1: CONCEPTS SUNNAH, IJTIHAD AND IJMA' IN THE EARLY PERIOD
I
SUNNAH is a behavioral concept - whether **** applied to physical or mental acts - and, further, denotes not merely a single act as such but in so far as this act is actually repeated or potentially repeatable. In other words, asunnah
is a law of behavior whether instanced once or often. And since, strictly speaking, the behavior in question is that of conscious agents who can "own" their acts, asunnah
is not just a law of behavior (as laws of natural objects) but a normative moral law: the element of moral "ought" is an inseparable part of the meaning of the concept Sunnah. According to the view dominant among more recent Western scholars, Sunnah denotes the actual practice which, through being long established over successive generations, gains the status of normativeness and becomes "Sunnah". This theory seems to make actual practice - over a period - not only temporarily but also logically prior to the element of normativeness and to make the latter rest on the former. It is obvious that this view derives its plausibility from the fact that since Sunnah is a behavioral concept, what is actually practiced by a society over a long period, is considered not only its actual practice but also its normative practice. This is especially true of strongly cohesive societies like the tribal ones. But, surely, these practices could not have been established in the first place unless abinitio they were considered normative. Logically, therefore, the element of normativeness must be prior. And although it must be admitted that the fact of a custom's being long established adds a further element of normativeness to it - especially in conservative societies - this factor is quite different and must be radically disentangled from the initial normativeness.
That Sunnah essentially means "exemplary conduct" as such and that actually being followed is not a part of its meaning (although the fulfillment of the Sunnah necessarily consists in being followed) can be demonstrated by numerous examples such as the following. Ibn Durayd, in his Jamharah (and he is followed in this by other lexicographers), gives the original meaning of the verb sannah as "sawwara (al-shay’a)", i.e., to fashion a thing or produce it as a model. Next, it is applied to behavior which is considered a model. Here (and this is the sense relevant to us here) sannah would be best translated by "he set an example". It is in this sense that Abu Yusuf admonishes Harun al-Rashid (see his Kitab al-Kharaj, the chapter on Sadaqai) asking the Caliph "to introduce (as distinguished from 'to follow') some good sunnahs".
In the same passage, Abu Yusuf quotes the Hadith, which may be very early, "whoever introduces a good sunnah will be rewarded. .
and
whoever introduces a bad sunnah . ", etc. If one asks how a sunnah could be bad if its essential meaning is not to be actually followed by others but to be morally normative, the answer (given by the author of Lisan al- Arab, s.v.) is that those who set bad examples wish, nevertheless, to be followed by others and in most cases (perhaps in all cases) they do not think they are setting bad examples.
II
From the concept of normative or exemplary conduct there follows the concept of standard or correct conduct as a necessary complement.
If I regard someone's behavior as being exemplary for me then, in so far as I follow this example successfully, my behavior will be thus far up to the standard or correct. There enters, therefore, an element of "straightness" or correctness into this enlarged complemental sense of the word "sunnah". It is in this sense that the expression "sananal-tariq" is used which means "the path straight ahead" or "the path without deviation".
The prevalent view that in its primary sense sunnah means "the trodden path" is not supported by any unique evidence,
although, of course, a straight path without deviation implies that the path is already chalked out which it cannot be unless it has been already trodden. Further, the sense in whichsunnah
is a straight path without any deviation to the right or to the left also gives the meaning of a "mean between extremes" of the "middle way". In his letter to Uthman al-Batti, Abu Hanifah, while explaining his position with regard to a sinful Muslim, against the Kharijite extremism, describes his own view as that of Ahl al-adl waUSunnah, i.e., "people of the mean and the middle path". "As regards the appellation' Murjite which you have mentioned (regarding my view), what is the crime of a people who speak with balance (adl = justice) and are described by deviationists by thisname ?
On the contrary, these people are (not Murjites but) people of balance and the middle path."
We.shall
show in the next chapter how the term "sunnah" actually evolved into this sense and, further, that it was on this principle of the "mean" that the Ahl al-Sunnah or the "orthodoxy" came into being.
