The Canonization of Islamic Law (Review Article)

Introduction

I find Ahmed El Shamsy’s 2013 monograph The Canonization of Islamic Law – A Social and Intellectual History more ambitious in scope than its more well-known counterpart Jonathan Brown’s 2007 offering The Canonization of Al-Bukhārī and Muslim: The Formation and Function of the Sunnī Ḥadīth Canon.

Shamsy is to be commended for the clarity of his writing in addition to an evident mastery of the subject matter. He gives a lucid overview of the major players in early Sunni jurisprudence, effectively combining biographical elements with an identification of teacher-student influences and geographical patterns.

The book’s strongest parts come when he delves into the earliest extant sources – such as Abu Yusuf’s Ikhtilaf Abı Hanıfa wa Ibn Abı Layla, Shafi’is Risala and Ikhtilaf al-Iraqiyyayn in his al-Umm, Shaybani’s al-Hujja ala Ahl al-Madına, the letters of Malik – and draws inference from them.

This allows the early scholars to ‘speak for themselves’ as it were, not through the obfuscating layer of later classical scholars, who while insightful in their reconstruction of the methodologies of these eponymous ‘founders’ of the ‘schools’, evince clear bias and anachronistic projection.

The book is too long to cover in one post, therefore I have decided to give a foretaste by summarizing chapter 1 (‘Tradition under Siege’) including my own observations where relevant.

 

Medinan Amal versus Iraqi Ra’y

Shamsy begins with a discussion of Malik’s (d. 179) central principle, which he identifies as the superiority of the ‘Amal (custom/practice) of Medina’. He describes the emotional basis for it along lines such as

For Malik, the landscape of Medina was a sacred landscape: to walk in its streets was to walk the same streets the prophet had trodden after receiving divine revelation. Everyday items that one encountered, such as the measures that the Medinans used to quantify dates and other agricultural produce, were in fact artifacts from the prophetic age. The entire city was a storehouse of memories that led all the way back to the sacred age of revelation.

This is then juxtaposed with the Iraqi school of Ra’y and the challenge it posed to Medinan superiority. All this acts as a prelude to his, dare I say it, Hegelian notion of a Shafian synthesis later in the book.

I was particularly impressed with his re-framing of what Ra’y meant and why it was considered revolutionary by the Medinan traditionalists. He concentrates on its dialogical and dialectic features, how hypothetical analogues were probed in an oral debate setting to expose flaws in reasoning, all with the aim of testing whether a ruling can be extended to a novel scenario or not.

He claims that the attractiveness of this kind of argumentation was in its bypassing questions of authenticity (the canon of accepted narrations was still in flux). Ra’y argumentation typically began with commonly held positions and then proceeded to use basic logic (common sense) to narrow down the competing options. This also simplified keeping track of the score. The loser was one who failed to answer the latest question (in a typical to-and-fro), bringing down the whole intricate house of cards he was trying to construct.

Consider the representative example given for just such a debate between Shafi’i (d. 204) and Abu Hanifa’s (d. 150) student Shaybani (d. 189) which concerned the question of the extent to which someone can demand a return of his misappropriated property[1].

Shamsy draws a distinction between this and the mode of scholarly argumentation we find in the later classical period. This last took the form of a scholar laying out a wholistic exposition of his thesis before waiting for a point-by-point refutation. He credits this development to the written nature of scholarly argumentation as opposed to the oral setting of the earlier period.

 

“Consider if you will / Suppose it were so”

Shamsy posits that the term Ra’y can be linked to the oft-repeating interrogatory phrase “a-ra-aita” used in such arguments. He cites the Kufan scholar Zabarqan’s statement “people of a-ra-aita, a-ra-aita” to evidence the association.

Here, knowledge of the Imami corpus and its own extensive literature (invective) against Ra’y could have served him well in further buttressing his point.

