The law is religious command: the highest lawgiver is God. Fiqh is therefore, according to the understanding of the Muslim, ‘knowledge of the classification of the laws of God, which concern the actions of all responsible Muslims, as obligatory, forbidden, recommendable, disliked or permissible’.
According to a modern definition it is ‘like the Jurisprudentia of the Romans, rerum divinarum atque humanarum notitia, and in its widest sense covers all aspects of religious, political and civil life. In addition to the laws regulating ritual and religious observances, as far as concerns performance and abstinence, it includes the whole field of family law, the law of inheritance, of property and of contract, in a word provision for all the legal questions that arise in social life; it also includes criminal law and procedure, and finally constitutional law and laws regulating the administration of the state and the conduct of war’.
The Koran could not answer all the questions that arose in actual practice. Even in situations for which it laid down regulations, it could not be applied immediately as a basis for a unified legal system in the great empire which arose in a few decades after the death of Muhammad (632). In order to organise the expanding state, the caliphs and their governors had first of all to draw on pre-Islamic government and customary law in the old provinces of both the Byzantine and the Sasanian empires.
From the end of the seventh century these different forms of administrative and legal practice were Arabised and Islamicised under the caliphate of the Umayyads – the names of the caliphs Abd al-Malik (685–705) and Umar II ibn Abd al-Aziz (717–20) should especially be mentioned here. The Umayyads also created, about a century after the Hijra, the office of the Islamic judge. In this way a class of legal specialists emerged and local ‘schools’ also developed, though not in the sense that they professionally transmitted an established doctrine.
The concepts of ‘usage’ (sunna) and previous ‘practice’ played an important role in legal reasoning; personal judgement (ra’y), supported by analogy or again – against such analogy – legal preference gave a rational pragmatic character to this kind of legal thinking. Differences were removed by recourse to the ‘consensus’ of the teachers of law. The Iraqi Abu Hanifa (d. 767) and the Medinan Malik Ibn Anas (d. 795) were the authorities for the formative stage of the Islamic schools in this period, authorities to which in the Abbasid Period period (from c. 750) the earliest legal schools stricto sensu began to refer.
It would appear that it was the Iraqi lawyers who began to link the doctrine which had emerged from regional use and consensus with the authority of the Prophet, to defend it as ‘the sunna of the Prophet’ – a result of rivalry between the various local movements and indeed of opposition to the government institution. At the same time, however, critics of the prevailing practice, which often appeared to be capricious, argued with ever-increasing urgency – and in steadily more determined opposition to the Umayyad administration – for that ‘sunna of the Prophet’ to be placed on a new, authentic basis: namely traditions, precepts and norms of behaviour which were traceable back to the Prophet and to the ‘rightly guided’ authorities of earliest Islam. Such traditions gradually emerged in increasing numbers in legal literature.
This development produced in the middle of the ninth century a definitive result: that body of tradition which was regarded as authentic was collected and arranged systematically; and the normative judgement and model of the Prophet and of his most respected companions which was preserved in this corpus – now identified with the sunna – was then, with the Koran, elevated to the status of the authoritative ‘root’ of fiqh. When, in the context of the religion and law of Islam, there is any discussion about ‘tradition’, ‘traditionists’ and ‘traditionism’ (or, more general still, ‘traditionalism’) it is about accounts of the words and deeds of the Prophet, the formalised transmission of those accounts and the tendency of teachers to base Muslim belief and actions on the tradition of the earliest community.
The Laity and the Clergy: Culture and Economy Combined
