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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Online LibraryD. S. (David Samuel) MargoliouthThe early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 → online text (page 7 of 18)
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of Islamic law started, and where the author of the
code which dominates in the Maghrib passed his life.
As in other cases, seven names during this period
became classical in connection with the study, though
not all agreed about the names to be placed in
the list.

The studies of the Medinese jurists of the first
century are no longer in existence ; the great

1 Tabarlii. 1918. 2 m^^^ igoj


Pandects which were compiled by the doctors of the
second century assume the work of their predecessors
and are based upon them. It is fortunate for those
who are interested in the historical development of
Moslem law that the works of several of the founders
3f law-schools are still extant. In that of Shafi'i we
^nd that the study has not yet quite emerged from
the controversial and dialogue form. Shafi'i records
the discussions in which he took the leading part, the
arguments adduced by his opponents as well as his
own, and so takes the reader into his workshop. We
learn from these discussions that the collection and
criticism of tradition had already been highly
developed ; the disputants are already familiar with
the traditions quoted under each heading, and with
the chief inferences drawn from them ; some canons
for ranging the traditions in order of credibility have
already been formulated, and the great principle that
the sole source of law is the Prophet in one capacity
or another is acknowledged. When Shafi'i challenges
his opponent to reject the principle, the audience
permit no dispute on the point. But further, we
find that grammatical and lexicographical studies of
which the purpose is fixing the meaning of the
Prophet's utterances have already gone a long way.
And still more we are struck with the subtlety of
the disputants, and their skill in constructing
imaginary cases. Probably it is less subtle than the
discussions recorded in the Jewish Gemara, but it
has the merit of being far more practical and generally


It was in the course of these discussions, then, that
the systems of law got built up. The audience
decide which of the disputants has the better of the
argument ; and the anxiety of each to defend his
position leads to the enucleation of various principles,
and in general the fixing of the Sunnah, and some
sort of rating of the traditionalists at various values.
No amount of acuteness, however, can compensate
for the fundamental weakness of the system : the
possibility that any text of the Koran may have
been abrogated, and the liability of any tradition to
be questioned. Most of the discussions illustrate
this. We may refer again to the question whether
the murder of a Jew or Christian by a Moslem is
punishable with death ; the Koran throws little light
on this matter, except that it quotes as a precept
given to Moses the maxim " a life for a life." Only
it does not follow that this precept was to be taken
on by the new religion : it may have been abrogated
by it as many other ordinances were abrogated.
Then we come to the practice of the Prophet : one
tradition is to the effect that one 'Amr Ibn Umayyah
was killed by the Prophet for a murder of this
kind ; but to this there is the reply that this could
not have been, since 'Amr Ibn Umayyah survived
the Prophet. The conduct of the Prophet's
Companions in similar cases was no less ambiguous :
Omar wrote that the murderer should be executed,
and then wrote to countermand the order. Othman
ordered an execution, but was dissuaded by his
colleagues. No less difference prevails as to the


amount of the blood-money due. Either it is the
same as due for a Moslem, or it is half, or it is about
a third.

In spite, therefore, of the keenest desire on these
persons' part to abide by the Scripture and the
Tradition to the exclusion of their private predilec-
tions, they had after all to be guided by the latter ;
those who wished to uphold the privileges of Islam
took one line, those who thought rather of the
welfare of the whole community took another. The
leading jurists even employ the formula " I like,"
*' I dislike," thereby implying that they are settling
things according to their predilections : though
doubtless these were what they supposed to be most
agreeable to the system of the Koran. In the
3fudawwa7iat ascribed to Malik in ordinary cases the
reporter merely gives the question which he had
addressed to the hearer of Malik as to Malik's
handling of some question, and then reports the
answer : which at times is to the effect that Malik was
not known to have expressed an opinion on it : but
more often is an actual opinion without quotation of
the arguments whereby Malik would have defended
it. Hence the charge made against the Jews in the
Koran of having taken their Rabbis as gods in
addition to God, in the sense that they assigned the
Rabbinical legislation a value not second to that of
the Scripture, might towards the end of the second
century have been brought against the Moslems also :
the words of the great jurists became a source of law,
whereas legislation was a privilege of God Almighty.


