authority in islamic law - the emergence and persistence of madhabs

8/12/2019 Authority in Islamic Law - The Emergence and Persistence of Madhabs

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Taylor Coles

20 November 2012

Prof. Isci/Calisir

Research Paper

Authority in Islamic Law: The Emergence and Persistence of Madhabs

When modern analysts examine the Islamic religious tradition, a thriving practice

and theological understanding of Islamic law springs to the forefront as a central

element Islams intellectual heritage. Furthermore, this practice is still made up of the

same schools of Islamic jurisprudence that became stable cultural entities over acentury ago. Why were these schools of thought able to persist and stay relevant for

such a long time? How did they retain their legitimacy as interpreters of religious truth?

These are the questions I hope to answer in this paper. To do so, I will examine the

historical emergence of the four main schools of Islamic thought, hereafter madhabs,

and examine some of the intellectual characteristics that scholars like Wael B. Hallaq

have attributed to Islamic jurisprudence to explain its longevity. This study will allow

scholars to understand how Muslims have understood Islamic law as an expression of

religious truth throughout its history.

After the death of Muhammad in 632 CE, early Muslims faced the common

religious challenge of forging a durable spiritual and cultural group identity in the

absence of the charismatic prophet who had attracted the groups first adherents. What

was unique about the foundation and development of earl y Islam was the religions

massive expansion in its first few decades of existence. Islamic conquerors had rapidly

acquired large quantities of non-muslim lands from the Sassanid and Byzantine empires


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before there was a clear set of orthodox practices that could be described as uniquely

Islamic. In a kind of historical oddity, there was a Dar Al-Islam before there was much of

an Islamic tradition to house. Expansion and encounters with culturally diverse and

unique peoples challenged Muslims to develop an understanding of the religion that

could differentiate itself as the true set of Islamic practices (Egger 114). This problem

became even more acute as the death of the Sahaba, the prophets companions, in the

following decades deprived early Muslims of clear religious leadership. From its

inception then, Islamic society needed to establish what rules and practices properly

represented the revelation and teachings of the Prophet. To put it another way, theemerging Islamic society needed to develop a framework of religious law.

Both practically and conceptually, the early Islamic empire required the

development of law. The judicial figure of the Qadi emerged under the caliph Muawiya

in 661 as a kind of judge, but these officials lacked a common source of law to rule on

(Egger 115). While early Muslims had the revelation of the Quran to rely on for

guidance, the text itself offers very few direct proscriptions on legal matters and there

was no established framework for legitimately applying the text to other situations

(Egger 115). These early Qadis, therefore, had to rely on local customs and practices to

settle disputes. What they lacked was a clear way to determine how to apply the

Prophets teachings to the diverse situations and lands they found themselves helping

to govern. Early attempts to solve this problem began to emerge in the 8 th century CE,

but Islam would have to wait until the mid-10 th century before any legal schools would

attain the maturity required to reach consensus on this aspect of jurisprudence (Hallaq

Construction of Juristic Authority (317).


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Before analyzing the content of formal Madhabs, examining an important

intermediate step between the infancy of Islamic law and its formalization can help

scholars understand important characteristics of the legal community that will explain

how the views of four or five particular scholars came to be characterized as the

mainstream of Islamic jurisprudence. The early part of the eighth century saw the

organic emergence of a community of legal scholars in major urban areas. These

groups of ulama sought out to interpret Islamic teaching in order to judge how religiously

justified the policies of the emerging Umayyad dynasty were (Egger 115). This sort of

scholarship still lacked a framework for the interpretation of religious texts and faced theproliferation of different collections of hadith, (general consensus on the legitimacy of

hadith would not come until the 10 th century and even later). As a result, the ulama in

the early 8 th century had significant regional disagreements and many had difficulty

differentiating from properly Islamic practice and traditional practices in their local

communities.

While this form of disorganized legal scholarship lacked the comprehensive

doctrinal nature of later madhabs, the scholars who worked during this period were

essential to the formation of schools of thought. It was the emergence of legal

professionals that encouraged the Abbasid dynasty to sponsor legal scholarship in their

quest for legitimacy and uniformity of imperial law (Egger 116). Ulama associated

themselves with particular influential scholars and the Abbasids rewarded successful

scholars with grants and prestigious and well-paying judicial positions. It was

competition for these resources that helped centralize Islamic doctrine and discourage

non- mainstream legal interpretation (The Origins 171). This step was an essential


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prerequisite to the formation of madhabs centered around a particular influential

individual (Khan 282-283) . As Hallaq puts it, rallying around a single juristic docgtrine

was probably the only means for a personal school to acquire loyal followers and thus

attract political/ fi nancial support (The Origins 167). Political support for these groups

helped attract scholars who would develop a more rigorous legal methodology (The

Origins 169). Patronage of legal scholars had a feedback effect that helped standardize

Islamic prac tice throughout the empire an as well. As Hallaq phrases it, the more the

political elite complied with the imperatives of the law, the more legitimizing support it

received from the legists and the more these latter cooperated with the former, the morematerial and political support they received ( The Origins 205).