III
Among the modern Western scholars, Ignaz Goldziher, the first great perceptive student of the evolution, of the Muslim Tradition (although occasionally uncritical of his own assumptions), had maintained that immediately after the advent of the Prophet his practice and conduct had come to constitute the Sunnah for the young Muslim community and the ideality of the pre-Islamic Arab sunnah had come to cease. After Goldziher, however, this picture imperceptibly changed. While the Dutch scholar, Snouck Hurgronje, held that the Muslimsthemselves .
added
to the Sunnah of the Prophet until almost all products of Muslim thought and practice came to be justified as the Sunnah of the Prophet, certain other notable authorities like Lammens and Margoliouth came to regard the sunnah as being entirely the work of the Arabs, pre-Islamic and post Islamic - the continuity between the two periods having been stressed. The concept of the Sunnah of the Prophet was both explicitly and implicitly rejected. Joseph Schacht has taken over this view from Margoliouth and Lammens in his Origins of Muhammedan Jurisprudence wherein he seeks to maintain that the concept "Sunnah of the Prophet" is a relatively late concept and that for the early generations of the Muslimssunnah
meant the practice of the Muslims themselves.
We have criticized, elsewhere, the grounds of this development in Western Islamic studies and have attempted to bring out the conceptual confusion with regard to sunnah.
The reason why these scholars have rejected the concept of the Prophetic Sunnah is that they have found (i) that a part of the content of Sunnah is a direct continuation of the pre-Islamic customs and mores of the Arabs ; (ii) that by far the greater part of the content of the Sunnah was the result of the freethinking activity of the early legists of Islam who, by their personal Ijtihad, had made deductions from the existing Sunnah or practice and - most important of all - had incorporated new elements from without, especially from the Jewish sources and Byzantine and Persian administrative practices ; and, finally (iii) that later when the Hadith develops into an overwhelming movement and becomes a mass-scale phenomenon in the later second and, especially, in the third centuries, this whole content of the early Sunnah comes to be verbally attributed to the Prophet himself under the aegis of the concept of the "Sunnah Of the Prophet".
Now, we shall show (1) that while the above story about the development of the Sunnah is essentially correct, it is correct about the content of the Sunnah only and not about the concept of the "Sunnah of the Prophet", i.e., that the "Sunnah of the Prophet" was a valid and operative concept from the very beginning of Islam and remained so throughout; (2) that the Sunnah-content left by the Prophet was not very large in quantity and that it was not something meant to be absolutely specific ; (3) that the concept Sunnah after the time of the Prophet covered validly not only the Sunnah of the Prophet himself but also the interpretations of the Prophetic Sunnah ; (4) that the "Sunnah" in this last sense is co-extensive with the Ijma of the Community, which is essentially an ever-expanding process ; and, finally (5) that after the mass-scale Hadith movement the organic relationship between the Sunnah, Ijtihad and Ijma was destroyed. In the next chapter we shall show the real genius of the Hadith.and
how the Sunnah may be validly inferred from the Hadith-material and how Ijtihad and Ijma may be made operative again.
IV
It may be gathered from the foregoing that the theory that the concept of the Prophetic Sunnah and even the content of the Prophetic Sunnah did not exist (outside the Qur’anic pronouncements on legal and moral issues) draws its force from two considerations, viz. (1) that in actual fact most of the content of the Sunnah during the early generations of Islam is either a continuation of the pre-Islamic Arab practices or the result of assimilative-deductive thought-activity of the early Muslims themselves, and (2) that the Sunnah, in any case, implies a tradition, as distinguished from the activity of one person. This latter statement itself both enforces and is enforced by the first. In Sections I and II above we have advanced evidence to refute this assumption and have shown that Sunnah really means "the setting up of an example" with a view that it would or should be followed. Indeed, the Qur'an speaks, in more than one place, of the "Sunnah of God that is unalterable" in connexion with the moral forces governing the rise and fall of communities and nations.
