Copyright
D. S. (David Samuel) Margoliouth.

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

. (page 6 of 18)
Online LibraryD. S. (David Samuel) MargoliouthThe early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 → online text (page 6 of 18)
Font size
QR-code for this ebook


Between the two forms of revelation there was,
however, one difference. It was maintained that
though the Koran could abrogate itself, it could not
be abrogated by the Prophet's practice. The argu-
ments for this doctrine are Koranic texts ; they are
taken from verses wherein God claims the right to
alter the Koran, and asserts that when any text is
abrogated, one that is better or at least as good is
substituted. From this it is reasonable to infer that
the substitute is invariably to be got from the Koran
itself, and not from the Prophet's contributions.
One other text that is quoted is less convincing ; it
is where the Unbelievers request the Prophet to
produce a Koran different from this, and he replies that
he cannot possibly alter it propiio motu^ for if the
sttnnah (practice) be revelation, such an alteration
could not be called proprio motu,

1 X. 16.



THE LEGAL SUPPLEMENT 77

Shafi'i quite correctly reasons that just as the
Koran can only be abrogated by itself, so the sunnah
can only be abrogated by itself. He has, however, to
resort to the assumption that we possess both the
Koran and the sunnah in their entirety, since other-
wise there would be a chance that the abrogated
verse might in certain cases be preserved, and the
abrogating lost ; and similarly that the abrogated
practice had been remembered, but not the abrogating.

One of the most important functions of the sunnah
is clearly to settle between conflicting texts which
abrogate the other ; for, as we have seen, the evident
intention of the compiler of the Koran was to leave
this matter absolutely undecided ; all suspicion of
chronological arrangement had to be avoided. In
the cases to which reference was made above, it was
clear that no one could say which passage was the
earlier. And we can scarcely be wrong in inferring
that even at this early period of Islamic jurisprudence
it was acknowledged that on many subjects the
revealed law was inconsistent.

The confession that parts of the most precise legis-
lation in the Koran had been abrogated by other
parts must have been a trying admission to make,
but there was no way of avoiding it. In Surah ii.
176 the dying Moslem is enjoined to bequeath his
property to his parents and near relatives. In Surah
iv. certain fixed portions are assigned by the law to
these relatives ; clearly the property cannot both be
bequeathed and divided by the state. But perhaps he
has the right to bequeath the whole ? The tradition



78 EARLY DEVELOPMENT OF MOHAMMEDANISM

is here cited that according to the Prophet the right
of legacy is restricted to one-third. Or perhaps the
text of Surah ii. may be still valid, as meaning that
legacies may be made only to relations. Here we
have an ingenious argument based on a story that
some Moslem whose whole property consisted of six
slaves manumitted them by will. The Prophet
cancelled this arrangement, and manumitted two by
lot ; the rest were to be assigned in accordance with
the law of Surah iv. But since the Prophet permitted
the legacy of one-third of the estate and the bene-
ficiaries were the legatee's slaves, and no Arab has a
kinsman for his slave, it follows that the restriction of
legacies to kinsmen has no existence. There is there-
fore nothing for it but to declare the text of Surah ii.
abrogated by that of Surah iv.

The question of the treatment of adulteresses is
even more serious. In Surah iv., which is called the
Surah of Women, and contains a great deal of precise
legislation, the punishment assigned is imprisonment
for life. In Surah xxiv., of which the date can be
accurately fixed, since it deals with the affair of
*A'ishah, w^hich again is connected with a particular
campaign, the punishment assigned is a hundred
stripes. But the tradition is that the Prophet
administered the stripes to the adulterer, ordered
him to be banished for a year, and ordered the
adulteress to be stoned. If, then, the last was the
practice to be followed, not only was one text of the
Koran abrogated by another, but both were abrogated
by practice. Some attempt might indeed be made



THE LEGAL SUPPLEMENT 79

to accommodate the second text and the practice to
differing conditions, but the text of the Surah of
Women had clearly to be disregarded. What is
probably the case is, that the Prophet's treatment of
the offence grew less instead of more barbarous, and
that his final views were represented by Surah iv. ;
but the practice of exacting the worst penalty was too
deeply sanctioned by custom to be overridden even
by Koranic texts. The affair of *A'ishah had become
so famous that the slandering of women was regarded
as a deadly sin, which even the earliest Islamic creed
was said to have especially prohibited, and the evidence
on which a charge of adultery could be established
was practically of a kind which could never be
produced.

