Chapter Two. Normative Advice: Consultation as a Result of Uncertainty in Law
II. Early Formation of Islamic Legal Theory (Uṣūl al-Fiqh) and Schools of Law
1. Qur’ān and Sunna: Authoritative Texts
The Qur’ān is the primary source of normativity, it is the word of God revealed to Prophet Muhammad in Arabic, literally reproduced and transmitted by him, and finally written down. The Qur’ān encourages scholars to develop methods to discover its
277 Shāfi῾ī’s prominent legal theory of the four sources of Islamic law was proposed in the early ninth century C.E., and yet comes into full existence only in the second half of the tenth century, Hallaq, “Was Shāfi῾ī the Master-Architect” (1993), pp. 587-606; Hallaq, A History of Islamic Legal Theories (1997), p.33; Melchert, The Formation of the Islamic Schools of Law (1997).
278 This acceptance of “mutual orthodoxy” is a distinctive and much commented upon fact of Islamic legal theory. For rich and extended discussions both of the fact and its implications, see, for example, Johansen, B., Contigency in a Sacred Law (1999), p. 1-72; Weiss, The Spirit of Islamic Law (1998), pp. 88-144.
279 Johansen, “Genres of Legal Literature”, Encyclopedia of Legal History, (2009) vol. III, p. 321. Other jurists have come up with additional principles of interpretation as sources in Islamic law: maslaha al-mursala (public interest which is neither affirmed nor forbidden specifically in the primary sources);
istishab (presumption of continuity of the past conditions in a ruling); al-bara’a al-asliyya (the principle that things are originally permissible until forbidden); al-istiqra’ (inductive logic); sadd al-dhara’i’
(adopting preventive means); istidlal (extending the application of a ruling by human reason); istihsan (juristic preference); al-akhdh bi’l akhaff (choosing the minimum); and al-‘isma (infallibility of judgment).
Masud, “Ikhtilaf al-Fuqaha” (2009), p. 77, referencing Shihāb al-Dīn al-Qarafī (d. 1285) who lists nineteen sources used by the jurists. Qarāfī, Al-Dhakhira, p. 14.
meaning. The Qur’ān (3:7) declares that some of its verses are clear (muḥkam) and others are ambiguous (mutashābih). Scholars thus had to devise methods how to identify and distinguish the clear from the ambiguous verses. But even the clear verses evoked disagreement on the understanding of words, concepts, and phrases.280 Scholars developed theories of, for instance, abrogation (lex posteriori), contextualisation via the theory of reasons for revelation (asbāb al-nuzūl), or approaches to analyze the verses individually or systematically in the Qur’ān as a whole.281
The status of the Sunna and its authentication stirred much more debate. In fact, the Sunna was one of the main challenges for scholars, around which many questions of binding sources and interpretations circled.
Muslim legal scholars use the term Sunna to indicate legally relevant words or actions of the Prophet, or his tacit consent. While Sunna is the corpus of Prophetic traditions, the single tradition, or report, is called ḥadīth. The ḥaḍīth reports always come with attached chains of transmitters (isnād), in the form of “so and so related to me on the authority of so and so” and so on back to the text itself containing the information itself (matn). The information then was a statement of what the Prophet, or a close contemporary (a Companion) or sometimes someone from the following generation (a Successor) said or did in a particular situation.
The legally binding nature of the Sunna is first anchored in Qur’ānic verses that request the believers to obey the orders of the Prophet282, and second from the Prophet in which he approves or recommends people to follow the Qur’ān and his Sunna.283 They are considered to constitute legal precedents and thus have binding effect.
Yet, the status of the Sunna as a source of religio-legal authority is less clearly defined and more controversial than it may at first appear. In contrast to the Qur’ān, the Sunna does not consist of one (compiled) book containing divine speech but rather of a huge number of texts transmitted separately that had been put together by ḥadīth scholars in (what succeedingly would be called canonical) collections later (eight and ninth centuries C.E.).
280 Masud, “Ikhtilaf al-Fuqaha” (2009), p. 74.
281 On the methodologies of Qur’ānic studies, see e.g. Bauer, Aims, Methods and Contexts of Quranic Exegisis (2013).
282 For instance Qur’ān 4: 59; 65, 80; 59: 7; 33: 36; 24: 64.
283 Motzki, “Islamic Law: Transmission and Authenticity of the Reports of the Prophet” (2009), p. 331.
The corpus of Prophetic traditions (Sunna) is regarded as the second most important source of Islamic normativity alongside the Qur’ān, complementing the divine word with the exemplary practice of the Prophet and certain members of the early community. The Sunna thus can corroborate a legal rule of the Qur’ān, and it can also explain, specify, or state a rule of the Qur’ān more clearly. Yet the precise relationship between Qur’ān and Sunna caused debate between the scholars: Dispute rose over the cases in which a ḥadīth has no obvious anchoring in the Qur’ān or even contradicts a Qur’ānic verse. One central issue in the debate is whether the Sunna is a legal source independent of the Qur’ān and can replace a Qur’ānic rule. In the debate some argued that every legally relevant ḥadīth must be corroborated by the Qur’ān. Others took the view that that the Sunna has an independent probative force for the establishment of Islamic law.284
Possibly more far-reaching was the jurists’ debate on whether or not the sayings of selected members of the community, like the Companions of the Prophet or their Successors should be included in the Sunna, given that they often heard the Prophet elaborate on some (legal) problems and thus became a source of valuable normative information themselves. In fact, a significant development on the very definition of Sunna preceded this debate: Sunna is in fact an ancient Arab concept that means the exemplary mode of conduct. Thus there was a simulteaneous practice of referring to the statements and acts of other forebearers, like earlier Prophets and early companions.This meant that in the formative period, multiple and differing understandings of “Sunna” as precedence circulated, and allowed the judges to apply different legal precedence, which could be understood as “subjective notions of justice” 285. This is why caliphal secretary Ibn Muqaffa’ in his critique that there were too many understandings of Sunna in place, leading to a disorganized state of the law in the Empire, called for the codification of the law.286 This plural practice came to be increasingly critized, and around two hundred years later rejected by scholars, particularly by eminent jurist and school eponym Shāfi῾ī (d. 820). He successfully argued that Sunna needs to be focused on the reports of the
284 On the debate of the role of the Sunna regarding the Qur’ān, see Berg, The Development of Exegesis in Early Islam (2000).
285 Hallaq, Origins (2005), p. 46.
286 On (failed) codification, see Chapter Four, II.
Prophet and those elaborating on his Sunna, and not other forebearers. 287 This debate was relevant as it was a question of constituting precedent which was not allowed to be violated. If no Sunna existed on the question it meant that there was no consensus and that the lacuna was open for interpretation – and thus consultation. The question of the scope of Sunna, extending to the Companions and their Successors, was therefore also discussed in the advice literature for judges (adab al-qāḍī), addressed below288, aiding judges in sorting out in how far they were bound by precedent or could reach out for interpretive methods.
The disagreement about the criteria for an authentic ḥadīth became particularly pertinent for establishing precedent. The ḥadīth scholars devised complex methods to verify the reports of ḥadīth on the basis of reliability of the reporters (i.e. the chain of narrators linked to the Prophet Muhammad) and on the quality of information contained. Both criteria formed the categories for the soundness of the ḥadīth reports.
Like Qur’ān exegesis, ḥadīth scholarship developed into a highly elaborate science, especially with regard to the normativity of specific categories of reports.289 Methods and categories of criticism for grading transmitters and ḥadīths according to their reliability were devised, making Sunna a key source for Islamic law, yet one that evoked much argument.