as well as on caliphs. At this crossroads of the political and legal domains, judicial institutions as well as legal scholarship had to define themselves vis-à-vis each other, as the ruler largely left it to the legal personae to arrange their relationship of authority in a self-regulatory system, while both judges and jurists effected the daily application and understanding of legal norms. This is the formative period when Islamic law became an academic object of debate187, and of scholarly disagreement. The importance of this period for the question lie in the nascent legal schools188, allowing for leeway in legal interpretation that lead to an effective normative pluralism as debated and applied at this time. This is the central period of any account of Islamic law, before legal orthodoxy and judicial practice were considered consolidated189, before thick layers of tradition imposed themselves on the scholarly and judicial course.
In contrast to succeeding periods of Islamic legal history, this period sticks out because rulers did not place limits on jurisdiction by exclusively choosing judges from one of the many law schools only (as done later on by the Ottomans around the 14th century). Nor did rulers appoint an official state muftī to whom judges were required to refer in legal questions (as installed by the Ottomans). The Ottomans chose both judges and official muftīs from the Ḥanafī school only and thus ensured that the overwhelming majority of jurists followed one legal understanding only. Normative pluralism, external and internal to the school of law, was strongly limited in comparison to earlier times, such as the Abbasids.
186 See Tsafrir, The History (2004), p. xi, In recognition of the divergent elements and the lack of full information about the doctrines of the time, she opts to call those associated with 2nd/8th Ḥanafism the
“Ḥanafī circle” rather than “Ḥanafī school,” which was not sharpened until the 3rd/9th century as marked by their participation in implementing the trials about the Createdness of the Qurʾān (miḥna) and fully in the 4th/10th century by the elaboration of legal theory (uṣūl al-fiqh). Ibid., p. xii-xiii.
187 Hallaq, “Juristic Authority vs. State Power” (2003-2004), p. 252.
188 The problem of categorizing second and third-century jurists and their texts as belonging to a distinct school therefore runs through the entire work, and is particularly discussed in Chapter Four, III 1.a.
189 Tillier, Les Cadis (2009), p. 22.
Even earlier, in the classical period starting around the 11th century, the conviction started to emerge that judges no longer mastered the tools of original legal reasoning on the basis of the revealed texts (ijtihād) and that thus judges should be required to follow the views of renowned representatives of their respective school of law. The judge was thus considered a legal conformist (muqallid), not qualified to exert independent legal reasoning anymore.190 This was a way to shape and strengthen an inner-school consensus (ijmā῾) and have judges and jurists follow the opinion that prevailed in the juristic consensus-making process, all geared towards consolidating the school’s understanding of the law.191
The Abbasid period therefore displays a variety of distinct features that raise issues of great relevance to this work’s intellectual pursuit: How was authority of law debated in the formative period, the period still unbound by canon and consensus (ijmā῾)? How was authority created when rigorously following the law school, legal conformism (taqlīd), was not yet and not alone a compelling argument to apply the respective school’s law?
How was authority constructed before scholars could and had to reference their legal opinion by a long tradition of prominent jurists of their respective schools of law? This is the period before the school of law became defined by a professed allegiance to the doctrines of its eponym and a core of legal texts that functioned as a curriculum.192 This is the formative period: When the question what the law was, was a particularly dynamic one.
The marking point is thus not one that is related to a change in the course of the Empire, but rather one that shows a change in the question of authority, in the relation between
190 Later adab al-qāḍī works recommended the judge to follow the views of renowned representatives of his school of law. Accordingly, the Shāfi῾ī jurist Ibn Abi Dam (d. 583/1187), for instance offered his readers and listeners, judges or judicial candidates, the legal opinions of the great legal Shāfi῾ī minds in a concise compilation.Ibn Abī Dam often gives an overview of the different positions of various scholars and then the dominant opinion in the school of law, i.e. the opinion that prevailed in the juristic consensus-making process, or his own preference- all geared towards consolidating the school’s understanding of the law. On the recommendations of Ibn Abī Dam’s Etiquette of Judge treatise adab al-qaḍā’, see Schneider, Das Bild des Richters (1990), p. 146. Similarly, eminent Andalusian jurist Ibn Rushd [Averroes] (d.