The inherent weaknesses of this second source of law
are, of course, two. In the first place, we look in vain
for evidence that exhaustive records of the Prophet's
sayings and doings were kept. Shafi^i himself accounts
for differences of opinion between the " learned " on
the ground that some tradition may have escaped
them ; had they known more, they would have been
guided by that superior knowledge.^ In the second
place, the memories of those w,ho transmitted tradi-
tions were weak, and the author of the code himself
repeatedly confesses that he has forgotten the name
of some intermediary or other ; ^ and at times that
he has forgotten the exact words, though he believes
that he has reproduced the sense correctly.^ The
jurists of the preceding generations could not rely on

1 Umm iv. 171. ^ n^id,^ vi. 3 ; cf. iv. 71. ^ yi, 170.



80 EARLY DEVELOPMENT OF MOHAMMEDANISM

their memories with any greater certainty ; Sufyan
Thauri forgot the name of an intermediary on whose
authority a tradition was quoted ; one of his class
reminded him, but this was apparently not quite
satisfactory.^ The possibility of error and ignorance
is allowed in the case of contemporaries of the
Prophet.^ And, indeed, Shafi'i is said to have made
a general confession that there was no one whom the
practice of the Prophet did not escape,^ though he
assumes that somewhere in the Moslem world this
knowledge is preserved/ Hence when the second
source of law is considered, there is generally the
double doubt whether there was any precedent or
maxim really going back to the Prophet, and if there
was, whether it was his final opinion on the subject.
And the omission of a name in the chain of authorities
naturally invalidates the whole.

Further, in the case of the Prophet's practice there
was the same difficulty as was found in the Koran,
viz. that his rulings varied from time to time, and
chronology had to decide which ruling was to be
followed. Sometimes, indeed, the chronology gave a
satisfactory solution. Thus on the question of the
attitude to be adopted in prayer, whether if the leader
be prevented by infirmity from standing upright the
followers also should refrain from standing, there were
reports of two occasions on which the Prophet set
precedents ; one of these happened to be on the
occasion of the Prophet's last illness : clearly this

1 Umm vii. 41. 2 Jhid^^ yi, l63.

3 Yakut vi. 387. ^ u^-^^ ^^ 265.



THE LEGAL SUPPLEMENT 81

had to be followed, since there could not have been a
later occasion.

Besides this, there was at times conflict between the
Prophet's maxims and his ascertained practice : on
such occasions Shafi'I apparently holds that the maxim
is to be followed. A serious case in which he is con-
fronted with this difficulty is that of murder by a
Moslem of a Jew or Christian ; the historical evidence
appeared to show that the Prophet and some of his
successors ordered the same treatment as would have
been adopted if the Christian had been the murderer ;
the latter was handed over to the relatives of the
murdered man, to kill, forgive, or compel to pay
blood-money as they chose ; and, indeed, where the
relatives of the murdered man expressed their desire
to forgive the offence, the Caliph took pains to see
that this was not due to intimidation. On the other
hand, the Prophet was credited with the maxim,
" Believer shall not be slain for Unbeliever," delivered \
on a variety of occasions. The jurist, then, adopts this
maxim as regulating procedure, and has to reject the
historical traditions as weak, or suppose that the
Prophet's successors were mistaken.^ And in other
cases where the decisions ascribed to the foremost of
the Prophet's Companions differ from the Prophet's
practice or from his maxims, it is agreed that the
former are not deserving of consideration. Where
there is a known ruling of the Prophet, no one else
has anything to say. Useful as this maxim is, it has
the difficulty that these same persons are also the

1 Cf. Tabarl ii. 83.



82 EARLY DEVELOPMENT OF MOHAMMEDANISM

most trustworthy witnesses of what the Prophet said
or did ; and their falhbihty to a certain extent dis-
credits the whole system of legislating by the Prophet's
placed ents.

