Read An Introduction to Islamic Law Online
Authors: Wael B. Hallaq
Tags: #Law, #General, #Jurisprudence, #History, #Middle East, #Religion, #Islam, #International, #Political Science, #Social Science, #Sociology
An Introduction to Islamic Law (3 page)
The central role of the
fatwa
in the Muslim court of law explains why the decisions of
judges were neither kept nor published in the manner practiced by modern courts. In other words, law was to be found not in precedent established by courts of law (a notion based on the doctrine of
STARE DECISIS
), but rather in a juristic body of writings that originated mostly in the answers given by
mufti
s.
fatwa
in the Muslim court of law explains why the decisions of
judges were neither kept nor published in the manner practiced by modern courts. In other words, law was to be found not in precedent established by courts of law (a notion based on the doctrine of
STARE DECISIS
), but rather in a juristic body of writings that originated mostly in the answers given by
mufti
s.
Thus, emanating from the world of legal practice, the
fatwa
s rather than court decisions were collected and published, particularly those among them that contained new law or represented new legal elaborations on older problems that continued to be of recurrent relevance. Such
fatwa
s usually underwent a significant editorial process in which legally irrelevant facts and personal details (e.g., proper names, names of places, dates, etc.) were omitted. Moreover, they were abridged with a view to abstracting their contents into strictly legal formulas, usually of the hypothetical type: “If X does Y under a certain set of conditions, then L (LEGAL NORM) follows.” Once edited and abstracted, these
fatwa
s became part and parcel of the authoritative legal literature, to be referred to and applied as the situation required
.
fatwa
s rather than court decisions were collected and published, particularly those among them that contained new law or represented new legal elaborations on older problems that continued to be of recurrent relevance. Such
fatwa
s usually underwent a significant editorial process in which legally irrelevant facts and personal details (e.g., proper names, names of places, dates, etc.) were omitted. Moreover, they were abridged with a view to abstracting their contents into strictly legal formulas, usually of the hypothetical type: “If X does Y under a certain set of conditions, then L (LEGAL NORM) follows.” Once edited and abstracted, these
fatwa
s became part and parcel of the authoritative legal literature, to be referred to and applied as the situation required
.
The great majority of Islamic legal works, however, were written not by the
mufti
, but rather by the
author-jurists who depended in good part on the
fatwa
s of distinguished
mufti
s. The author-jurists’ activity extended from writing short but specialized treatises to compiling longer works, which were usually expanded commentaries on the short works. Thus, a short treatise summing up the law in its full range usually came to about two hundred pages, and often elicited commentaries occupying as many as ten, twenty or thirty large volumes. It was these works that afforded the author-jurists the opportunity to articulate, each for his own generation, a modified body of law that reflected both evolving social conditions and the state of the art in the law as a technical discipline. The overriding concern of the author-jurists was the incorporation of points of law (for the most part
fatwa
s) that had become relevant and necessary to the age in which they were writing. This is evidenced in their untiring insistence on the necessity of including in their works “much needed legal issues,” deemed to be relevant to contemporary exigencies as well as those issues of “widespread occurrence.”
1
On the other hand, cases that had become irrelevant to the community and its needs, and having thus gone out of circulation, were excluded. Many, if not the majority, of the cases retained were
acknowledged as belonging to the “later jurisprudents” who had elaborated them in response to the emerging new problems in the community. Reflecting in their writings the “changing conditions of people and of the age,”
2
the author-jurists opted for later opinions that were often at variance with the doctrines of the early masters. It is also instructive that the
fatwa
s that formed the substance of later doctrine were those that answered contemporary needs and had at once gained currency in practice. On the other hand, those opinions that had ceased to be of use in litigation were excluded as weak or even irregular
.
mufti
, but rather by the
author-jurists who depended in good part on the
fatwa
s of distinguished
mufti
s. The author-jurists’ activity extended from writing short but specialized treatises to compiling longer works, which were usually expanded commentaries on the short works. Thus, a short treatise summing up the law in its full range usually came to about two hundred pages, and often elicited commentaries occupying as many as ten, twenty or thirty large volumes. It was these works that afforded the author-jurists the opportunity to articulate, each for his own generation, a modified body of law that reflected both evolving social conditions and the state of the art in the law as a technical discipline. The overriding concern of the author-jurists was the incorporation of points of law (for the most part
fatwa
s) that had become relevant and necessary to the age in which they were writing. This is evidenced in their untiring insistence on the necessity of including in their works “much needed legal issues,” deemed to be relevant to contemporary exigencies as well as those issues of “widespread occurrence.”
