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Oxford Journals Humanities Journal of Islamic Studies Volume19, Issue1 Pp. 109-115.

The Origins and Evolution of Islamic Law BY WAEL B. HALLAQ

The Origins and Evolution of Islamic Law BY Wael B. Hallaq. (Cambridge: Cambridge University Press, 2005), 234 pp. PB 18.99. ISBN 0 521005809. A senior professor's authority to influence the work of others is mostly exercised through teaching and administrative functions; it becomes public only in grand field-mapping ventures like The Origins and Evolution of Islamic Lawa sort of companion to Wael Hallaq's introduction to Sunni ul al-fiqh, the weightier A History of Islamic Legal Theories (published a decade earlier, also by Cambridge, 1995). Whether this book will have much influence I do not know; I hope that it may not since it contains a large number of rather gross failings. Mistakes happen in any human effortfrom momentary inattention, bad luck, for no reason at all. An example of the latter occurs in this line (p. 29) about Umar b. al-Khab: During the two decades of this aggressive and dynamic caliph's rule . One need not be over-exercised by trite slips like that, except insofar as they are symptomatic of indifference to accuracy and fair-minded commentary. Here are a few of many more: The well-known A b. Ab Rab, and Amr b. Dnr are rightly identified as Makkan experts of adth and fiqh on p. 65, but as Madinans on p. 64. Nakha is mentioned as a teacher of Ab anfa (p. 154): in fact he was a teacher of a teacher of Ab anfa. Yay b. Yay Layth, the famous scholar from Spain, is described (p. 214) as a Madinan juristhe only studied in Madina. Judan is spelled as Jadan (p. 15); al-Uray as al-Ari (p. 16); Kab b. Sawwar as Kab b. Suwar (p. 34); Bakra as Bakara (p. 37); one of the seven famous jurists of Madina Ubaydullh b. Abdillh b. Utba is misidentified as Abd Allh b. Utba (p. 65); the Basran muaddith and faqh Ayyb al-Sakhtiyn as Ab Ayyb (p. 65, 211); abb b. Ab Thbit as abb b. Thbit

(pp. 73, 212, 230); Ab Awn Abd al-Malik b. Yazd as Abd Allh b. Yazid (p. 82; entry missing from the index). A more involved slip is in the name of the famous Madinan scholar and traditionist Muammad b. Muslim b. Ubaydillh b. Abdillh b. Shihb al-Zuhr, usually referred to as Ibn Shihb al-Zuhr, shortened as Ibn Shihb or al-Zuhr. Hallaq refers to him as Ibn Shihb alDn al-Zuhr (pp. 42, 154), Shihb al-Zuhr (p. 67), Shihb al-Dn Zuhr (p. 70). None of these is admissible. No source has or could have mentioned his great grandfather as Shihb al-Dn naming with the dn suffix started in a much later period. Moreover, Shihb was not a Muslim; his son Abdullh was with the unbelievers in Badr and Uhud (see Wafayt al-ayn, the letter mm). The majority of the mistakes just listed are the result of not checking simple facts. Another sort of mistake comes from not checking original sources; for example, the following egregiously confident statementIt should not come as a surprise then that one of the most distinguished later works cites Yazd b. Abd al-Malik (r. 101/718105/723) as the last caliph whose practices and decrees constituted authority-statements (p. 68)carries the footnote: This work is Malik's Muwa, written in Medina around 150/767. See Dutton, Origins, 121. No jurist has ever referred to Yazd b. Abd al-Malik as one whose practices and decrees constituted authority-statements. In the Muwa (which is easily accessible) Yazd is indeed mentioned, once only, where one of the seven famous jurists of Madina, Qsim b. Muammad, is commenting on Yazd's ignorance of explicit and well-known Qurnic legislation. Unfortunately, those above noted are only among minor failings of the book. Its major failings are over-reliance on just two sources, namely Wak's Akhbr al-quh and Kind' s Akhbr qut Mir, and a quite incredible indifference to the meaning of Arabic terms. The early works of adth, fiqh and rijl are ignored, for reasons Hallaq does not spell out. Where an account in either Wak or Kind lacks the further details that could inform a more balanced judgement, Hallaq has not bothered to search in other sources. For example, he wants to claim that in the early period it was not a requirement for a q to know the Qurn or Sunna of the Prophetonly knowledge of customary pre-Islamic law was required. He writes: The sources report that some of the earliest qs were illiterate, as in the case of bis b. Sad al-Murd, who was appointed q of the important garrison town of Fus by the caliph Muwiya (p. 36). Despite the lack of formal legal education (which Islamic culture had not yet developed), and the patent illiteracy of some of them, qs were expected, if not required, at least to have a degree of religious knowledge When Marwn b. asan was appointed governor of Egypt in 65/684, he called on bis b. Sad, then q of Fus, with the intention of checking his credentials. Having heard that bis was illiterate, Marwn was concerned about his competence. It is reported that the first question he asked him was whether he knew the Quran, especially its law of inheritance (pp. 389). And in the attached footnote: This report must be authentic, since the sources make no mention whatsoever of Prophetic Sunna or consensus, the knowledge of which became a century or two century later as essential to the q as the Quran Ignorance of the Quran would automatically disqualify any later would-be q (p. 39). Apparently, conformity with Hallaq's thesis in this book is to be taken as evidence for the authenticity of the report! But was bis really ignorant of the Qurn and Sunna? Is it really true that knowledge of these sources was not a condition for appointment as q? For bis's alleged ignorance of the Qurn, Hallaq refers to Wak and Kind. The wording in both is that Marwn asked bis: a jamata l-Qurna?, literally Have you gathered the Qurn? Jam refers to holding the whole Qurn either in one's memory or in written form. In point of fact Hallaq's sources are only reporting that bis did not know the whole Qurn by heartnothing remotely like what he wants them to mean. As for bis's knowledge of the Sunna: Ibn ajar alAsqaln states in Raf al-ir (the letter ayn): He received the Sunna from one of its most expert among the Companions, namely Abdullh b. Amr b. al-, and also others. Ibn ajar and other experts affirm that he learnt the knowledge of the Companions. On Abdullh b. Ab Jafar's inquiry about bis, anash b. Abdillh says: bis accompanied Uqba b. mir and Abdullh b. Amr until he comprehended all their knowledge. From Ibn ajar's account of how Marwn tested bis's knowledge of the Qurn, the law of inheritance and of divorce, one learns that bis answered all questions so well that Marwn said: O people! are you not surprised how bis [regardless of his knowledge] has kept himself as a humble person? Marwn then confirmed him