Occasionally it is in our power to show that the
traditions which form the basis of the codes are legal
fictions. The historian Tabari tells us the practice of
obtaining redress for murders by unknown persons
by administering oaths wholesale was an innovation
of the year 30 вАФ a score of years after the Prophet's
death ; ^ the jurist Shafi'i bases it on an anecdote of the
Prophet's procedure, which indeed is on other grounds
clearly apocryphal.^ The practice of administering
stripes for wine-drinking is said by the historian to have
been introduced by general consent in the time of the
third Caliph ;^ the jurist also finds a precedent in the
Prophet's practice. And in general the history of
the jurists differs widely from that of the historians.
European critics are inclined to attach more weight to
the statements of the historians. It is painful to find
one of the founders of the science of law confessing that
he had pleaded the genuineness of a document which
he secretly suspected of being a forgery, and therefore
declined actually to attest ; the result, which was the
serious one of inducing a man of ability and influence
to join the party of the unscrupulous adventurer
Mukhtar, being equally attained. In any other case,
then, this person's inclinations may have caused him
to play fast and loose with his critical conscience.*

1 Tabari i. 284-2. 2 u^im vi. 78.

3 Tabari i. 3028. ^ Sha^n.



THE LEGAL SUPPLEMENT 83

That the whole system of the Oral Law did not
escape ridicule in certain quarters is natural. There
were the objections to which allusion has been made,
the fact that the traditionalists themselves confessed
to lapses of memory, so that one of these persons is
represented as quoting someone else for an assertion
which he himself had made : " I was told by Munkidh,
who heard it from me, who heard it from Ayyub " ; ^
and the fact that there were contradictory traditions
dealing with the same matters. Then the content of
many traditions was clearly fabulous and calculated to
bring the system into ridicule, e.g. that the Prophet
said the thickness of an Unbeliever's skin in hell will
be forty divine cubits, or that the wind is not to be
abused because it is the breath of God. Further,
the traditionalists were taunted with being ignorant
and often unable to compose correct Arabic. It
could be replied that a man might be a good tradi-
tionalist without being a good grammarian ; that the
collecting of traditions of various degrees of proba-
bility was for the purpose of criticising them and
selecting those of which the genuineness stood
proper tests ; and the charge of stupidity could also
be rebutted. The fact, however, was that this
collecting of traditions had been the result of the
needs felt by the community, and it would seem that
those who ostensibly rejected the process were con-
tent to profit by the results. Hence the similarity
between the codes compiled by the different sects
of Islam shows that the basic traditions were in

1 Mukhtalif al-Hadith 92.



84 EARLY DEVELOPMENT OF MOHAMMEDANISM

reality recognised though there might be reasons for
professedly ascribing the laws to a different origin,
e.g. the esoteric knowledge communicated by the
Prophet Jx)Linenaber&_QLliis_family. "^

What must be said of the jurists and traditionalists
is, that whatever the value of their second source of
law, they spared no pains in endeavouring to recover
it. In order to find out the true amount of the
Jizyah or tribute exacted from Jews and Christians
in the Yemen under the Prophet's regulation, Shafi'i
travelled over the whole of that country and asked
for information in every province/ In order to dis-
cover the true theory of pious benefactions, he con-
sulted many of the descendants of the Refugees and
Helpers in the sacred cities.'^ He consulted more than
one member of the family of Omar and of the family
of Ah about practice.^ What he did in his time was
doubtless done by others before his time, and it is
partly due to the rise of this source of law that
posterity knows so much about the Companions of
the Prophet, each one of whom was a sort of oracle.

In order to compile a code of law on so strange a
foundation as casual observation of what one man
Jiad said or done, research had indeed to be indefatig-
ably carried on ; and since it was impossible to leave
questions unanswered, much had to be accepted on
very imperfect attestation. Shafi'i has a paragraph
in which he compares the evidence required for
legislation with that required in a law court, and he
admits that the latter is stricter in many particulars.

1 Umm iv. 101. 2 /^^-^^^ iii^ 276. 3 /^^-^^^ iij, ggj^



THE LEGAL SUPPLEMENT 85

For a tradition he is satisfied with the evidence of
one man or one woman : in court he requires more.
He will take hearsay evidence for a tradition, if the
reporter is of good character ; but in court he re-
quires firsthand knowledge. In the case of conflict-
ing traditions he will accept one, using as criterion
its agreement with some other source of law : but
he cannot deal in the same way with conflicting
affidavits. On the other hand, he claims to demand
in the reporter of a tradition a higher degree of
intelligence than he would demand from a witness,
because it is sufficient in the case of a tradition if the
sense be retained though the words may be altered ;
but it requires a certain degree of intelligence to
know when an alteration in the diction will not
affect the sense. Whereas, then, in court he is pre-
pared to assume that credible witnesses guarantee
the credibility of their authorities, in the case of
traditions he does not take this for granted, but has
to institute an inquiry into each link of the chain.

