D. S. (David Samuel) Margoliouth.

The early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 online

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domestic irregularity, that an oath might be cancelled
by some substituted performance. According to the
tradition, one of the Companions of the Prophet,
Zubair, who had started the revolt against Ali, was
persuaded by the latter to abandon his project, and
gave what seemed a solemn oath, that he would not
take part in a war against the Caliph. Zubair 's son,
who afterwards endeavoured to maintain himself as

1 Tabarl ii. 886. 2 ^^^ ^ jj, 975


sovereign, persuaded his father to make atonement
for his oath by freeing a slave, and take his place in
the battle-field as if nothing had happened. The un-
scrupulous adventurer Mukhtar, who by posing as
the avenger of Husain shed blood in rivers, had been
imprisoned by the governor of Kufah, when some
suspicion of his plans leaked out ; owing to the
intercession of Omar's highly respected son, the
governor was persuaded to give JNIukhtar his liberty,
but not before making him take the most solemn
oaths that he would not head an insurrection.
Mukhtar, we are told, readily took the oaths offered,
thinking to himself what a fool the governor of
Kufah must be to suppose an oath could make any
difference, when it was so easy to substitute some
other performance for it ; particularly as it might
easily be maintained that taking vengeance for the
death of Husain was a duty which took precedence
of all others. Like Zubair, then, Mukhtar perjured
himself without scruple. Yet in perjuring themselves
they had the authority of the Koran behind them,
and were acting well within the law. The oath of a
JNIoslem sovereign or commander was worth nothing
at all, though public opinion seems sometimes to
have been moved by very flagrarlt violations.

Still, it is possible to formulate some more general
theory of the spirit which animated the Prophet him-
self, and with which he endeavoured to impress his
followers. The political philosophers of the East
inform us that men follow the religion of their
sovereigns, and imitation of the Prophet, which the


later JNloslems carry on according to their lights, is
repeatedly enjoined in the Koran. Certain rights
doubtless belonged to his office, and there are revela-
tions which deal with this matter ; the Believers are
not to treat him as one of themselves, and are to
observe in their dealings with him something of the
etiquette usual in courts. But, discovering what his
spirit is, they are to animate themselves so far as
possible with the same.

The spirit of Islam as it appears in the Koran
might be said to be Moderation. Although the
Prophet may have had falsely attributed to him the
saying, " The best of things are the mean," he would
probably have accepted the doctrine with little
hesitation. With regard to devotional acts he is
credited with the saying, " The best religious observ-
ance is the least cumbersome," and he is supposed to
have forbidden various extravagances in this matter.
Where charity towards relations and beggars is en-
joined, the Koran adds, " Yet do be not lavish ; the
spendthrifts are brethren of Satan, who was un-
grateful to his lord. Do not tie your hand to your
neck, and do not open it to its full width " (xvii.
28-31). In the list of the virtuous (xxv. 67) are
those who when they spend are not lavish and not
stingy, but on the right line between the two. In
managing the goods of orphans the poor trustee is
told he may take a little for himself, but is not to be
wasteful (iv. 6). If a tribesman has been murdered,
retaliation is permissible, but the avenger of blood
should not perpetrate a massacre (xvii. 35). Feasting


is recommended on certain days, but there should
be no excess (vii. 29). Chastity is repeatedly recom-
mended, but there is no objection to unlimited
concubinage. The "people of the book" are blamed
for fanaticism in their religion (v. 81).

In the time of the Prophet himself these somewhat
homely precepts were modified by the enthusiasm of
fighting and conquest. Although it appears that he
fainted the first time that he saw blood shed, he very
soon got over that weakness, and probably was never
so happy as on the battle-field. The portions of the
Koran which deal with the sacred war exhibit the
spirit which fills the song of Deborah, with its scorn
for all weakness and irresolution, its contempt of all
excuses for staying away from the conflict, and its
admiration for those who fight to the death, who
neither ask nor give quarter. And for the rising
state this quality was so desirable that the Prophet
appears to have pardoned many a peccadillo in those
who displayed it to the full. Like other Arab
chieftains he was perpetually engaged in warfare ;
only by organisation and discipline he ensured
success, by fighting with a steady imperialistic aim
he grew stronger instead of weaker after each engage-
ment, and his promise of Paradise to those who fell
evoked a kind of enthusiasm which went beyond
anything which paganism had been able to arouse.