Here it is only the ideality of the action-pattern of one Being, viz., God, that is involved. Now, the same Qur'an speaks of the "exemplary conduct"' of the Prophet, - in spite of its occasional criticism of the Prophet's conduct at certain points (and this latter point constitutes a unique moral argument for the revealed character of the Qur'an); When the Word of God calls the Prophet's character "exemplary" and "great", is it conceivable that the Muslims, from the very beginning, should not have accepted it as a concept?
We have analyzed in our work Islam (see n. 5) the letter
of Hasan al-Basri written to 'Abd al-Malik b. Marwan (65-85 A. H.). There, Hasan speaks of the "Sunnah of the Prophet" with regard to the freedom of the human will, although he admits that there exists no formal and verbal tradition from the Prophet about this matter. This gives us a positive clue to the understanding of the concept of the "Prophetic Sunnah" and we shall revert to it later. Further, the pro-Hashimi poet of the first and early second century of the Hijrah, al-Kumayt, says in one of his famous poems
(Arabic sentence is here please see pdf for the Arabic sentence)
"On the basis of what Book or which sunnah do you regard my love for them as a disgrace?" "Them" here means the progeny of the Prophet and the Banu Hashim in general. The "Book" here is, of course, the Qur'an. What can the word "sunnah?" mean in this contextexcept
the "Sunnah of.the
Prophet" ? This is certainly not the use of the word "sunnah" in the sense in which expressions like "the Sunnah of Madinah," etc. are used by early legists. Nor can "Sunnah" here mean the "middle path" for that nuance develops a little later - as in the case of Abu Hanifah's letter mentioned above - after the conflict of theological opinion. The Qasidah in which the word occurs is said by the author of al-Aghani to be among the earliest compositions of al-Kumayt and was, therefore, probably written circa 100 A.H. or even before.
Moreover, the use of the term here does not suggest that it is a new one but assumes that this sense is fully established. We cannot even read here any radical Shi'ah theological complication into the word "sunnah" for the poet is not an extreme dogmatic Shiah and explicitly says in one place that he neither rejects Abu Bakr and 'Umar nor calls them Kafir.
In his Kitab al-Kharaj, Abu Yusuf relates that the second Caliph, 'Umar, once wrote that he appointed people in several places to "teach people the Qur'an and the Sunnah of our Prophet".
It may be said that this reference is rather late (second half of the second century A.H.) and that at that time the concept of the "Prophetic Sunnah" had been formed. What is important here, however, is the circumstantial truth of the statement itself. 'Umar had sent people, it is certain, to different countries, especially to Iraq. He had emphasized, it is also certain, the teaching of Arabic and Arabic literature. It goes without saying that the Qur'an was taught as the nucleus of the new Teaching. But the Qur'an is obviously not intelligible purely by itself - strictly situational as its revelations are. It would be utterly irrational to suppose that the Qur’an was taught without involving in fact the activity of the Prophet as the central background activity which included policy, commands, decisions, etc. Nothing can give coherence to the Qur'anic teaching except the actual life of the Prophet and the milieu in which he moved, and it would be a great childishness of the twentieth century to suppose that people immediately around the Prophet distinguished so radically between the Qur'an and its exemplification in the Prophet that they retained the one but ignored the other, i.e., saw the one as divorced from the other. Did they never ask themselves the question - even implicitly - "why did God choose this person as the vehicle of His Message?" Completely nonsensical is that view of modern scholarshipwhich,
gained no doubt from later Muslim theological discussions themselves, makes the Prophet almost like a record in relation to Divine Revelation. Quite a different picture emerges from the Qur'an itself which assigns a unique status to the Prophet whom it charges with a "heavy responsibility"
and whom it invariably represents as being excessively conscious of this responsibility.
V
There was, therefore, undoubtedly the Sunnah of the Prophet. But whatwas
its content and its character? Was it something absolutely specific laying down once and for all the details of rules about all spheres of human life as Medieval Muslim Hadlth-Fiqh literaturesuggests ?