1
On the other hand, cases that had become irrelevant to the community and its needs, and having thus gone out of circulation, were excluded. Many, if not the majority, of the cases retained were
acknowledged as belonging to the “later jurisprudents” who had elaborated them in response to the emerging new problems in the community. Reflecting in their writings the “changing conditions of people and of the age,”
2
the author-jurists opted for later opinions that were often at variance with the doctrines of the early masters. It is also instructive that the
fatwa
s that formed the substance of later doctrine were those that answered contemporary needs and had at once gained currency in practice. On the other hand, those opinions that had ceased to be of use in litigation were excluded as weak or even irregular
.
Many of the works written and “published” by the author-jurists served as standard references for judges, who studied them when they were students and consulted them after being appointed to the judiciary. Hence, if the authority of the law resided in the
mufti
’s opinions and the author-jurist’s treatises, then the
judge – unless he himself was simultaneously a
mufti
and/or an author-jurist – was not expected to possess the same level of expert legal knowledge. This is to say that a person who was a
mufti
or an author-jurist could usually function as a judge, although a judge who was trained only as a judge could serve neither in the capacity of a
mufti
nor in that of an author-jurist
.
mufti
’s opinions and the author-jurist’s treatises, then the
judge – unless he himself was simultaneously a
mufti
and/or an author-jurist – was not expected to possess the same level of expert legal knowledge. This is to say that a person who was a
mufti
or an author-jurist could usually function as a judge, although a judge who was trained only as a judge could serve neither in the capacity of a
mufti
nor in that of an author-jurist
.
It is obvious that the business of a judge is to adjudicate disputes, which is indeed the chief task of a modern judge. But this task was only one of many other important duties that the Muslim judge, the
QADI
, had to undertake. The
qadi
, like the
mufti
, was a member of the community he served
. In fact, Islamic law itself insists that a
qadi
, to qualify for the position, has to be intimately familiar with the local customs and way of life in the community in which he serves. With the help of his staff, which we will briefly discuss in due course, he was in charge of supervising much in the life of the community. He oversaw the building of mosques, streets, public fountains and bridges. He inspected newly constructed buildings and the operation of hospitals and soup-kitchens, and audited, among other things, the all important
CHARITABLE ENDOWMENTS
. He looked into the care afforded by guardians to orphans and the poor, and himself acted as guardian in marriages of women who had no male relatives. Moreover, the
qadi
oftentimes played the exclusive role of mediator in cases that were not of a strictly legal nature. Not only did he mediate and arbitrate disputes and effect reconciliations between husbands and wives, but he also listened, for example, to the problems dividing brothers who might need no more than an outsider’s opinion.
QADI
, had to undertake. The
qadi
, like the
mufti
, was a member of the community he served
. In fact, Islamic law itself insists that a
qadi
, to qualify for the position, has to be intimately familiar with the local customs and way of life in the community in which he serves. With the help of his staff, which we will briefly discuss in due course, he was in charge of supervising much in the life of the community. He oversaw the building of mosques, streets, public fountains and bridges. He inspected newly constructed buildings and the operation of hospitals and soup-kitchens, and audited, among other things, the all important
CHARITABLE ENDOWMENTS
. He looked into the care afforded by guardians to orphans and the poor, and himself acted as guardian in marriages of women who had no male relatives. Moreover, the
qadi
oftentimes played the exclusive role of mediator in cases that were not of a strictly legal nature. Not only did he mediate and arbitrate disputes and effect reconciliations between husbands and wives, but he also listened, for example, to the problems dividing brothers who might need no more than an outsider’s opinion.
Furthermore, the Muslim court was the site in which important transactions between individuals were recorded, such as the sale of a house, the details of the estate of a person who had died, or a partnership contract concluded between two merchants. At times a person might approach the court merely to request that it take note of an insult directed at him or her by another, this being equivalent to building a “history” in the event a future dispute erupted with that person.
Equally important was the social site in which the
qadi
and his court functioned. Judges invariably sought to understand the wider social context of the litigating parties, often attempting to resolve conflicts in full consideration of the present and future social relationships of the disputants. Like mediators, but unlike modern judges, the
qadi
s tried hard, wherever possible, to prevent the collapse of relationships so as to maintain a social reality in which the litigating parties, who often came from the same community, could continue to live together amicably. Such a
judicial
act required the
qadi
to be familiar with, and willing to investigate, the history of relations (and relationships) between the disputants
.
qadi
and his court functioned. Judges invariably sought to understand the wider social context of the litigating parties, often attempting to resolve conflicts in full consideration of the present and future social relationships of the disputants. Like mediators, but unlike modern judges, the
qadi
s tried hard, wherever possible, to prevent the collapse of relationships so as to maintain a social reality in which the litigating parties, who often came from the same community, could continue to live together amicably. Such a
judicial
act required the
qadi
to be familiar with, and willing to investigate, the history of relations (and relationships) between the disputants
.
