Islamic History, part 29b: Early Islamic Law (c. 700 – c. 850) — Shafiʿi and Ibn Hanbal

Islamic History Series

Please start with part 29a

Muhammad b. Idris al-Shafiʿi (d. ~820), who I just mentioned in the last entry, is the third legal theorist (founder of the Shafiʿi madhhab) you need to know something about. Born in Gaza in or around 767, his family moved to Mecca when he was still a toddler, after the death of his father. Shafiʿi was a legal prodigy–it’s said that he’d memorized the Qurʾan by the time he was seven and Malik’s Muwattaʾ by the age of ten. He was issuing his own fatwas by the time he was 15. If these stories strike you as a little too “Paul Bunyan”-ish to be real, well, I can’t blame you for thinking that way. Who knows whether there’s any truth to them.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/4/44/Madhhab_Map3.png?resize=430%2C213&ssl=1
Modern distribution of the Islamic legal schools (I know this was also in the last entry, but it’s important)

At some point we do know that Shafiʿi traveled to Medina in order to study under Malik, and he always referred to the older scholar as “the Teacher.” Later, he would study in Baghdad under Muhammad al-Shaybani, who had been one of Abu Hanifah’s top students, and so he had considerable training in both of the predominant legal schools of his time. Probably because of that training (or at least in part because of it), Shafiʿi’s greatest contribution, even more so than formulating his own legal school, was developing the overarching science behind fiqh in such a way that it forestalled the continued fragmentation of Islamic jurisprudence along regional lines. Competing schools continued to exist, obviously, but they all existed within Shafiʿi’s framework–specifically, they recast their “regionalism” as “allegiance to a particular body of scholarship”–and thus all hung together in a basically “Islamic” system despite their differences. Hanafi law stopped being “Kufan” law and became “the followers of Abu Hanifah’s teachings,” and likewise in the cases of Maliki/Medina and Awzaʿi/Damascus.

Shafiʿi was able to demonstrate (pretty easily, as it turns out) that the legal schools claiming to represent various “traditions” really didn’t represent them very well at all–he showed, for example, that the early Hanafis disagreed frequently with the stated words of the Companions of Muhammad who settled in Kufa, despite their claim to represent the “Kufan tradition.” For Shafiʿi, this discredited these regional schools and showed one of the biggest problems with evaluating hadith on the basis of localized traditions that were often in disagreement with one another. Shafiʿi believed that the way to avoid the problem of localized traditions about the particular Companions who had lived in this or that place was to focus primarily on Prophetic hadith. Muhammad’s words and deeds were universal to all Muslims, regardless of place. He also rejected the idea that a hadith‘s position within communal tradition had some impact on whether or not it should be considered normative; Shafiʿi believed that the only objective standard was to consider hadith on the basis of accuracy, full stop.

So far, Shafiʿi’s views are pretty similar to Malik’s–Malik, after all, held that the Medinan school was superior to all others precisely because Muhammad lived in Medina, so their tradition was his tradition. However, Malikis agreed in theory with the Hanafis, that hadith reports were given normative authority because they’d been accepted into the ever-developing community tradition, whereas Shafiʿi, again, rejected the use of local tradition to “verify” a particular hadith report’s authority. At some point, either during a short stint as a teacher in Mecca or after his return to Baghdad, Shafiʿi met and taught the fourth of our main legal scholars, Ahmad b. Hanbal (d. 855), and from their interactions his views would begin to diverge more clearly from Malik’s. Eventually, Shafiʿi wrote the definitive takedown of Malik’s ideas, Disagreement with Malik, in which he argued that using communal tradition to determine the normative value of particular hadith meant that people had to just keep blindly following the established rules without ever examining the legal reasoning behind those rules, even though the law was supposed to be anchored in past legal reasoning (hence the reliance on hadith in the first place).

We’ve already met Ibn Hanbal, because his teachings were theological (or, rather, anti-theological) as much as they were legal. We’re not there yet in the history, but in the 830s the Abbasid caliphs–beginning with al-Maʾmun–decided to put their feet down on a question of theology–namely, they demanded that all Muslims adopt the Muʿtazili position that the Qurʾan was not the Eternal Word of God, but that, logically, it must have been created by God at some point. This is one of the two biggest points of theological disputation in Islamic history, the other being the question of free will versus predestination. In a sense it’s a placeholder for a larger question about the compatibility of Islam and logic, but let’s not get too deep into those weeds.

The caliphs’ zeal on this subject (which had more to do with their desire to reign in the scholars and control the religion as much as with this specific point of doctrine) was such that they created what can be described as an “Inquisition,” the Mihna, which was active from 833 until sometime around 850 (848 is the most widely accepted end point, but elements of it may have remained in place for another couple of years). This body rounded up dissenters and forced them to publicly proclaim the “created Qurʾan” position on pain of imprisonment or execution. Without getting into the details, this effort failed, and as Islamic theology (what a believer ought to believe) started to coalesce, at least around most of the main points, the real scholarly action happened in the field of the law (what a believer ought to do, and what ought to happen to him/her if he/she doesn’t do it).