It is important to note that while support and patronage of legal scholars helped

shape which scholars would ultimately be successful, the fact that religious

interpretation originated from the bottom up and was not issued by the state authority

enabled sharia to function independent of any particular governmental authority. This

created a sense of unified Islamic culture and practice that transcended the political

instability of the Abbasid empire and the changes in regime that would follow it (Egger

122). One could argue that Islamic law survived events like the Mongol sacking of

Baghdad in 1258 intact because of this feature. This source of stability through

independence should be compared to religious traditions like Roman Catholicism. One

can only imagine the changes that would have occurred in Catholic doctrine if Rome

had been sacked by the Mongols.

Perhaps just as influentially, the work that 8 th century scholars did had a direct

impact on the madhabs that would emerge in the 10 th century. Wael Hallaq argues


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persuasively that the image portrayed by many strands of Islamic thought about the

founders of madhabs as independently inspired religious scholars with authority and

views entirely separate from previous scholars is not supported by the historical

evidence. As it turns out, the construction of the founders authority qua founders and

imams drew on sources both prior and subsequent to them (Authority, Continuity, and

Change 36). In reality, none of these jurist -founders constructed his own doctrine

singlehandedly, as the later typologies and tradition at large would have us believe

(Authority, Continuity, and Change 42). As an analysis of the mature madhabs will

show, the process of attributing authority to a particular jurist enabled the effectivecommunication and evolution of a legal tradition, but did not reflect a historically precise

account of the influences on founding jurists from previous scholars.

These centralizing influences lead legal scholarship to become more formal and

methodological in the second half of the 8 th and then into the 9 th century. As Hallaq puts

it, by the middle of the second/eighth century, not only had law become more

comprehensive in coverage but also the jurists have begun to develop their own legal

assumptions and methodology (The Origins 153). The nature and focus of Islamic

jurisprudence began to reorient itself towards the focus on interpretive methodology that

would come to characterize the major madhabs in the mid-10 th century. In addition, from

the 8 th to the 9 th centuries, there is a clear shift from flexible jurists who considered

themselves followers of many different prominent scholars, to an association with one

par ticular school of thought (The Origins 154-155). This period is characterized by the

emergence and proliferation of what could be appropriately termed schools of thought in

a way previous periods of scholarship were not. The emerging doctrinal school wa s a


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collective, authoritative entity, whereas the personal school remained limited to the

individual doctrine of a single jurist (The Origins 156).

While the goals and form of Islamic jurisprudence had radically changed , this

development had encouraged the proliferation of different madhabs. Three hundred

years after the death of the Prophet, interpretation of his revelation and example was

divided among at least nineteen different schools (Al-Haqq 67). Before these schools

could condense around the central jurists whose schools would define orthodox Islamic

legal practice, they had to agree on how exactly believers were to relate to divine

revelation. A rationalist group called the Mutazilites argued that human reason couldaccess religious truths and thus argued that legal interpretations based on rational

reflection on the nature of God and the Quran was legitimate even if it did not originate

from a divine source. The conservative Hanbalis disagreed, insisting that religious truths

were not under the purview of rational examination and that believers must govern

themselves strictly based on the Quran and the experience of the prophet (Egger 118).

This dispute prevented any general agreement on the fundamental nature of Islamic

jurisprudence.

The emergence of a united method of legal interpretation did not occur until the

early 10 th century, when widespread acceptance of al- Shafiis resolution to the

divergence of rationalist and anti-rationalist traditions of interpretation lead to a

significant reduction in the number of distinct madhabs (Egger 117-119). Widespread

agreement on ShafiIs structure of interpretation , which allowed for four sources of

Islamic law including insight from analogy and consensus, established a common basis

for scholarship and comparison between doctrines that made comprehensive madhabs


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possible (Khan 284). Once the broader issues of textual interpretation were set aside,

what enabled the four main schools of Sunni legal thought to emerge successfully as

the only credible understandings of Islamic law?

Before answering this question, it is important to really clarify what is meant by

the idea of a madhab. This analysis started with a depiction of individual scholars

discussing the legal consequences of Islamic teaching in the 8 th century. In the 10 th

century, after an extended process of state patronage and agreement on the basic

aspects of textual interpretation, the surviving madhabs would be better characterized

as legal traditions with extensive cultural impact. The scope of their claims expandedand each school attempted the creation of an axis of authority around which an entire

methodology of law was constructed (The Origins 157). As further analysis will show,

the growth and cultural impact of these schools exceeded even their purported

founders. In the surviving madhabs, the scholars teachings were modified and

elaborated considerably, perhaps even beyond recognition, but each one represented a

cohesive social unit as well an ideological perspective (Egger 117). In fact, much of

what made the surviving madhabs so durable was their attempt to provide a pedigree

of authority that binds the school together as a guild (Hallaq The Construction of

Juristic Authority 318). The founder was credited with the legal methodology that

emerged organically at least a half a century after the founders death (The

Construction of Juristic Authority 334). Hallaq asserts that the fact of the matter is that

both legal theory and the principles of positive law were gradual developments that

began before the presumed Imams lived and came to full maturity long after they

perished (The Construction of Juristic Authority 334).


