Le califat de yazid ier. 1909-21

THE QORAN 63

PERSONAL STATUTE. Regarded as a religious law and derived from the Qoranic prescriptions, the per­sonal statute occupies the first place after the ‘ ‘ibadat’, or religious obligations, enumerated above. In Chapter V marriage will be discussed as a contract. The Muslim may marry a Scripturary. This authoriza­tion is refused to the Muslim woman, whose choice is restricted to co-religionists. The right of a husband to pronounce a divorce against his wife is almost unlimited. After the first and the second pronounce­ment, ‘talaq’, it is still lawful for him to retract, but not after the third ‘talaq’, unless the wife has accepted another husband and been divorced anew. The distribution of inheritance has been minutely regulated by the Qoran, in accordance with ancient Arab law, but revised in favour of the wife, for whom a portion is reserved. The ‘shari'a’ has been obliged to conform strictly to these stipulations.

OTHER PRESCRIPTIONS. The absolute prohibition of the ‘riba’ excludes not only usury, or usurious interest, but all trading in money, all combinations of fixed interest, all compensation for the loan or temporary transfer of capital. In face of this severity, Muslim jurists have been forced to invent the ‘hila’. These expedients make it possible, by devious ways, to evade

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The penal law, derived principally from the Qoran, sanctions the ‘qisas’, the law of retaliation, or an eye for an eye. For certain offences the Qoran fixes the penalties, ‘hudud’: flogging for adultery and drunken­ness, hand-cutting for theft, capital punishment for rebels and highway robbers. These penalties are called ‘hudud Allah’, the laws and justice of Allah. This fact forces the civil authorities in Islamic territory to have regard for this archaic penal legislation and so retards its evolution. This evolution will be studied in Chapter V.

IV
THE ‘SUNNA’, OR THE TRADITION OF

ISLAM
THE SUNNA. The second doctrinal source of Islam after the Qoran is, as we have said, to be found within the Sunna, that is, the ‘custom’. How are we to understand and define this ‘custom’? The Qoran (17, 79; 33, 62) calls the conduct of God in His providential ruling of the universe the ‘Sunna of Allah’. The Sunna which we shall consider here is specifically called the ‘Sunna of the Prophet’. It is the custom in which this ‘noble pattern’ (Qoran 33, 21) is said to have enacted positive rules for the religious and moral life, such as spring from his examples and extra-Qoranic teaching, or such, at least, as were sanctioned by his tacit approba­tion (taqrir).

ITS IMPORTANCE. As early as the first century A.H. the following aphorism was pronounced: ‘The Sunna can dispense with the Qoran, but not the Qoran with the Sunna.’ Proceeding to still further lengths, some Muslims assert that ‘in controversial matters, the Sunna overrules the authority of the Qoran, but not vice versa’. As an example, they quote the penalty of stoning, inflicted in the beginning on adulterers, al-though the Qoran (24, 2) had stipulated for flagellation only. It is true that a statement is attributed to ‘Omar that the verse about stoning had at first figured
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On the other hand, Shafi'i, Ibn Hanbal and other eminent authorities have not failed to protest against the hypothesis that the Sunna abrogates the Qoran. But all admit that the Sunna completes and explains it. And before the growing mass of sometimes contra­dictory hadith, final agreement was reached by con­sidering the Qoran and Sunna as two factors of out­wardly equal importance, destined to fix the rules of the religious life. The Prophet never acted or spoke ‘from mere impulse’ (Qoran 53, 3). When, therefore, he laid down the detail of the Islamic Sunna, he must have been inspired from Above (the theorists of Islam speak here of latent inspiration), as he was for the promulgation of the Qoran. The privilege of ‘isma, or infallibility, which must be conceded to him in both cases, entails for the Faithful the obligation of submission. This is why the orthodox Muslims affect the title of ‘Ahl as-sunna’, people of the Sunna, or Sunnis.

COMPLEMENT OF THE QORAN. In his lifetime, the Prophet was there to solve difficulties. After his demise it was soon discovered that the dead letter of the Qoran was a very imperfect substitute for the living oracle. The written text revealed obscurities and also gaps. As regards the obscurities, the Prophet had tried to diminish their number by re-editing certain verses with a view to their elucidation (Qoran 2, 100; 16, 103). But overtaken by death, he had not

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At Medina Muhammad found himself suddenly faced with a new situation. He had hastily to organize his community. Forced by circumstances to legislate, he did so, sometimes with astonishing prolixity, and on questions of secondary importance, such as wills and inheritance. On the other hand, the Caliphate and the hierarchical organization of Islam are never touched upon. In the matter of religious legislation properly so-called, and of the devotional life, the Medina Suras have foreseen and solved only an insignificant number of problems. Again, these all-too-rare solu­tions envisage only a small community—the patriarchal society of Arabia. They have no thought for the coun­tries of the old civilizations into which the new religion was to be rapidly carried by conquest, or for conflicts which could not fail to arise between the Qoranic prescriptions and the legislation of these countries on questions of landed property, commercial law, etc.