Having adopted this curious source of law, Shafi'i
proceeds to deduce principles with great acuteness.
The Prophet is supposed to have acknowledged that
when cases were pleaded before him it was possible
that one of the litigants might be a better pleader
than the other, and he, the Prophet, might in con-
sequence give an erroneous verdict : but he warned
such pleaders that anything which was in consequence
wrongly assigned them was a strip of Hell Fire, whence
they had best not avail themselves thereof. From
this tradition a whole series of inferences are drawn.
One is that it is the duty of the judge to follow the
evidence without endeavouring to go beyond it ;
another, that the judge's ruling does not alter the
rights and wrongs of the case ; a third, that it is
lawful for a citizen to set aside the ruling of a judge
when it is in his favour ; a fourth, that the divine
vengeance is threatened to those who take moneys
assigned to them from the public treasury which are
not their due.

The second of these inferences is of some import-
ance, as it precludes the employment of precedents,
except where they are taken from the practice of
saints of the first order. Shafi'i indeed distinguishes
two cases : one in which a sentence is found after-
wards to contradict either Scripture or Tradition ; in
such a case a succeeding judge has the right to
reverse it. Another is the case in which there is
no question of Scripture or Tradition, but only of
analogy, in which different opinions might reasonably
be held. Supposing that after taking one view a


judge changes his mind, he is not to reverse his
decision nor should a succeeding judge reverse it,
though in future cases he might follow the view
which had finally commended itself.

The view of Omar in a letter of instructions, which
is probably apocryphal, was that any judgment might
be rescinded when the judge discovered that there
was a preferable opinion to that which he had at first

If one compares the volumes of Shafi'i and Malik
with the Mishnah and Gemara, the comparison is
favourable to the Moslem jurists from several points
of view. First of these is the speed with which the
science of jurisprudence was evolved ; two centuries
had not elapsed from the Migration before the
Moslems had a system based on principles, which, if
doubtfully wise, at any rate are as wise as those
followed by the Jewish lawyers. And if there be
any merit in excogitating questions of casuistry, the
Moslem can conceive situations as unlikely to arise as
any imagined by the Jew. Shafi'i describes the case
of a Moslem aiming at a Christian and the latter
being converted before the arrow hits him, or of a
slave being manumitted in the interval that elapses
between the direction of the arrow and its piercing
the victim.^ It does not seem that the Moslems ever
made the mistake of thinking jurisprudence easy,
and supposing that lawyers quibbled out of pure
malignity ; the Moslem authors certainly did not
aspire to rise above their source, the Prophet, but

^ Umm vi. 33 end.


they took endless pains to ascertain what views he
had held, and to work these out to their proper
consequences. Although not many Greek books can
have been rendered into Arabic before the end of the
second century, Shafi'I displays some acquaintance
with the Aristotelian logic, and is clear about the
meaning of the words "genus "and "species." His
arguments from analogy are also highly ingenious.
The Prophet forbade the keeping of dogs, except for
certain necessary purposes ; hence Shafi'i argues that
there is no property in dogs, and that if a man kill a
dog his owner has no right to compensation. Why
not, asks the opponent, if the dog be kept for one of
these useful purposes ? The reply is that the licence
is limited to the owner ; the case which may be
compared is that of carrion which under necessity
may be eaten ; it is clear, however, that no one who
burned such carrion would be liable to pay damages :
and the case of the dog is comparable to that of the
carrion, as being permanently in a state of prohibi-
tion, from which it can be temporarily exempted, but
which does not become property thereby.

A study of the great Pandects on which the
Mrdikite and Shilfi'ite systems . are based suggests
that any influence which earlier systems of juris-
prudence may have exercised on those of Islam must
be looked for at the commencement, and no later.
Some few technical terms appear to be borrowed
from Christian or Jewish systems, but the bulk of
the development is independent, and the possibility

of foreign ideas being adopted seems to be excluded.