Down to the end of the Prophet's life the dogma
of Islam was still rather negative than positive. A
Moslem was one who, like Abraham, was not one of
the polytheists ; besides this, he was one of those who


feared, i.e. were in alarm at the prospect of the Day of
Judgment. But as regards other behefs and practices
he was a follower of the Prophet ; whatever orders
the Prophet issued were incumbent upon him. Those
orders, if the Prophet's biography may be trusted,
were not always such as approved themselves to the
consciences of the Believers ; but few of them ventured
to disobey, and those who did venture were sternly
reproved. Very little was fixed by the time of the
Prophet's death ; at best some of the Companions
were in a position to teach neophytes certain portions
of the Koran, but we cannot say how much or what
portions. The whole fabric of beliefs and practices,
such as fills many a volume, has grown up since that
event. The new religion ostensibly took little or
nothing over from older systems ; with the difficulty
which is discussed in the Acts of the Apostles, what
authority is to be assigned to the Old Testament, a
matter which even the Christianity of our day has at
times to face, Islam was never troubled. The attitude
of the Jews in Medinah decided the Prophet to break
with them entirely, even to the extent of denying the
authenticity of their scriptures, and with paganism
he had already broken ; to Christianity his debt had
at no time been considerable. He had, therefore, a
tabula rasa to write on, and himself used the space at
his disposal sparingly. Any further writing upon it
might be styled reformation, since that word signifies
only altering the shape ; and this might be done in
many ways.



For the reasons that have been given, the Koran
could not by itself serve as a code, or even as a basis
of legislation. And the notion that any documents
other than the Koran survived from the time of the
Prophet, and could be used to supplement it, was
ordinarily ridiculed. When Ali was asked whether
he possessed any information given him by the
Prophet other than the Koran, he replied, " Only what
is in the Scroll " ; this scroll contained the maxim
that Believer should not be slain for Unbeliever, but
little else.^ According to another account, this scroll
was kept in the sheath of the Prophet's sword, and
Ali's son gave a very different account of its contents."
Possibly this scroll is identical with one called the
Veracious, which was in the hands of Abdallah, son
of 'Amr, the conqueror of Egypt; for which a tradi-
tionalist said he would not give one farthing.^ A
document of somewhat greater importance was the
alms-tariff, which was preserved in various forms ;
the Prophet's biographer gives it in the form of a

1 Umm vii. 292. 2 in^^ ^i. .3.

3 Mukhtalif al-Hadlth 9^.

65 5


letter from him to the Yemenite communities ;
according to others it was a document handed by
him to Abu Bakr ; according to others it was a
revelation, and as such ought to have found a place
in the Koran. ^ A similar tariff of compensation for
wounds was to be found in another letter of the
Prophet,^ which, however, does not appear to have
been preserved. The j urists and traditionalists when
they cite these documents cite them by oral tradition.
There is no suggestion that the originals were any-
where preserved, although the work from which the
references have been taken was not separated from
the supposed date of the letters by two centuries.

Since the Prophet described the mission of Jesus
as for the purpose of removing some of the restric-
tions imposed by earlier legislation, it_JsJikelyL.ihat
he meant current practice to continue except where
his legislation had abrogated it. So long as this
theory could work, there were, then, two sources of
law : custom and the Koran. We arrange them in
that order, because the matters for which the Koran
provided were limited in number. In some of the
earliest occurrences of Islam we find custom further
defined as the custom whereupon people are agreed
rather than that wherein they difi^er. And to some
extent the word " custom " continued to be employed
of various institutions which had certainly been taken
over by Islam from the earlier practice of Arabia.

