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Origins Of Islamic Law

The origins of Islamic law is a field of inquiry fraught with difficulties. These proceed mostly from two problems; first, a dearth of securely datable “formative period” evidentiary materials; and, second, problematic reasoning on the part of inquiring scholars. The “origins” question is decidedly modern, framed in the idiom of 19^th-century European Orientalism and carrying forward many of its assumptions. Arguably, the terms of inquiry lend themselves to exclusion and reduction from the outset. “Origins” has the tendency to preclude indigenous generation and parthenogenesis, and to dismiss or reduce exceedingly complex patterns of cultural inheritance. The relative neologism “Islamic law” paints over, in monotone pigment, a rich plurality of normative opinions, practices, and systems. Despite its inherent or potential problematics, however, the study of the “origins of Islamic law” has evolved—via critical redress of fallacies and increasing methodological sophistication—into a fruitful and ultimately constructive field of inquiry.

Approaches And Commitments

With strongly asserted but variant conclusions, the origins field has generated a measure of reflective analysis. Koren and Nevo (1991) reduce the field to a binarism of mutually exclusive “traditional” vs. “revisionist” approaches. The latter is purportedly marked by:

“Source-critical” skepticism toward traditional Muslim literature and methods;

Frequent recourse to contemporaneous non-Muslim literature; and

Evidentiary resort to archaeology, epigraphy, numismatics, and silent arguments.

Berg, however (2003), prefers a taxonomy dominated by the “sanguine” vs. “skeptical” but including a “continuum” of approaches toward Muslim materials. At one extreme are the non-critical “scriptionists,” with profusely critical “skeptics” at the other. More optimistic “sanguine scholars” range in between. Hallaq (2002–3; 2004) shifts focus to doctrinal commitments, exposing a dogmatic undercurrent in revisionist origins scholarship. Despite surface disagreements, Orientalist assumptions persist at the core, and it is the perpetuation of Orientalist doctrine—not objective investigation— that drives the “quest” for origins. The present article, in light of such studies, qualifies theories by a spectrum of approach and a vertical dimension of doctrinal commitment.

Muslim-Traditionalist

State of the field summaries loosely refer to a “traditional,” “classical,” or “Muslim account” of the origins of Islamic law. Whatever their intent, such appellations reduce the plurality of premodern narratives — and the multiple genres which contain them — into a vague and dysfunctional union. (Too often, the “tradition” monolith then becomes the revisionist’s straw man.) To the contrary, it would seem that no single, standardized genre of comprehensive Islamic legal-historical (meta)narratives appeared until the early 20^th century; and this late genre’s modernity is writ large in its most recurrent title: Tārīkh al-Tashrīʿ al-Islāmī (History of Islamic Legislation). Not surprisingly, though drawing from pre-modern genres (sīra, aḥādīth, tafsīr, ṭabaqāt, etc.), these narratives do not eschew modern frameworks, terms, and concepts — nor are they untouched by Orientalist conclusions. They are, however, “Muslim-Traditionalist” and “doctrinal” insofar as they adhere to narratives, principles, and methods claiming acceptance in premodern Muslim scholarship and belief, and insofar as they defend these “traditional” elements against “revision.”

Axiomatic to Muslim-Traditionalist accounts is the belief that Allah Himself — through the conduits of revealed Qur’ān and inspired Sunna — is the ultimate origin (maṣdar) of “Islamic legislation.” For Imāmī Shi’ites, the law was systematically cultivated from this divine foundation by infallible Imāms, and then, in their absence, by authoritative mujtahids. For Sunnīs, legal elaboration was achieved by authoritative Companions (Ṣaḥāba), Successors (Tābiʿūn), and eponymic Imām-Mujtahids (Abū Ḥanīfa, Mālik, al-Shāfiʿī, et al.) Thus, the “origins” of al-tashrīʿ al-Islāmī are at once “divine” (by source-referent) and “positive” (by subsequent human cultivation); and its early history comprises distinct, developmental eras.