The whole is dominated by the rough-and-ready
nature of the Prophet's utterances ; and though we
may refuse to beheve the authenticity of a large
proportion of the traditions on which the reasoning
is based, it seems difficult to put the invention of
them later than the first century : if the maxims
were not the hasty and capricious utterances of the
Prophet, they were formulated by persons no more
capable of improvisation. If we wish to know what
is the age at which human beings become responsible
agents, it is settled by the story of a man being
rejected as a soldier at the age of fourteen, but
admitted in the following year; what we may be clear
about is that this story settled the question, and it
makes little diffisrence whether there was any truth in
it. The growth of this subject, then, resembles the
growth of Arabic grammar. A few ideas, the rudi-
ments of grammatical categories, were got from the
Greeks through the intermediation of the Syrians ;
but the rest of the fabric is Islamic, built up by
observation of the usage of the Koran, and to some
extent that of the language actually spoken in
Arabia. In both cases the fabric is so vast that
these foundation stones are all but concealed.




The Prophet's chief experiment in constructive
pohtics was the institution of tolerated cults — a sort
of caste-system, since by this arrangement whole
groups of the population were to enjoy a special
status. Certain religious communities were to be
allowed to remain outside the Moslem brotherhood,
unmolested on condition of their paying tribute ;
only various disabilities were imposed upon them.
This institution differed from other caste-systems in
one notable matter : it was in the competence of
any member of the tolerated cults at any moment
to join the dominant community, by pronouncing
the Moslem creed. In other countries transference
from one caste to a higher was an impossibility, the
castes being supposed to be an^ ordinance of nature
which no human power could alter ; or could only
be brought about by the special favour of the
sovereign, usually as a reward for eminent service.
The experiment was started so late in the Prophet's
career that the resulting problems scarcely made
themselves felt during his lifetime ; he apparently
desired that so long as tribute was paid, there should




be as little interference as possible with Jews and
Christians ; the incorporation within the Islamic
empire of whole countries in which the population
was Christian commenced after his death. Pro-
selytism from Christianity to Islam scarcely took
place — at any rate on a noticeable scale — before the
expansion of the latter under the first Caliphs.

So long as all that Islam demanded from members
of tolerated cults was tribute, it might be argued
that their condition compared favourably with that
of the Moslems. For the difference between the
tribute paid by the Christians and the alms paid by
Moslems might seem to be purely a difference in
name. It was the claim for alms which determined
the Arabs to revolt after the Prophet's death. The
difference in name was, however, considerable ; the
alms constituted an honourable payment, purifying
the Believer who contributed it ; whereas the tribute
was a form of humiliation, which might even be
regarded as a brand of slavery.^ Acceptance of Islam,
on the other hand, involved a whole number of
onerous obligations : various religious exercises, some
of them — e.g, the fasting-month — by no means accept-
able ; and, besides, compulsory service in the field,
which, as we learn from the Koran itself, was at times
found irksome, notwithstanding the prospects of booty
and Paradise. Although the historical evolution of the
Islamic caste-system was by no means favourable to
the subject caste, some of the traces of this original
condition survived. Exemption from military ser-

1 Shafi% Umm vii. 292.


vice and from the burdensome ceremonies of Islam
aided the tolerated communities in a variety of ways,
and counteracted some of the effects of humiliation
and oppression.

Unforeseen problems arose, which had to be settled
so far as possible by the maxims of the Koran.
Certain texts made it clear that the family tie was
cancelled by the religious change ; the Jew or
Christian who adopted Islam had stepped out of the
family to which he formerly belonged, and had formed
a new connection ; the rights and duties which had
formerly belonged to him had all lapsed. He then
forfeited any claim to inheritance which his member-
ship of a family had given him, and also deprived that
family of all right to inherit from him. The doctrine
that there was no inheritance between members of
different religious communities came to be asserted
with such strictness that some jurists extended it
to Islamic and even to Jewish and Christian sects.

