However the historian might view it, the Quran presented itself as a divine revelation with a direct and explicit connection to those earlier and authentic revelations given to the Jews and the Christians, the Tawra and Injil, as Muhammad called them, and like those earlier Scriptures—there seems to have been some uncertainty about the contents of the Gospels—the Quran was intended to spell out what islam, “submission to the will of God,” signified in terms of concrete human acts. Some small part of the Quranic injunctions is devoted to what might broadly be called ceremonial or liturgical acts: prayer, fasting, and the like. But where specific acts are prescribed or forbidden, most of them have to do with questions of personal status such as the treatment of heirs, women, slaves, and orphans; with the reformation of morals, criminal procedures, and the observance of binding contracts. Muhammad could address these issues as they arose in his small community of believers. We may suppose that there were at least some other prescriptions rendered by him that are not recorded in the Quran and, what is virtually certain, that Muhammad acted as sole judge and arbitrator for the community of Muslims.
There is implicit in all that Muhammad did and preached the notion that there is such a thing as an Islamic “way” (shari‘a), which resembled the Jewish and the Christian “ways” in that it came from God, but which stood in sharp opposition to both the religious paganism and degenerate tribal custom of the contemporary Arabs of the “Era of Ignorance.” But the Islamic “way” was no more explicit and formal than the random precepts of the Quran that defined it, and at Muhammad’s death in 632 C.E., God’s revelation was ended and the Quran had become forever a closed Book. At that very moment, however, the Muslim community, which was endowed with only the most rudimentary religious and secular institutions, was poised at the beginning of an immense military and political expansion that would carry it within a short time from Spain to the Indus.
We possess only the vaguest idea of how the Muslims conducted their legal affairs in the first century after the death of the Prophet. The Caliph was recognized as the chief judge (qadi) of the community, as Muhammad had been, and he delegated this judicial power to others in the provinces of the new Islamic empire. But how the qadis rendered their judgments to other Muslims—Muslim justice applied only to Muslims; Jews and Christians continued under their own juridical traditions—we can only surmise, though it was probably on the basis of local custom, caliphal instruction, their own understanding of the Quran and perhaps an embryonic sense of an Islamic “tradition.”
There were those who found such pragmatic and even secular arrangements in God’s own community unsettling, and out of that dissatisfaction, which was reinforced by political, financial, and tribal disenchantment with the current dynasty of Muslim rulers, there arose in certain traditionist circles the first debates over what it meant to be a Muslim and to pursue an Islamic “way” in all its ethical and legal implications. The results are sketchy, but we can observe that to validate their conclusions those early pioneers in Muslim jurisprudence (fiqh) appealed not only to the Quran, as might be expected in a revealed religion, but increasingly to “the customary practice (sunna) of the Prophet.”
By the ninth century, two hundred years after the death of the Prophet, the resort to tradition, and more specifically, to the Prophet’s tradition, had become a central concern in shaping the behavioral contours of a Muslim life. The littérateur al-Jahiz (d. 886 C.E.) offered his readers this explanation of the presence of a large body of “reports” (hadith) emanating from the Prophet that were circulating in Islam.
God knows that man cannot of himself provide for his own needs, and does not intuitively understand the consequences of things without the benefit of the example of messengers, the books of his ancestors, and information about past ages and rulers. And so God has assigned to each generation the natural duty of instructing the next, and has made each succeeding generation the criterion of the truth of the information handed down to it. For hearing many unusual traditions and strange ideas makes the mind more acute, enriches the soul, and gives food for thought and incentive to look further ahead. More knowledge received orally means more ideas, more ideas mean more thought, more thought means more wisdom, and more wisdom means more sensible actions.…
Since God did not create men in the image of Jesus, son of Mary, John, son of Zachariah, and Adam, father of humankind, but rather He created them imperfect and unfit to provide for their own needs … He sent His Messengers to them and set up His Prophets among them, saying, “Man should have no argument against God after the Messengers” (Quran 4:163). But most men were not eyewitnesses to the proofs of His Messengers, nor did God allow them to be present at the miracles of His Prophets, to hear their arguments or to see their manner of working. And so it was needful that those who were present tell those who were absent, and the latter attend to the teaching of the former; and He needed to vary the characters and the motives of those who were doing the transmitting, to show to their hearers and the faithful generally that a large number of people with differing motives and contrasting claims could not all have invented a false tradition on the same subject without collusion and conspiring on the subject…. For if they had, it would be known and spoken of abroad … and men would have the greatest of proofs against God, as He said, “That man should have no argument against God after the Messengers”; for He would be enjoining on them obedience to His Messengers, faith in His Prophets and His Books, and belief in His heaven and His hell, without giving them proof of tradition or the possibility of avoiding error. But God is far above such. (Jahiz, The Proofs of Prophecy 125–126)
His mildly rationalizing and utilitarian view of tradition in general and Islamic tradition in particular may have interested the more sophisticated readers of the cultured and clever Jahiz, but for most Muslims, “the tradition” or “the traditions” had quite another import: by Jahiz’s day they already provided the basis of a great deal of Muslim belief and practice. In Arabic “a tradition” (hadith) and “the tradition” (sunna) mean two different things, neither entirely synonymous with what is understood by the English term “tradition.” “A tradition,” when it is being used in its technical sense, means a report of some saying or deed of the Prophet that is transmitted on the witness and authority of one of the men or women around him, the “Companions of the Prophet,” as they came to be called. It will generally be called here “a Prophetic tradition.” “The tradition” is actually “the tradition of the Prophet,” that is, his customary behavior (sunna), his teaching or example, as it is reflected in those just mentioned reports.
“The tradition of the Prophet” was as authoritative as the Quran for Muslims, from both a legal and a doctrinal point of view, as indeed some Prophetic traditions themselves assert.
Al-Irbad al-Sariya declared that God’s Messenger got up and said: “Does any of you, while reclining on his couch, imagine that God has prohibited only what is to be found in the Quran? By God, I have commanded, exhorted and prohibited various matters as numerous as what is found in the Quran, or more numerous.” (Baghawi, Mishkat al-Masabih 6.1.2)
Aisha said: God’s Messenger did a certain thing and gave permission for it to be done, but some people abstained from it. When God’s Messenger heard of it, he delivered a sermon, and after extolling God he said: “What is the matter with people who abstain from a thing which I do? By God, I am the one of them who knows most about God and fears Him most.” Bukhari and Muslim transmit this tradition. (Baghawi, Mishkat al-Masabih 6.1.1)
That the earliest Muslims followed the example of their Prophet, “who knows most about God,” would seem to need little argument or demonstration. But there were other means of defining moral and legal action for a Muslim, adherence to local custom, for example, or even resort to some kind of analogical reasoning to elicit expanded or additional legal prescriptions from the Quran’s “clear declarations.” It was in this more polemical context that the role of “the Prophetic tradition” began to be argued in Islam. The earliest and most powerful case for the role of the Prophet’s own authentic words and deeds, his “tradition,” as the primary instrument for understanding the legal material in the Quran was made by the pioneer Egyptian Muslim jurist al-Shafi‘i (d. 820 C.E.) in his Treatise on the Roots of Jurisprudence. The argument begins, as always, with the Book itself.
Shafi‘i said: God has placed His Messenger—(in relation) to His religion, His commands and His Book—in the position made clear by Him as a distinguishing standard of His religion. He did this by imposing (on the earliest Muslims) the duty of obedience to him as well as prohibiting disobedience to him. He has made his merits evident by associating belief in His Messenger with belief in Him…. He said:
“They alone are true believers who believe in God and His Messenger, and when they are with him on a matter of common concern, do not depart without obtaining his leave.” (Quran 24:62)
Thus God prescribed that the perfect beginning of the faith to which all things are subordinate shall be belief in Him and then in His Messenger. For if a person believes only in Him and not in His Messenger, the name of the perfect faith will never apply to him until he believes in His Messenger together with Him. (Shafi‘i, Treatise) [SHAFI‘I 1961: 109–110]
On this principle that belief in God is necessarily accompanied by belief in the Messenger of God, Shafi‘i then proceeds to bind the notion of the Prophet’s custom into the scriptural proof. This he does by understanding the concept of “wisdom,” where it occurs in the phrase “the Book and the Wisdom,” as a reference to the words and deeds of the Prophet himself.
Shafi‘i said: God has imposed the duty on men to obey His divine commands as well as the tradition of His Messenger. For he said in His Book:
“Send to them, O Lord, a Messenger from among them to impart Your messages to them, and teach them the Book and the wisdom, and correct them in every way; and indeed, You are mighty and wise.” (Quran 2:129)
After citing a number of almost identical passages, Shafi‘i continues.
So God mentioned His Book, which is the Quran, and Wisdom, and I have heard that those who are learned in the Quran, whom I approve, hold that Wisdom is the tradition of the Prophet of God, which is like what God Himself said; but God knows best! For the Quran is mentioned first, followed by Wisdom; then God mentioned His favor to mankind by teaching them the Quran and Wisdom. So it is not permissible for Wisdom to be called here anything save the tradition of the Messenger of God. For Wisdom is closely linked with the Book of God, and God has imposed the duty of obedience to His Messenger, and imposed on men the obligation to obey his orders. So it is not permissible to regard anything as a duty save that set forth in the Quran and the tradition of the Prophet. (Shafi‘i, Treatise) [SHAFI‘I 1961: 110–122]
That what Muhammad said and did reflected nothing but the will of God is easily demonstrated by Shafi‘i, by reference to passages like the following, for example.
O Prophet, fear God and do not follow the unbelievers and the hypocrites. But follow what is revealed to you from your Lord. Verily, God is All-knowing, All-wise. Truly, God is aware of the things you do. (Quran 33:1–2)
O Messenger, announce what has reached you from your Lord, for if you do not, you will not have delivered His message. God will preserve you from the mischief of men; for God does guide those who do not believe. (Quran 5:67)
In certifying that the Prophet guides mankind along a straightforward path—the path of God—and that he delivers His message and obeys His commands, as we have stated before, and in ordering obedience to him and in emphasizing all this in the (divine) communications just cited, God has given evidence to mankind that they should accept the judgment of the Messenger and obey his orders. (Shafi‘i, Treatise) [SHAFI‘I 1961: 118]
Shafi‘i’s argument has now reached a crucial juncture.
Shafi‘i said: Whatever the Messenger has decreed that is not based on any (textual) command from God, he has done so by God’s command…. For the Messenger had laid down a tradition (on matters) for which there is a text in the Book of God as well as for others concerning which there is no specific text. But what he has laid down in the Prophetic tradition God has ordered us to obey, and He regards our obedience to him (Muhammad) as obedience to Himself, and refusal to obey him as disobedience to Him for which no man will be forgiven; nor is an excuse for failure to obey the Prophet’s tradition possible owing to what I have already stated and what the Prophet himself has said.