General Sunnī Narrative

The era of the Prophet bequeathed the foundation for a complete legislative system, with a sufficiency of:

Qurʾānic and Sunnaic normative formulations (nuṣūṣ al-aḥkām);

Signs and methods for discovering additional rulings; and,

Universal legal principles.

The Prophet was sole legislative authority; some Companions engaged in minor ijtihād but sought out the Prophet for more difficult matters. There followed (632–ca. 720 AD) the eras of elder and younger Companions, whose chief ʿulamāʾ were uniquely qualified to interpret the nuṣūṣ al-aḥkām. They witnessed and transmitted Prophetic sunnah and “causes of revelation” (asbāb al-nuzūl); they memorized, propagated, and canonized the Qurʾān; and they contributed numerous legal opinions (fatāwā) for novel or ambiguous cases.

There followed a “golden age” (ca. 720–950), comprising the eras of successors (Tābiʿūn), venerable Imām-Mujtahids, and “putting down in writing” (tadwīn). Ijtihād flourished, as did plurality of opinion. Succeeding generations of legal specialists (fuqahāʾ) — driven by the exigencies of an empire’s diverse customs and transactions — cultivated the theory and substance of law. Legal pedigrees (ṭabaqāt) evolved: first-tier successors sought and transmitted fatāwā from the Ṣaḥāba of various centers, and took instruction in Qurʾān, sunnah, and rational-inferential method (istinbāṭ); second-tier successors took the same and more from the first-tier; following generations produced the eponymic Imām-Mujtahids, their associates, and their students. Prophetic aḥādīth were collected, sorted, and written down, and a science of verification developed. The legacies of fatāwā were recorded, compendia of derived substantive rulings (fiqh) and juridical disagreement (ikhtilāf) were compiled, and systematic treatises on legal theory (uṣūl al-fiqh) appeared. Competing trends in ijtihādic method led to the development of variant hermeneutical and rational-inferential tools, and a preponderance of ikhtilāf. The foundations of variant doctrinal schools (madhāhib) were thus laid, each with its distinctive corpus of fiqh and methodological “toolbox” of uṣūl al-fiqh.

General Imāmī/ Ithnā ʿAsharī Shiite Narrative

In contrast to Sunnī accounts, Imāmī Shiites claim continuity of infallible epistemic authority (the Imāms of the Ahl al-Bayt) and earlier composition of texts. The Prophet’s era (through to 632 AD) bequeathed, as in Sunnī narratives, a complete foundation of Qurʾānic and Sunnaic norms. The textual/inferential modes of norm-discovery (ijtihād al-naṣṣ/al-ra’y — the latter rejected by the Ahl al-Bayt) were, however, practiced in the Prophet’s Umma, and the first legal writing appeared with the Kitāb ʿAlī. The era of the Imām ʿAlī (through to 660 AD) saw crystallizing ijtihādic trends distinguish the “school” of the Ahl al-Bayt from that of the Ṣaḥāba. A dynamic movement of compilation began (esp. for aḥādīth and fiqh), and a nascent system for narration-research appeared.

Successive eras of infallible Imāms proceed through 874 AD and the start of the Lesser Occultation (al-Ghaybah al-Ṣughrā). The epistemic role of the Imāms (esp. Jaʿfar al-Ṣādiq [d. 765]) is evidenced by a super abundance of narrations on normative matters. A school of Narrator-Jurists appeared after Jaʿfar al-Ṣādiq, and nascent structures of ijtihād and taqlīd developed. By the era of the Lesser Occultation (874–941 AD), jurists — though no longer able to consult the Imām—were well equipped for ijtihād. The first authoritative “encyclopedia” of aḥādīth (the Kāfī of al-Kulaynī [d. 940]) appeared at the end of this period; and the first two centuries of the Greater Occultation (al-Ghaybah al-Kubrā) produced three more (completing the four Shiite “uṣūl”). Legal theory advanced and literary activity flourished, with evaluative indices of narrators, bio-bibliographical dictionaries, systematic uṣūl al-fiqh treatises, and encyclopedic fiqh works. Most importantly, hierarchies of scholarly authority took shape. Nascent theories of “emulative epistemic authority” (marjaʿiyyat al-taqlīd) and “general deputyship [in the absence of the Imām]” (al-niyābah al-ʿāmmah) established chief scholars at various locales (Najaf, Aleppo, Ḥilla, etc.)