Finally, we must say a few words about the
law professor. The beginnings of legal education in Islam can in fact be traced back to the
mufti
s who emerged during the last two or three decades of the seventh century as private specialists in the law. They did not have salaries and their interest in the study of law was motivated by piety and religious learning. Around each of these early
mufti
s gathered a number of students – and sometimes the intellectually curious – who were interested in gaining knowledge of the
Quran and the biography of the
Prophet Muhammad as an exemplary standard of conduct. These gatherings usually took place in the new mosques that were built in the various cities and towns that had come under the rule of Islam. Following the practice of Arab tribal councils when they assembled to discuss important issues, these scholarly gatherings took the form of
CIRCLES
, where the
mufti
/professor would literally sit on the ground, legs crossed, having students and interested persons sit to his left and right in a circular fashion. (This was also the physical form that court sessions took.) Students did not have to apply formally to study with a professor, although his informal approval to have them join his circle was generally required – as was proper decorum on the part of the student. There were no fees to be paid, except the occasional gift the professor might have received from students or their family members. There were no diplomas or degrees conferred upon graduation, only a license issued by the professor attesting that the student had completed the study of a book that he in turn could transmit or teach to others. The license was personal, having the authority of the professor himself, not that of an impersonal institution (as are the degrees granted by today’s universities).
law professor. The beginnings of legal education in Islam can in fact be traced back to the
mufti
s who emerged during the last two or three decades of the seventh century as private specialists in the law. They did not have salaries and their interest in the study of law was motivated by piety and religious learning. Around each of these early
mufti
s gathered a number of students – and sometimes the intellectually curious – who were interested in gaining knowledge of the
Quran and the biography of the
Prophet Muhammad as an exemplary standard of conduct. These gatherings usually took place in the new mosques that were built in the various cities and towns that had come under the rule of Islam. Following the practice of Arab tribal councils when they assembled to discuss important issues, these scholarly gatherings took the form of
CIRCLES
, where the
mufti
/professor would literally sit on the ground, legs crossed, having students and interested persons sit to his left and right in a circular fashion. (This was also the physical form that court sessions took.) Students did not have to apply formally to study with a professor, although his informal approval to have them join his circle was generally required – as was proper decorum on the part of the student. There were no fees to be paid, except the occasional gift the professor might have received from students or their family members. There were no diplomas or degrees conferred upon graduation, only a license issued by the professor attesting that the student had completed the study of a book that he in turn could transmit or teach to others. The license was personal, having the authority of the professor himself, not that of an impersonal institution (as are the degrees granted by today’s universities).
During the first two centuries of Islam, the distinction between a
fatwa
assembly and a
teaching circle was not always clear-cut or obvious. In fact, to some extent, this situation continued to obtain even throughout the later centuries when a
mufti
sitting in a circle would announce the end of a
fatwa
session, would open another session for adjudicating cases – thus acting as a judge – and perhaps in the afternoon (at times after sharing a meal with his students) would set up yet another circle for teaching. (We often read in the sources that many JURISTS wrote their legal treatises during the night hours – and in seclusion – thereby acting in the capacity of
author-jurists. It must be said that those who acted in all four capacities were usually regarded as among the most accomplished jurists.)
fatwa
assembly and a
teaching circle was not always clear-cut or obvious. In fact, to some extent, this situation continued to obtain even throughout the later centuries when a
mufti
sitting in a circle would announce the end of a
fatwa
session, would open another session for adjudicating cases – thus acting as a judge – and perhaps in the afternoon (at times after sharing a meal with his students) would set up yet another circle for teaching. (We often read in the sources that many JURISTS wrote their legal treatises during the night hours – and in seclusion – thereby acting in the capacity of
author-jurists. It must be said that those who acted in all four capacities were usually regarded as among the most accomplished jurists.)
Some
fatwa
s encountered in a
fatwa
session might be discussed in the teaching circle, while some students who participated in the teaching or
fatwa
circle might act as witnesses when the circle was transformed into a court session
. Thus, while these three activities or spheres were different from each other, they were interrelated in several ways, at both the level of student participation and that of professor. If a person could act as a
mufti
, then he could teach, and was certainly qualified to perform the duties of a judge (provided, of course, that he had been appointed as
qadi
by the ruler or governor).
fatwa
s encountered in a
fatwa
session might be discussed in the teaching circle, while some students who participated in the teaching or
fatwa
circle might act as witnesses when the circle was transformed into a court session
. Thus, while these three activities or spheres were different from each other, they were interrelated in several ways, at both the level of student participation and that of professor. If a person could act as a
mufti
, then he could teach, and was certainly qualified to perform the duties of a judge (provided, of course, that he had been appointed as
qadi
by the ruler or governor).