642/1244) adhering to the Mālikī school considered judges largely to be imitators (muqallids). Ibn Rushd largely built his typology of jurists and the qāḍī-muftī relationship on the distinction between mujtahid (qualified to exert independent legal reasoning) and muqallid (imitator). Muḥammad b.Aḥmad Ibn Rushd, Fatāwa Ibn Rushd, ed. Al-Mukhtār b. Ṭāhir al-Talīlī, 3 vols., Beirut, Dār al-Gharb al-Islāmī, 1978, III, 1494-1504; Hallaq, Authority (2001), p. 2.
191 For a detailed study of Ibn Abi Dam’s Adab al-qāḍā , see Schneider, Das Bild des Richters (1990) p.
146-152.
192 Lowry, “Shāfi῾ī” (2010), p. 236.
judge and jurisconsult. For the purposes of this work, this is why the year 883/4 marks the end of the early Abbasid period. This is when the title of the judge becomes honorary, and was emptied of a large part of its competences and activities, and was not automatically related to the function of adjudicating anymore. This can be exemplified by the new composition of the judiciary in the Iraqi cities of Basra, Kufa and Wasit:
Those officially carrying the qāḍi title in these three cities did not actually practice in their jurisdiction or even had set foot there. The qāḍī of Basra for instance, did not live there but in Baghdad and appointed delegates to Basra.193 On the ground, justice was dispensed by vice-judges (khalīfas), delegates of the official qāḍī. The qāḍīs of Basra (and of other cities) were no longer chosen because of their specific legal background but rather because they were men of power at court.194 The choice of qāḍīs became a reflection of the political strategies of the central power that were increasingly influenced by the powerful circles of secretaries and military.195 The influence of local legal scholars in the appointment of judges also was significantly reduced.196 From this time onwards, we do not know much about these local judges or vice-judges, and maybe precisely because no major judicial scandals were reported, it seems not far-fetched to assume that the local judges adjudicated in line with the locally dominant legal school, legal customs, and in line with the reasoning of local jurisconsults. No encounters between judge and jurisconsult thus for the later half of the third/ninth century were documented.
b. Geography of Law: Centralizing an Empire
Not only time but also space effects the development of law. In the case at hand, political geography had a profound impact on the workings of the judiciary and the establishment of the emerging schools of law.197
The early Abbasid caliphs ruled a vast empire, covering an area ranging from Ifriqiya (modern Tunisia and Eastern parts of Algeria)198 in the West to the Indian subcontinent in the East, including Central Asia and the Caucasus, Persia, Mesopotamia, the Ḥijāz
193 Tsafrir, The History of an Islamic School of Law (2004), p. 37.
194 Tsafrir, The History of an Islamic School of Law (2004), p. 37.
195 Tillier, Les Cadis (2009), pp. 124-131, 184.
196 Tillier, Les Cadis (2009), p. 184.
197 On the effect geography had on government and political life, see Kennedy, The Early Abbasid Caliphate (1981), p. 18-34.
198 Kennedy, The Early Abbasid Caliphate (1981), p. 25.
with Mecca and Medina, the Fertile Crescent of Syria and Palestine, Egypt, and Yemen in the South. The first and last time that conquests lead to an area this vast while politically, administratively and economically united, was when it was ruled a millennium earlier by Alexander the Great – only that the Abbasid reign over this territory lasted for several hundred years longer than Alexander’s brief lifetime.199
This territorial vastness lead to a great diversity of regional phenomena that, taken together, I call “geography of law”.200 The variety of physical geography, the make-up of the population with their local interests and the climate affecting agriculture, and thus wealth and political significance, left an impact on how the judicial system and the law developed regionally.
First, local jurisdiction of the courts were numerous, but courts were primarily located in the urban, densely populated areas of the empire, leaving the rest of the population to travel far distances to seek justice before court, to have judges travel to areas with scattered population to offer their adjudicational services – or to seek extrajudicial solutions to their problems by appealing to local jurisconsults either in the same city or further regions.201
Second, schools of law emerged as regional schools202, i.e. particular schools of law were strongly associated with particular urban centers. For instance, the Ḥanafī school was associated with the Iraqi city of Kufa, and their followers were often called “the people of Kufa” or “the people of Iraq”. Similarly, the Mālikī school was linked to the city of Medina in the Arab Peninsula, were its eponym Mālik b. Anas resided and its followers were called “people of Medina”. The spread of the schools developed differently in the respective cities and provinces of the empire and the scholars reacted differently to the spread of one school or perceived encroachments from other schools.