Shafi‘i then quotes a Prophetic tradition that seems aimed directly at Quranic fundamentalists.
Sufyan told us from Salim Abu al-Nadr, a freed slave of Umar ibn Ubaydallah, who heard Ubaydallah ibn Abi Rafi‘ related from his father that the Messenger had said: “Let me find no one of you reclining on his couch, and when confronted with an order of permission or prohibition from me, say: ‘I do not know (if this is permitted or prohibited); we will follow only what we find in the Book of God.’” (Shafi‘i, Treatise) [SHAFI‘I 1961: 118–119]
In the wake of Shafi‘i’s arguments, both the Prophetic tradition and the discrete reports that constituted it began to be carefully studied by Muslim scholars, as Ibn Khaldun explains in his Prolegomenon to History, written in 1377 C.E.
It should be known that the sciences with which people concern themselves in cities and which they acquire and pass on through instruction are of two kinds: one that is natural to man and to which he is guided by his own ability to think, and a traditional kind that he learns from those who invented it.
The first kind comprises the philosophical sciences. They are the ones with which man can become acquainted through the very nature of his ability to think and concerning whose objects, problems, arguments and methods of instruction he is guided by his human perceptions, so that he is made aware of the distinction between what is correct and what is wrong in them by his own speculation and research, inasmuch as he is a thinking human being.
The second kind comprises the traditional, conventional sciences. All of them depend upon information based on the authority of the given religious law. There is no place in the intellect for them, save that the intellect may be used in connection with them to relate problems of detail with basic principles. Particulars that constantly come into being are not included in the general tradition by the mere fact of its existence. Therefore, such particulars need to be related (to the general principles) by some kind of analogical reasoning. However, such analogical reasoning is derived from the (traditional) information, while the character of the basic principle, which is traditional, remains valid [that is, unchanged]. Thus analogical reasoning of this type reverts to being tradition itself, because it is derived from it.
It is clear from Ibn Khaldun’s remarks that he is not using “traditional” in the sense of “ordinary,” “usual,” or “the way things have always been done,” but rather in the original sense of “handed down,” and so, somewhat more awkwardly in English, of the “traditioned” sciences, where it is not so much a question of a science that had been handed down as of a science using “traditioned” data. All those data derive, as he next indicates, from the twin source of the Quran and the reported, or “traditioned,” behavior of the Prophet.
The basis of all the traditional [that is, “traditioned”] sciences is the legal material of the Quran and the customary behavior (sunna) of the Prophet, which is the law given us by God and His Messenger, as well as the sciences connected with that material, by means of which we are enabled to use it. This, further, requires as auxiliary sciences the sciences of the Arabic language [that is, grammar, rhetoric, lexicography, etc.]. Arabic is the language of Islam and the Quran was revealed in it.
The different kinds of traditional sciences are numerous, because it is the duty of the responsible Muslim to know the legal obligations God placed upon him and upon his fellow men. The are derived from the Quran and the reported behavior of the Prophet, either from the text itself or through general consensus, or a combination of the two. Thus he must first study the explicit wording of the Quran. This is the science of Quran interpretation. Then he must study the Quran, both with reference to the manner in which it has been transmitted and related on the authority of the Prophet who brought it from God, and with reference to the differences in the readings of the Quran readers. This is the science of Quranic “reading.”
Then he must study the manner in which the behavior of the Prophet is connected with its originator [that is, Muhammad], and he must discuss the transmitters who have handed it down. He must know their circumstances and their probity, so that the information he receives from them may be trusted and so that one may be able to know the part of it in accordance with whose implications one must act. These are the sciences of Prophetic tradition.
Then the process of evolving the laws from their basic principles requires some normative guidance to provide us with the knowledge of how that process takes place. This is the science of the principles of jurisprudence. After one knows the principles of jurisprudence, one can enjoy, as its result, the knowledge of the divine laws that govern the actions of all Muslims. This is jurisprudence proper.
Furthermore, the duties of the Muslim may concern either the body or the heart. The duties of the heart are concerned with faith and the distinction between what is to be believed and what is not to be believed. This concerns the articles of faith which deal with the essence and the attributes of God, the events of the Resurrection, Paradise, punishment and predestination, and entails discussion and defense of these subjects with the help of intellectual arguments. This is speculative theology [see chapter 8 below]. (Ibn Khaldun, Muqaddima 6.9) [IBN KHALDUN 1967: 2:436–438]
As we have already seen, there was no doubt in Muslim circles that the Quran was the inspired word of God. Likewise, for the Prophetic traditions, there is some internal testimony in a few of those reports that some at least of Muhammad’s words were the result, and enjoyed the authority of, a divine inspiration. The following is reported on the authority of the Prophet’s companion Ubayda.
The descent of inspiration was troublesome to the Prophet. His face would go ashen in color. One day inspiration came down on him (possibly just after the revelation of Sura 4:15) and he showed the usual signs of distress. When he recovered, he said: “Take it from me! God has appointed a way for the women: the non-virgin with the non-virgin and the virgin with the virgin. The non-virgin, one hundred strokes and death by stoning; the virgin, one hundred strokes and banishment for a year.” (Bayhaqi) [Cited by burton 1977: 74]
The theologian al-Ghazali puts the Muslim position on the Prophetic traditions succinctly.
God does not have two words, one in the Quranic style which we are bidden to recite publicly, and called the Quran, while the other word is not Quran. God has but one word which differs only in the mode of its expression. On occasions God indicates His word by the Quran; on others, by words in another style, not publicly recited, and called the Prophetic tradition. Both are mediated by the Prophet. (Ghazali, Mustasfa 1.125) [Cited by BURTON 1977: 57]
The Muslim tradition is unanimously agreed that parts at least of the Quran were written down, whether “on palm leaves or flat stones or in the hearts of men,” during the Prophet’s own lifetime. There is no such unanimity concerning the Prophetic traditions, however, as these two widely circulated reports testify.
Abdullah ibn Umar reported: We said, “O Prophet of God, we hear from you traditions which we cannot remember. May we not write them down?” “By all means write them down,” he said.
Abu Hurayra reported: The Prophet of God came to us while we were writing down traditions and said, “What is this you are writing down?” We said, “Traditions which we hear from you.” Said he, “A book other than the Book of God! Do you not know that it was nothing but the writing of books other than the Book of God that led astray the peoples who were before you?” We said, “Are we to relate traditions from you, O Prophet of God?” He replied, “Relate traditions from me; there is no objection to that. But he who intentionally speaks falsely on my authority will find a place in hell.” [Cited by GUILLAUME 1924: 15–16]
That some were in fact speaking falsely on the authority of the Prophet must have been apparent to everyone who looked into the matter of the Prophetic traditions. The reported words of the Prophet were important not merely for the understanding of the legal material in the Quran but also for the settling of various historical claims. The Shi‘ites, for example, those partisans of the Imamate of Ali (see chapter 3 above), bolstered their claims to rulership in Islam not merely by charging that the text of the Quran had been deliberately tampered with; they also interpreted the extant text in a different fashion. How can one determine the truth or falsity of such a claim? This is the question posed by the essayist al-Jahiz (d. 886 C.E.) in his tract called The Uthmanis.
The radical Shi‘ites claim that God revealed several verses regarding Ali, notably the following: “Obey God, obey God’s Messenger and those in authority among you” (Quran 4:62), in which “those in authority” refers to Ali and his descendants. In truth, if traditionists were agreed that this verse refers to Ali and his descendants, then we must accept it; but if it [that is, this reported interpretation] is spurious, transmitted on weak authority, it is not only weak but exceptional, and you cannot account it part of your evidence. A Prophetic tradition can derive from a single reliable source and be transmitted on equally sound authority, but it is still reckoned “exceptional” unless it is widely known and a matter of common knowledge. On the other hand, a tradition can be transmitted by two or three persons regarded by traditionists as weak authorities, and in that case it is weak by reason of the weakness of its transmitters; but it still cannot be described as “exceptional” as long as it is transmitted by three authorities. The only sure proof lies in traditions that are transmitted in such a fashion that deliberate forgery or conspiracy to forge can be ruled out. These are the accepted Prophetic traditions.
A tradition is accepted not merely because of the number and reliability of its transmitters, but because it has been transmitted by a number of authorities whose motives and inclinations are so different that they could not have possibly conspired together to utter a forged Prophetic tradition. Then the compiler must satisfy himself that these different authorities transmitted the tradition through an equal number of transmitters of equally different motives and tendencies. If the final version then corresponds with the original, conviction is inescapable and doubt and suspicion are excluded.
Turning to the claim that in the verse “Obey …” God was referring to Ali to the exclusion of all the (other) Migrants, the report on which this interpretation rests does not fulfill these conditions or fit this description. Indeed, the commentators suggest that it refers rather to the Prophet’s officers and governors, to Muslims in general or to the leaders of expeditions … and that it is an injunction to the people to obey the commanders of the army and submit to the civil administration (of the community). (Jahiz, The Uthmanis 115)
Nor was sectarianism the only cause for the multiplication of Prophetic traditions, some of them of very doubtful authenticity. Within less than a hundred years after the death of Muhammad the “traditions of the Prophet” were being invoked ever more frequently and systematically in the elaboration of Islamic law. This new approach to Islamic law, which is typified in the Muslim jurisprudent al-Shafi‘i (d. 820 C.E.), created a new demand for traditions, and the supply soon began to rise to meet it.
Some idea of the enormous number of traditions that were eventually credited to the Prophet may be gotten from the fact that when Muslim scholars sat down to collect these reports, one of them, al-Bukhari (d. 870 C.E.), had reputedly accumulated 600,000 such, of which only 7,275 were included in his anthology, a number that may perhaps be reduced to 4,000 or even 2,762 when repetitions are eliminated. Another scholar, Abu Dawud, used only 4,800 out of his collection of some 500,000 Prophetic traditions in his anthology.
One Muslim response to this unchecked growth in the number of Prophetic traditions was to do as Jahiz had done, to develop a more critical attitude toward these reports and to attempt to separate, if not the authentic from the spurious, then the “sound” from the “weak.” The chief method of proceeding was to scrutinize the chain of transmitters that each tradition now self-consciously bore as a sign of its own authenticity. Ibn Khaldun (d. 1406 C.E.) describes the fully developed science of tradition criticism in the survey of the Islamic sciences that he incorporated into his Prolegomenon to History.
The purpose of the discipline is a noble one. It is concerned with the knowledge of how to preserve the traditions transmitted on their authority of the Master of the religious law [that is, Muhammad], until it is definite which are to be accepted and which are to be rejected.