Judges, as government appointees, were financially remunerated by the ruler for their work, but not so
mufti
s or professors (with the partial exception of later
OTTOMAN
practice, which we will discuss in due course). Still, during the first four or five centuries of Islam, even judges did not hold such appointments full-time, and when they did not, had to find, like
mufti
s and professors, other sources of income
. This is to say that until the legal profession was institutionalized, the jurists of Islam were not, in terms of gaining a livelihood, full-time legal professionals, however learned and skilled in the law they were. Thus, until the eleventh or twelfth century, the vast majority of jurists held other jobs, with many of them working as tanners, tailors, coppersmiths, copiers of manuscripts, and small merchants and traders. In other words, they generally belonged to what we call today the lower and middle, rather than the upper classes.
mufti
s or professors (with the partial exception of later
OTTOMAN
practice, which we will discuss in due course). Still, during the first four or five centuries of Islam, even judges did not hold such appointments full-time, and when they did not, had to find, like
mufti
s and professors, other sources of income
. This is to say that until the legal profession was institutionalized, the jurists of Islam were not, in terms of gaining a livelihood, full-time legal professionals, however learned and skilled in the law they were. Thus, until the eleventh or twelfth century, the vast majority of jurists held other jobs, with many of them working as tanners, tailors, coppersmiths, copiers of manuscripts, and small merchants and traders. In other words, they generally belonged to what we call today the lower and middle, rather than the upper classes.
2
The Law: how is it found?
Introduction
Transmission of texts
The Law: how is it found?
The question that we need to address briefly at this point is: How did the
mufti
s and
author-jurists derive the law from its sources? What, in other words, were the interpretive means and methods of reasoning through which the law was inferred? Before we proceed, however, an important point must be made.
mufti
s and
author-jurists derive the law from its sources? What, in other words, were the interpretive means and methods of reasoning through which the law was inferred? Before we proceed, however, an important point must be made.
Since the first century of Islam, Muslim
legal thinking has had to wrestle with the problem of the extent to which human reason can guide humankind in conducting its material and spiritual affairs. Some philosophers thought that the leading
intellectuals might be able to exercise their rational faculties in order to judge what is good and what is bad in the way we deal with each other as social beings, and with the natural world around us. They may know, thanks to their trained intellects, that a certain code of morality or a set of particular laws is
rationally
required for the orderly and civil functioning of society. They may even understand – given that they have all the facts at hand – that the natural environment around us must not be abused and that we are an integral part of this natural order. Damage that and we damage ourselves in the process.
legal thinking has had to wrestle with the problem of the extent to which human reason can guide humankind in conducting its material and spiritual affairs. Some philosophers thought that the leading
intellectuals might be able to exercise their rational faculties in order to judge what is good and what is bad in the way we deal with each other as social beings, and with the natural world around us. They may know, thanks to their trained intellects, that a certain code of morality or a set of particular laws is
rationally
required for the orderly and civil functioning of society. They may even understand – given that they have all the facts at hand – that the natural environment around us must not be abused and that we are an integral part of this natural order. Damage that and we damage ourselves in the process.
Yet law is not relevant only to intellectuals, since it is essential to society at large, i.e., to the uneducated man or woman as much as to the highly learned. How can ordinary people come to understand the need to abide by certain patterns of conduct if they do not possess the means to think through life’s intricate situations or the world’s more complex problems? How can even the elite intellectuals determine the exact way in which we should behave properly
? Thus, Islamic law and theology posed the central question: Does rational thinking,
on its own
, accomplish the job? Or, to put it differently, is rational thinking – even in its best forms – sufficient for Muslims to know precisely how to conduct themselves in their worldly and religious affairs? (To bring this point into sharp relief, and to continue with the aforementioned example about the natural
order, one might consider that our best rational and scientific thinking has led us – during the last century or so – to the virtual destruction of our natural environment.)
? Thus, Islamic law and theology posed the central question: Does rational thinking,
on its own
, accomplish the job? Or, to put it differently, is rational thinking – even in its best forms – sufficient for Muslims to know precisely how to conduct themselves in their worldly and religious affairs? (To bring this point into sharp relief, and to continue with the aforementioned example about the natural
order, one might consider that our best rational and scientific thinking has led us – during the last century or so – to the virtual destruction of our natural environment.)