in his post as q. No source has recorded any mistake by bis in juristic rulingi.e. he was competent. Hallaq claims that the Sunna of the Prophet became important only later, and was not important at the outset of Islam. He writes: Umar I reportedly advised Shuray to see that his rulings conformed with Quranic stipulations, the decisions (qa, but not yet the Sunna) of the Messenger (p. 45). But by what conjuring with terminology is the qa of the Prophet to be separated from his Sunna? It is self-evident that the caliph advising a judge would single out the most relevant part of the Sunna, namely the Prophet's judgements, as the model to follow. The early sources overwhelmingly demonstrate that qs had to judge within the framework of Qurn and Sunna. Even Wak's booka major source for Hallaqhas many examples: the adth emphasizing the importance of the Sunna of the Prophet for a q (vol. i, p. 68); the advice of the Prophet to Mudh (i. 98); the letter of Umar to Ab Ms (i. 703); the opinion of Abdullh b. Masd (i. 76); the letter of Umar II to Ad b. Arh (i. 77). Waki's book and other sources for the biographies of qs overflow with instances of qs adjudicating on the basis of the Sunna of the Prophet. (Hallaq would no doubt claim that the emphasis on Sunna has been back-projected into the early sources. Sadly, it seems, from the assumptions of this book that the test of economy and simplicity of explanation still does not apply to adth studies in the West.) The book's thesis is not built from ideas suggested by years of immersion in the primary and secondary materials in the field. It is not drawn from those materials as a whole, but shakily propped up on disjunct snippets of information without regard for meaning or context. Hallaq handles the material with a carelessness that, to this reader, seemed insulting. His thesis is that for several decades after the death of the Prophet, there was no Islamic law as such; rather, what was implemented among the Arab tribal cantonments outside the cities conquered from Persians or Byzantines was the Arabs particular inheritance from the legacy of laws and customs that had prevailed in the Near East since before the Romans, Egyptians, etc. The Arabs, though Muslims, were not concerned about the laws of the Qurn, indeed those laws were openly disobeyed, even by those (like judges, governors) charged with implementing them, and no one noticed or minded, still less punished, such disobedience. He writes: The Quran's meanings were obviously not fixed, but grew with the religious growth of the Muslim community. Indeed, the gradual rooting of the Quranic imperative in the Muslim psyche may be illustrated by the example of the proto-qs attitudes towards the consumption of wine (p. 69). Hallaq's argument relies heavily on the early Muslims alleged indifference to the Qurnic prohibition of wine (khamr). He writes further (p. 40): Even such Quranic prohibitions as those pertaining to wine-drinking were not immediately enforced, and remained largely inoperative at least for several decades after the death of the Prophet. In fact, the early Kufan legists permitted its consumption. Furthermore, it is telling that Shuray, portrayed in the Muslim tradition as an archetypal q of legendary proportions, is commonly reported to have indulged in drinking doubly distilled, strong intoxicants. (Readers should note here that the thesis requires, and Hallaq affirms, that Muslims foolhardy enough to concoct or tamper with adth, indulged no impulse to do the same with the Scriptural text itselfI will come back to this.) Openly sanctioned consumption of intoxicants by a q of the status of Shuray would indeed be significant. Hallaq's source for this is Wak, Akhbr, vol. ii, pp. 212, 226. In both places khamr (explicitly prohibited in the Qurn) is not the term used; other intoxicants are forbidden by analogy or because of Prophetic adths. We have on p. 212 of Wak's Akhbr: kna yashrabu alila l-shadd yani al-munaaf; and on p. 226 it is narrated from al-Shab that he said: sharibtu al-ila maa Shuray. ila was and is a drink commonly consumed in the Arab world. The literal meaning (tar) suits a drink which, after decomposition by much cooking (of grapes, dates, whatever fruit is cooked), is stretchy when poured. This drink was not allowed only in the early decades in Islam, but has been ever since. Umar b. al-Khab was asked about ila, examined it and then allowed it. That is recorded in al-Muwa, k. al-ashriba; in the same chapter (as in many other adth collections) it is recorded that as soon as the verse of prohibition was revealed, people who were gathered to drink wine poured it away publicly and even smashed the containers of it; again in that chapter (and again in many other adth collections) well-attested instances are cited of when Umar, Uthmn and Alwhich would cover the early decades