I have in mind a citation like this:

Qutayba said: A man asked Aba Abdillah عليه السلام about an issue and he answered him in it – so the man said: a-ra-aita (suppose) if it were so and so – what would the answer be in it then?

So he (the Imam) said to him: Keep silent. Whatever I have answered regarding it – then it is on the authority of the Messenger of Allah صلى الله عليه وآله. We have nothing to do with ‘a-ra-aita’ whatsoever[2]

There can be seen in the answer of the Imam seeds of a formal terminological meaning being applied beyond any linguistic usage.

 

To Ra’y or not to Ra’y

Shamsy uses this conception of Ra’y to explain the early Hanafi school’s dislike of applying Hadith for specific cases. Often times such Hadith went contrary to the logical next step in a Ra’y debate. He memorably compares the introduction of a Hadith that was not generally known into a Ra’y debate to settle an issue as equivalent to “pulling a rabbit out of a hat”.

Thus the Hanafis favored the prioritization of widely accepted reports, especially those that contained maxim-like rules, and disregarded many specific Hadith to maintain overall consistency of their system.

It was this sidelining of Hadith that led to the emergence of a progressively widening gap between the bulk of transmitted reports and a growing, internally consistent body of legal rulings arrived at through Ra’y. This phenomenon gave rise to the charge that the proponents of Ra’y were abandoning the prophetic tradition in favor of their own reasoning.

Another issue with Ra’y was the ephemeral nature of the answer. Malik is quoted as complaining

whenever Ra’y is followed, someone else who is stronger in Ra’y comes along, and then you follow him. So whenever someone comes who defeats you (in debate), you follow him. I see no end to this

The elephant in the room, which Shamsy misses to point out is that, against the view of some western academics[3], the authoritative weight of the prophet’s words must have been too great in the eyes of all pious Muslims (including early Hanafis) from the earliest of times. No one would even think of abandoning what the prophet said for personal reasoning. We are therefore dealing with cases where there were no prophetic statements at all about a subject or solitary reports that were seen by Ra’y-inclined scholars as fabricated and consequently rejected out of hand.

Indeed, the phenomenon of wide-scale fabrication to deal with newly arisen questions (which the Sunni tradition itself attests to), and the modern rediscovery of the back-growth of Isnads, wherein Mawquf (reports which terminate at a Tab’i or Sahaba) in an early composition like the Muwatta are then found to be Marfu (sourced back to the prophet himself) in a later work like Bukhari’s[4], confirms one unsettling fact: the prophet did not promulgate many details of the Law[5].

This, in my personal view, is the strength of the Imami position. Instead of having to open up a divine Law to Qiyas and Ra’y, in the face of this paucity of prophetic statements, or having to rely on any prophetic statement, even the admittedly spurious ones (as the more Ahl al-Hadith minded scholars decided to do), we are honest enough to attribute most of our corpus to the two Imams, who were living at a more historically anchored time in comparison with the prophetic time shrouded in mist.

We justify the divine origin of their rulings either because of a unique testament that only they inherited from the prophet or because they are the divinely inspired interpreters of the Law who were mandated to define it.

 

The Imami Perspective on the Controversy

In light of the above, someone in conversation with Imami literature and its own entrenched polemic against Ra’y could flesh out another dimension of the opposition to it[6].

I refer to the fact that Ra’y, being prone to human fallibility, was seen by the Imami school as an intrinsically invalid method of discovering the divine Law. Ra’y and the multiplicity of valid answers it tolerated went against the Imami notion that the divine Law was a closed and comprehensive body. Variability of answers was not to be entertained. There was one true position in the Law for every question.

 

The Peculiar case of Rabi’a

Shamsy continues by fleshing out the clash between the “Iraqi” method and the “Medinan” Amalwhich sometimes devolved into farce when logic hit the hard wall of unfathomable revelation.

Consider the case of the Medinan Rabi’a (d. 142) who was given the epithet Ra’y. He was a teacher of Malik but seems to have association with the systemized reasoning that the Iraqis were known for.