The transformation of Arabia into an empire, and
the incorporation in Islam of numerous nations and

1 Umm ii. 4. 2 /^i^.^ vii. 295 ; cf. 171.


communities with very divergent practice, rendered
this earhest theory unworkable ; for Arab governors
had to be sent out to the provinces, and the need for
uniformity made itself felt. Hence a fresh source of
law was required, and the Jewish theory suggested an
expedient. The Jews have, as is well known, two
laws, a Written I^aw and an Oral Law ; the latter
has, indeed, for so many centuries been committed to
writing that the meaning of the word " oral " in this
context is often blurred, and the importance of the
distinction forgotten. There is strong reason for
believing that the Jewish Oral Law was still oral in
the time of the first Caliphs, and even for some time
later. Although this Oral Law in the form wherein
we possess it consists of lawyers' opinions, in theory
it was all delivered to Moses on Sinai. Hence the
conjecture lay near that Mohammed had had delivered
to him an Oral as well as a Written Law. And the
doctrine that this second source of law was not
written or to be written lasted for a considerable time.
The Prophet is said to have forbidden the writing of
it.^ In some dying injunctions ascribed to a general
in the year 82 a man bids his sons read the Koran
and teach the practice."^ The general who won the
throne for the Abbasids is said to have heard from
his master and have rememhered traditions.^ A century
later, when at least one corpus of tradition already
existed, the formula still is, "I have read the Koran
and heard the tradition " ; ^ but in the third century

1 Musnad of Ibn Hanbal iii. 26. 2 Tabari ii. 1083.

3 ii. 1726. * ^ iii. 774.


it runs, " I have learned the Koran by heart and
written the tradition," i.e. copied it down froin some
teachers dictation/ One of the teachers of the
historian Tabari took the trouble to find out whether
the pupils had committed to memory what they had
written. It was, however, a token of sanctity never
to be seen employing written material,^ other, of
course, than the Koran ; but in the case of that work
greater merit was acquired by reading than by reciting
from memory.^

Nor was it difficult to find in the Koran itself
evidence for the existence of this second source of
law. We repeatedly read of '' the Wisdom " as dis-
tinguished from the Book. Wisdom besides the
Book was given to the Prophets, and was also re-
vealed or sent down to the Moslems.* It is true
that this Wisdom seems in places to be identified
with the Koran, and together with the texts of God
/ it was read in the houses occupied by the Prophet's
wives.^ It might be difficult, even with the most
careful consideration of the texts wherein this AVisdom
is mentioned, to determine whether the Prophet really
thought of it as separate from the Koran ; and on the
whole it is probable that he did not really distinguish
the two. The Koran is called the Wise Record, and
the term muhkavi applied to God's revision of the
texts points the same way. Still, it was possible to
take a different view ; and in the legislation of the end

1 Yakut vi. 429. ^ Dhahabi, Huffaz i. 303.

3 Kut al-Kulub i. 6l. ^ jj^ ^Sl ; iii. 75.

^ xxxiii. 34.


of the second century of Islam we have the definite
statement that the Wisdom means ordinances made
by the Prophet, yet not embodied in the Koran.
And the texts wherein the Moslems are commanded
to obey God and obey the Prophet furnished a sound
argument for recognising this second source of law —
the precedents of the Prophet.

The process whereby "the beaten track," ^ *' pre-
cedent," or " custom " comes to mean the precedent
set _by_ the. Prophet is just traceable in the stories
which survive from the early days of Islam, most of
them indeed somewhat coloured by later ideas and
usage. Sometimes the practice is defined as " past
practice " ^ or as " known practice " opposed to innova-
tion,^ or as good practice opposed to bad practice,^
or as order opposed to disorder.^ Sometimes the
" practices " are mentioned without further defini-
tion,^ but at times they are ascribed to God,^ to the
Moslems,^ to Islam,^ to the first two Caliphs,^^ or to
the first two Caliphs and the Prophet ; ^^ at times they
are even mentioned as something over and above the
practice of the Prophet. ^^ In a manifesto ascribed
to Ali, it is asserted that Allah taught the Arabs
by Mohammed no fewer than four things — the Book,

1 Tabarl ii. 885, l6. 2 Ili^l^ -^ oogg^ j5

3 ibid., i. 2937, 15, 3166, 8, 3298, 9 ; "• 240, 19 (spurious letter),
984, 14. Cf. 985, 15.

4 i. 3044, 9. ^ ii. ^^^, l-l-.
G i. 3419, 6; ii. 1083, 11.

7 i. 3427, 5. Aghani xx. IO6 ; Tabarl ii. 518, 14; ii. 1369, 15.
s i. 3132, 4, 3228, 15. » i. 2929, 18.