Now, the overall picture of the Prophet's biography - if we look behind the colouring supplied by theMedieval
legal mass - has certainly no tendency to suggest the impression of the Prophet as a pan-legist neatly regulating the fine details of human life from administration to those of ritual purity. The evidence, in fact, strongly suggests that the Prophet was primarily a moral reformer of mankind and that, apart from occasional decisions, which had the character of ad hoccases,
he seldom resorted to general legislation as a means of furthering the Islamic cause. In the Qur'an itself general legislation forms a very tiny part of the Islamic teaching. But even the legal or quasi-legal part of the Qur'an itself clearly displays a situational character. Quite situational, for example, are the Qur'anic pronouncements on war and peace between the Muslims and their opponents - pronouncements which do express a certain general character about the ideal behavior of the community vis-a-vis an enemy in a grim struggle but which are so situational that they can be regarded only as quasi-legal and not strictly and specifically legal.
A prophet is a person who is centrally and vitally interested in swinging history and moulding it on the Divine pattern. As such, neither the Prophetic Revelation nor the Prophetic behavior can neglect the actual historical situation obtaining immediately and indulge in purely abstract generalities; God speaks and the Prophet acts in, although certainly not merely for, a given historical context. This is what marks a prophet out from a visionary or even a mystic. The Qur'an itself is replete with such evidence with regard both to the history of the past and the then contemporary scene. And yet the Message must - despite its being clothed in the flesh and blood of a particular situation - outflow through and beyond that given context of history. If we need a support besides an insight into the actual unfolding of the Qur'an and the Sunnah, we have on our side Shah Waliy Allah of Dihll and a historian like Ibn Khaldun.
To revert to the "Prophetic Sunnah".
We have said that the early Islamic literature strongly suggests that the Prophet was not a pan-legist. For one thing, it can be concluded a priori that the Prophet, who was, until his death, engaged in a grim moral and political struggle against the Meccans and the Arabs and in organizing his community-state, could hardly have found time to lay down rules for the minutiae of life. Indeed, the Muslim community went about its normal business and did its day-to-day transactions, settling their normal business disputes by themselves in the light of commonsense and on the basis of their customs which, after certain modifications, were left intact by the Prophet. It was only in cases that became especially acute that the Prophet was called upon to decide and in certain cases the Qur'an had to intervene.
mostly such cases were of an ad hoc nature and were treated informally and in an ad hoc manner. Thus, these cases could be taken as normative prophetic examples and quasi-precedents but not strictly and literally. Indeed, there is striking evidence18 that even in the case of times of formal prayers and their detailed manner the Prophet had not left an inflexible and rigid model. It was only on major policy decisions with regard to religion and state and on moral principles that the Prophet took formal action but even then the advice of his major Companions was sought and given publicly or privately, "In the behavior of the Prophet, religious authority and democracy were blended with a finesse that defies description."
That the Prophetic Sunnah was a general umbrella-concept rather than filled with an absolutely specific content flows directly, at a theoretical level, from the fact that the Sunnah is a behavioral term: since no two cases, in practice, are ever exactly identical in their situational setting - moral, psychological and material - Sunnah must, of necessity, allow of interpretation and adaptation. But quite apart from this theoretical analysis, there is abundant historical evidence to show that this was actually the case. The letter of Hasan al-Basri mentioned previously is a glaring instance of this. In this letter, Hasan tells 'Abd al-Malik b. Marwan that although there is no Hadith from the Prophet in favor of the freedom of the will and human responsibility, nevertheless this is the Sunnah of the Prophet. What this obviously means is that the Prophet (and his Companions)have
shown by their behavior that the doctrine of predetermination contradicts the Prophet's implicit teaching. This passage of Hasan is highly revelatory of the Prophetic Sunnah as being rather a pointer in a direction than an exactly laid-out series of rules, and demonstrates that it was precisely this notion of the "Ideal Sunnah" that was the basis of the early thought activity of the Muslims, and that ijtihad and ijma are its necessary complements and forward reaches in which this Sunnah is progressively fulfilled.