Shafi'i's argument for receiving a single attestation
in the case of a tradition, whereas the law courts are
not satisfied with less than a double attestation, is
highly ingenious. One of his points is that in the
case of a tradition the attitude of the reporter is
purely objective ; he cannot be suspected of partisan-
ship in matters which affect all Moslems alike. It
was, however, clear that the whole theory of tradi-
tional law must break down if a single attestation
was excluded. For, in numerous cases, the rulings
of the Prophet were supposed to take, or actually did



86 EARLY DEVELOPMENT OF MOHAMMEDANISM

take, the form of messages communicated through a
messenger or deUvered to an individual. Many a
piece of information about his conduct was communi-
cated to the world by one of his wives. And, indeed,
the biography of the Prophet offered numerous
occasions on which matters of the highest importance
had been communicated in this way. When the
congregation was praying at Kuba, a messenger
arrived from the Prophet telling them that in accord-
ance with a revelation which has just descended, they
are to reverse the direction of prayer ; the attestation
of a single messenger satisfies them, and they reverse
the direction in consequence. The command to spill
all spirituous liquors was communicated by single
messengers and was immediately obeyed. Indeed,
on certain occasions, when it would have been easy
for the Prophet to have sent a number of messengers
at once, he was satisfied with sending one and un-
questionably expected that the message would be
obeyed.

Shafi*i further points out that the individuals sent
with messages were persons who were known to the
individuals or communities to whom the missives
were directed, and who therefore were in a position
analogous to that of reporters of traditions to Moslem
communities of a later age.

Any precedent, however authoritative the person
responsible for it, had to give way before a tradition
of the Prophet. Where a tradition could be cited,
the common sense of the individual judge had to
give way. One saintly follower of the Prophet,



THE LEGAL SUPPLEMENT 87

Abu'l-Darda, declared he could not live in a country
where the sovereign set his own opinion against the
practice of the Prophet ; the question being whether
an object made of a precious metal might be sold for
more than its intrinsic value. Common sense would
seem to be in favour of the workmanship, etc., being
assigned some value, but the Prophet's dictum was
against it. In discussing the credibility of witnesses,
Shafi'i is satisfied that no Jew or Christian is a credible
witness ; his sole argument is that the Koran charges
these sects with corrupting the text of their sacred
books ; into the justice of that charge it is not his
business to inquire, neither does he consider whether,
if it be true, it falls on all existing members of those
communities, or whether the culprits were persons in a
bygone age, whose work it is not now possible to undo.
He does not even take notice of the fact that the
Koran itself distinguishes between different members
of those communities, allowing that there are honest
as well as dishonest persons among them. ' And, as
will be seen, he has some real difficulties to face, but
a little experience might have shown him that if it
was the desire of the judges to arrive at the truth, this
ruling of his barred and bolted many of the avenues.

One principle which is too deeply ingrained in
these works ever to be forgotten is that only oral
tradition counts ; written documents must be cited
from memory, not from the text. Traditions are to
be condemned merely on the ground that they are
taken from documents;^ and as we have seen, ''the

1 Mukhtalifal-HadTth 93.



88 EARLY DEVELOPMENT OF MOHAMMEDANISM

Veracious Scroll," said to be in the possession of a
Companion, was rated very low. A man who procures
an old letter learns it by heart, so as not to forget it,
he does not apparently copy it.^ Letters of early
Caliphs or other persons of importance are then
regularly cited in this way ; and when Shafi'i cites
a deed of gift by Ali to some tribe, he cites it as he
heard it read out to him by the Governor of Medinah,
not as he read it.^ Hence no attempt appears to have
been made to secure the preservation of the originals
of these valuable documents, about which the hand-
writing expert might perhaps occasionally have had
something to say. The only theory which explains this
strange delusion appears to be that the Koran tolerated
no literature besides itself. Somewhat similarly the
supposed LetteFof the Christian Saviour to Abgar,
King of Edessa, which is cited in letter- form by
Eusebius, is given as oral tradition in the Syriac
account, which is not much later, for fear that this
letter should demand admission into the Gospel ; and,
as we have seen, a place in the Koran seems to have
been claimed for the tariff of alms, which was con-
tained in a letter of the Prophet. And since the
Prophet's letters had been drawn up by his scribes,
there might have been some difficulty about stopping
this source of additions to the Koran if the perpetua-
tion of any collection of letters had been tolerated.