10 i. 2976, 10, 3267: ii. 1392, 10. " i. 3044, 9.
12 ii. 1700.


the Wisdom, the Ordinances, and the Practice/ In
a solemn address to the founders of the Abbasid
dynasty, the practices are said to be contained in the
Koran.^ Nevertheless, the " practice of the Prophet "
in these stories is far commoner than any other
phrase. The context in which these expressions are
most frequently used is in reference to the third
Caliph, Othman, whose conduct was supposed to
differ seriously from that of his predecessors : though
the charges formulated against him are always some-
w hat va^ue. j It seems clear that the second source of
law was not yet anything quite definite, but merely
what was customary, and had the approval of persons
of authority, all of whom presently merged in the

It might seem that this was to assign the Prophet
a function which he expressly disclaimed ; for there
is little doubt that he carefully distinguished between
his utterances ex' cathedra and others. Where he had
a revelation to guide him he was infallible, and his
comrades recognised that infallibility ; and indeed
the recognition of any other sort could only be made
at the expense of the Koran. This sort of logic is
found wherever resort is had to oracles ; it is a con-
dition of their genuineness and importance that they
should not be capable of explanation as the fruit of
ordinary speculation ; hence those who deliver oracles
are madmen, children, jesters, persons to w^hose re-
flections no value could be attached ; indeed, the
tendency to accentuate Mohammed's illiteracy is

1 i. 3236, 13. 2 ii, 1961^ 8.


evidence of the same theory. When Mohammed
ruined a date-crop by strangely and capriciously
forbidding artificial fertilisation of the palms, he
explained his mistake as due to ignorance ; he was
not on that occasion delivering a revelation. But
it became necessary to supplement the Koranic
legislation from his practice, and some evidence of
the second function assigned to him, viz. of legislator
as well as medium, had to be found in the Koran.
The passages then cited for this purpose are those
in which the Prophet is said to have been sent " to
read unto them Our texts, and to teach them the
Book and the Wisdom and to purify them " ; and
indeed it is stated that " God revealed unto thee the
Book and the Wisdom and taught thee what thou
hadst not known." Combining these statements with
the command in the Koran to obey Allah and to obey
the Prophet, the jurists argue that what the Book
is to Allah, that is the Wisdom to the Prophet.

Nevertheless it seems clear that is against the
intention of the Koran. The Believers are told when
they dispute about anything to " refer it to God and
the Apostle" (iv. 62), and the Hypocrites are attacked
for declining an invitation to refer their differences
to what God has revealed and unto the Apostle, and
told that they will not count as Believers until they
make the Apostle their judge ; they are contrasted
with those who obey God and the Apostle. The
obedience and the belief are the same : they are con-
ferred on the Apostle as the spokesman of God ; the
authority and the spokesman cannot be distinguished.


Probably the orthodox opinion is that the Prophet's
ordinances are embodiments of the highest wisdom,
and therefore deserve the title which is bestowed
upon them ; but there are pious authors who admit
I that this is not necessarily the case. It is a sign of
love of the Prophet, says a Sufi author, to prefer his
ordinances to the results of reason and intelligence : ^
and this implies that the two may conceivably be at
variance. Shafi*i confines himself to the arguments
that have been quoted ; the injunction in the Koran
to obey the Prophet, and the declaration that one
who obeys the Prophet thereby obeys God. To the
question whether the name " Revelation " may be
applied to the Prophet's words, he declines to give an

Professions develop by division of labour, and it
must have taken some generations to separate
the functions of Koran-reader, Traditionalist, and
Jurist. The word which in the Koran means
"knowledge" or understanding, but afterwards
became the technical term for " law," seems to have
specialised somewhat slowly. The second Umayyad
Caliph uses it in the sense " acquaintance with the
Koran," the only form of book-learning recognised
at the time. Husain, he said, had come to grief on
the side of his Jikh, which he explained to mean that
he had forgotten a text in the sacred volume wherein
it is stated that God assigns the sovereignty to whom
He will.^ It is rather surprising to find a man sign

1 Kut al-Kulub ii. 85. 2 u^^ y^i 271^

3 fabarl ii. 381, 2.