punished those found guilty of being intoxicated. Early and later generations of Muslims have been consistently unanimous that drinking intoxicants is arm. Hallaq's reiterated claim that Islamic law is based on customary tribal law is not substantiated by any particular instance. In one place he says: family status, inheritance and crime all of which areas were fairly well regulated either by Quranic legislation or tribal customary law (p. 38); on chasing up the supporting footnote (to Wak, Akhbr iii. 2245), I found nothing that connects with what Hallaq is saying. Earlier he had written: a number of ritual practices, such as prayer and fasting, were distinctly pre-Islamic Arabian practices that survived in the legal and religious system of the new faith (pp. 245). This is true only in the most trivial sense; the ritual practices insofar as Islamic are distinctive: no community prays and fasts as the Muslims pray and fast; even the ajj rituals were substantially reformed and in terms of their intent wholly re-oriented. Another strand in the thesis is that the judgements of the early qs did not follow any Islamic precedent or operate within an Islamic framework; they were instead arbitrary. As an example he mentions of Hishm b. Hubayra: he found the defendants guilty and ordered that their heads (in the original Arabic half heads) and half their beards be shaved as punishment (p. 35). Can Hallaq possibly be unaware that Islamic law distinguishes fixed and discretionary penalties (udd and tazr)? Where penalties are not fixed by Qurn or Sunna or consensus, the judge may decree a suitable deterrent measure provided it is less than the add relevant to the case. Hishm b. Hubayra was not acting in a manner disconnected from what Islamic law then and now envisages. (Abuse by judges of their discretionary authority whether in Islamic or other legal jurisdiction is a different matter: here the issue is Hallaq's claim that the existence of discretionary authority implies the non-existence of an Islamic legal framework.) Another example: It is perhaps indicative of the nature of these commanders involvement in the law that when a paternity dispute was brought before the young Al, he solved it by drawing lots. Upon hearing of Al's methods, the Prophet reportedly laughed so hard that his molars came into view. Whether authentic or not, this anecdote one of many reveals the primitive nature of the legal reasoning employed by these proto-qs (p. 34). Hallaq concedes that the report may be inauthentic, but even if correct, how does it support his point? In Islamic and other traditional societies the judge's ruling is taken by all parties as a means to resolve disputes. The resort to casting lotsit might be done even todayis a device for resolving disputes where no legally admissible evidence exists to resolve it otherwise. The book's argument displays, systematically and consistently, ignorance of general notions of what Islamic law is for, how it relates to Qurn and Sunna, and how it serves a self-consciously Islamic society, combined with ignorance of the specific (i.e. proper) meaning of particular legal terms, maxims, rulings etc. Here are examples of each of the latter: Hallaq writes (p. 24): if the marriage was consummated, the husband owed the wife half of the dowry. If he looks up the Qurnic verses mentioned in his footnote, he will find that in fact the whole of the dowry must then be returned. He writes: Qatda b. Dima, asan al-Bar and abb b. [Ab] Thbit (d. 119/737) are cited in technical adth criticism as mendacious, having attributed to the Prophet a number of adths that were rejected as inauthentic (pp. 734; emphasis added). This is quite untrue; if it were true, the adths reported by these people would indeed have been classed as rejected. They are not. In technical terms (that Hallaq has made no effort to understand) these narrators reports are charged with tadls, which has never meant mendacity, but always the omission of a source. There are several kinds and degrees of it, but roughly: A hears from B a matter (M) which B has heard from C, but A reports that he has M from C, not mentioning B. This omission of B, provided it was historically possible for A to have heard from C, is called tadls. In reality, and certainly for the individuals mentioned, the matter M will have been heard from B, B1, B2, etc. and have come to the Bs from many Cs. In their generation, where the M was known for sure, the need to mention intervening links was not felt strongly. In subsequent generations, with greater regional dispersal and larger numbers involved in transmission of M, the apparatus of references needed to be more strictly reported. There are many instances of Hallaq refusing the proper meaning of the terms. In the early period governors, qs and others were called on, as community leaders, to teach Islam and did so by