VI
The earliest extensive extant work on the Hadith and on the Sunnah is the Muwatta of Malik b. Anas (d. 179 A.H.). Malik's wont is that at the beginning of each legal topic he quotes a Hadith either from the Prophet, if available, or from the Companions, especially the first four Caliphs. This is usually followed by his remark: "And this is also the Sunnah with us," or "But the Sunnah with us is ...” or, more frequently, "our practice (amr or 'amal) is ...” or, still more frequently, "our agreed practice (al-amr al-mujtama 'alayk) is...". Again, with regard to the term "Sunnah", sometimes he simply says, "The Sunnah with us is .., ", and sometimes, "The established Sunnah has been (qad madat al-Sunnatuy) we shall now analyze the use of these closely allied and legally equivalent but somewhat differing phrases.
Malik quotes a Hadith from the Prophet that the Prophet granted a certain person the right of shufah, i.e., the right of prior claim to purchase his partner's share of the property, which this partner wanted to dispose of. Malik then observes, "And this is the Sunnah with us". Then he says that the famous lawyer of Madinah, Sa'id b. al-Musayyib (d. circa 90 A.H.) was once asked about shufah, "Is there any Sunnah concerningit ?
", whereupon Ibn al-Musayyib said, "yes ; shufah is applicable only to houses and land.”
Now, it is a matter of importance to notice the obvious difference between the two usages of the term "Sunnah" in "This is the Sunnah with us" and "Is there any Sunnah with regard to shufai?" Whereas in the one case it does mean "the practice" or "established practice in Madinah" it cannot mean this in the second case, for one does not ask, in the face of an agreedpractice :
"Is there any Sunnah with regard to this ?" In this case, then, Sunnah must mean an "authoritative" or "normative" precedent.But whose normative precedent?
Obviously in this case the Sunnah is either the Sunnah of the Prophet or of any subsequent authority under the general aegis of the Prophetic Sunnah, for we have already adduced evidence that the pre-Islamic Arab practice as such cannot be regarded as normative. But whereas it is clear that the Sunnah is under the general aegis of the Prophetic model, it is also clear that Ibn al-Musayyib does not mention the Prophet here. And Malik quotes no Hadith, in this matter, from the Prophet on the authority of Ibn al-Musayyib. It is thus obvious that the Sunnah in question could have been set by any Companion or a subsequent authority although it is not divorced from the general concept of the Prophetic Sunnah. Further, what these two statements on Sunnah in this particular case of shufah conjointly imply is that Sunnah in sense (1) - an exemplary precedent, Becomes, in Malik's time, Sunnah in sense (2) - an agreed practice.
VII
The necessary instrument whereby the Prophetic model was progressively developed into a definite and specific code of human behavior by the early generations of Muslims was responsible personal free-thought activity. This rational thinking, called "Ra'y" or "personal considered opinion" produced an immense wealth of legal, religious and moral ideas during the first century and a half approximately. But with all its wealth, the product of this activity became rather chaotic, i.e., the "Sunnah" of different religions - Hijaz, Iraq, Egypt, etc. - became divergent on almost every issue of detail. It was in the face of this interminable conflict of free opinion that Ibn al-Muqafa' (d. 140 A.H.) declared that there was no agreed-upon Sunnah of the Prophet and advised the Caliph to exercise his own Ijtihad'
' But the intellectual and religious leaders of the Community thought otherwise. Already, the individual free thought (Ra'y had given way to more systematic reasoning on the already existing Sunnah and on the Qur'an. This systematic reasoning was called "Qiyas". On the other hand, the existing Sunnah - the result of earlier free opinion - was slowly reaching a point where it resulted in a fairly uniform acceptance by the Community - at least regional communities - like Hijaz, Iraq, etc. This is why both the terms "Sunnah" and "Ijma” are applied by Malik to this body of opinion, existing in Madinah, almost equivalently. But although both these terms are applied to this material, there is an important difference in the point of view inherent in each term. The "Sunnah" goes backward and has its starting-point in the "Ideal Sunnah" of the Prophet which has been progressively interpreted by Ra'y andQiyas ;
the Ijma is this Sunnah-interpretation or simply "Sunnah" in our sense (2) above, as it slowly came to be commonly accepted by the consent of the Community.