Ahmad b. Hanbal is best known, apart from the legal school he founded, for his opposition to Muʿtazili theology (to all theology, really) and to the Mihna. Ibn Hanbal spent years in Abbasid custody in Baghdad, periodically being flogged (at least once, reportedly, badly enough to send him into a coma), for his refusal to go along with the Mihna. In his Athari creed and his legal scholarship, Ibn Hanbal emphasized one idea above all: that human beings just can’t understand God, and trying only leads to problems. He was, in effect, a literalist. Does the Qurʾan mention something about God’s arm? Or did Muhammad, in a hadith report, say something about God’s eyes? Then God must have an arm, or eyes, despite the fact that depicting an all-powerful deity with normal human body parts is, on some level, kind of absurd. It doesn’t matter if it’s absurd; it makes sense to God, and human minds don’t have anywhere near the capability to understand what makes sense to God. Ibn Hanbal rejected every form of human intervention in questions of religion or law as illegitimate–he lumped it all together as kalam, which he regarded as not only speculative rubbish, but potentially sinful speculative rubbish.

Ibn Hanbal completely rejected any role for community consensus and tradition in making law, apart from the consensus of the early community of Muhammad and his Companions (Sahabah). If the Qurʾan, the well-attested prophetic hadith, and the Sahabah consensus couldn’t resolve a legal question, Hanbalism turned to less attested hadith rather than to contemporary consensus. His arguments weren’t really the basis for a separate legal school so much as they were a rejection of the thinking behind all other legal schools, but his students picked up his banner and crafted it into a new school of its own. Hanbalism, and its strict rejection of the value of human reason or modern knowledge, underlies some (though by no means all) of the fundamentalist movement within Islam today, although its more virulent forms (Wahhabism, violent Salafi-jihadism) are only a part of the much bigger Hanbali picture.

There’s one other Sunni school worth briefly mentioning: the Zahiri school, which at one time was a major madhhab but today only survives in pockets in Morocco and South Asia. It was founded by a man named Dawud al-Zahiri (d. ~883), who studied under Ibn Hanbal and formulated a similarly literalist view of legal matters. Like the Hanbali school, Zahiri thinking stresses the inadequacy of human reason and the notion that the consensus of the early community is the only consensus that has any relevance in interpreting the law. Zahiris also reject the use of qiyas, or analogy (rendering a judgment on the basis of a similar case in the source material), which even the restrictive Hanbalis still permit if Qurʾan, hadith, and early community consensus don’t by themselves provide the basis to make a ruling. There aren’t many Zahiri left, but there are some (and Zahirism has also, like Hanbalism influenced modern extremist/Salafi movements), so we should acknowledge that they exist.

This has been a lot of words, so I feel like I owe you some kind of summary about the four main Sunni legal schools. Unfortunately, any summary I give you is going to do two things: drastically oversimplify the differences between these schools and yet simultaneously overstate the degree to which they are incompatible with one another, and make it seem like the schools themselves just hatched fully-formed out of the minds of their founders. So please keep that in mind, OK?

Now, if you had to boil down the differences between the four main schools to one key point, it would be the degree to which each one allows the individual jurist-scholar to use his or her own judgment, particularly as it relates to interpreting hadith and ijma (community consensus, often meaning the consensus of Muhammad and his earliest followers) in rendering legal rulings. Each of the four schools agrees that the Qurʾan is controlling whenever applicable, and each also agrees that the use of “analogy” (qiyas) to draw legal inferences from the source material is valid, though they differ as to when and how analogy should be used (Hanbalism, for example, considers it only as a last resort). Each successive school, in the order that we’ve looked at them, restricts scholars more than the previous one.

  • Abu Hanifah believed that scholars should have fairly wide latitude to use their own reasoning, often based on their local tradition as it had developed since Muhammad’s time, and even argued that judicial reasoning was as valid or nearly as valid as source of law as the hadith and the consensus of the early proto-Muslim community
  • Malik b. Anas restricted this somewhat, arguing that only the Medinan local tradition should be considered valid
  • Al-Shafiʿi, after studying both early Hanafism and early Malikism, rejected the validity of any local tradition and argued that legal reasoning should be based (after the Qurʾan, of course) on the prophetic hadith and the consensus (ijma) of the early community around Muhammad
  • Finally, Ibn Hanbal went still further and essentially rejected all forms of judicial reasoning, arguing that the literal texts of the Qurʾan and hadith were all that was needed to know the law, though he allowed that the consensus of the early community might be needed in rare cases

Later Hanbalis relaxed the tight restriction on the use of consensus and began to suggest that the consensus of later generations might be allowed provided it were restricted to the consensus of learned religious scholars, but overall Hanbalis use consensus less than the other three.

So that’s the story of early Islamic jurisprudence. I try to steer clear of modern politics in these pieces, except by analogy, but if you come away from reading this with the understanding that Shariʿah is a abstract idea that has always been interpreted by human beings in practice, and not some rigid legal code that commands all Muslims to butcher unbelievers in their sleep, or whatever Pam Geller and her fellow travelers are going with these days, then that wouldn’t be such a bad thing.

Next: It takes me forever to write about these intellectual topics, and we’ve still got a couple more to go before we get back to the historical narrative, so let’s break things up and talk about the caliphal military, shall we? That might be fun.

Further Reading

This was a tough slog for me and I’m sure I got some things wrong, because Islamic Law is pretty far outside my comfort zone. The two texts I relied most heavily on were Ahmed El Shamsy’s The Canonization of Islamic Law: A Social and Intellectual History, and Wael Hallaq’s An Introduction to Islamic Law. I recommend Hallaq’s book if you have general interest in learning more about Islamic law, although in my opinion he does assume that you have some knowledge of Islam and Islamic history to begin with. El Shamsy’s book is more scholarly, but also more detailed and therefore more helpful for something like this, and anyway I’m a little more familiar with his (very capable) work, because he started teaching at Chicago shortly before I left there.

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Author: DWD

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