Orientalist-Revisionist

The “doctrinal” nature of this scholarship reveals itself to varied degrees in the extent to which it reinforces basic notions of 19^th cntury European imperialism (especially with regard to racial, cultural, and moral valuation) and also in the commitment of later revisionists to perpetuate the assertions of their predecessors. Common “doctrines” of Orientalist-Revisionism include the following positions:

Muslim narratives of early Islam are apocryphal;

Aḥādīth, especially, are spurious until proven otherwise;

The Qurʾān contributed very little to nascent legal development;

“Islamic law” did not emerge until a century or more after the Hijra;

The substance, theory, and institutions of Islamic law developed mostly from “foreign” origins, through “borrowing” and “influence;” and,

These foreign origins lie outside the indigenous customary practice of the (primitive and anarchic) Ḥijāz.

The first four tenets above open the way to “foreign” origins: God’s directives, the Prophet’s Sunna, and the jurisprudence of Imāms, Companions, and Successors are precluded as “origins” per se. At best, they are themselves historically authentic derivatives from “foreign” sources; at worst they are ahistorical, apocryphal marginalia employed by jurists to Islamize an essentially “foreign” law. Attempts to identify the “foreign” source(s) of Islamic law are at the heart of Orientalist-Revisionist discourse. The often monolithically presented “Roman law” and “Jewish law” receive the lion’s share of attributions, though various elements are sometimes traced to more specific traditions within Hellenic, Semitic, and Iranian legal cultures.

Neo-Orientalist/Radical-Revisionist

Scholars conforming to this rubric are generally dismissive of Muslim-Traditionalist and Post-Orientalist critique. Their tendency, rather, is to push Orientalist-Revisionist doctrines to new extremes. Impetus is provided by the controversial ideas of John Wansbrough (1977; 1978). Shorn of their hypothetical quality, these ideas are transformed into complementary doctrinal premises:

There was no Qurʾān, as we know it, until 150 or more years after the traditional canonization date;

The Qurʾān and aḥādīth are collected scraps of “prophetic logia,” polemical fabrications of proto-Muslims contending with the Judeo-Christian sectarian milieu in post-conquest Iraq;

The Prophet is fictional—a mere device to situate Islam’s foundation-myth in Arabia;

The earliest literature of Islam (sīra, tafsīr, etc.) was in fact authored much later than claimed, by the “Mesopotamian clerical elite” of Abbasid Iraq; and,

This literature nowhere conveys real history, but only fictional “salvation history.”

Islamic legal origins are thus removed not only from Allah, Prophet, and early Umma (as with Orientalist-Revisionism), but from all of Arabia. The entire received history of early Islam is denied; both sunnah and Qurʾān — the bedrock of Islamic law — are ahistorical, latter-day inventions.

The slate thus entirely cleared, radical-revisionists refill a 200-year vacuum with pervasive “foreign” matrices. “Muslim Rabbis” emerged from the umbra of Babylonian Judaism and, like their Jewish counterparts, proved adept at “denaturing” and reformulating Roman law (Crone and Cook, 1977). The original substance of Islamic law, layered over a Jewish conceptual core, was the Greco-Roman “provincial law” of the post-Alexandrian Fertile Crescent: Greek and ancient Near-Eastern in provenance, with Jewish, Arabian, Roman, and Sassanid elements (Crone, 1987). Elsewhere, the origins of Islamic law are claimed to lie in a single text — not the Qurʾān, but the Digest of the emperor Justinian (r. 527–65 AD). This theory posits that the Abbasid caliph Hārūn al-Rashīd (r. 786–809 AD) decreed a codification project, establishing the Digest as the basis of an “imperial law” which was later Islamized via insertion of Qurʾānic and Sunnaic references. The whole was finally transformed into “jurists’ law” in the post-Miḥna period (Jokisch, 2007). Wansbrovian doctrine has also spurred complementary text-critical projects. Key works of early Islamic law have been recast as gradually accreting, anonymous commentaries: attempts have been made to post-date the Muwaṭṭa’ of Mālik (d. 796), the Kitāb al-Umm of al-Shāfiʿī, and other foundational texts to a century or more after the deaths of their traditionally ascribed authors (Calder, 1993).