Between, therefore, the Qur'an and the "Ideal Sunnah" on the one hand and the Ijma or Sunnah in sense (2) on the other, therelies
the inevitable activity of Qiyas or Ijtihad. Malik, in his Muwatta, fills continuous paragraphs by his own Ijtihad despite his ceaseless invocation of the "general practice at Madinah". But there is perhaps nothing more revealing of the Ijtihad activity in the existing literature of even the second century - when a fairly general common opinion was crystallizing throughout the Muslim world through the stabilization of the Sunnah in sense (2) and through the growing number of new Hadith (the role of which shall be portrayed in the next chapter) than the Kitab al-Siyar al-Kabir of Muhammad al-Shaybani, the younger of the two illustrious pupils of Abu Hanifah. Al-Shaybani died in 189 A.H., and his great commentator al-Sarakhsi (d. 483 A.H.) tells us
that this work is the last one written by al-Shaybani. The bulk of the book consists of al-Shaybani's own Ijtihad, arising out of his criticism of early opinion. Quite apart from Qiyas, i.e., analogical reasoning, al-Shaybani has often recourse to Istihsan in opposition to earlier precedents and exercises absolute reasoning.
The number of Hadith from the Prophet quoted by al-Shaybani is, indeed, extremely small. He quotes Hadiths frequently from the Companions and still more frequently from the "Successors" (Tabi’un - the generation after the Companion’s). But he criticizes and rejects sometimes a Companion's opinions as well. One illustration will suffice here. The question under discussion is: What can an individual Muslim soldier appropriate for himself from the territory of a defeated enemy in view of the fact that the property of the fallen enemy does not belong to any individual Muslim but to the conquering Muslims as a whole? "It has been related from (the Companion) Abu'l Darda'," says al-Shaybani, "that he said that there is no harm if Muslim soldiers take food (from the enemy's territory), bring it back to their family, eat it and also make presents of it (to others), Provided they do not sell it. Now, ABu'l-Darda' seems to have included making food-presents among the necessities like eating (for the soldiers themselves are allowed to eat the food in order to keep themselves alive which is a necessity). But we do not accept this for whereas eating is a basic necessity . making food-presents is not."
In connection with this, al-Shaybani says, "We accept on this point the Hadith of the 'Successor' Makhal (d. circa 114 A.H.). A (Muslim) man slaughtered a camel in the territory of the Byzantines and invited others to share it. Makhal said to someone from the Ghassanids: 'Won't you get up and bring us some meat from this slaughtered camel?' The man replied, 'this is plunder (i.e. has not been properly distributed according to the rules of ghanimah)’. Makhal said, 'There is no plunder in what is permissible (i.e. food is allowed to be eaten)'."
Al-Shaybani goes on, "It is also related from Makhal that he said that anybody who brings back home something from the enemy territory that has no value there but which may be of use to him, is allowed to do so. But this would hold well, according to us, only in regard to those things which have no special value in our territory either. Things (which may be valueless in the enemy territory but) which become valuable in our territory must be returned to the mal al-ghanimah,for,
by mere transportation the essence of a thing is not transformed. Makhal regarded the fact of transportation as having become a constitutive quality of a thing - like a craft'
Al-Shaybani, after this criticism, proceeds to confirm Makhal's ijtihad that if a Muslim finds some petty object in the enemy territory, say a piece of wood, and by his own work transforms it into, say, a bowl, he is entitled to it. But he is not entitled to possess things which had been manufactured before he found them.