Rabı’a b. Abı Abd al-Rahman said: “I asked Saı’d b. al-Musayyab, ‘How much [blood-money must be paid] for the finger of a woman?’ He replied, ‘Ten camels.’ I said, ‘How much for two fingers?’ He said, ‘Twenty camels.’ I asked, ‘How much for three?’ He said, ‘Thirty camels.’ I said, ‘How much for four?’ He said, ‘Twenty camels.’ I said, ‘Her wound is greater and her affliction more severe, [but] her blood-money is less?!’ He asked, ‘Are you an Iraqi?’ I said, ‘No; rather, I am a scholar who seeks firm proofs, or an ignorant man who seeks knowledge.’ Sai’d said, ‘It is the tradition (sunna), my nephew.’”

He also brings this important quotation:

Hisham b. Urwa related from his father (Urwa b. al-Zubayr): “The affairs of the Israelites remained in order until the half-castes (Muwalladun) – the offspring of foreign captives – appeared in large numbers and began to voice speculative opinions (Ra’y). They consequently went astray and led others astray.” …

Ibn Uyayna said: “We looked into this and found that the people’s affairs were in order until this was changed by Abu Hanıfa in Kufa, al-Batti in Basra, and Rabı’a in Medina. We looked into this [further] and found that they were [precisely] from the half-castes, the offspring of foreign captives.”

Shamsy identifies the above controversy as being behind a letter written to Malik by the Egyptian al-Layth b. Sa’d (d. 175) making reference to the former’s reservations about Rabı’a and his method.

This portrayal of Rabi’a could be greatly enhanced by including Imami sources on his life. Rabi’a was after all a contemporary of the three Imams al-Sajjad (d. 95), al-Baqir (d. 117) and al-Sadiq (d. 148). What we find in these reports is a not wholly negative attitude towards him[7], though there is a confirmation of him having a personal school or following[8] and using Ra’y as a method[9].

 

Was the Muwatta the First Tasnif?

Shamsy introduces Malik’s seminal work the Muwatta (lit. ‘well-trodden path’), the authoring of which he describes as “representing a milestone in the development of Islamic law”. The Muwatta was unique in so far as it was “ordered by chapters (Musannaf)”, beginning with the basic ritual laws (Ibadat) and moving on to the rules of human interaction (Muamalat). Malik’s Muwatta “drew together the full range of discrete topics in a deliberate and systematic arrangement”.

Unfortunately, most of scholarship seems unaware of the book of Ubaydallah b. Ali al-Halabi (a contemporary of both Malik and al-Sadiq) about whom al-Barqi says:

He has a book. It was the first book which the Shia authored (Sannafu).[10]

This obviously means that it was the first Shi’i Fiqhi book where there is an authorial presence (selection, arrangement and chapterization) beyond the small note-book Uusul genre which were merely a collation of material heard by an individual narrator (many times to be used as a mnemonic aid).

Najashi says about this Ubaydallah:

He authored (Sannafa) the book that is attributed to him, and presented it to Abi Abdillah (al-Sadiq) عليه السلام, so he (the Imam) deemed it correct. He (the Imam) said after reading it: ‘do you see them (i.e. the Sunnis) having something comparable to this (book)! …’[11]

One can read into the Imam’s statement about the unprecedented nature of al-Halabi’s Jami that it predated Malik’s Muwatta[12].

 

The ‘Imperial’ Muwatta

Shamsy attempts to link the authoring of the Muwatta to  backing by the Abbasid Caliph Abu Ja’far al-Mansur (reign. 136 – 158).