Post-Orientalist

Critical of a doctrine-driven “origins” discourse rife with sub-standard argument, Post-Orientalist scholars are generally marked by:

A more balanced “source-critical” approach;

Rejection of the “spurious until proven otherwise” assumption;

A more empirical — less aprioristic — method, with pronounced awareness of methodological fallacies; and,

A marked absence of doctrinal commitment.

With regard to early Muslim subjects and sources, there are no “attacking” or “defending” postures. Post-Orientalist conclusions —with more balanced surveying and less biased interpretation — might contradict or support prior narratives, while contributing new observations and theories.

Qurʾān, Sunnah, And Early Development

Datable manuscript evidence found in 1979 in Ṣanʿā’ strongly supports the existence of complete Qurʾān texts by two decades after the death of the Prophet, and suggests the closest to a Prophetic proto-type — and the most widespread in the 6^th century A.D. — was the ʿUthmānic recension of the holy book (Sadeghi and Bargemen, 2010). Prior to these findings, the Qurʾān was already confirmed as a significant, consciously referenced source of “law proper” by 20–30 A.H. (640–650 AD), or earlier (Motzki, 1991). Moreover, with its comprehensive moral cosmology at last acknowledged, the Qurʾān also emerges as the most prior and essential legal foundation of the Sharīʿah, providing its “moral blueprint” from the very first revelations onward. Having assumed — and back-projected — a sharp division between morality and law, modern scholarship has hitherto failed to perceive this true genesis (Hallaq, 2009). Likewise, the Prophetic sunnah has also been proven to be an early epistemic feature of the Islamic tradition. Textual aḥādīth existed several decades previous to what Schacht assumed, and they were not suddenly fabricated in mass as Orientalist and Revisionist scholars claimed. Most early fiqh may yet be the product of raʾy, and traceable citations (not back-projections) of Companions and successors far more common, but the takeover of Prophetic aḥādīth began earlier, and proceeded far more gradually (Motzki, 1991). Mecca and Medina had just as many narrators of ḥadīths as Kufa and Basra (Hallaq, 2005). Moreover — and contrary to “Iraq-centric” revisionist claims — these Ḥijāz centers boasted systematic corpora of legal doctrine every bit as sophisticated as those in southern Iraq (Motzki, 1991; Dutton, 1999). Indeed, it would appear — contrary to “concurrent-development” traditionalist claims —that Kufan and Basran legal cultures built upon those of the Ḥijāz (Motzki, 1991). Nor was it a sophistical inter-school or inter-regional “polemic” that determined subsequent substantive and legal-theoretical developments. Rather, salient elements of fiqh and uṣūl al-fiqh were fashioned, reshaped, and refined by the exigencies of dialectical disputation (jadal/munāẓara), in tandem with the gradual systematization of a distinctly Islamic juridical dialectical theory (Young, 2012).

Hallaq’s General Narrative

As a pioneer of critical theory in the field, Wael Hallaq’s numerous narratives and theories provide much of the vanguard for Post-Orientalist legal-historical scholarship. A condensed, general origins narrative — extracted mostly from his Origins and Evolution of Islamic Law (2005) — might appear as follows.