VIII
Examples of this type could be given almost endlessly but I have chosen one lengthy illustration of Ijtihad to give a peep to the reader into the actual working of the mind of early mujtahid Muslims. It should be abundantly clear by now that the actual content of the Sunnah of the early generations of Muslims was largely the product of Ijtihad when this Ijtihad, through an incessant interaction of opinion, developed the character of general acceptance or consensus of the Community, i.e. Ijma. This is why the term "Sunnah" in our sense (2), i.e. the actual Practice, is used equivalently by Malik with the term "al-amr al-mujtama 'alayhi", i.e. Ijma', Thus, we see that the Sunnah and the Ijma literally merge into one another and are, in actual fact, materially identical. Even later, in the post-Shafi period, when the two concepts are separated, something of the intimate relationship between the two remains. For, in the later period, when Sunnah came to designate only the Sunnah of the Prophet and this not only conceptually and, as it were, as an umbrella-idea - even then the agreed practice of the Companions still continued to be called Sunnah - Sunnat at-Sakabah. But where Sunnah ceases, Ijma takes over. Thus, the agreement Of the Companions is both Sunnat al-Sahabah and Ijma al-Sakabah. This in itself was not a harmful change, provided the important status of Ijma were not affected and its right to continue to assimilate and create new fresh ideas and elements were not jeopar- dized. But what happened, unfortunately, in the post-Shafi period was precisely this and in the next section we shall portray this development.
IX
We have, so far, established: (1) that the Sunnah of the early Muslims was, conceptually and in a more or less general way, closely attached to the Sunnah of the Prophet and that the view that the early practice of the Muslims was something divorced from the concept of the Prophetic Sunnah cannot hold water ; (2) That the actual specific content of this early Muslim Sunnah was, nevertheless, very largely the product of the Muslims themselves; (3) that the creative agency of this content was the personal Ijtihad, crystallizing into Ijma, under the general direction of the Prophetic Sunnah which was not considered as being something very specific ; and (4) that the content of the Sunnah or Sunnah in sense (2) was identical with Ijma. This shows that the community as a whole had assumed the necessary prerogative of creating and recreating the content of the Prophetic Sunnah and that Ijma' was the guarantee for the rectitude, i.e. for the working infallibility (as opposed to absolute or theoretical infallibility, such as assumed by the Christian Church) of the new content.
With this background in view, we can understand the real force of the famous second-century aphorism: "The Sunnah decides upon the Qur’an; the Qur'an does not decide upon the Sunnah",Which
, without this background, sounds not only, shocking but outight blasphemous. What the aphorism means is that the Community, under the direction, of the spirit (not the absolute letter) in which the Prophet acted in a given historical situation, shall authoritatively interpret and assign meaning to Revelation. Let us give a concrete example of this. The Qur'an provides that for a decision in most cases (other than adultery, etc.) the evidence of two males or one male and two females is required. In the established actual practice, however, civil cases were decided on the basis of one witness plus an oath. Some people objected to this practice and argued from the Qur'an. Malik (Muwatta’ the chapter "al-Yamin ma al-Shahid") confirms this established practice which had most probably arisen out of the exigencies of the judicial procedure. Malik also quotes a Hadith in this connexion but ultimately relies on the established practice.
An important feature of this Sunnah-Ijma phenomenon must be noticed at this stage. It is that this informal Ijma' did not rule out differences of opinion. Not only was this Ijma regional the Sunnah-Ijma of Madinah, e.g. differed from that of Iraq but even within each region differences existed although an opinio generalis was crystallizing. Thisitself
reveals the nature of the process whereby Ijma was being arrived at, i.e. through differences in local usage and through different interpretations a general opinio publica was emerging, although at the same time the process of fresh thinking and interpretation was going on. This procedure of reaching Ijma or a common public opinion was utterly democratic in its temper. But at this juncture also a powerful movement had gained momentum to achieve standardization and uniformity throughout the Muslim world, The need for uniformity was pressing in the interests of administrative and legal procedures and tasks and that is why, as we have remarked earlier, Ibn al-Muqafa' had advised the 'Abbasid Caliph to impose his own decision in the absence of a universal agreement. This movement for uniformity, impatient with the slow-moving but democratic Ijma'-process, recommended the substitution of the Hadith for the twin principles of Ijtihad and Ijma and relegated these to the lowest position and, further, severed the organic relationship between the two, This seemed to put an end to the creative process but for the fact that Hadith itself began to be created.