It should be known that the men around Muhammad and the men of the second generation who transmitted the traditions were well known in the cities of Islam. There were transmitters in the Hijaz, in Basra and Kufa [the early Muslim garrison towns in Iraq], and then in Egypt and Syria. They were famous in their time. The transmitters in the Hijaz had fewer links in their chains of transmitters and they were sounder, because they were reluctant to accept (as reliable transmitters) those who were obscure and whose conditions were not known….
At the beginning, knowledge of the religious law was entirely based on (oral) tradition. It involved no speculation, no use of opinion, and no intricate reasoning. The early Muslims occupied themselves with it, selecting the sound material, and thus eventually perfected it. Malik wrote the Kitab al-Muwatta according to the Hijazi tradition, in which he laid down the principal laws on the basis of sound, generally agree-upon (material). He arranged the work according to juridical categories. (Ibn Khaldun, Muqaddima 6.11) [IBN KHALDUN 1967: 2:452–453]
Another of the sciences of tradition is the knowledge of the norms that leading tradition scholars have invented in order to know the chains of transmitters, the (individual) transmitters, their names, how the transmission took place, their conditions, their classes, and their different technical terminologies. This is because general consensus makes it obligatory to act in accordance with information established on the authority of the Messenger of God. This requires probability for the assumption that the information is true. Thus the independent student must verify all the means by which it is possible to make such an assumption.
He may do this by scrutinizing the chains of transmitters of traditions. For that purpose one may use such knowledge of the probity, accuracy, thoroughness and lack of carelessness or negligence as the most reliable Muslims describe a transmitter as possessing. Then, there are the differences in rank that exist among the transmitters. Further, there is the way the transmission took place. The transmitter may have heard the shaykh (dictate the tradition), or he may have read it (from a book) in his presence, or he may have heard it read (by another) in the presence of the shaykh or the shaykh may have written it down for him, or he may have obtained the approval of the shaykh for written material, or he may have obtained his permission to teach certain materials. (Ibn Khaldun, Muqaddima 6.11) [IBN KHALDUN 1967: 2:448–449]
This careful scrutiny of the transmitters of any given tradition allowed the scholar to categorize the tradition in question and to rate it according to the criteria he had set up.
There are differences with regard to the soundness or acceptability of the transmitted material. The highest grade of transmitted material is called “sound” (by the tradition scholars). Next comes “good.” The lowest grade is “weak.” The classification of traditions also includes “missing the original transmitter on Muhammad’s authority,” “missing one link,” “missing two links,” “affected with some infirmity,” “unique,” “unusual” and “unique and suspect.” In some cases there is a difference of opinion as to whether such traditions should be rejected. In other cases, there is general agreement that they should be rejected. The same is the case with traditions with sound chains. In some instances there is general agreement as to their acceptability and soundness, whereas, in other instances, there are differences of opinion. Tradition scholars differ greatly in their explanation of these terms. (Ibn Khaldun, Muqaddima 6.11) [IBN KHALDUN 1967: 2:449–450]
The passing-down of reports on the excellence of the generation of Muhammad’s contemporaries was not simply an exercise in piety since it was these worthies who were the eyewitness generation and so stood behind every tradition attributed to the Prophet. And it was their character rather than the acuity of their sight or hearing that guaranteed what they transmitted.
The best of mankind after these [that is, after the early Caliphs and the veterans of the battle of Badr] are the Companions of God’s Messenger from the period during which he was among them. Anyone who knew him for a year or a month or a day or an hour, or even saw him, is of the Companions, to the extent that he was with him, took precedence with him, heeded his words and regarded him. The least of these in companionhood is better than the generation which did not see him. If they should come before God with all their works like those who were the associates of the Prophet—God bless him and give him peace—and beheld him and listened to him, the one who saw him with his own eye and believed in him even for a single hour is better for his association than all who followed after, even if they should have performed all the (requisite) good works. (Ahmad ibn Hanbal, Creed) [WILLIAMS 1971: 31]
Careful scrutiny of the external transmission mechanisms of a Prophetic tradition was not the only way of investigating Prophetic traditions in Islam. Some attention was also given to the matter of the tradition itself, and particularly to the question of contradictory traditions. Al-Shafi‘i himself addressed the problem.
As to contradictory Prophetic traditions where no indications exist to specify which is the abrogating and which is the abrogated tradition, they are all in accord with one another and contradiction does not really exist among them. For the Messenger of God, being an Arab by tongue and by country, may have laid down a general rule intended to be general and another general rule intended to be particular…. Or a certain question may have been asked to which he gave a concise answer, leading some of the transmitters to relate the tradition in detail and others in brief, rendering the meaning of the tradition partly clear and partly vague. Or (it may happen) that the transmitter of a certain tradition related the answer he heard from the Prophet without knowing what the question had been, for had he known the question he would have understood the answer clearly from the reasoning on which the answer was based.
The Prophet may have likewise laid down a tradition covering a particular situation and another covering a different one, but some of those who related what they had heard failed to distinguish between the two differing situations for which he had laid down the traditions…. He may have also provided a tradition consisting of an order of permission or prohibition the wording of which was general, and he may have provided a second specifying tradition which made it evident that his order of prohibition was not intended to prohibit what he made lawful, nor that his order of permission made lawful what he prohibited. For all possibilities of this kind parallel examples exist in the Book of God. (Shafi‘i, Treatise) [SHAFI‘I 1961: 180–181]
We return to Ibn Khaldun’s survey of the science of tradition. He now describes the five standard collections of traditions that had gained the cachet of authority in Islam.
There was Muhammad ibn Isma‘il al-Bukhari (d. 870 C.E.), the leading tradition scholar of his time. In his Musnad al-Sahih he widened the area of tradition and published the orthodox traditions according to subject. He combined all the different ways of the Hijazis, Iraqis and Syrians, accepting the material upon which they all agreed, but excluding the material concerning which there were differences of opinion. He repeated a given tradition in every chapter upon which the contents of that particular tradition had some bearing. Therefore his traditions were repeated in several chapters, because a single tradition may deal with several subjects, as we have indicated. His work thus comprised 7,200 traditions, of which 3,000 are repeated. In each chapter he kept separate the (different) recensions (of the same tradition), with the different chains of transmitters belonging to each.
Then came the imam Muslim (d. 875 C.E.)…. He composed his Musnad al-Sahih, in which he followed Bukhari, in that he transmitted the material that was generally agreed upon, but he omitted the repetitions and did not keep the (different) recensions and chains of transmitters separate. He arranged his work according to juridical categories and the chapter headings of jurisprudence.
How elaborate these judicial categories were may be seen from a glance at Bukhari’s Sahih. The whole work is divided into ninety-seven “books.” The first contain traditions on the beginning of revelation, on faith and knowledge. The next thirty books are given over to traditions connected with ablution, prayer, alms, pilgrimage, and fasting. These are followed by twenty-two books on matters of business, trusteeship, and in general with conditions of employment and various legal matters. There are three books of traditions on fighting for the faith and dealing with subject peoples, followed by one on the beginning of creation. The next four collect traditions on the Prophets and the admirable traits of various contemporaries of Muhammad, including some account of the Prophet’s life up to the Hijra, and the next book follows his career at Medina. There are two books with exegetical traditions on the Quran. The three following deal with marriage, divorce, and the maintenance due to one’s family. From here to Book 95 various subjects are treated, among which are such matters as food, drink, clothing, seemly behavior, medicine, invitations, vows, the expiation of broken vows, blood revenge, persecution, the interpretation of visions, civil strife, and the trials before the end of the world. Book 96 stresses the importance adhering to the Quran and the Sunna, and the last book, which is fairly lengthy, addresses itself chiefly to theological questions on the subject of the Unity of God.
We return once more to the text of Ibn Khaldun.
Scholars have corrected the two authors [that is, Bukhari and Muslim], noting the cases of sound traditions not (included in their works). They have mentioned cases where they have neglected (to include traditions which, according to) the conditions governing the inclusion of traditions in their works (should have been included).
Abu Dawud (d. 888 C.E.) … al-Tirmidhi (d. 892 C.E.) … and al-Nasa’i (d. 915 C.E.) wrote tradition works which included more than merely “sound” traditions. Their intention was to include all traditions that amply fulfilled the conditions making them actionable traditions. They were either traditions with few links in the chain of transmitters, which makes them sound, as is generally acknowledged, or they were lesser traditions, such as (the category of) “good” traditions and others. It was to serve as a guide to orthodox practice. (Ibn Khaldun, Muqaddima 6.11) [IBN KHALDUN 1967: 2:454–455]
The Quran, since it was the word of God, and since it obviously included in its contents a great many prescriptions pertaining to conduct, was also the Law of God. There is no doubt that Muslims thought so from the beginning, or that the Prophet’s own extra-Quranic teaching and example counted heavily in the early community’s efforts at living the life of a believer. That much we can assume; it fell to later Muslims, who lived within a long-established and fully defined version of that life, to explain to themselves just how that had come about. The first example comes from a lawyer, al-Shafi‘i (d. 820 C.E.), who was himself involved in defining the Islamic law.
Shafi‘i said: The sum total of what God declared to His creatures in His Book, by which He invited men to worship Him according with His prior decision, falls in various categories.
One such category is what He declared to His creatures textually (in the Quran), such as the aggregate of duties owed him, namely, that they shall perform the prayer, pay the alms-tax, perform the pilgrimage and observe the fast (of Ramadan); and likewise that He has forbidden disgraceful acts, in both public and private, such as the explicit prohibition of adultery, the drinking of wine, eating the flesh of dead things and of blood and pork; and finally He has made clear to them how to perform the duty of ablution as well as other matters stated explicitly in the Quran.
A second category consists in those acts the obligation of which He established in His Book but whose manner of performance He made clear by the discourse of His Prophet. The number of prayers (to be said each day), and the (amount) of the alms-tax and their time (of fulfillment) are cases in point, but there are similar cases revealed in His Book.
A third category consists of what the Messenger of God established by his own example or exhortation, though there is no explicit rule on them defined by God (in the Quran). For God has laid down in His Book the obligation of obedience to His Prophet and recourse to his decision. So he who accepts a duty on the authority of the Prophet of God accepts it by an obligation imposed by God.
A fourth category consists in what God commanded His creatures to seek through personal initiative (devoted to study of the Quran or the traditions of the Prophet) and by it put their obedience to the test exactly as He tried their obedience by the other duties which He ordered them to fulfill, for the Blessed and Most High said: “And We shall put you on trial in order to know those of you who strive and endure, and We will test your accounts” (Quran 47:33). (Shafi‘i, Treatise) [SHAFI‘I 1961: 67–68]
The same process is described five and a half centuries later by Ibn Khaldun (d. 1406 C.E.), now writing less as a lawyer than as a self-conscious historian.