He accomplishes this by first citing the well-known letter of the courtier Ibn al-Muqaffa  (d. 139 or later) to al-Mansur to the effect that

Among the things that the Prince of the Believers should look into are the affairs of the two cities (Kufa and Basra) and other areas, where the differences between contradictory rulings have become a grave problem with regard to punishments, marriage, and financial matters … The one who engages in speculative legal reasoning (Ra’y) is so determined to follow his own reasoning that he will come to a decision in a weighty matter affecting the Muslim community – a decision on which not a single other Muslim agrees with him – and then he is not ashamed to be alone in holding this opinion and to enforce this verdict, while acknowledging that it is [the result of] his own reasoning and not based on the Quran or the Sunna …

This is then linked to reports which claim that al-Mansur demanded a written work from Malik during the pilgrimage of 148. al-Mansur asks Malik to

Gather this knowledge and record it in writing, while avoiding the strictness of Abd Allah b. Umar, the lenience of Ibn Abbas, and the anomalous [positions] of Ibn Masu’d. Aim at the middle ground and at what the community and the Companions agreed upon

He, the caliph, would then

compel [the people] to follow it

The greatest impact of the Muwatta (the composition of which must also be seen in light of the easier availability of writing materials at the beginning of this period) was in having a detached and autonomous written work (as separate to an oral and memory-based tradition).

This brought stability (fixedness) to a corpus in flux while at the same time encouraged concentrated critical thinking on a finite object, leading to the development of abstract concepts, making it possible to see new connections, disconnections, consistencies and inconsistencies.

 

The ‘Hidden Hand’ of Tradition

Malik, according to Shamsy, did not believe that Amal was “anything that people in Medina do”. He was aware of the emergence of divergent positions among Medinans themselves. He accepts that un-Islamic practices had appeared in Medina, already in the time of the Companions, and that the Medinan practice was therefore to be “constantly policed and groomed” to prevent the “disruption of the sacred cycle of repetition that had persisted in Medina since the time of the Prophet”.

Then there was the issue of those cases which lack a clear prophetic directive, and which needed to be decided upon. Shamsy claims that even though the answers to novel questions may have been worked out by individual scholars through legal reasoning  it was the

“hidden hand” of tradition which selected from among these individual opinions those that it would declare normative.

The primary instruments of this hidden hand were, in Malik’s opinion

the scholars of Medina. They were the guardians and the carriers of the tradition, representing an unbroken line of learned individuals that reached back to the original Muslim community

One can see how unsatisfactory this would be from the Imami perspective. The admittance of any reasoning, however cleverly checked, would amount in the end to susceptibility to the same fallibility and variability in the divine Law.

A pertinent question that must also be raised here is the extent to which the Medinan Imams of Ahl al-Bayt, who had a claim to a very strong familial ‘unbroken line’ directly to the prophet, were included in this ‘assembly of guardians’.

This calls for more research to be done on Malik’s attitude towards the Sadiqayn, looking at statistical analysis of how much he includes from them, and how authoritative he considers them to be. This is especially so because there are clues that he was well aware of the political reality of his day, making him very selective in his choice of teachers (and positions) to include in his Muwatta[13].

 

Conclusion

In actual fact, my main critique of Shamsy (of not including the Imami perspective) is not fair to him. It is clear that he is restricting himself to Sunni jurisprudence, although the title of the book contains the terms ‘Islamic jurisprudence’. This is just a continuation of that unfortunate elision of ‘heteredox’ Shi’ism when speaking of ‘orthodox’ Islam.

It is long past time however, to realize that these ‘schools’ are in many cases later constructions that are not exactly reflected at the origins. Furthermore, Imami and other perspectives are indispensable when speaking of early Islamic jurisprudence. At the very least, they add a very rich layer of control to any hypothesis or narrative.

It is to be hoped that such an eminently readable and accessible work will be written to explain the historical growth and evolution of the Imami school of Jurisprudence. Shaykh Ja’far Muhajir has something akin to this[14], but brings nothing like Shamsy’s critical approach to the table.

A must read!

 

Footnotes

[1] El Shamsy, A. (2013). The Canonization of Islamic Law: A Social and Intellectual History. Cambridge: Cambridge University. Pgs. 23 – 24.