For instance, when the Shāfi῾ī school started to spread in Egypt, it was considered as
199 Gutas, Greek Thought, Arabic Culture (1998), p. 11.
200 On law as a geographical discourse of European Empires, and how Europeans imagined distant geographies and based legal practices on their assumptions of unbound territory, see Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (2009). On geographical mapping as reinforced social and legal control, see Edney, Mapping an Empire: The Geographical Construction of British India, 1765-1843, 1997. Also generally on the close connection of space, cartography, empire, and rule, see Sack, Human Territoriality: Its Theory and History, 1986.
201 In areas were the population was too scattered, (vice-)judges traveled around to offer adjudication, see the judges in local jurisdiction in Chapter Four, I. 3.a.aa.
202 Hallaq, “From Regional to Personal Schools” (2001).
dangerous competitor to the Mālikī school, its teachings and rules established.203 This
“fear” was justified: When qāḍīs earlier on introduced the Ḥanafī school to the Iraqi city of Basra, they were not only confronted with criticism of the local legal scholars, they gradually even replaced the Basran legal tradition, not without having incorporated some of their legal ideas into their school of law though.204 It is important to note though, that adherence to legal schools and methodologies also developed across the local setting and plurality within one city, and within one emerging school were a regular feature.205
Third, the empire was divided into centre and provinces, with unequal distribution of governmental-judicial and scholarly attention, with a focus on the centre and a few influential provinces, leaving some peripheries barely addressed.206 This distinction into center-province-periphery affected the development, spread and acceptance of Islamic law. It lead to “provinzielle Sonderentwicklungen”207 (particular provincial developments) through the encounter of imperial ruling with established local leadership, on questions of law just as well as on questions of government.208 Thus while the Iraqi centre received a lot of political, scholarly attention by the contemporaries, which meant that events were well-documented, many provinces, like the former centre Syria, ceased to attract attention. One province that was treated with great interest was Egypt, given the province’s agricultural wealth and importance for the Abbasid budget.209 Egypt’s judicial developments were therefore covered with much interest. 210 The relation of authority between qāḍī and muftī are thus to be studied and analyzed for Iraq and Egypt separately, and different outcomes in different places should not be surprising: Authority dynamics can be different in different circumstances.
203Al-Kindi, Kitāb al-Wulāh, p. 438.
204 On Basran jurisconsults’ resistance to Ḥanafī qāḍīs, see Chapter Three I. 2.2.
205 See Chapter Three I.2.2.
206 On the legal tensions between centers and peripheries as a constituent of spatial and legal differentiation see the seminal work of Greene, Peripheries and Centers (1986).
207 Van Ess, Theologie und Gesellschaft (1991), I, p. VII.
208 “Provinzielle Sonderentwicklungen” forces you to look into each city history as closely as possible:
while in some cities, legal circles were already clearly established and distinguished itself from other school argumentation (see the Iraqi city of Basra during the mid-late 2/8th century) which differed from Hanafi legal thought, Tillier, Les Cadis (2009), p. 176, in others, like the Iraqi city of Kufa it was difficult to name any school line that was predominately followed by the judiciary, see Tsafrir, “Semi-Ḥanafīs and Ḥanafī Biographical Sources“ (1996), p. 84-85; Tsafrir, The History of an Islamic School of Law (2004) p.
23; Melchert, The Formation (1997), p. 35. Tillier, Les Cadis (2009), p. 176. Yet again in Egypt, it was the Māliki-Ḥanafī school divide, later the Shāfi῾ī- Ḥanafī divide that caused divergence between the judiciary and the local legal scholars, see Chapter Three.
23; Melchert, The Formation (1997), p. 35. Tillier, Les Cadis (2009), p. 176. Yet again in Egypt, it was the Māliki-Ḥanafī school divide, later the Shāfi῾ī- Ḥanafī divide that caused divergence between the judiciary and the local legal scholars, see Chapter Three.