The basic sources of legal evidence are the Book, that is, the Quran, and then the Prophetic traditions, which clarify the Quran. At the time of the Prophet the laws were received directly from him. He possessed the Quranic revelation, and he explained it directly. No transmission, speculation or analogical reasoning was necessary. After the Prophet’s death direct explanation was no longer possible. The Quran was preserved through a general and continuous transmission. As for the Prophetic tradition, the men around Muhammad all agree that it was necessary to act in accordance with whatever of it has reached us, as statement or practice, through a sound report that can be trusted to be truthful. It is in this sense that legal evidence is determined by the Quran and the Prophetic tradition.
Then general consensus took its place next to them. The men around Muhammad agreed to disapprove of those who held opinions different from theirs. They would not have done that without some basis for doing so, because people like the men around Muhammad do not agree upon something without a valid reason. In addition, the evidence attests the infallibility of the whole group. Thus, general consensus became a valid proof in legal matters.
Then we looked into the methods according to which the men around Muhammad and the early generations made their deductions from the Quran and the Prophetic tradition. It was found that they compared similar cases and drew conclusions from the analogy, in that they either all agreed or some of them made concessions in this connection to others. Many of the things that happened after the Prophet are not included [or are not covered] in the established texts. Therefore they compared and combined them with the established indications that are found in the texts, according to certain rules that governed their combinations. This assured the soundness of their comparison of two similar cases, so that it could be assumed that one and the same divine law covered both cases. This became another kind of legal evidence, because the early Muslims all agreed upon it. This is analogy, the fourth kind of evidence. (Ibn Khaldun, Muqaddima 6.13) [IBN KHALDUN 1967: 3:23–24]
Both Shafi‘i and Ibn Khaldun were discussing what had come to be called the “roots of the law,” that is, the sources from which authoritative legal prescriptions may be derived. The Quran is obviously one such source, and in its case the problem was not one of validation but of interpretation (see chapter 3 above). As for the Prophetic traditions and indeed for certain practices that find no authority in either the Quran or those same traditions, Ibn Khaldun rests heavily on the principle of consensus, which he pushes back into the “Apostolic age” of Islam, that “generation of men around Muhammad” who “agreed to disapprove of men who held opinions different from theirs.” Shafi‘i too had something to say about this principle of consensus, and it is not very different from what Ibn Khaldun said nearly seven centuries after him.
Al-Shafi‘i said, may God have mercy on him: Someone said to me: I have understood your rule concerning the prescriptions of God and the prescriptions of the Prophet, may God bless and save him, and I have understood that whoever follows the Prophet follows God in that God has enjoined obedience to His Prophet. There is also proof of what you say, that no Muslim who knows a Quranic text or a Prophetic tradition may maintain the contrary of either of them, and I have understood that this too is a prescription of God. But what is your proof for following that on which the people are agreed when there is no text to that effect, either as a revelation from God or as a tradition handed down from the Prophet? Do you believe, as some do, that their consensus can only rest on a firm Prophetic tradition, even when that latter has not been handed down?
I answered him: That on which they are in agreement and say that it is a tradition handed down from the Prophet is as they say, if it please God…. We maintain what they maintain, following their authority, because we know that even though the tradition of the Prophet may be forgotten by some of them, it cannot be forgotten by all of them, and we know that all of them cannot come to agree on something contrary to the Prophetic tradition, or on any error, please God.
His anonymous questioner requires a proof and Shafi‘i cites a Prophetic tradition to him.
There are three things which cannot be resented by the heart of a Muslim: sincerity of action for God, good advice to the Muslims, and keeping close to the community of the Muslims….
It was then asked, what is the meaning of the Prophet’s command to keep close to the community?
Shafi‘i explains, and his explanation suggests that the consensus did not concern merely the first generation of Muslims, those “Companions of the Prophet,” on whom so much of the validation of Islamic law rests, but extended into the entire community of believers.
I said, Shafi‘i continued, there is but one meaning to it…. Since the community of the Muslims is scattered in different countries, one could not keep close to the physical community whose members were scattered, and besides, they were found together with Muslims and unbelievers, with pious men and sinners. Thus it could not mean a physical “closeness” since that was not possible, and because physical nearness would in itself effect nothing, so that there is no meaning in “cleaving to the collectivity” except in agreeing with them in what they make lawful and forbidden, and obedience in both these matters. He who maintains what the community of the Muslims maintains is keeping close to the community, and he who deviates from what the community of the Muslims maintains deviates from that community to which he is commanded to remain close. Error arises in separation. In the community there can be no total error concerning the meaning of the Book, of the Prophetic tradition, or of analogical reasoning, please God. (Shafi‘i, Treatise) [SHAFI‘I 1961: 285–287]
Of all the “roots” of the law, it was the one known as “taking personal initiative” that provoked the most resistance in conservative legal circles. The Quran and the Prophetic tradition both came to be regarded as a form of God’s revelation, as we have seen, and the consensus of the community could be seen as the working out of that revelation in social terms: the community would not err on God’s and His Prophet’s intentions, particularly since there were diffused throughout that community of Muslims so many well-attested and agreed-upon Prophetic traditions that exemplified those intentions. But “personal initiative” was a more nakedly personal judgment on the divine intention, an attempt on the part of a jurist to advance his own reasoned opinion where the Quran provided no text, and the tradition and consensus no guidance. Shafi‘i accepted it, but under limited circumstances and with a prescribed methodology, namely, analogy, which for him and for most jurists was the only acceptable way of exercising personal initiative in the law.
On all matters touching the Muslim there is either a binding decision (based on the Quran or the tradition) or an indication as to the right answer. If there is a decision, it should be followed; if there is no indication as to the right answer, it should be sought by personal initiative, and that is the same as analogy.
Shafi‘i chose to write his Treatise on the Roots of Jurisprudence in the form of a dialogue, and at this point his imaginary interlocutor has a great many questions and problems about this personal approach to the law.
He asked: If the scholars apply analogy correctly, will they arrive at the right answer in the eyes of God? And will it be permissible for them to disagree through analogy? Have they been ordered to seek one or different answers for each question? What is the proof for the position that they should apply analogy on the basis of the literal rather than the implicit meaning (of a precedent), and that it is permissible for them to disagree in their answers … ?
Shafi‘i does not answer directly; he prefers, in his pedagogical fashion, to return and review the general elements in the law and our knowledge of it.
Legal knowledge is of various kinds. The first consists of the right decisions in both the literal and implied senses; the other, of the right answer in the literal sense only. The right decisions in the first instance are those based either on God’s command (in the Quran) or on a tradition from the Messenger related by the public from an earlier public. These two [that is, the Quran and the Prophetic tradition] are the two sources by virtue of which the lawful is to be established as lawful and the unlawful as unlawful. This is the kind of knowledge of which no one is allowed to be either ignorant or doubtful.
Second, the legal knowledge of the specialists consists of Prophetic traditions related by a few and known only to scholars, but others are under no obligation to be familiar with it. Such knowledge may be found among all or a few of the scholars, and it is related by a reliable transmitter from the Prophet. This is the kind of knowledge which is binding on scholars to accept, and it constitutes the right decision in the literal sense insofar as we accept the validity of the testimony of two. This is right only in the literal sense, because it is possible that the evidence of the two witnesses might be false.
Third, there is legal knowledge derived from consensus.
And finally, we come to legal knowledge derived from personal initiative by way of analogy, by virtue of which right decisions are sought. Such decisions are right in the literal sense only to the person who applies the analogy but not to the majority of scholars, since nobody knows what is hidden except God.
The other asked: If legal knowledge is derived through analogy, provided it is rightly applied, should those who apply analogy agree on most of the decisions, although we may find them disagreeing on some?
Shafi‘i replied: Analogy is of two kinds: the first, if the case in question is similar in principle to the precedent, no disagreement of this kind is permitted. The second, if the case in question is similar to several precedents, analogy must be applied to the nearest in resemblance and the most appropriate. But in this instance those who apply analogy are likely to disagree (in their answers).
The other asked: Will you give examples … ?
Shafi‘i replied: If we were in the Sacred Mosque (at Mecca) and the Ka‘ba is in sight, do you not say that we should face it in prayer with certainty? …
The other replied: That is right.
Shafi‘i asked: Are we not under obligation to face the Sacred House in prayer no matter where we happen to be?
That is right.
Do you hold that we could always face the Sacred House correctly?
No, he replied. Not always as correctly as when you were able to see the Sacred House; however, the duty imposed on you was fulfilled [that is, however imperfectly we may have faced the now invisible Ka‘ba].
Shafi‘i asked: Is, then, our obligation to seek the unknown object different from our obligation to seek the known object?
That is right…. On what ground do you hold that the exercise of personal initiative is permitted?
Shafi‘i replied: It is on the basis of God’s saying:
“From whatever place you come out, turn your face in the direction of the Holy Mosque; and wherever you may be, turn your faces in its direction.” (Quran 2:145)
Regarding him who wishes to face the Sacred Mosque in prayer and whose residence is at a distance from it, legal knowledge instructs us that he can seek out the right direction through personal initiative on the basis of certain indications (guiding) toward it. For he who is under obligation to face the Holy House and does not know whether he is facing in the right or wrong direction may be able to face toward the right one through certain indications known to him which help him to face it as accurately as he can, just as another person may know other indications which help to orient him, though the direction found by each person may be different…. Let us assume that you and I know the direction of this road, and that I hold that the prayer-direction is this way and you disagree with me. Who should follow the opinion of the other?
The other replied: Neither is under an obligation to follow the other.
What should each one do then?
The other replied: If I hold that neither should pray until he is certain (of the direction), both might not know it with certainty. Then either the prayer obligation should be abandoned, or the prayer-direction obligation waived so that each can pray in whatever direction he wishes. But I am not in favor of either of those two options. I am rather bound to hold that each one should pray in the direction he believes right and he would be under no obligation to do otherwise….
Shafi‘i replied: You have held that prayer is permissible despite your awareness that one of them is in error; it is even possible that both of them were in error. I have added (the general principle that) such a distinction would be binding on you in the cases of legal witnesses and analogical deduction.
The other replied: I hold that such an error is inevitable but it is not intentional….
Shafi‘i said: It is clear to those of you who are certain of truthful information that personal initiative should never be resorted to except in seeking an unknown object by means of certain indications, although it is permissible for those who exercise such initiative to disagree in their decisions.
The other asked: How is personal initiative to be exercised?
Shafi‘i replied: God, glorified and praised be He, has endowed men with reason by which they can distinguish between differing view-points, and He guides them to the truth either by (explicit) texts or by indications (through which they may exercise judgment).
