On Schacht’s Origins of Muhammadan Jurisprudence M. Mustafa al-Azami The Islamic Texts Society (1996) ISBN 0946621462 paperback Index First published 1985 237 pp. $29.99

This in-depth study, carried out by one of Islam’s leading scholars, presents a detailed analysis and critique of the classic orientalist work, Schacht’s Origin of Muhammadan Jurisprudence. Azami’s work examines the sources used by Schacht to develop his thesis on the relation of Islamic Law to the Qur’an, and exposes fundamental flaws in Schacht’s methodology that lead to conclusions unsupported by the texts examined. This book is an important contribution to Islamic legal studies from an Islamic perspective.

‘For the first time we have work like Azami’s; he has devoted literally years of research to the investigation of Hadith and has analysed, tested and passed scholarly judgement on Schacht’s argument step by step, working with actual hadith materials. This book is indeed an effective response to Schacht...Azami has, through this and other works, demonstrated himself to be an outstanding scholar of Hadith ...he is the most well-versed and learned scholar of the Islamic science of tradition.’ - Journal of Near Eastern Studies

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Excerpt from 'On Schacht’s Origins of Muhammadan Jurisprudence'
 

Chapter Five

THE AUTHORITY OF THE SUNNA OF THE PROPHET IN THE ANCIENT SCHOOLS OF LAW

In Part One of this book the status of the Prophet as far as the Qur’an is concerned was discussed. It was shown there that he was to be seen as the expounder of the Qur’an, as a legislator, and as a model for Muslim behavior. The possibility always exists, of course, that practice may fall short of what was commanded; let us therefore analyze exactly how strong the commitment of the early lawyers to the sunna of the Prophet was. For this purpose we shall discuss the attitudes of the Medinese, the Syrians, and the Iraqians, respectively.

The Attitudes of the Medinese, Syrian, and Iraqian Schools

In the Muwatta’, Malik records the statement of the Prophet: “I leave with you two things after my death, if you hold on fast to them you can never go astray: They are the Book of Allah and the sunna of the Prophet.” Although the mere recording of the statement is not evidence that the Medinese actually used the traditions of the Prophet to support their judgments, we have quoted earlier Malik’s saying “The sunna is proof enough,” and this statement explicitly describes the Medinese doctrine concerning the sunna of the Prophet. Moreover, if we study the Muwatta’ more closely we find numerous instances of Malik basing his judgments explicitly on the Prophet’s orders. These examples, while not exhaustive, are surely sufficient to show that the use of sunna Prophet was an essential part of Medinese doctrine.

The statement of Auza’i in Tr. ix4 is an excellent demonstration of the authority given to the sunna of the Prophet by the Syrians. Abu Hanifa maintained that a soldier’s share of the spoils of war should be determined according to his registration category. If he was listed as a rajil—a foot soldier without horse—he should have the share of a rajil even if he obtained a horse and entered battle on it. Auza’i objected to this judgment, saying that the system of registration began in the time of Umar, while in the time of the Prophet there was no register and a soldier’s share was determined according to the extent of his real contribution to the war. His refusal to accept Abu Hanifa’s view was based entirely on a precedent from the Prophet.

Of the Hanafi school, which Schacht calls the Iraqian school, we have some of the books written by Abu Yusuf and Shaibani—two of the most distinguished companions of Abu Hanifa. Books such as Athar by Abu Yusuf and Athar, Muwatta’, and al-Hujja ala ahl-al-Madina by Shaibani are filled with traditions from the Prophet.

Abu Yusuf and the Sunna of the Prophet

Let us first examine some of Abu Yusuf’s statements.

As for the land of the Hijaz, Mecca, Madina, Yeman and those Arab territories which have been conquered by the Prophet, there should be no increase or decrease in [land tax] because upon them the order of the Prophet has been implemented. Therefore, the Caliphs are not allowed to divert it to something else.

The Prophet awarded a piece of land to some people of the tribe of Muzaina or Juhaina, but they did not utilize it. Some other people came and used it. The Muzani or Juhani people complained to the Caliph Umar. Umar said: “Had the land been granted by Abu Bakr or myself, I should have taken it back, but it was granted by the Prophet [so I cannot change it.]”

Amirul Mu’minin you have asked about the zakat…Amirul Mu’minin you should order the officers [appointed for its collection] to collect the rights and to give it to whom it is due and [to collect it] from whom it is due and to work in this case after the manner of the sunan established by the Prophet and then the Caliphs after him.

The first quotation shows that no one has the authority to change what has been fixed by the Prophet, and the second shows that Umar followed this view. One of the Prophet’s orders was that any man awarded a piece of land should use it within three years or have it taken away from him. In the case in question, the man left the land unused and other people began to use it. Given the general injunction of the Prophet, Umar should have transferred the land to those who were using it, but he did not do so and excused himself by saying: “Had the land been granted by Abu Bakr or myself, I should have taken it back, but it was granted by the Prophet.”

In the third quotation, Abu Yusuf advises the caliph that he should instruct the governors to collect zakat and dispense it according to the sunna of the Prophet and that which has been laid down by the caliphs.

Finding contradictions in some of the ahadith, Abu Yusuf chooses one which has more weight than others. Speaking about the partnership in farming he says:

The best we have heard in this case—and Allah knows the best—is that it is allowed and right [to do so]. We have followed the traditions which came down from the Prophet regarding the partnership of the Land of Khaibar. For these traditions are more trustworthy and more in [number] and general [in rules] than the traditions which have been related against these [traditions].

These quotations clearly show the overriding authority attached by Abu Yusuf to the sunna of the Prophet.

Shaibani and the Sunna of the Prophet

In Shaibani’s Muwatta’, as well as in Athar, in almost every chapter and often more than once he writes:

“All of this we follow: And it is Abu Hanifa’s opinion.” This characteristic, which has also been recorded by Schacht, is in itself sufficient to show the authority of the sunna of the Prophet in the Hanafi school. The explicit statement of the Iraqi scholar “that no one has any authority when placed alongside the Prophet” may also be cited. Taking this together with Abu Yusuf’s explicit statements quoted above and their practical adherence to the traditions from the Prophet, there seems no room for doubt that the sunna of the Prophet had overriding authority. Schacht does not and, indeed, cannot attempt to deny the existence of the many references to the authority of traditions from the Prophet. But he takes passages such as Muw., Shaib., 357, where Shaibani insists on the decisive role of a decision of the Prophet, and asks us to treat them skeptically on the grounds that the argument that the opinion of the opponent is not based on traditions from the Prophet is common to the Iraqians and Medinese in their polemics against one another. The point here, however, is surely that this argument would hardly have been used in polemics unless both schools accepted the overriding authority of the sunna of the Prophet, in theory at least; without this acceptance, accusations that the opponent’s arguments were not based on traditions from the Prophet would have been meaningless. We must conclude, therefore, not on the basis of the polemical writings of Shafi’i but on the basis of the explicit statements of Abu Yusuf and Shaibani, that the doctrine of the Hanafi school was based on the overriding authority of the Prophet’s sunna.

Table of Contents - On Schacht’s Origins of 'Muhammadan' Jurisprudence

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