X
The mass-scale Hadith movement, which we shall deal with in the next chapter had already started towards the turn of the first century but gained a strong impetus during the second century in the name of a uniform authority -the Prophet- and in the sphere of jurisprudence was spearheaded by al-Shafi whose decisive and successful intervention in the freely- moving Islamic thought-stream resulted in the fundamental formulation of the principles of Islamic jurisprudence as the succeeding ages have known and accepted them. Especially, in our present context, his arguments concerning the nature of Ijma have been truly momentous. He ceaselessly argued that the claims of his opponents - the representatives of the older schools - to have arrived at a state of general Ijma were quite unacceptable; that, apart from certain basic facts, like the number of prayers, etc., in fact not Ijma' but difference prevailed on almost all issues, and that no formal council of Muslim representatives to reach agreements had been ever convened nor was such a step feasible
He noncommittally states the opponents' view - and on occasions only reluctantly allows it, viz. that the early Caliphs, especially Abu Bakr and 'Umar, used to make public appeals for people to come forward with information about the Prophetic Sunnah when specific issues arose about which the Caliphs themselves were not in possession of such information.
Actually, this argument of al-Shafi's opponents was part of a larger argument that the Prophet's Companions had seen him behave in all sorts of situations and had acted in his spirit; that the succeeding generation had, in their turn, witnessed the behavior of the Companions ; and that through this process - involving mutual advice and criticism - by the third generation, the Prophetic Sunnah can be assumed to have been established in practice in the Community and, therefore, the vehicle of mass-scale Hadith - beset with dangers of lack of verifiability was not needed to support this Sunnah.
' This argument was disallowed resolutely by al-Shafi. The argument about the public appeals of the Caliphs seems to be an artifice introduced by the Ahl al-Ijma as a defense against the Ahl al-Hadith, and the proof of its artificial character is al-Shafi’s scepticism towards it. But the larger argument had a great potentiality and apparently much truth. What weakened it in the eyes of al-Shafi’i? However, were the differences of opinion prevailing among the schools, "You do not possess.agreement
(ijma) but disagreement (iftiraq)"., he insistently pointed out.
It is clear that al-Shafi's notion of Ijma was radically different from that of the early schools. His idea of Ijma was that of a formal and a total one; He demanded an agreement which left no room for disagreement. He was undoubtedly responding to the exigencies of the time and was but a monumental representative of a trend that had long set in, working towards equilibrium and uniformity. But the notion of Ijma exhibited by the early schools was very different. For them, Ijma was not an imposed or manufactured static fact but an ongoing democratic process; it was not a formal state but an informal, natural growth which at each step tolerates and, indeed, demands fresh and new thought and therefore must live not only with but also upon a certain amount of disagreement. We must exercise Ijtihad, they contended, and progressively the area of agreement would widen ; the remaining questions must be turned over to fresh Ijtihad or Qiyas so that a new Ijma could be arrived at
But it is precisely the living and organic relationship between Ijtihad and Ijma that was severed in the successful formulation of al-Shafi. The place of the living Sunnah-Ijtihad-Ijma he gives to the Prophetic Sunnah which, for him, does not serve as a general directive but as something absolutely literal and specific and whose only vehicle is the transmission of the Hadith. The next place he assigns to the Sunnah of the Companions, especially of the first four Caliphs. In the third place he puts Ijma' and, lastly, he accepts Ijtihad.
Thus, by reversing the natural order, Ijtihad-Ijma into Ijma-Ijtihad, their organic relationship was severed, Ijma', instead of being a process and something forward-looking, - coming at the end of free Ijtihad - came to be something static and backward looking. It is that which, instead of having to be accomplished, is already accomplished in the past. Al-Shafi's genius provided a mechanism that gave stability to our medieval socio-religious fabric but at the cost, in the long run, of creativity and originality. There is no doubt that even in later times Islam did assimilate new currents of spiritual and intellectual life - for, a living society can never stand quite still, but this Islam did not do so much as an active force, master of itself, but rather as a passive entity with whom these currents of life played. An important instance is point is Sufism.
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Author: Dr. Fazlur Rahman