The Muslim jurists and most Muslim theologians held the view that rational thinking is a gift from God and that we should fully utilize it – like everything else that He bestowed on us – in as wise and responsible a manner as possible. Just as His material blessings (the wealth some of us have come to possess) must be deployed for good works, our intellects must likewise be exercised for good causes. But what are these good works and causes? What is their
content
? If God granted us precious intellects, by what measure do we think about the world, about its human, material and physical components? In other words, how do we determine what is good and what is evil, what is beneficial and what is harmful in both the short and long runs? In yet other words, it is not only precisely
how
we think but also, and equally important,
what substantive assumptions
must we make when exercising our processes of thought? For example, the content of our modern rationalist thinking about the natural environment may be our immediate concern with material welfare and physical comfort (leading, among other things, to heavy industrialization), but the consequences of this thinking and the ensuing actions could well lead us to an environmental disaster. On the other hand, if the positive content of our rationalist thinking were to be, say, the integrity of the natural order (as, for example, Buddhism teaches), then our conclusions and therefore resultant actions and effects would be entirely different, despite the fact that nothing in our rationalist methods
themselves
has changed. It was precisely this dilemma that Muslims encountered virtually from the beginning of their religion. And their solution was, as it continued to be for centuries, that, however precious,
rationalist thought on its own is insufficient
.
content
? If God granted us precious intellects, by what measure do we think about the world, about its human, material and physical components? In other words, how do we determine what is good and what is evil, what is beneficial and what is harmful in both the short and long runs? In yet other words, it is not only precisely
how
we think but also, and equally important,
what substantive assumptions
must we make when exercising our processes of thought? For example, the content of our modern rationalist thinking about the natural environment may be our immediate concern with material welfare and physical comfort (leading, among other things, to heavy industrialization), but the consequences of this thinking and the ensuing actions could well lead us to an environmental disaster. On the other hand, if the positive content of our rationalist thinking were to be, say, the integrity of the natural order (as, for example, Buddhism teaches), then our conclusions and therefore resultant actions and effects would be entirely different, despite the fact that nothing in our rationalist methods
themselves
has changed. It was precisely this dilemma that Muslims encountered virtually from the beginning of their religion. And their solution was, as it continued to be for centuries, that, however precious,
rationalist thought on its own is insufficient
.
Islamic legal tradition adopted the position that, while our reason is to be exercised to its fullest capacity, the
content
of rational thinking must be predetermined, transcendental and above and beyond what we can infer through our mental faculties. Implied in this thinking was the assumption that humans simply do not understand all the secrets of the world, so that attempting to control it is to be vain and arrogant. God is the One who created the world and therefore the One who knows its secrets. We may exercise our intellects to their fullest capacity, but without His aid, we will overlook and misunderstand much. The content of rationality, in their thinking, must thus be predetermined by the all-knowing God, who has revealed a particular body of knowledge through the Quran and the Prophet. This combination, viewed as a marriage between reason and
revelation, was the ultimate source of law. Law, put differently, was the child of this marriage
.
content
of rational thinking must be predetermined, transcendental and above and beyond what we can infer through our mental faculties. Implied in this thinking was the assumption that humans simply do not understand all the secrets of the world, so that attempting to control it is to be vain and arrogant. God is the One who created the world and therefore the One who knows its secrets. We may exercise our intellects to their fullest capacity, but without His aid, we will overlook and misunderstand much. The content of rationality, in their thinking, must thus be predetermined by the all-knowing God, who has revealed a particular body of knowledge through the Quran and the Prophet. This combination, viewed as a marriage between reason and
revelation, was the ultimate source of law. Law, put differently, was the child of this marriage
.
With this background in mind, Muslim jurists proceeded to articulate a
theory of law (
USUL AL-FIQH
) that reflected the concerns and goals of this “marriage.” The theory began with the assumption that the Quran is the most sacred source of law, embodying knowledge that God had revealed about human beliefs, about God himself, and about how the believer should conduct himself or herself in this world. This human conduct was the domain of law, and to this end the Quran contained the so-called “
legal verses,” some five hundred in all (the others being theological, exhortative, etc.).
theory of law (
USUL AL-FIQH
) that reflected the concerns and goals of this “marriage.” The theory began with the assumption that the Quran is the most sacred source of law, embodying knowledge that God had revealed about human beliefs, about God himself, and about how the believer should conduct himself or herself in this world. This human conduct was the domain of law, and to this end the Quran contained the so-called “
legal verses,” some five hundred in all (the others being theological, exhortative, etc.).