The pre-Islamic Ḥijāz participated fully in the Near Eastern “cultural continuum.” Its laws and customs were sophisticated, and its normative concept of sunnah (pl. sunan) — the emulation-worthy conduct of past exemplars — provided an integral, conservative dynamic. The Qurʾān forged a moral-legal foundation from its first utterance, and further revealed a significant amount of substantive law to the Medinan Umma. Along with new directives, nonconflicting Ḥijāzī and Near Eastern legal traditions continued in practice. The Prophet’s era was a period of both normative continuity and change. From the start of the early Caliphate, the sīra of the Prophet and his sunnah — though but one among many sunan — were normative, and the ethic and substance of Qurʾān and sunan were brought to bear upon pre-Islamic custom. Soon, distinctly Islamic traditions flourished at various centers, each with its mosques, Qurʾān teachers, and study circles (ḥalaqāt). By ca. 700 AD scholarly Islamic elite had emerged, drawing from Qurʾān, sunan, and considered opinion (raʾy) to answer normative concerns. In the administrative domain, the old tribal arbiter (ḥakam) evolved into the proto-qāḍī, transmitting sīra, sunan, and Prophetic aḥādīth, while Caliphs — eschewing legislation by decree — operated largely within the bounds of Qurʾān and sunan.

The years roughly between 700 and 740 AD saw the rise of legal specialists and their juristic ḥalaqāt: Qurʾānic law and sunnaic practice were significantly elaborated, epistemic and moral excellence became the standard of juridical authority, and — continuing throughout the 2^nd century A.H. — heated disputation spurred critical transformations in sunnah and raʾy. Great quantities of aḥādīth were collected from regionally scattered sources or fabricated, and post-Prophetic sunanand raʾy were back-projected to the Prophet as natural extensions of his conduct. Written aḥādīth competed with and eventually overwhelmed sunnaic practice in both Ḥijāz and Iraq, and the once broad notion of raʾy became more narrowly categorized. “Personal” madhāhib (the familiar eponyms, and others) became common, with debate-refined methods and distinctive corpora of fiqh, but lacking a strict notion of “school” loyalty. With al-Shāfiʿī, who asserted aḥādīth as the only valid expression of Prophetic sunnah and qiyās/ijtihād as the only valid practice of raʾy, there were yet no revolutionary paradigm shifts—he was not the “master architect” of uṣūl al-fiqh. Legal-theoretical developments proceeded at their own pace. “Rationalist” vs. “Traditionalist” trends evolved and competition between them intensified. In the administrative domain, maẓālim courts appeared, and — by the close of the 2^ndcentury A.H. — the judiciary acquired all its familiar functionaries and procedures.

The 3^rd century AH witnessed Ibn Ḥanbal’s (d. 855) successful opposition to a Rationalist Miḥnah, numerous “conversions” to the Traditionalist camp, and the compilation of six canonical ḥadīth collections. In tandem, rationalist methods were systematically reformulated. Eventually, jurists who were deemed by their cohort to be either too liberal (departing too readily from scriptural sources) or too strict (adhering too rigidly to them) could no longer succeed in disputation. “Centrist” positions—blending principles and methods from both camps—began to hold sway. In this way, by the end of the century, a systematic Sunnī uṣūl al-fiqh was born. It was a culmination of the “great Rationalist-Traditionalist synthesis,” heralded by the teachings of Ibn Surayj (d. 918) and his students. Shadowing this process all along was the emergence of “doctrinal” madhāhib, with distinct ijtihādic toolboxes, cumulative substantive rulings layered over an eponym-jurist’s core, and increasing expectations of “school” loyalty.

Evolving Conceptual Frameworks

The “origins of Islamic law” remains a dynamic field for exploration. Although approaches and conclusions are hotly contested, certain methodological and theoretical considerations (theories of cultural transmission [e.g., reinforcement], models of “common origins” or “inheritance” over “borrowing” and “influence,” etc.) point the way toward more defensible paradigms. Certainly, attention must be paid to divergences as well as parallels. Notions that merit attention include those of cross-germination, Islamic juridical pluralism, the determining role of Islamic (esp. Qurʾānic) axioms, the formative dynamic of dialectical disputation, and, most importantly, the avoidance of unsupported assumptions and formal/informal fallacies (common to the field are e silentio and argumentum ad ignorantiam [often linked]; cum/post hoc ergo propter hoc; apriorism; absolute priority; sweeping and hasty generalizations; dysfunctional reductions and exclusions; and special pleading with regard to sources).

Origins Of Islamic Law

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Last Update: 03/2021