[2] al-Kafi: Vol. 1, Pg. 58.

[3] Crone and Hinds argue that Sunna (a concept which predates Islam) was just the normative way things were done as established by those in authority. The prophetic Sunna was no doubt important, being the precedent of one who was an unrivaled leader, but this did not prevent later rulers (Khulafa) being seen as sharing in this authority to set their own precedents in their capacity as rulers. The Umayyads especially exercised this authority. This authority was only restricted later when theoretical considerations by the scholars restricted this authority from rulers and confined it to the scholarly classes’ interpretation of what the prophetic Sunna was (See especially chapter 5 of their monograph God’s Caliph – Religious Authority in the First Centuries of Islam).

What all this misses of course is the Qur’anic evidence. The repeated injunctions of following the prophet and the awesome authority it vested in him is unlike anything that pre-Islamic Arabian chiefs enjoyed. Crone and Hinds are also hasty in rejecting all the early historiographic evidence of the Umayyads being seen as distorting an already venerated prophetic Sunna and innovating in it.

Even if this revisionist theory is accepted then it would further support the Imami position, in so far as we see the true successors (who should have been rulers after the prophet) having the authority to clarify (if not set) the Sunna.

[4] Refer to Joseph Schacht’s The Origins of Mohammedan Jurisprudence for the initial presentation of the thesis. Compare with Jonathan Brown’s Critical Rigor vs. Juridical Pragmatism: How Legal Theorists and Hadith Scholars approached the Backgrowth of Isnads in the Genre of Ilal al-Hadith for the latest reformulation. Brown argues that this phenomenon was known to early Hadith critics who subsumed it under the rubric of ‘Ziyadat al-Hadith’. Out of the 217 reports in the Sahihayn that al-Daraqutni’s criticizes  in his Kitab al-Tatabbu, 15 are singled out for this flaw i.e. a statement by a Successor or Companion being pushed back to the prophet. Questions of the extent to which this happened is debated, but a statistical approach can be seen in Ditzel and Pinckneys A Quantitative Analysis of Schacht’s Hadith Backgrowth Theory.

[5] Consider the estimate arrived at by the contemporary Salafi scholar Muhammad b. al-Amin (http://www.ibnamin.com/num_hadith.htm). He concludes (based on the testimony of early Hadith masters) that the sum total of authentically proven prophetic statements in all subjects is not more than 4400. He goes on to quote Shafi’is statement that the prophetic statements which have to do with Fiqh (The Usul al-Ahkam around which jurisprudence revolves) are around 500, with Malik including all but 35 of these in his Muwatta.

This tallies with the breakdown of our recension of Muwatta which contains 1,720 reports. Of which, only 527 are Prophetic statements, with 613 being statements by different Companions, 285 from Successors, and the remaining 295 are Malik’s own opinions. Note the high number of non-prophetic statements (making up approximately 70% of the book). It must be significant that the Sahih-Musnad compilations which follow Musannaf genre decided to limit their contents to prophetic statements.

[6] Shamsy does not, for instance, cite R. Gleave’s work on the subject. See his Imami Shi’i Refutations of Qiyas in Weiss B (Ed), Studies in Islamic Legal Theory, Brill, 267-292.

[7] Rabi’a is a narrator of one report in al-Kafi which quotes his description of seeing Ali b. al-Husayn al-Sajjad wearing a ring of Aqeeq (See al-Kafi Vol. 6 Pg. 470). He is placed in a Majlis of al-Sadiq in a number of narrations, for example (كنا عند أبي عبدالله عليه السلام ومعنا ربيعة الرأي) (See al-Kafi Vol. 2 Pg. 634). al-Sadiq is even said to have been present in one of Rabia’s study-circles (كان أبوعبدالله عليه السلام قاعدا في حلقة ربيعة الرأي) (See al-Kafi Vol. 7 Pg. 409).