Hence we read of a practice whereby people took
down traditions, learned them by heart, and then

1 Tabarl ii. 502, 3.

2 Umm iii. 279 ; letters cited, vi. 125 ; vii. 135, 291, 293.



THE LEGAL SUPPLEMENT 89

discarded what they had written. The cases wherein
a permanent record was preserved somewhere seem
isolated ; there is an interesting story that a copy of
the poems composed by the Prophet's court-poet,
Hassan Ibn Thabit, was preserved in Medinah, and
regularly renewed when the writing showed signs of
evanescing ; but written bodies of tradition appear to
be mentioned only after the founding of Baghdad.
The vast journeys taken by traditionalists were there-
fore futile, since they only collected matter which
might easily have been communicated by one man or
learned from books ; for, from the very formulae
wherewith the traditions are introduced, it is evident
that the teachers claim to be nothing more than
intermediaries ; if what they communicated was
original, it was false. They were not like the teachers
of the true pronunciation or even the true interpreta-
tion of the Koran, who might well have matter to
communicate which was either their own property
or else only communicable orally. One dated copy
of a collection of traditions, guarded like the poems
of Hassan at Medinah, would have been better
evidence of authenticity that any number of '' paths."
We can only then suppose that the fear lest the
Koran might be superseded was what delayed the
process of committing this matter permanently to
parchment or papyrus ; and when at last that step
had been taken, the notion that no written copy was
authoritative had become too firmly implanted to be
uprooted. It must, however, be added that the
forgery of letters appears to have been exceedingly



90 EARLY DEVELOPMENT OF MOHAMMEDANISM

common,^ and the repeated exposure of such fabrica-
tions may have brought the written word into
discredit.

Just as we find misquotations in the New Testa-
ment and the Jewish tradition, one name being sub-
stituted for another, or non-BibHcal matter being called
Biblical, so the Koran was occasionally misquoted, as,
e.g., by Mansur in his letter to the Alid pretender, or
even some secular author confused with the divine
author to whom that work was ascribed. The
human memory is everywhere untrustworthy ; only,
such occasional misquotation hurts no one when
there is a text whereby it can be remedied. In the
case of the Tradition there was no check, and if
even a professional student of tradition like Shafi'i
frequently confesses that his memory is at a loss,
we need have no confidence that the memory of any
other reporter was better. Sometimes the ascription
of a saying could be put right ; Abu Talib points
out that one which was ordinarily ascribed to the
Prophet really belonged to the Sufi Sahl al-Tustari
of the third century. Some of the Prophet's sayings
were referred to earlier revelations, and can indeed
be identified in the Bible or Apocrypha. The
principle of jurisprudence whereby in civil suits the
plaintiff must produce evidence, whereas all that can
be demanded of the defendant is an oath, is some-
times referred to Omar, at other times to the
Prophet, whereas it really comes from the Jewish
Mishnah. The study, therefore, of the development

1 Tabarl ii. 1312, 1870, 1882, etc.



THE LEGAL SUPPLEMENT 91

of jurisprudence is exceedingly complicated ; for the
maxims ascribed to the Prophet seem in numerous
cases to be little more than a summary of existing
practice, and yet there is no doubt that these maxims
when formulated and so ascribed had a great effect
on subsequent legislation.

Still, codification of the accumulated mass of
practice must at an early period have become a
crying need ; and unofficial codes are likely to have
been compiled and even issued before any received
the sanction of the central authority. As early as'
the year 128 we read of an official appointing a
committee of pious men to make a collection of
sunan or approved practices and siyar rules of conduct,
which were then to be written out by his scribe/
Afterwards a document called the sir all of Ibn
Suraij, or "line of conduct," was actually circulated.'^
Before this time the building up of a system of
jurisprudence had been facilitated by the classification
of subjects, under which precedents and maxims
could be collected ; this appears to have been done
during the first century in Medinah, where the study


1 2 3 4 6 8 9 10 11 12 13 14 15 16 17 18

Online LibraryD. S. (David Samuel) MargoliouthThe early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 → online text (page 6 of 18)