Will you give an example?
God erected the Sacred House and ordered men to face it in prayer when it is in sight, and to seek its direction (by personal initiative) when they are at a distance from it. And He created for them the heaven and the earth and the sun and the moon and the stars and the seas and the mountains and the wind (as guiding indications). For God said:
“It is He who has appointed for you the stars, that by them you might be guided in the darkness of land and sea.”
(Quran 6:97)
And He said:
“And by landmarks and by the stars they might be guided.”
(Quran 16:16)
Thus God instructed men to be guided by the stars and other indicators, and by His blessing and help they know the direction of the Sacred House…. Thus men should seek, through the reasoning power that God has implanted in them, the direction in which He made it incumbent upon them to face in prayer. If it is thus sought, through their reasoning power and the indications (pointing to it), men can fulfill their duty. (Shafi‘i, Treatise) [SHAFI‘I 1961: 288–303]
If we move forward four centuries, we discover that Shafi‘i’s carefully wrought argument has come to rest in summary form in the legal handbooks, in this instance that written by the Syrian jurist Ibn Qudama (d. 1223 C.E.). It occurs under the heading “The Conditions of Prayer,” in the subsection “Facing the Prayer-Direction.”
The traveller who is making a supererogatory prayer while mounted may pray in whatever direction he happens to be; likewise, the Muslim who is incapable of turning toward the Ka‘ba, by reason of danger or for some other reason, should make his prayer however he is able. But outside these two cases, no prayer is meritorious unless it is made in the direction of the Ka‘ba. The Muslim who is in the vicinity should turn toward the Ka‘ba itself; if he is at a distance, he should pray in its direction.
The Muslim who is ignorant of the direction of the Ka‘ba and is in an inhabited area, should inform himself and base himself on the prayer-niches of the Muslims (there); he is bound, in case of error, to begin the prayer over. When two Muslims must determine the direction on their own personal initiative and they are in disagreement, neither is bound to follow the other. The blind man and uneducated should follow the advice of whoever seems most worthy of confidence. (Ibn Qudama, The Conditions of Prayer) [IBN QUDAMA 1950: 22–23]
We return to Shafi‘i’s Treatise, where he now sets down some summary cautions on the use of personal initiative in the law.
Nobody should apply analogy unless he is competent to do so through his knowledge of the commands of the Book of God; its prescribed duties and its ethical discipline, its abrogating and abrogated communications, its general and particular rules, and its right guidance. Its ambiguous passages should be interpreted by the tradition of the Prophet; if no tradition is found, then by the consensus of Muslims; if no consensus is possible, then by analogical deduction.
No one is competent to apply analogy unless he is conversant with the established Prophetic tradition, the opinions of his predecessors, the consensus and disagreement of the people, and has adequate knowledge of the Arab tongue. Nor is he regarded as competent in analogical reasoning unless he is sound in mind, able to distinguish between closely parallel precedents, and is not hasty in expressing an opinion unless he is certain of its correctness. Nor shall he refrain from listening to the opinions of those who may disagree with him. [SHAFI‘I 1961: 306–307]
Shafi‘i has enumerated some of the skills required of the Muslim lawyer if he is to exercise “personal initiative.” Ibn Khaldun covers much the same ground.
The transmitted traditions which constitute the “Prophetic tradition” need verification through an investigation of the ways of transmission and the probity of the transmitters, so that the likelihood of the truthfulness of the transmitted information, which is the basis for the necessity to act in accordance with it, becomes clear. This is also one of the basic subjects of the discipline of jurisprudence. Added to this is the knowledge of abrogating and abrogated traditions, when two traditions are contradictory and the earlier one of the two is taught. This too is another subject of jurisprudence. After that there comes the study of the meaning of words. This is because one depends upon knowledge of the conventional meanings of single or composite utterances, for deriving ideas in general from word combinations in general. The philological norms needed in this connection are found in the sciences of grammar, inflection, syntax and style….
Next, the study of analogy is a very important basis for this discipline. It helps to ascertain the correctness of both principal and special aspects of laws depending on reasoning and analogy; to examine the particular characteristic of a case on which the law is considered probably to depend, as to whether it exists in the principle; and to find out whether that characteristic exists in the special case without anything contradicting it, which would make it impossible to base the law upon it. (Ibn Khaldun, Muqaddima 6.13) [IBN KHALDUN 1967: 3:24–27]
The Islamic law is not simply a body of theory; it is also a code of action defining which among human acts are permissible and which forbidden. In short, it imposes obligations, and Shafi‘i in his Treatise undertakes to explain how those obligations differ for different segments of the Muslim community.
Someone asked me: What is legal knowledge and how much should men know of it?
Shafi‘i replied: Legal knowledge is of two kinds: one is for the general public, and no sober and mature person should be ignorant of it…. For example, that the daily prayers are five, that men owe to God to fast in the month of Ramadan, to make the pilgrimage to the Holy House whenever they are able, and to pay the legal alms in their estate; that He has prohibited usury, adultery, homicide, theft, wine, and everything of that sort which He has obligated men to comprehend, to perform, to pay in their property, and to abstain from because He has forbidden it to them.
This kind of knowledge may be found textually in the Book of God or may be found generally among the people of Islam. The public relates it from the preceding public and ascribes it to the Messenger of God, no one ever questioning its ascription or its binding force upon them. It is the kind of knowledge that admits of error neither in its narrative nor in its interpretation; it is not permissible to question it.
He asked: What is the second kind?
Shafi‘i replied: It consists of the detailed duties and rules obligatory on men, concerning which there exists neither a text in the Book of God nor, regarding most of them, a Prophetic tradition. Whenever a Prophetic tradition does exist in such a case, it is of the kind that is related by few authorities, not the public, and is subject to different interpretations arrived at by analogy. (Shafi‘i, Treatise) [SHAFI‘I 1961: 81–82]
In addition to the obligation common to every individual and that binding only on specialists, Shafi‘i continues, there is a third type of legal obligation, collective in nature, which rests upon the Muslim community as a whole but not upon every individual within it.
There is a third kind of knowledge…. The public is incapable of knowing this kind of knowledge, nor can all specialists obtain it. But those who do obtain it should not neglect it. If some can obtain it, the others are relieved of the obligation of obtaining it, but those who do obtain it (and perform the consequent obligation), they will be rewarded.
The classic example of a “collective obligation” is that of the Holy War (see chapter 3 above), to which Shafi‘i now turns.
God has imposed the duty of Holy War, as laid down in His Book and uttered by His Prophet’s tongue. He stressed the calling to Holy War as follows:
“God has verily bought the souls and possessions of the faithful in exchange for Paradise. They fight in the way of God and kill and are killed. This is a promise incumbent on Him, as in the Torah, so the Gospel and the Quran. And who is more true to his promise than God? So rejoice at the bargain you have made with Him; for this will be triumph supreme.” (Quran 9:111)
A number of other Quranic passages on the subject are cited. Then Shafi‘i resumes:
These communications mean that the Holy War, and rising up in arms in particular, is obligatory for all able-bodied believers, exempting no one, just as prayer, pilgrimage and alms are performed, and no person is permitted to perform the duty for another, since performance by one will not fulfill the duty for another.
They may also mean that the duty of Holy War is a collective duty different from that of prayer: Those who perform it in a war against the polytheists will fulfill the duty and receive the supererogatory merit, thereby preventing those who remained behind from falling into error.
But God has not put the two categories of men on an equal footing, for He said:
“Such believers who sit at home—unless they have an injury—are not the equals of those who fight in the path of God with their possessions and their selves…. God has promised the best of things to both, and He has preferred those who fight to those who sit at home by granting them a mighty reward.” (Quran 4:97)
He asked: What is the proof for your opinion that if some people perform the duty, the others would be relieved of the punishment?
It is in the communication I have just cited…. God said: “Yet to each God has promised the best of things.” Thus God promised “the best of things” for those who stayed behind and could not go to the Holy War, although He clearly specified His preference for those who went to the Holy War over those who stayed at home. If those who stayed at home were in error, while others were fighting, they would be committing a sin, unless God forgives them, rather than receiving “the best of things.” (Shafi‘i, Treatise) [SHAFI‘I 1961: 82–86]
The early evolution of Islamic law took place in widely scattered centers across the Islamic world. Not even Shafi‘i’s attempts at imposing a kind of order on its development eradicated or even inhibited the continued growth of different schools of legal interpretation, each of them recognized as orthodox and legitimate by the others. Thus the Shafi‘ite, Malikite, Hanafite, and Hanbalite schools founded by and named after early masters of Islamic jurisprudence flourished and continued to flourish among Muslims. They differ on specific points of theory and practice, but their differences are not very substantial, nor do their practices much differ from the positive precepts of Shi‘ite law, though this latter has a considerably divergent view of what lawyers call “the roots of jurisprudence.” The four major Sunni schools recognized, with varying degrees of enthusiasm, the Quran, the sunna of the Prophet (as expressed in the hadith), the consensus of the community, and a measure of personal interpretation (ijtihad) as the basis of the shari‘a; the Shi‘ites, on the other hand, relied heavily upon the infallible teachings of the Imams and rejected the consensus of the community out of hand.
All these matters are addressed by Ibn Khaldun, who gave over a part of his Prolegomenon to History to a description of the origin and evolution of the various sciences found in Islam. Some of these are what he calls “speculative,” that is, they rely on the unaided use of the human intellect for their development and understanding. Others, as we have seen, are “traditioned” and are essentially the elaboration of revealed data given in the Quran and the Prophetic traditions. The former are by and large the legacy of Hellenism in Islam, while the latter are an Arab creation and are indigenous to Islam.
Primary among the “traditioned” sciences is the one called jurisprudence (fiqh).
Jurisprudence is the knowledge of the classification of the laws of God, which concern the actions of all responsible Muslims, as obligatory, forbidden, recommendable, disliked, or permissible. These laws are derived from the Quran and the Prophetic traditions and from the evidence the Lawgiver [that is, Muhammad] has established for a knowledge of the laws. The law evolved from the whole of this evidence is called jurisprudence.
And then, as he does for all the sciences under discussion, Ibn Khaldun launches into a capsule history of the discipline.
The early Muslims evolved the laws from that evidence, though unavoidably they differed in the interpretation of it. The evidence is mostly derived from texts; the texts are in Arabic. In many instances, and particularly with regard to legal concepts, there are celebrated differences among them as to the meaning implicit in the words. Furthermore, the Prophetic traditions differ widely in respect of the reliability of the recensions; their legal contents, as a rule, are contradictory. Therefore a decision is needed. This makes for differences of opinion. Furthermore, evidence not derived from texts causes still other differences of opinion. Then there are new cases which arise and are not covered by the texts. They are referred by analogy to things that are covered by the texts. All this serves to stir up unavoidable differences of opinion, and this is why differences of opinion occurred among the early Muslims and the religious leaders after them.
