Books

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Footnotes

Abstract

            Since the publication of Ignaz Goldziher’s critical evaluation of Islamic law, many modern scholars wrote follow-ups about the origins and sources of Islamic law.  Over a century later, Goldziher’s appraisal of this discipline remains as cogent as when it was first published: later findings either fully confirmed or partially modified it.  In this paper, I propose to discuss a couple of fundamental features that were not adequately considered in previous works: the orality of the Islamic discourse, and the role of traditional precedent in authorizing Qur’ánic proofs.  In the final analysis, I would hope to make the case for the argument contending that Qur’ánic legal proofs are not necessarily binding unless activated by precedents that are largely transmitted orally.

Khilafah

Nationalism

Usul

Archives

A SUMMARY OF FINDINGS

Scholarship on Islamic law has been occupied by the question of the origins of Islamic law and quite a number of studies have been published on this topic.[1]  Most recently, Yasin Dutton wrote a book titled The Origins Of Islamic Law, in which he examined the application of the Qur’án as law.[2]  Before presenting his own theory, Dutton summarized existing opinions on this subject by stating that there are two main views on the origins of Islamic jurisprudence: a post-Sháfi`í Muslims’ point of view and that of “the revisionist school of most modern Western scholarship”[3] which is anchored by the writings of Goldziher and Schacht.  The Muslims’ view by and large grounds Islamic law in the “text of the Qur’án and the <adíth” as the other corpora of decrees extracted by way of ijmá` and qiyás were ultimately derived from these “texts themselves.”[4]

In modern scholarship, and according to Dutton again, the <adíthic origins of Islamic law were questioned due to some linguistic and concordance inconsistencies[5] and a noticed rapid increase in the number of reported <adíth.  It was argued that the so-called “sunna of the Prophet as a normative model” must have been fabricated by small groups of scholars who were opposed to the “godless and irreligious nature of the Islamic state of that time” and who sought remedies for the increasingly diverse local customs.[6] In the light of this characterization of the exiting theories on the origins of Islamic law, Dutton offered his view which he called a “third view” that was based on his understanding of Málik’s Muwa>>a’ and in which he argued that “the true expression of the law is seen as being preserved[7] not in a corpus of texts, but in the actions, or `amal [action] of men.”[8]  In other words, Dutton appears to fault both positions—the modern Western and “classical” Muslim view—for grounding Islamic law in a “ text-based” framework.  Generally speaking, since his primary focus is on the applications of the Qur’án, the written Muwa>>a’ can be looked at as a rendition of “actions” so that its value does not lie in the text per se.

The paradigm proposed by Dutton suggests that there exists an organic continuity between the body of Islamic law and the sources of law, namely the Qur’án and the \adíth.[9]  This continuity is cemented by the notion of `amal.  As he put it, “the sources of law is not achieved by studying the texts of the Qur’an and the <adíth as by seeing what is done as `amal.”[10]  His divergence from the modern Western point of view was seemingly reconciled by arguing that the reformulation of Islamic law that was authored by al-Sháfi`í had caused a shift from giving importance to `amal to relying on the textual <adíth.[11]  Similarly, while Dutton disagreed with the “classical” Muslim view as far as its understanding of the notion of Sunnah, he still managed to agree that Islamic law is essentially rooted in the Qur’án.[12]

Dutton’s discussion provides and important point of departure for this study; since I intend to contribute to the discussion on the origins of Islamic law.  However, the scope and the conclusions in this presentation will differ from Dutton’s on a number of issues.  For instance, while his assessment of Muslim scholarship on this topic is more or less adequate, the characterization of the theories of modern scholarship is overly simplified, as we will demonstrate in the next paragraphs.  Additionally, I find the determination of the origins of Islamic law as being rooted in the `amal to be problematic.  For Dutton’s theory explicates only the “preservation”[13] of Islamic law, but not necessarily the origins of it.  In other words, his study does not really resolve the problem of the existence of certain rulings that cannot be traced to the Qur’án;[14] nor does it answer the actual process of the translation of Qur’ánic and Prophetic sanctions into actions (`amal).  A determination of the origins of Islamic law is ultimately a determination of the process of deriving legal decrees from its sources and the timeframe during which it had occurred.[15]  In this regard, I would argue for a limited organic nature of Islamic law only in as much as the theoretical construct is concerned.[16]  As to the actual bridging from the legal rulings to the Qur’án and the tradition of the Prophet, it will be shown from the analysis of the case of inheritance that there is an actual discontinuity.[17]  David S. Powers[18] used the inheritance rules also to conclude that there had been a transformation in the nature of law—hence his thesis that separated between proto-Islamic law and Islamic law.  Similarly many other scholars[19] have conjured up the discrepancies between the Qur’ánic edicts (and/or \adíth) and the classical Islamic law. 

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