giving sermons. The word used for that service, because it entailed recounting Qurnic parables and because the Qurn expressly uses stories as a teaching device, is qaa. That is not at all what Hallaq repeatedly does with this term, for example in this sentence: A significant function of the early qs was story-telling (p. 39). Another misreading (not wilful in this instance) relates to the judges court (majlis al-qa) being held in the marketplace. The practice is well documented. However, Hallaq's source for it (p. 59) Wak, Akhbr, i. 339, has nothing to do with that practice. Rather, the text there points out that Iys b. Muwiya used to judge in regard to places in the market of Basra by analogy with attending the jmi masjid: whoever arrived first had the right to the best spot. Another misreading that supports a large claim: Ibn Shubruma even accepted the testimony of a wife in favor of her husband against a third party, a practice totally at odds with later normative doctrine (p. 87). How is it totally at odds? Ibn Shubruma did not reach a verdict on the basis of only the wife's testimony in favour of her husband. Rather, given that the conditions of testimony were met, he heard and took note of the wife's testimony, alongside other evidence. Finally, as an example of a misread legal maxim: If the consumption of any quantity of wine, however small, is prohibited in the revealed texts, then a larger quantity would obviously be equally prohibited (p. 116). That is not how jurists put it. Rather, they say: if the consumption of a large quantity of a drink can cause intoxication, then even a small quantity of that drink will be prohibited. To close, let me return to the heart of the matter: the Qurn. Western scholarship is typically disposed to regard its text, like the adth texts, as a later human construct. However, Hallaq's thesis needs the Qurn to be distinct, intact etc., with its meanings permeating the Muslim psyche over time, and giving rise to the evolution of Islamic law as an adaptation (eventually distinctive) of the legacy that has informed the law of all the civilizations of the Mediterranean region. This makes of the Qurn an abstraction, a remote good idea, floating above and outside of history, whose meaning remains to be worked out through human experience. It aims thereby to separate the Qurn from the Sunna, and to separate Islamic law from both insofar as that law, originally embedded in the practice of the region, only eventually accommodated distinctively Islamic elements or coloured them as distinctively Islamic. But the Qurn is not so. All of it was sent down upon a particular historical individual, the sending down witnessed over many years by many (the close Companions), all of whom were able clearly to distinguish what was sent down and what came, separately, from the man himself. Moreover, the Qurn was sent down in response to particular conjunctions of circumstance, even to particular individuals questions or actions. Those conjunctions of circumstance were thereby ennobled as exemplary for the Islamic community. The believers who lived with the Prophet were able to witness both that he responded in his actions and lifestyle to the guidance sent to him and how he responded. The Qurn was understood as requiring to be embodiedthat was the whole point of the migration to Madina, the founding of a distinct Islamic jurisdiction. Also, how it could and should be embodied was experienced by those who witnessed the Prophet's sra and his Sunna first hand. That does not mean that the transmission of that first-hand knowledge to subsequent generations was as reliable or complete as the transmission of the Qurnic text, or that the Shara as it evolved is not in large measure a human construct, and therefore liable to all the consequences of human frailty. But it does mean that Islamic law had its distinctiveness from the outset, and that distinctiveness was its being securely tethered to the Qurn understood in the framework of the Prophet's sra and Sunna. The error of approaches like Hallaq's is (1) to confuse formal knowledge of a system of rules with a working knowledge of what is correct and incorrect sufficient to operate the system effectively and distinctively; and (2) to claim that in the absence of explicit, formal knowledge of the system, the system as such cannot exist, but is better identified as a proto-form, struggling out of undifferentiated background. The error is the equivalent of claiming that no language was ever used distinctively, with users able to tell wrong from right usage, until an explicit, formal grammar of that language had been written down and accepted as such by accredited institutions.

1. Mohammad Akram Nadwi + Author Affiliations

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E-mail: mohammad.akram@oxcis.ac.uk

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