Moreover, not all the men around Muhammad were qualified to give legal opinions. Not all of them could serve as sources for religious practice; that was restricted to men who knew the Quran and were acquainted with the abrogating and the abrogated, the ambiguous and the unambiguous verses, and with all the rest of the evidence that can be derived from the Quran, since they have learned these matters from the Prophet directly, or from their higher ranking colleagues who had learned it from him. These men were called “readers,” that is, men who were able to read the Quran. (Ibn Khaldun, Muqaddima 6.14) [IBN KHALDUN 1967: 3:3–4]
Ibn Khaldun continues his survey of the evolution of Islamic jurisprudence, told, as was usual for him, from the perspective of a social historian.
It continued to be that way at the beginning of Islam. Then the cities of Islam grew, and illiteracy disappeared from among the Arabs because of their constant occupation with the Quran. Now the development of jurisprudence from its sources took place. Jurisprudence was perfected and came to be a craft and science. The Quran readers were no longer called Quran readers but jurists (fuqaha) and religious scholars (ulama).
The ulama were at first unofficial and unorganized students of the “traditions of the Prophet,” but with the institution and spread of law schools (madrasas), each supported by a permanent and inalienable endowment (waqf), the ulama acquired a remarkable power and cohesiveness. The jurisprudents had their differences, of course, on both detail and theory, which in time resolved themselves into four major madhhabs, variously rendered as “rites” or “schools,” and representing somewhat different methods of parsing the basic legal texts of Sunni Islam. In the end they agreed to differ, however, and, more importantly, to accept each other’s orthodoxy.
The jurists developed two different approaches to jurisprudence. One was the use of opinion [or reasoning] and analogy; it was represented by the Iraqis. The other was the use of Prophetic traditions; it was represented by the Hijazis…. Few traditions circulated among the Iraqis. Therefore they made much use of analogy and became skilled in it. That gave them the name of the “representatives of opinion.” Their chief, around whom and whose followers their school centered, was the imam Abu Hanifah [d. 767 C.E.]. The leader of the Hijazis was Malik ibn Anas [d. ca. 795 C.E.] and, after him, al-Shafi‘i [d. 820 C.E.].
Later on, a group of religious scholars disapproved of analogy and rejected its use. They were the Zahirites [literally, “partisans of the plain (or ‘open’) sense”]. They restricted the sources of the law to the texts and the general consensus…. The leader of this school was Dawud ibn Ali [d. 884 C.E.] and his son and their followers…. The Zahirite school has become extinct today as the result of the extinction of their religious leaders and the disapproval of their adherents by the great mass of Muslims….
… The Alids [that is, the Shi‘ites] invented their own school and had their own jurisprudence. They based it on their dogma requiring abuse of some of the men around the Prophet and upon their stated opinion concerning the infallibility of the Imams and the inadmissibility of differences in their statements [see chapter 3 above]. All these are futile principles. The Kharijites similarly had their own school. The great mass did not approve of these schools but greatly disapproved them and abused them. Nothing is known of the opinions of these schools. Their books have not been transmitted; no trace of them can be found except in regions inhabited (by them). The books of the Shi‘a are thus found in Shi‘ite countries and wherever Shi‘ite dynasties exist, in the West, the East and in the Yemen. The same applies to the Kharijites….
Malik ibn Anas was followed by al-Shafi‘i. He traveled to Iraq after Malik’s time. He met the followers of the imam Abu Hanifah and learned from them. He combined the approach of the Hijazis with those of the Iraqis. He founded his own school and opposed Malik on many points. Malik and al-Shafi‘i were followed by Ahmad ibn Hanbal [d. 855 C.E.]. He was one of the highest ranking scholars of the Prophetic traditions. His followers studied with those of Abu Hanifah, notwithstanding the abundant knowledge of Prophetic traditions they themselves possessed. They founded another school. (Ibn Khaldun, Muqaddima 6.14) [IBN KHALDUN 1967: 3:4–8]
Just as a consensus developed among medieval Christians that the line of the “Fathers of the Church” had come to an end sometime in the era of John of Damascus (d. ca. 750 C.E.), the Muslims too reflectively closed what was called “the gate of independent judgment” and denied later scholars the same freedom enjoyed by earlier Muslim lawyers to derive fresh legal principles from the data of the Quran and the Prophetic traditions. The phrase “closing the gate” has an ominous ring. However, it should be understood not as the death of an intellectual enterprise but as a herald of the advent of scholasticism, when scholars had to couch their legal speculations in the form of commentary and explication on an established body of masters, in this case the developed doctrine of the canonical schools.
Well into the era of scholasticism, Ibn Khaldun attempts to explain why this had occurred.
These four authorities [that is, Malik ibn Anas, Abu Hanifah, al-Shafi‘i, and Ahmad ibn Hanbal] are the ones recognized by tradition in Muslim cities. Tradition-bound people obliterated all other authorities and scholars no longer admitted any differences of opinion. The technical terminology became very diversified, and there are obstacles preventing people from attaining the level of independent judgment. It was also feared that the existence of differences of opinion might affect unqualified people whose opinion and religion could not be trusted. Thus, scholars came to profess their inability to apply independent judgment and had the people adopt the tradition of the authorities mentioned and of the respective group of adherents of each. They also forbade one to modify his traditional allegiance (to one of these four schools) because that would imply frivolity. All that remained after basic textbooks had been produced and the continuity of their transmissions had been established was to hand down the respective school traditions and, for each individual adherent, to act in accordance with the traditions of his school. Today jurisprudence means this and nothing else. The person who would claim independent judgment nowadays would be frustrated and have no adherents. (Ibn Khaldun, Muqaddima 6.12) [IBN KHALDUN 1967: 3:8–9]
As both Shafi‘i and Ibn Khaldun pointed out more than once, there was no more troublesome issue in Islamic law than that of abrogation, the annulment of one divine ordinance and the substitution of another such in its place, “so that what is lawful may become unlawful and what is unlawful may become lawful,” as Tabari says. The question is in fact raised by the Quran itself.
When we cancel a message [or “verse”] or throw it into oblivion, We replace it with a better one or one similar. Do you not know that God has power over all things? (Quran 2:106)
When we substitute a revelation for another revelation—God knows best what He reveals—they say, you (Muhammad) have made it up. (Quran 16:101)
This is Shafi‘i’s view of the passages and the principle behind them.
God indeed created mankind for whatever His established knowledge desired in creating it and for whatever its destiny should be. There is no reversal at all in His judgment, He being swift of reckoning. And He revealed to them the Book that explains everything as a guide and a mercy. In it He laid down some duties which He confirmed and others which He abrogated, as a mercy to His people so as to lighten their burden and to comfort them in addition to the favors which He had begun to bestow upon them. For the fulfillment of the duties which He confirmed, He rewarded them with Paradise and with salvation from His punishment. His mercy has included all of them in what He confirmed and what He abrogated. Praise be to Him for his favors. (Shafi‘i, Treatise) [SHAFI‘I 1961: 123]
The principle that one verse of the Quran may abrogate or cancel another, for all its intrinsic interest to the theologian, was not the crucial point with regard to Islamic law, however. For the lawyers the more troublesome question was whether a tradition reported from and attributed to the Prophet could replace a Quranic prescription. At first there was resistance to the notion that one of the Prophet’s sayings could invalidate a Quranic prescription, as appears in what Shafi‘i says next.
God has declared that He abrogated revelations of the Book only by means of other revelations in it; that the Prophetic tradition cannot abrogate the Book but that it should only follow what is laid down in the Book, and that the Prophetic tradition is intended to explain the meaning of a revelation of a general nature set forth in the Book. For God said:
“When Our clear messages are recited to them, those who do not hope to meet Us say: ‘Bring a different Quran, or make amendments in this one.’ Say: ‘It is not for me to change it of my will. I follow only what was revealed to me. If I disobey my Lord, I fear the punishment of an awful Day.’” (Quran 10:15)
Thus God informed men that He had commanded His Prophet to obey what was revealed to him but that he did not empower him to alter (the Book) of his own accord. (Shafi‘i, Treatise) [SHAFI‘I 1961: 123–124]
And what of the Prophetic tradition itself? May it too be abrogated? Shafi‘i replies:
In like manner the tradition of the Prophet states: Nothing can abrogate it except another tradition of the Prophet. If God were to address to His Messenger a revelation on a matter on which Muhammad had provided a tradition different from what God had addressed to him, the Prophet would (then) provide a tradition in conformity with whatever God had revealed to him, and thus he would make clear to men that he was providing a tradition that abrogated one earlier or contrary to it. (Shafi‘i, Treatise) [SHAFI‘I 1961: 125]
But lawyers know that neither life nor law is so simple.
Someone may ask: It is possible to assume that there was a transmitted tradition which was abrogated, while the abrogating tradition was not transmitted?
Shafi‘i replied: That is impossible…. Were this possible the entire Prophetic tradition might be abandoned by men, for they would then say, “Perhaps it was abrogated.” No duty has ever been abrogated unless it was replaced by another. The abrogation of the prayer-direction toward Jerusalem by another in the direction of the Ka‘ba is a case in point. (Shafi‘i, Treatise) [SHAFI‘I 1961: 126]
But the importance given to those divinely certified traditions by legal scholars—and Shafi‘i was chief among them—eventually prevailed, and what passed into Muslim orthodoxy was the principle that the Quran could be abrogated by both the Quran and the tradition of the Prophet. The argument is laid out with great clarity by Ghazali (d. 1111 C.E.).
There is no dispute concerning the view that the Prophet did not abrogate the Quran on his own authority [cf. Quran 10:16: “And when Our clear revelations are recited to them, they who look not for the meeting with Us say: Bring a Quran other than this, or change it. Say (O Muhammad): It is not for me to change it of my own accord. I only follow that which is inspired in me …”], He did it in response to revelation [cf. Quran 53:3–4: “Nor does he speak of his own desire. It is nothing but an inspiration that is inspired”]. The abrogating text in such cases is not worded in the Quranic style.
Even if we consider the Prophet capable of abrogating the Quran on the basis of his own reflection, the authority to exercise his discretion derived from God. Thus God does the actual abrogating, operating through the medium of His Prophet. Consequently, one should hold that the rulings of the Quran may (also) be abrogated by the Prophet, rather than solely by (another verse of) the Quran. Although the inspiration in these cases is not Quranic inspiration, the word of God is nonetheless one, and God’s word is both the abrogating and the abrogated. God does not have two words, one in the Quranic style which we are bidden to recite publicly, and called the Quran, while the other word is not Quran. God has but one word which differs in the mode of its expression. On occasions God indicates His word by the Quran; on others, by words in another style, not publicly recited, and called the Prophetic tradition.