himself "the jurist " as early as the year 66, and one
is inclined to fancy that the title was given him by
some later scribe.^ The "jurist" was still, as Tabari
somewhere describes him, the pious man who per-
forms devotional exercises in the mosque, and gives
legal opinions when asked.^ The home of this
knowledge, i.e. what the Prophet had said and done,
especially in matters which bore any relation to law,
was naturally Medinah, where he had first assumed
the role of ruler and judge ; and indeed the people of
Medinah had a high appreciation of their acquaint-
ance with this subject, and demanded that their
governors should consult them about all cases which
came before them — a demand which no other city
appears to have made.^ This demand, indeed, some
of the governors conceded of their own accord.*
The people of Medinah were long recognised as the
most thorough students of the subject and the most
careful to supplement omissions.^ We are told that
the year 98 was called the year of the Jurists, because
the majority of the Medinese jurists died in it. At
a later period Kufah obtained university rank in this
subject.^ Before the close of the Umayyad period
every governor was supposed to possess some legal
training.^ .

That^me Medinese jurists obtained something
more from the Jews than the mere idea of an Oral

1 Sha'bT, TabarT ii. 6l3, 5. - ii. 881 ; 564<, l6.

3 ii. 1452. 4 ii^ 1183.

5 Shafi% Umm vii. 242. ^ Tabari ii. l620.
7 ii. 1837, 126 A.H.


Law is very likely ; in one or two cases the termin-
ology of the Arabic jurisprudence can be traced to
the language of the Mishnah. It is, however,
characteristic of Moslem studies that they take
very little from outside ; they develop on inde-
pendent lines. And the fact that Medinah is the
home of Moslem jurisprudence of itself indicates that
the amount borrowed from non-Jewish sources is
likely to have been exceedingly small ; for Medinah
was purely Arabian and Jewish, and the level of
cultivation among the inhabitants decidedly lower
than that of Meccah. As questions arose, the
persons to whom they were referred were residents
jin Medinah, notably the widows of the Prophet,
^because they naturally had most acquaintance with
(the Prophet's life. There is no evidence that Roman
Law penetrated into this primitive city ; when the
residents were asked for legal opinions, they had to
rely on their memories, their intelligence, or, at best,
local talent. The Jews who had adopted Islam were
far better equipped than their fellow- citizens for
practical jurisprudence, although there is no evidence
that their law was already codified ; they had, how-
ever, at their disposal the results of reflection and
experience such as could be applied in many cases.
And the general method of jurisprudence, principles
for reconciling conflicting passages in the sacred
book, and deducing unforeseen consequences, had
undoubtedly been elaborated by the Jews many
centuries before the rise of Islam.

This, then, appears to have been the genesis of


the second source of Law, which has provided the
Moslems with their main occupation. The very-
name '* beaten track " is clearly more suitable to
general custom than to the precedents set by a single
individual ; the other name " talk," " narrative "
might conceivably be regarded as a translation of the
Jewish phrase mishnah, but it may have arisen in-
dependently, in any case in some antithesis with the
ivritten code. At the earliest period of the civil wars
it appears to have been recognised that conceivably
neither the Koran nor any other source of law
provided for every emergency ; " This is a new affair,"
says a Companion ; "It never happened before this
day, so that there could be a Koranic revelation about
it, or a precedent in the conduct of the Prophet " ; ^
" They gave judgment without any convincing plea
or any past precedent," complains another.^ Like
other general negations, the former of these proposi-
tions was hazardous, since methodical examination!
of the Koran might find much whose presence was
unsuspected by the superficial student, whereas the
Prophet might have provided for the emergency by
some precept which had escaped the speaker's notice.
And indeed it was presently^ discovered that the
Prophet had foretold the future even to the extent
of naming sects which came into existence long after
his death.

When this point was granted, viz. that the
practice of the Prophet was no less binding on
mankind than the legislation of the Koran, and that

1 Tabarl i. 3l66, 8. 2 md,^ 33^8, 14.


both were equally revelation dictated by God, but
merely differed in form — the one being put by God
in His own language, the other communicated to the
Prophet to deliver as he chose — there still remained
a question as to the relation between the two forms
I of Law : was the Prophet's practice merely comment
\ upon the Koran, i.e. limiting and explaining, or was
] it supplementary as giving rules on subjects which
^he Koran did not itself treat ? Some certainly
asserted that it was all of it of the former sort ; there
was no ruling of the Prophet on any subject of which
the basis was not to be found in the Koran. But this
proposition could not be maintained without difficulty.

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Online LibraryD. S. (David Samuel) MargoliouthThe early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 → online text (page 5 of 18)