[8] When Zurara asks the Imam whom he could marry (he was keeping away from marriage because he did not think it was allowed for him to marry someone who was not upon the Wilaya), the Imam replies that it should be the ‘simpletons’. Zurara asks if this includes those who were (من هي على دين ربيعة الرأي) – “upon the Diin of Rabi’a al-Ra’y”. Diin here used in its archaic sense. This indicates that there were those who took all of their understanding and positions in religion from Rabi’a, who had set himself up as an authority in religion. The Imam rejects this. But just the fact that Zurara entertains this possibility means that Rabi’a was no Nasibi in any way. In fact he must have shared the general Kufan sympathy to the Alids. The Imam then clarifies that it should be those who were not aware of any thing and could not be responsible for not accepting the truth (See al-Kafi Vol. 2 Pgs. 402 – 403).

[9] Rabi’a is is quoted by Zurara as openly attributing a verdict concerning when the period of Idda of divorce terminates and the man cannot return his wife (when the menstruating woman sees the blood of her third cycle) to his Ra’y (وزعم أنه إنما أخذ ذلك برأيه). This confirms his propensity of using Ra’y. Interestingly however, the Imam al-Baqir denies that this is coming from his Ra’y and asserts that Rabi’a was taking this from the ruling of Ali (al-Kafi Vol. 6 Pg. 88).

[10] له كتاب، وهو أول كتاب صنفه الشيعة

[11] وصنف الكتاب المنسوب إليه وعرضه على أبي عبد الله عليه السلام، وصححه، قال عند قراءته أترى لهؤلاء مثل هذا؟

[12] This was brought to my attention by Ali al-Nawfali.

The popularity of Ubaydallah’s book can be seen by noting Najashi’s word’s:

وقد روى هذا الكتاب خلق من أصحابنا، عن عبيد الله، والطرق إليه كثيرة، ونحن جارون على عادتنا في هذا الكتاب وذاكرون إليه طريقا واحدا

This book has been transmitted by a very very large number of our companions from Ubaydullah. The Turuq (paths) to it are too many. But we will remain on our practice in this book and will only give a single chain to it …

Indeed the book of Ubaydallah was a primary reference for al-Saduq when he was compiling his Faqih. He says:

وجميع ما فيه مستخرج من كتب مشهورة، عليها المعول وإليها المرجع، مثل كتاب حريز بن عبد الله السجستاني، وكتاب عبيد الله بن علي الحلبي

And all that which is in it (i.e. my book al-Faqih) is taken from famous books, on which we (the whole Ta’ifa) rely and to which we refer, such as the book of Hariz b. Abdallah al-Sijistani, and the book of Ubaydallah b. Ali al-Halabi …

Ubaydallah’s book has been preserved in its entirety, being subsumed in later works, as shown by almost a 1000 quotations from this author through the same chain of transmission in the Four Books.

[13] The Umayyad opposition towards the descendants of Ali as well as the rivalry of the incoming Abbasid rulers to their Alid cousins would not be hidden to someone like Malik.

al-Darawardi is quoted as saying:

لم يرو مالك عن جعفر حتى ظهر أمر بني العباس

Malik did not transmit from Ja’far until the affair (rule) of Bani Abbas emerged (i.e. after 132).

Even when he did transmit his narrations he placed conditions on it. Mus’ab al-Zubayri says:

ان مالك بن أنس لا يروي عن جعفر بن محمد حتى يضمه إلى آخر من أولئك الرفقاء ثم يجعله بعده

Malik b. Anas used not to transmit from Ja’far b. Muhammad until he joins him (i.e. corroborates his report) with someone else from among those of his peers, and then he places him (i.e. Ja’far’s report) after him (i.e. his peer). 

See Ta’rikh Ibn Abi Khaythma Vol. 3 Pgs. 141 – 142.

[14] See his al-Ta’rikh al-Sirri lil Imama (The Secret History of the Imama), published by the Markaz al-Hadhara li Tanmiya al-Fikr al-Islami in the year 2015.

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