But God also sent down a prophet, called
Muhammad, whose personal conduct was exemplary. Though not, according to Muslim tradition, endowed with divine qualities (as Jesus Christ is said to have been by Christians), Muhammad was God’s chosen messenger; he understood God’s intentions better than anyone else, and acted upon them in his daily life. Hence the exemplary nature of his biography, which became known in the legal literature
as
SUNNA
– the second major source of law after the Quran. The concrete details of the Sunna – that is, what the Prophet had done or said, or even tacitly approved – took the form of specific narratives that became known
as
HADITH
(at once a collective and a singular noun, referring to the body of
hadith
in general and to a single
hadith
, according to context). For example, the Sunna of the Prophet generally promotes the right to private
property, but the precise nature of this right was not made clear until the pertinent
hadith
s became known. Thus, we learn in one such
hadith
that when the Prophet once heard that someone had cultivated plants on the land of his neighbor without the latter’s knowledge, he said: “He who plants, without permission, in a lot owned by other people cannot own the crops although he is entitled to a wage [for his labor].” In the context of property rights, he also said: “He who unlawfully appropriates as much as one foot of land [from another], God will make seven pieces of land collapse on him when the Day of Judgment arrives.” These two
hadith
s, along with many others, give a good idea of what the Prophetic Sunna
– as an abstract concept – aims to accomplish in the vital area of property law
.
Muhammad, whose personal conduct was exemplary. Though not, according to Muslim tradition, endowed with divine qualities (as Jesus Christ is said to have been by Christians), Muhammad was God’s chosen messenger; he understood God’s intentions better than anyone else, and acted upon them in his daily life. Hence the exemplary nature of his biography, which became known in the legal literature
as
SUNNA
– the second major source of law after the Quran. The concrete details of the Sunna – that is, what the Prophet had done or said, or even tacitly approved – took the form of specific narratives that became known
as
HADITH
(at once a collective and a singular noun, referring to the body of
hadith
in general and to a single
hadith
, according to context). For example, the Sunna of the Prophet generally promotes the right to private
property, but the precise nature of this right was not made clear until the pertinent
hadith
s became known. Thus, we learn in one such
hadith
that when the Prophet once heard that someone had cultivated plants on the land of his neighbor without the latter’s knowledge, he said: “He who plants, without permission, in a lot owned by other people cannot own the crops although he is entitled to a wage [for his labor].” In the context of property rights, he also said: “He who unlawfully appropriates as much as one foot of land [from another], God will make seven pieces of land collapse on him when the Day of Judgment arrives.” These two
hadith
s, along with many others, give a good idea of what the Prophetic Sunna
– as an abstract concept – aims to accomplish in the vital area of property law
.
One of the concerns of
legal theory was to provide
criteria by which the subject matter of the
hadith
s (which, in their entirety, exceeded half a million) might be transmitted from one generation to the next in a reliable manner. The application of these criteria finally resulted in the acceptance of only about 5,000 sound
hadith
s. Thus, a
hadith
that had been passed down via a defective or interrupted chain of transmitters, or by transmitters known to be
untrustworthy, was held to lack any legal effect even
though its language might be clear and unequivocal. For example, if I know that a
hadith
was transmitted to me from A, B, C, D and F on the authority of the Prophet, but the identity of E is unknown to me or, alternatively, I know him to have been untrustworthy, then I cannot use the
hadith
for reasoning about the law
.
If the
hadith
passes the test of sound transmission but consists of ambiguous words whose exact meaning I am unable to determine with any precision, then the
hadith
is also rendered useless as the basis of legal reasoning.
legal theory was to provide
criteria by which the subject matter of the
hadith
s (which, in their entirety, exceeded half a million) might be transmitted from one generation to the next in a reliable manner. The application of these criteria finally resulted in the acceptance of only about 5,000 sound
hadith
s. Thus, a
hadith
that had been passed down via a defective or interrupted chain of transmitters, or by transmitters known to be
untrustworthy, was held to lack any legal effect even
though its language might be clear and unequivocal. For example, if I know that a
hadith
was transmitted to me from A, B, C, D and F on the authority of the Prophet, but the identity of E is unknown to me or, alternatively, I know him to have been untrustworthy, then I cannot use the
hadith
for reasoning about the law
.
If the
hadith
passes the test of sound transmission but consists of ambiguous words whose exact meaning I am unable to determine with any precision, then the
hadith
is also rendered useless as the basis of legal reasoning.