Both are mediated by the Prophet. In each case the abrogator is God alone who indicates the abrogation by means of His Prophet, who instructs us of the abrogation of His Book. Thus none other but the Prophet is capable of manifesting; none other but God of initiating. Were God in this manner to abrogate a verse by the instrumentality of His Prophet, and subsequently to bring another verse similar to the one that had been abrogated, He would have made good His promise (in Sura 2:106)…. God did not mean to say that He proposed to bring a verse superior to the first. No part of the Quran is superior to another. He meant to state that He would bring a ruling superior to the first, in the sense of its being easier to perform, or richer in terms of reward. (Ghazali, Mustasfa 1.125) [Cited by BURTON 1977: 57]
This issue of abrogation leads us back to one of the more celebrated incidents recorded in the Gospel of John, that of the woman who was seized in an adulterous act and was then brought to Jesus as a test case.
Jesus bent over and began writing with his finger on the ground. When they continued to press their question, he stood up straight and said, “The one of you who is sinless shall throw the first stone.” Then once again he bent over and continued writing on the ground. When they heard what he said, one by one they went away, the eldest first.
And Jesus was left alone with the woman still standing there in front of him. Jesus stood up and said to the woman, “Where are they? Has no one condemned you?” She answered, “No one, sir.” Jesus said, “Nor do I condemn you. You may go; do not sin again.” (John 8:6–11)
There is a somewhat similar incident that is told of Muhammad, though here a very different point is being made. The story occurs in a tradition going back to Umar and is preserved in Bukhari’s collection of “sound traditions.”
(According to Umar): “They brought to the Prophet, on whom be God’s blessing and peace, a Jew and a Jewess who had committed fornication. He said to them, ‘What do you find in your Book?’ They said, ‘Our rabbis blacken the faces of the guilty and expose them to public ridicule.’ Abdullah ibn Salam [a Jewish convert] said, ‘Messenger of God, tell the Jews to bring the Torah.’ They brought it but a Jew put his hand over the verse which prescribes stoning and began to read what came before and after it. Ibn Salam said to him, ‘Raise your hand,’ and there was the verse about stoning beneath his hand. The Messenger of God gave the order and they were stoned.” Ibn Umar added: “They were stoned on the level ground and I saw the man leaning over the woman to shield her from the stones.” (Bukhari, Sahih, 4.300.309)
As we have already seen in chapter 3 above, one of the recurrent charges leveled by Muhammad against the Jews, and echoed in the Quran, was that of the falsification of Scripture, and in the example just cited the Prophet shows his fidelity to the Torah-prescribed penalty of stoning, despite the Medinese Jews’ attempt to conceal it. The Quran too is explicit on the matter of adultery and fornication, though in a somewhat unexpected way.
The adulterer and the adulteress should be flogged a hundred lashes each, and no pity for them should deter you from the law of God, if you believe in God and the Last Day, and the punishment should be witnessed by a body of believers. (Quran 24:2)
Stoning, then, as a penalty for adultery is nowhere mentioned in the Quran, though the punishment is prescribed by the Torah and was apparently enforced by Muhammad. The reconciliation was effected through an already cited Prophetic tradition related on the authority of Ubada, and in this case the divine inspiration for Muhammad’s utterance is carefully underlined.
The descent of inspiration was troublesome to the Prophet. His face would go ashen in color. One day inspiration came down upon him and he showed the usual signs of distress. When he recovered he said: “Take it from me! God has appointed a way for the women: the non-virgin with the non-virgin and the virgin with the virgin. The non-virgin, one hundred strokes and death by stoning; the virgin, one hundred strokes and banishment for a year.” [BURTON 1977: 74]
Put in this fashion, a Prophetic tradition would simply have abrogated the Quran. But some at least must have had reservations since another set of traditions, this time reported of Muhammad’s companion and the second Caliph of Islam, Umar ibn al-Khattab, suggested that a stoning penalty actually had been revealed as part of the Quran, though it was not in the present copies. According to Umar:
God sent Muhammad with the truth and revealed to him the Book. Part of what God revealed was the stoning verse. We used to recite it and we memorized it. The Prophet stoned and we have stoned after him. I fear that with the passage of time some will say, “we do not find stoning in the Book of God,” and will therefore neglect a divine injunction which God revealed. Stoning is a just claim. [BURTON 1977: 77–78]
Why then did not Umar add it to the text of the Quran?
By Him who holds my soul in His hand! Except that men would say “Umar has added it to the Book of God” I would write it in with my own hand: “The married man and the married woman, when they fornicate, stone them outright.” [BURTON 1977: 78]
We are even told where this verse would have occurred.
Ubayy asked Zirr ibn Hubaysh, “How many verses do you recite in the sura (called) “The Clans” (Sura 33)?” Zirr replied, “Seventy-three verses.” Ubayy asked if that was all. “I have seen it,” he said, “when it was the same length as (the Sura called) “The Cow” (Sura 2). It contained the words: ‘The married man and the married woman, when they fornicate, stone them outright, as an exemplary punishment from God. God is Mighty, Wise.’” [BURTON 1977: 80]
The question finally comes to rest, all controversy aside, in a jurist’s manual of the thirteenth century, in a section on Quranically prescribed penalties. The author is the Syrian al-Nawawi (d. 1277 C.E.).
Fornication: This consists of introducing the male organ into the vagina of a forbidden woman without any ambiguity or doubt, or into the anus of a man or woman as well, according to our (Shafi‘ite) school, and it receives a prescribed penalty, regardless of whether it was done for payment or by consent, and is applied as well for (relations with) a woman within the forbidden degrees of kinship or marriage, even if a marriage was performed. The guilty person must be adult, sane, and aware that it was wrong. Drunkenness is no excuse.
1. The prescribed penalty of an adult free Muslim or member of a “protected community” [e.g., a Jew or a Christian], who has consummated a legal marriage previous to the act, is stoning to death. If one of the two partners has not (contracted a marriage), it does not lessen the guilt of the other.
2. The prescribed penalty of a fornicator who is not an adult and free or who has never married is one hundred lashes and banishment for one year, and if the Imam [that is, the ruler] designates a place of banishment, that must be accepted.
3. For a slave the prescribed punishment is fifty lashes and banishment for half a year. (Nawawi, The Goal of Seekers) [WILLIAMS 1971: 150–151]
As for the thief, whether man or woman, cut off his hand as a punishment from God for what he has done. (Quran 5:38)
The Quran had, then, like the Bible, its own list of crimes and the punishments specified for each. In such cases of Quranically prescribed penalties there was, of course, no room for a judge’s discretion, no matter how harsh they might seem. The following legal definitions of certain crimes—the Quran does not so much define the crimes as name them—and their prescribed penalties is from a manual written by the jurisprudent al-Nawawi (d. 1277 C.E.).
Crimes punishable by amputation: For theft the amount necessitating punishment by amputation is (at least) of equal value to a quarter of a (gold) dinar. Two persons stealing together must have stolen twice the minimum amount. There is no amputation if what was stolen was impurity [which cannot constitute property], such as wine, or a pig or dog, or the skin of an animal not ritually slaughtered. But if the container of the wine was worth the minimum amount, amputation follows.
Theft by a minor, an insane person, or one forced against his will is not punished by cutting off the hand, but cutting may be performed on members of a “protected community” [e.g., a Jew or a Christian], subject to our laws. The right hand is cut off for the first offense, even if more than one theft was involved, the left foot for the second, the left hand for the third, and the right foot for the fourth….
Sins not punishable by a prescribed penalty or expiation may be punished by imprisonment, beating, slapping, or threatening. The nature of this is at the discretion of the ruler or his deputy. (Nawawi, The Goal of Seekers) [WILLIAMS 1971: 151]
Like the Jewish legal tradition, Muslim law recognized without debate the possibility of dissolving a marriage contract and devoted most of its attention to regulating and defining the grounds for such action, how it was to be performed in a valid fashion, and what were its legal consequences. And of these latter it was the establishment of paternity after the divorce and the conditions of the marriage settlement that attracted the most concern. The Quran is already quite detailed on the matter.
Those who swear to keep away from their wives (with intent to divorce) have four months of grace; then if they reconcile (during this period), surely God is forgiving and kind. And if they are bent on divorce, God hears all and knows everything. (Quran 2:226–227)
If the husband’s waiting period is to prevent rash or hasty action, that prescribed for the wife is to insure that, if she is pregnant, the father may be identified.
Women who are divorced have to wait for three monthly periods, and if they believe in God and the Last Day, they must not hide unlawfully what God has formed within their wombs. Their husbands would do well to take them back in that period, if they wish to be reconciled. Women also have recognized rights as men have, though men are over them in rank. But God is all-mighty and all-wise.
Divorce must be pronounced twice, and then a woman must either be retained in honor or released in kindness. And it is not lawful for you [that is, the husband] to take anything of what you have given them….
Divorce is (still revokable) after two pronouncements, after which they must either keep them [that is, the men’s wives] honorably or part with them in a decent way. You are not allowed to take away the least (part) of what you have given your wives, unless both of you fear that you would not be able to keep within the limits set by God….
If a man pronounces divorce again [that is, for the third time], she becomes unlawful for him (for remarriage) until she has married another man. Then if this latter divorces her, there is no harm if the (original) pair unite again if they think they will keep within the bounds set by God and made clear for those who understand.
When you have divorced your wives, and they have reached the end of the period of waiting, then either keep them honorably or let them go with honor, and do not detain them with the intent of harassing lest you should transgress. (Quran 2:228–231)
What seems to be chiefly envisioned here is the restraint of the financial manipulation of women, perhaps through prolonging the action of pronouncing the triple formula of divorce, since only the husband could initiate the divorce, or even of coercing the women to buy themselves out of the contract.
A number of Prophetic traditions show other sides of the intent and process of divorce in Islam.
Thawban reported God’s Messenger as saying, “If any woman asks her husband to divorce her without some very good reason, the odor of Paradise will be forbidden her.”
Ibn Umar reported the Prophet as saying, “The lawful thing which God hates most is divorce.”
Abu Hurayra reported God’s Messenger as saying, “There are three things which, whether undertaken seriously or lightly, are treated seriously: marriage, divorce, and taking back a wife before a divorce is final.”
And on the triple repetition of the divorce formula, which was obviously not intended to be done on a single occasion.