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If we are entirely wrong to think of madhabs as simply the vehicles of

communication for the legal interpretation of a uniquely privileged founder, where do

they get their interpretative authority? How is it, that after this 300 year long process of

legal interpretation, Islamic society develops schools of law that persist 1000 years later

and still evoke the name and influence of their founder? Hallaq develops a fascinating

explanation for the success of the four surviving madhabs that suggests the portrayal of

an authoritative founding jurist enabled the four surviving schools to maintain legitimacy

and coherence over the years.

As successive generations of jurists built off of the doctrine of the foundingmember of their madhab, they consciously ascribed their interpretations to his authority

or method. Using a method of analogically applying a past decision to a new

circumstance called taqlid or interpretation of the founding members own reasoning

called takhrij, later generations rhetorically justified their positions by making them seem

identical with the enlightened views of their founder. In fact, jurists went so far as to

attribute later doctrines to [their founders] which they never held (Construction of

Juristic Authority 319). The authority of the school and the legitimacy of their

interpretations were cemented because this understanding of judicial methodology

made their interpretative activity, ijtihad, seem derivative (Construction of Juristic

Authority 334). By making their opinions appear to be t he same as their ancient

founder, scholars attempted to show that their interpretations were not rationalistic

distortions of legitimate interpretation of revelation, but instead artifacts of uniquely

privileged scholarship. By making al- ShafiI, Hanafi, Hanbal, or Maliki into super-

jurists, who had confronted the revealed texts directly and had single-handedly,


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by means of their own hermeneutical ingenuity, constructed a system of law , later

scholars ensured legitimacy for their tradition of interpretation.

Adding an additional wrinkle to this story, Johnathan Brockopp suggests that

later scholars of these influential jurists turned them into sources of religious charisma.

As he puts it, The founders of these schools are much more than teachers a nd

compilers of texts; rather, they function as sources of religious law themselves

(Brockopp 130). This is a controversial thesis, to be sure, but Brockopp has a significant

amount of evidence that suggests these influential jurists served as a source of

charismatic authority for their madhabs. Members of these legal traditions ascribeincredible amounts of wisdom to these jurists and some even describe the founders

performing semi-divine acts of prophecy and judgment (Brockopp 144-145). The effect

of this kind of deification is to give the legal tradition a new kind of authority. Brockopp

suggests that later generations create for themselves a wide field of activity that may

still be rightly described as charismatic when they elevate the status of fou nding jurists

(Brockopp 130).

From this perspective it is easy to see the source of the madhabs durability.

These legal traditions forged their credibility by connecting the developments in their

thought to an ancient jurist whose status and ability is also emphasized. The effect is an

apparently unified and legitimate tradition with a unique and privileged connection to

revelation.

This examination has focused very heavily on the Sunni legal tradition, but this

framework helps us understand the development of the main Shia madhab, the Jafari

school. In fact, according to Al- Haqq, the fundamental principles of methodology


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between the Jafari and Sunni schools are comparable (76). This similarity stems from

the fact that the formation and controversy over Islamic law occurred in a period before

sectarian identities had completely formed, having occurred before extended periods of

conflict between the Ottomans and Safavids for example. Sunnis and Shias faced the

same legal imprecision and governance issues without having formulated a clear

framework for textual interpretation. What is unique about the Shia understanding of

Islamic law is the attribution of divinity to their Imams. Since Shia understanding

characterizes the Imam as a source of spiritual authority, the Jafari school did not have

to justify successive interpretation s of law as somehow being accredited to acharismatic founding figure. Instead, the power and legitimacy of interpretation can be

attributed to those with a blood connection to the Prophet.

With this information in hand, scholars can examine much of the legal tradition as

an attempt to cultivate legitimacy and authority by connecting its conclusions to an

authoritative interpretive tradition. This was the only way to locate Islamic law and

provide a stable and orthodox foundation for the practices and lifestyle of Muslims. This

becomes increasingly apparent as we examine the origins of Islamic law in a rapidly

expanding and somewhat premature religious tradition. As Hallaq says, in view of the

near total aloofness of the statelegal authority had to be anchored in a source, and

this source was the arch- jurist as an individual legal personality (Authority, Continuity,

and Change in Islamic Law 31). This enterprise has been enormous ly successful and

has supported a flourishing tradition of Islamic law to the present day.

authority in islamic law - the emergence and persistence of madhabs

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