Even the Quran contains such ambiguous language, but in terms of transmission it is regarded as
wholly certain
, since the entire community of Muslims was involved in its conveyance from one generation to the next. This position stems from the
theory of
CONSENSUS
, namely, that it is inconceivable for the entire Muslim community to conspire on a falsehood, including forging or distorting the holy Book. Thus, for a text to be deemed credible beyond a shadow of doubt (i.e., to have certainty), it must meet this requirement of multiple transmission, which we will here call
RECURRENCE
. For recurrence to obtain, three conditions must be met: first, the text must be conveyed from one generation to the next through channels of transmission sufficiently numerous as to preclude any possibility of error or collaboration on a forgery; second, the first class of transmitters must have had sensory perception of what the Prophet said or did; and third, the first two conditions must be met at each stage of transmission, beginning with the first class and ending with the last narrators of the report.
wholly certain
, since the entire community of Muslims was involved in its conveyance from one generation to the next. This position stems from the
theory of
CONSENSUS
, namely, that it is inconceivable for the entire Muslim community to conspire on a falsehood, including forging or distorting the holy Book. Thus, for a text to be deemed credible beyond a shadow of doubt (i.e., to have certainty), it must meet this requirement of multiple transmission, which we will here call
RECURRENCE
. For recurrence to obtain, three conditions must be met: first, the text must be conveyed from one generation to the next through channels of transmission sufficiently numerous as to preclude any possibility of error or collaboration on a forgery; second, the first class of transmitters must have had sensory perception of what the Prophet said or did; and third, the first two conditions must be met at each stage of transmission, beginning with the first class and ending with the last narrators of the report.
Any text transmitted through channels fewer than those by which the recurrent report is conveyed is termed
SOLITARY
, although the actual number of channels can be two, three or even more. With the possible exception of a few, the
hadith
reports are generally considered solitary, and, unlike the Quranic text, they do not possess the advantage of recurrence. In fact, there were far more fabricated, and thus weak,
hadith
s than there were sound ones. But even these latter did not always engender certainty, since most were of the solitary type and therefore yielded only probable knowledge. If all this points to anything about Islamic law, it is its own acknowledgment that, as a practical field, religious law (mostly
hadith
-derivative) does not have to enjoy certainty. Certainty is necessary only when the issue at stake is either the status of one of the law’s
FOUR SOURCES
or a higher order of belief, such as the existence of God himself. As a system of belief and practice, the law on the whole cannot be considered legitimate or meaningful if one or more of its sources rests on probable, and thus uncertain, foundations; or if God himself, the originator of the Law, is not known to exist with certainty.
SOLITARY
, although the actual number of channels can be two, three or even more. With the possible exception of a few, the
hadith
reports are generally considered solitary, and, unlike the Quranic text, they do not possess the advantage of recurrence. In fact, there were far more fabricated, and thus weak,
hadith
s than there were sound ones. But even these latter did not always engender certainty, since most were of the solitary type and therefore yielded only probable knowledge. If all this points to anything about Islamic law, it is its own acknowledgment that, as a practical field, religious law (mostly
hadith
-derivative) does not have to enjoy certainty. Certainty is necessary only when the issue at stake is either the status of one of the law’s
FOUR SOURCES
or a higher order of belief, such as the existence of God himself. As a system of belief and practice, the law on the whole cannot be considered legitimate or meaningful if one or more of its sources rests on probable, and thus uncertain, foundations; or if God himself, the originator of the Law, is not known to exist with certainty.
As we intimated earlier, the
trustworthiness of individual transmitters played an important role in the evaluation of
hadiths
. The attribute that
was most valued, and in fact deemed indispensable and determinative, was that of being just, i.e., being morally and religiously righteous. A just character also implied the attribute of being truthful, which made one incapable of lying. This requirement was intended to preclude either outright tampering with the wording of the transmitted text, or interpolating it with fabricated material. It also implied that the transmitter could not have lied regarding his sources by fabricating a chain of transmitters, or claiming that he had heard the
hadith
from an authority when in fact he had not. He had also to be fully cognizant of the material he related, so as to transmit it with precision. Finally, he must not have been involved in dubious or “sectarian” religious movements, for if this were the case, he would have been liable to produce heretical material advancing the cause of the movement to which he belonged. This last requirement clearly suggests that the transmitter must have been known to be loyal to Sunnism, to the exclusion of any other community. The
TWELVER-SHI
IS
had a similar requirement.
trustworthiness of individual transmitters played an important role in the evaluation of
hadiths
. The attribute that
was most valued, and in fact deemed indispensable and determinative, was that of being just, i.e., being morally and religiously righteous. A just character also implied the attribute of being truthful, which made one incapable of lying. This requirement was intended to preclude either outright tampering with the wording of the transmitted text, or interpolating it with fabricated material. It also implied that the transmitter could not have lied regarding his sources by fabricating a chain of transmitters, or claiming that he had heard the
hadith
from an authority when in fact he had not. He had also to be fully cognizant of the material he related, so as to transmit it with precision. Finally, he must not have been involved in dubious or “sectarian” religious movements, for if this were the case, he would have been liable to produce heretical material advancing the cause of the movement to which he belonged. This last requirement clearly suggests that the transmitter must have been known to be loyal to Sunnism, to the exclusion of any other community. The
TWELVER-SHI
IShad a similar requirement.