Mahmud ibn Labib told that when God’s Messenger was informed about a man who divorced his wife by declaring it three times without any interval between them, he arose in anger and said, “Is sport being made of the Book of God Who is great and glorious even while I am among you?” At that a man got up and said, “Messenger of God, shall I kill him?” (Baghawi, Mishkat al-Masabih 12.12.3)
Though there might be general agreement on the basic principles of the law, there was certainly a great deal of room for debating some of its specifics, and indeed this area of “controversial questions” discussed among the four classical schools of Islamic law constituted an entire subspecies of the discipline of jurisprudence. It is once again Ibn Khaldun who is writing.
It should be known that the jurisprudence just described, which is based upon religious evidence, involves many differences of opinion among scholars of independent judgment. Differences of opinion result from the different sources they use and their different outlooks, and they are unavoidable, as we have stated before.
These differences occupied a very large space in Islam. Originally people could adhere to any juridical authority they wished. Later on the matter was in the hands of the four leading authorities in the Muslim cities. They enjoyed a very high prestige. Adherence was restricted to them, and people were thus prevented from adhering to anyone else. This situation was the result of the disappearance of independent initiative (in the Law), because this was too difficult a matter and because, in the course of time, the scholarly disciplines constituting material for independent judgments had multiplied. Also, there existed nobody who might have organized a school in addition to the existing four. Thus, they were set up as the basic schools of Islam.
Differences of opinion among the adherents of these schools and the followers of their laws received equal status with differences of opinion concerning religious texts and legal principles in general. The adherents of the four schools held disputations in order to prove the correctness of their respective founders. These disputations took place according to sound principles and fast rules. Everybody argued in favor of the correctness of the school to which he adhered and which he followed. The disputations concerned all the problems of religious law and every subject of jurisprudence…. These disputations clarified the sources of the authorities as well as the motives of their differences and the occasions when they exercised independent judgment. (Ibn Khaldun, Muqaddima 6.13) [IBN KHALDUN 1967: 3:30–31]
Ibn Khaldun’s discussion of legal principles is highly abstract and was intended to be so. How the principles he describes were actually applied and controverted may be seen in the instance of the fast during the month of Ramadan, a duty prescribed by the Quran itself for all believers. Here we trace the practice from the chief Quranic text, through the Prophetic traditions, to the commentators.
O believers, fasting is enjoined on you, even as it was on those before you, so that you might become righteous.
Fast a certain number of days, but if someone is ill or travelling, the same number of other days (he had missed), and those who find it difficult should (as compensation) feed a poor person. For the good they do with a little hardship is better for men. And if you fast, it is good for you, if you knew.
… When you see a new moon you should fast for the whole month; but a person who is ill or travelling should fast on other days, as God wishes ease and not hardship for you, so that you complete the (fixed) number and give glory to God for the guidance and be grateful….
You are allowed to sleep with your wives on the nights of the fast: they are your dress as you are theirs. God is aware you were cheating yourselves so He turned to you and pardoned you. So now you may have intercourse with them. Eat and drink until the white thread of dawn appears clear from the dark line, then fast until night falls; and abstain from your wives to stay in the mosques for assiduous devotion. These are the bounds fixed by God, so keep well within them. (Quran 2:183–187)
We begin with some of the Prophetic traditions on the subject of the Ramadan fast.
Ibn Umar, may God be pleased with both of them (father and son), reported God’s Messenger, may peace be upon him, as saying in connection with Ramadan: “Do not fast till you see the new moon and do not break fast until you see it; but if the weather is cloudy, calculate it.” (Muslim, Sahih 6.406.2363)
Sahl ibn Sa‘d said that when this verse was revealed: “Eat and drink until the white thread becomes distinct to you from the black thread,” a person would take hold of a white thread and a black thread and keep eating until he could find them distinct (in the light of the dawn). It was then that God, the Majestic and Great, revealed (the rest of the phrase) “of the dawn,” and then it became clear that “thread” refers to the streak of light in the dawn. (Muslim, Sahih 6.412.2397)
Ibn Umar reported that the Messenger of God, may peace be upon him, observed fasts uninterruptedly [that is, night and day] in Ramadan, and the people did this (in imitation of him). But he forbade them to do so. It was said to him: “You yourself observe the fasts uninterruptedly (but you forbid us to do so).” Upon this he said: “I am not like you: I am fed and supplied drink (by God).” (Muslim, Sahih 6.415.2427)
Abu Hurayra, may God be pleased with him, reported that a person came to the Messenger of God, may peace be upon him, and said: “Messenger of God, I am undone.” He (Muhammad) said: “What brought about your ruin?” The man said: “I have had intercourse with my wife (during the day) in Ramadan.” Upon this Muhammad said: “Can you find a slave to set free (by way of atonement)?” The man said: “No.” Muhammad said: “Can you fast for two consecutive months?” The man said: “No.” Muhammad said: “Can you provide food for sixty poor people?” The man said no. The man then sat down and there was brought to the Messenger of God, may peace be upon him, a basket which contained dates. Muhammad said: “Give these dates as an alms.” The man said: “Am I to give to one who is poorer than I? There is no family poorer than mine between the two lava plains of Medina.” The Messenger of God laughed so broadly that his back teeth showed and said: “Go and give it to your family to eat.” (Muslim, Sahih 6.418.2457)
Aisha, may God be pleased with her, reported that Hamza ibn Amr al-Aslami thus asked the Messenger of God, may peace be upon him: “Messenger of God, I am a person devoted much to fasting. Should I fast during the journey?” He said: “Fast if you like and break it if you like.” (Muslim, Sahih 6.421.2488)
Ibn Abbas, may God be pleased with both of them (father and son) reported that when God’s Messenger, may peace be upon him, came to Medina, he found the Jews observing the fast on the day of Ashura [that is, the 10th of Muharram; see chapter 6 below]. The Jews were asked about it and they said: It is the day on which God granted victory to Moses and the Banu Isra’il over the Pharaoh and we observe fast out of gratitude to Him. Upon this the Messenger of God, may peace be upon him, said: “We have closer connection with Moses than you have, and he commanded (Muslims) to observe fast on this day.” (Muslim, Sahih 6.423.2518)
Aisha, may God be pleased with her, reported that the Quraysh used to fast on the day of Ashura in the pre-Islamic days and the Messenger of God, may peace be upon him, also observed it. When he migrated to Medina he himself observed the fast and commanded (others) to observe it. But when fasting during the month of Ramadan was made obligatory, he said: “He who wishes to observe the fast (of Ashura) may do so and he who wishes to abandon it may do so.” (Muslim, Sahih 6.423.2499)
The following two traditions, reported from the same authority, show one verse of the Quran abrogating another.
Salama ibn Akwa, may God be pleased with him, reported that when this verse was revealed: “And for those who can afford it there is a ransom, the feeding of a man in need” (2:184), he who liked to fast fasted and he who liked not to observe it ate and expiated till the (following part of the) verse was revealed which abrogated it.
Salama ibn Akwa reported: During the lifetime of the Messenger of God, may peace be upon him, in one month of Ramadan he who wished to fast fasted and he who wished to break it broke it and fed a needy person as an expiation, till this (following) verse was revealed: “But whoever does good of his own accord, it is better for him.” (Muslim, Sahih 6.428.2547–2548)
The reference to fasting as an obligation imposed upon others before Islam (2:183) elicited these remarks from the exegete Tabari (d. 923 C.E.) on the origins of the Christians’ Lenten fast during the fifty days preceding Easter.
As for those who were before us, they were the Christians. The month of Ramadan was prescribed, as it was also prescribed for them neither to eat nor to drink if they woke up after they had gone to sleep. Nor were they allowed to go in to their wives during the entire month of Ramadan. The Christians found the fast of Ramadan hard to endure. Ramadan rotated from winter to summer. As they realized this, they agreed to have the fast between winter and summer. They said: “We shall add twenty days as expiation for what we have done.” Thus they made their fast fifty days. Muslims continued to observe the fast in emulation of Christians until the incidents of Abu Qays ibn Sirmah al-Ansari and Umar ibn al-Khattab, when God made lawful for them [that is, the Muslims] eating, drinking and sexual intercourse until the appearance of the dawn. (Tabari, Commentary 3.411) [AYOUB 1984: 189]
The “incidents” in question are described by Wahidi (d. 1076 C.E.), on the authority of al-Bara, in his Occasions of Quranic Revelation.
At first the Muslims used to eat, drink and go in to their wives (after sunset in Ramadan) so long as they had not gone to sleep. Once they slept they did not do any of these things until the following evening. It happened that Qays ibn Sirmah al-Ansari was fasting, so he came to his wife at the time of the breaking of the fast (in the evening), but she had nothing for him to eat. While she went to fetch food for him, he fell asleep. Around noon of the next day he fainted. Likewise, Umar ibn al-Khattab came in to his wife after she had slept. All this was reported to the Prophet. Then this verse (2:187) was sent down and the Muslims were pleased with it. (Wahidi 45) [AYOUB 1984: 197]
And on the question of substituting another good work, to wit, feeding a needy person, for the fast during Ramadan:
In sum, abrogation is stipulated only in the case of one in sound health and not on a journey. This is based on God’s saying, “Therefore whosoever among you witnesses the moon, let him fast (the month).” The aged one who is near death, however, is allowed not to observe the fast; nor is he obliged to make up fasting by other days. This is because his condition would not change in such a way so as to make up for the days he missed. But if he does break the fast, he should feed a poor man for every day if he has the means to do so. (Ibn Kathir 1.378–379) [AYOUB 1984: 190–191]
And finally, this is Ghazali’s prescription for converting a ritual obligation into a genuinely spiritual act.
When you fast, do not imagine that fasting is merely abstaining from food, drink and marital intercourse. Muhammad, God bless and preserve him, has said: “Many a one who fasts has nothing from his fasting save hunger and thirst.” Rather, perfect fasting consists in restraining all the members from what God Most High disapproves. You must keep the eye from looking at things disapproved, the tongue from uttering what does not concern you, and the ear from listening to what God has forbidden—for the hearer shares the guilt of the speaker in cases of backbiting. Exercise the same restraint over all the members as over the stomach and the genitals. A Prophetic tradition runs: “Five things make a man break his fast: lying, backbiting, malicious gossip, the lustful glance and the false oath.” Muhammad, God bless and preserve him, said: “Fasting is a protection; if one of you is fasting, let him avoid obscene speech, loose living and folly; and if anyone attacks him or insults him, let him say, ‘I am fasting.’”
Then endeavor to break your fast with lawful food, and not to take an excessive amount, eating more than you normally eat at night because you are fasting by day; if you take the whole amount you usually take, there is no difference between eating it at one meal at night and eating it at two meals (one by day and one by night, as when one is not fasting). The aim of fasting is to oppose your appetites, and to double your capacity for works of piety. (Ghazali, The Beginning of Guidance 27) [GHAZALI 1953: 129–130]