To some, however, this seemed to be dealing justice
too evenly between Believers and Unbelievers ; it was
argued that where conversion to the dominant com-
munity took place it should only confer advantages
and should occasion no detrirrient ; let the convert
retain his claims to inheritance if he had any, only
let his unbelieving relatives be excluded from any
share in his estate. Provision had also to be made
for the rare case wherein the transference took place
in the opposite direction, i.e. from Islam to Judaism
or Christianity ; such a pervert doubtless forfeited
his life, but did his believing family thereby lose all


claim to what they might otherwise expect to be
theirs ? The ordinary administrator would settle this
question in the interest of the Moslem community,
and could argue that in certain other cases Islam
scored both ways, or at any rate made no pretence
of treating the subject cults as equal to itself. The
most familiar example is the case of women : a
Moslem man may marry a Christian or Jewish
woman, but a Moslem woman may not become the
wife of any but a Moslem man. We are apt, when
we eulogise Islam for its unification of races, to forget
that this unification is somewhat one-sided. The
system regularly demands that the mate of a Moslem
woman must be her equal, but makes no similar
claim for the Moslem man — in whose case the word
" mate " is scarcely suitable. The needs of the
treasury were against retaining the Moslem convert's
right to an inheritance from his former family ; the
state was surer of its right when the inheritance
remained with Jews or Christians. And the case of
the pervert from Islam was rather academical than
practical. The estimable Ali, it was said, when
ordering the execution of a pervert, probably on a
historic occasion, had assigned his estate to his
Moslem relatives. Shafi'i, insisting on the maxim
that there is no inheritance between members of
different creeds, decided that by perversion a man
deprived his Moslem relatives of their right to his
estate. A theory which had been devised for dealing
with such cases — viz. that the death of the pervert
may be presumed, because any Moslem who found


him would have the right to kill him, whence his
estates might be divided on perversion as they would
be after death — is rejected on the ground that there
is always the chance of reconversion, which would
restore to the man his rights as a Moslem. Never-
theless, though Shafi'i neglects the interests of the
pervert's family, he does not neglect those of the
state. If the pervert be out of reach, his goods may
be considered spoils of war, and assigned to the
treasury for the community.

Several questions which arose from the recognition
of tolerated cults were connected with the poll-tax.
Although the Moslem conquerors seized some of
the best provinces of the Byzantine empire, they
recognised the independence of the latter, and
repeatedly treated with it ; there was ordinarily no
question of enforcing on it the payment of the tribute
which was enforced on the Christian residents of the
provinces which had been conquered. How far was
this state of things in accordance with the doctrine
that Islam was to triumph over all other cults, and that
the realisation of that triumph was the duty of the
Moslems ? The orthodox explanation was that a
respite had been granted to the- Greek empire because
Heraclius had treated with respect the letter of the
Prophet which bade him adopt Islam ; unlike the
Persian monarch who had torn the Prophet's letter
to pieces, Heraclius had preserved the despatch sent
him in musk. The reception of the missive by the
Greek emperor is indeed a very favourite subject of
myths on the part of the Prophet's biographers,


who regularly represent the emperor's conduct in a
favourable light ; indeed, suppose him to have been
converted, but to have had his hand forced by the
ecclesiastics. Heraclius thus secured the continuance
of his empire ; only, in order that the Meccan
merchants who had traded with Syria might not be
damnified, the divine providence had ordained that
Syria should be withdrawn from Byzantine rule.