Transmitters were also judged by their ability to transmit
hadith
s verbatim, for thematic transmission ran the risk of changing the wording, and thus the original intent, of a particular
hadith
. Furthermore, it was deemed preferable that the
hadith
be transmitted in full, although transmitting one part, thematically unrelated to the rest, was acceptable
.
hadith
s verbatim, for thematic transmission ran the risk of changing the wording, and thus the original intent, of a particular
hadith
. Furthermore, it was deemed preferable that the
hadith
be transmitted in full, although transmitting one part, thematically unrelated to the rest, was acceptable
.
The jurist may encounter more than one
hadith
relevant to the case he is trying to solve, or
hadith
s that may be contradictory or inconsistent with one another. If he cannot reconcile them, he must seek to make one
hadith
preponderant over another by establishing that the former possesses attributes superior to, or lacking in, the latter. The criteria of preponderance depend on the mode of transmission as well as on the subject matter of the
hadith
in question. For example, a
hadith
transmitted by mature persons known for their prodigious ability to retain information is superior to another transmitted by young narrators who may not be particularly known for their memory or precision in reporting. Similarly, a
hadith
whose first transmitter was close to the Prophet and knew him intimately is regarded as superior to another whose first transmitter was not on close terms with the Prophet. The subject matter also determines the comparative strength or weakness of a
hadith
. For instance, a
hadith
that finds thematic corroboration in the Quran would be deemed more weighty than another which finds no such support
. But if the procedure of weighing the two
hadith
s does not result in tipping the balance in favor of one against the other, the jurist may also resort to the procedure of
ABROGATION
, whereby one of the
hadith
s is made to repeal, and thus cancel out the effects of, another.
hadith
relevant to the case he is trying to solve, or
hadith
s that may be contradictory or inconsistent with one another. If he cannot reconcile them, he must seek to make one
hadith
preponderant over another by establishing that the former possesses attributes superior to, or lacking in, the latter. The criteria of preponderance depend on the mode of transmission as well as on the subject matter of the
hadith
in question. For example, a
hadith
transmitted by mature persons known for their prodigious ability to retain information is superior to another transmitted by young narrators who may not be particularly known for their memory or precision in reporting. Similarly, a
hadith
whose first transmitter was close to the Prophet and knew him intimately is regarded as superior to another whose first transmitter was not on close terms with the Prophet. The subject matter also determines the comparative strength or weakness of a
hadith
. For instance, a
hadith
that finds thematic corroboration in the Quran would be deemed more weighty than another which finds no such support
. But if the procedure of weighing the two
hadith
s does not result in tipping the balance in favor of one against the other, the jurist may also resort to the procedure of
ABROGATION
, whereby one of the
hadith
s is made to repeal, and thus cancel out the effects of, another.
Abrogation was also unanimously held as one of the key methods of dealing with contradictory
Quranic texts. But the theory of Abrogation
does not imply that the Quranic passages themselves are actually abrogated – only the legal rulings embedded in these passages.
Quranic texts. But the theory of Abrogation
does not imply that the Quranic passages themselves are actually abrogated – only the legal rulings embedded in these passages.
The fundamental principle of Abrogation is that one text repeals another contradictory text that was revealed prior to it in time. But abrogation may result from a clearer consideration, especially when the text itself stipulates that another should be superseded. An example in point is the Prophet’s statement: “I had permitted for you the use of the carrion leather, but upon receipt of this writing [epistle], you are not to utilize it in any manner.” Yet another consideration is the consensus of the community as represented by its scholars. If one ruling is adopted in preference to another, then the latter is deemed abrogated, since the community cannot agree on an error.
That the Quran can abrogate
hadith
s is evident, considering its distinguished religious stature and the manner of its transmission. And it is understandable why solitary
hadith
s cannot abrogate Quranic verses (although a tiny minority of jurists permitted this type of abrogation). However, the question that remained controversial was whether or not recurrent
hadith
s
could abrogate Quranic
verses
.
hadith
s is evident, considering its distinguished religious stature and the manner of its transmission. And it is understandable why solitary
hadith
s cannot abrogate Quranic verses (although a tiny minority of jurists permitted this type of abrogation). However, the question that remained controversial was whether or not recurrent
hadith
s
could abrogate Quranic
verses
.
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