It must, however, be emphasised that the duty
of the Moslem sovereign to reduce all non -Moslem
states to subjection by force of arms never actually
lapsed, though circumstances may have rendered it
difficult or even impossible to execute. The fact of
an independent Christian state existing — or indeed of
such a state existing belonging to any other religious
community — is a sufficient ground for an attack.
And the court historian of the Ottomans, who wrote
with the express object of glorifying the first eight
Sultans of that dynasty, makes it the great merit of
Othman, the founder, that he attacked the Christian
strongholds in Asia Minor and so increased the
territory of Islam ; there were prosperous cities in his
neighbourhood, which owing to the weakness of
Byzantium and the rival empire could not defend
themselves against aggression, and pay with employ-
ment was wanted for the refugees from the relics
of the Seljuk empire; Othman, according to this
chronicler, who took care to say nothing which his
masters would not approve, attacked these cities, and
forced the inhabitants either to adopt Islam or to
pay tribute ; the old industries were ruined, and the


churches with few exceptions turned into mosques.
We are not here concerned with the question
whether other rehgious chiefs adopted the same view
of their duties towards their neighbours, but merely
with the question whether this was or was not the
view taken by orthodox Islam.

In the second place, the word " the Book," occurring
in the text which enjoins warring on those who had
been given it until they paid tribute, admits of various
interpretations. And indeed the phrase " who have
been given the Book " need not imply that they still
possessed it ; hence Ali is quoted for the assertion
that the Persian Mazdians had once possessed a
revealed book, which had been taken away from
them owing to the crime of a certain king. On the
other hand, the tense of the words " who have been
given the Book " confines the permission of tribute in
lieu of Islam to those w^ho had received the Book
before the revelation of the Koran ; whence only
those communities which had followed one of these
systems before that memorable date can claim
exemption from death or conversion. And since the
text speaks of fighting with these sectarians till they
pay tribute, it follows that only the fighters among
them have to pay it : women and children are
excluded. The theory that only those communities
have a right to toleration who never possessed a better
revelation is carried out to its logical consequence.
Thus an Arab Jew or Christian is not to have the
rights of other Jews and Christians, on the ground
that the Arabs originally belonged to the Hanifite


faith and abandoned it ; they are therefore in the
position of renegades.

For the same reason conversion from one tolerated
cult to another is not permitted, since the principle
which underlies toleration is continuity ; and indeed
in the instructions which the Prophet is supposed to
have given his earliest lieutenants, the wording of the
order was to the effect that no Jew or Christian
should be forced to abandon the faith wherein he had
been born. But when once the continuity has been
snapped, the Jew or Christian may be supposed to
have returned to natural religion ; if, therefore, he
joins a non- Moslem community, it may be argued
that he is in the position of a pervert. This principle
occasioned some difficulty when missions began to
work among the Christian populations of the Ottoman
empire ; when the Foreign Office in the year 1840
demanded a firman for the erection of a missionary
Protestant church in Jerusalem, the reply was at first
offered that the Christian subjects of the Porte were
forbidden by law to pass from one community to

The different Christian sects were locally separated
in the Moslem empire ; and since they were placed
under responsible heads who were in direct communi-
cation with the Moslem officials, it is probable that
the difficulties which arose from this provision were
ordinarily small. It is noteworthy that fresh Jewish
sects sprang up under Islamic rule, but fresh
Christian sects appear not to have started in these

^ Engelhardt, Tanzimat, i. 6l.


regions. The reason is that the Moslem conquest of
Mesopotamia meant the renaissance of Jewish Htera-
ture, but the practical death of the Christian literature
of the East.

An important feature in the condition of the
tolerated cults according to the Islamic system was
that the members were not to bear arms, or take
part in the w^ars of the community. Nevertheless,
Shafi'i reserves to the sovereign the right to employ
these persons as soldiers, supposing that the Prophet's
refusal to allow the Jews to fight on his side at Badr
was cancelled by a later precedent : the precedent
which he cites is absolutely fictitious and a gross
anachronism ; two years after Badr, he states, the
Prophet employed Jewish auxiliaries of the Banu
Kainuka against Khaibar. However, if there be any
truth in the Prophet's biography, the Banu Kainuka
were banished shortly after Badr, having escaped
with difficulty from a general massacre ; and the

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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 7 of 18)