Distracted by the incidents of his domestic life, worried by the demands of his new functions at Medina, and finally by wars, the Prophet had to advance cautiously in his attempts at legal regulation. We may recall the phases which prepared the way for the definite prohibition of wine. Naturally a tempor­izer, he seems to have been afraid of using his authority, of discrediting beforehand by untimely action the dangerous expedient of ‘naskh’, or abrogation. His intervention was provoked much more by circum-

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SUNNA OF THE ‘COMPANIONS’. Thousands of believers had obtained the signal favour of visiting and consulting the Prophet. This privilege gained for them the coveted title of ‘Sahabi’, or Companions. In default of examples from the Prophet, posterity seeks to learn the attitude, conduct and sayings of these witnesses. The agreement of the ‘Companions’, duly attested, is considered infallible, since the Qoran (48, 18) has proclaimed them the object of ‘the Divine pleasure’. Tradition never questions that the Master trained them to serve after him as guides to the Islamic community, to play the part of religious instructors and educators. It assumes that, fully conscious of this delicate mission, they spent their time in observing, in photographing, as it were, ‘the splendid pattern’; afterwards diligently noting down the smallest results of their observation in order to transmit them to posterity. To the ‘Sahabi’ are sometimes added their descendants or immediate successors, hence called ‘tabi'i’, or followers. It is assumed that the first care of these followers was to collect the impressions of the ‘Companions’ and their recollections of the heroic age.

What this early generation had professed in matters of belief helped to fix precisely the rule of faith. What

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This is why Medina, the capital of Muhammad and the first caliphs, was to become ‘dar as-Sunna’, the home and centre of the Sunna. The first forty years were destined to rank as the golden age of Islam. In their turn, ‘the followers of the followers’, that is, the Muslims of the first century, would strive to trans­mit, first orally, and then in written collections, all that they knew or imagined that they knew about the words, the decisions, the outlook and even the silences of the Prophet. The authentic Sunna of the Prophet was nothing more than the customs practised in his presence by the whole body of the ‘Com­panions’, and carefully recorded by their successors. Henceforward it was to obtain the force of law, ranking with the Qoran and the ‘custom of the Prophet’.

THE HADITH. This mass of meticulous notes and observations, collected with more zeal than discretion in the first century, was to give birth in the following century to a specific discipline, that of the hadith, which was destined to have a prodigious development. The hadith, literally narrative, is an act or saying attributed to the Prophet or to his ‘Companions’ by which it is sought to justify and confirm the Sunna. Thus the latter is anterior in point of time to the hadith. Recourse must also be had to the hadith

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Each hadith consists essentially of two parts, the isnad and the matn. The matn represents the basis, the actual text of the hadith, which it most scrupulously reproduced. The isnad unwinds the chain of authorities which precede and introduce the matn, the uninterrupted succession of guarantors through whose channel the hadith reaches the last transmitter or muhaddith. Here is an example: ‘A has told us (haddatha) accord­ing to B, and the latter according to C, who had it from D, etc., that which follows.’ Then comes the ‘matn’ of the hadith.

The science dealing with these hadith, the collected volumes of which form an enormous library, likewise bears the name of hadith. This science stoops to the most picturesque and realistic details. For the instruc­tion of believers the hadith tells us how Muhammad performed his prayers and ablutions, how he ate, fasted, dressed and behaved in the home and with his contemporaries. From it we learn his favourite dishes, his wardrobe and the arrangement of his rooms. Here the Master is supposed to reply in advance to those difficulties of dogma, discipline and politics, which were to arise later. He enumerates by name the towns and countries whose conquest was reserved for the arms of Islam. He condemns the heretics of the future, the Kharijites, the anti-determinists, etc. He proscribes dangerous doctrines. And by all these clear statements he determines the Sunna and completes the summary prescriptions of the Qoran. Explanatory and interpretative in form, the hadith frequently legislates, but always while sheltering

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The parties which rose up in the midst of primitive Islam soon sought to utilize the method of the hadith to further their political aims. Omayyads, ‘Abbasids and ‘Alids are to be seen fighting and disputing, calling to their aid multitudes of hadith. They are imitated by the dissident sects. Just as they have their hetero­dox tafsir, so do they claim to possess their individual Sunna, which can also be traced back to the Prophet. As regards their ‘khabar’ (plural akhbar), a synonym which they prefer to hadith, the Shi'as admit into the isnad only the names of the ‘Alids, the imams and their partisans. Orthodox and dissidents vie with one another in zeal. Each party, each sect, each school strives to possess the traditions which are most favourable to its claims or to its doctrines. The hadith is even made to subserve personal grudges. To revenge himself on a schoolmaster who has chastised his child, a muhaddith will invent traditions depreciating pedagogues. Others are invented against the police.

Some even took long journeys, became globe-trotters, ‘rahhal jawwal’, in search of unedited hadith; for the transmission must be oral. ‘Go, even into China, to seek knowledge’ (of the hadith); thus enjoins a maxim attributed to the Prophet which Suyuti declares apocryphal. Some muhaddith boasted of knowing by heart a hundred thousand hadith, or even a million, others of having sacrificed a fortune of seven hundred

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Soon the tenacious memory of the ‘Companions’ and the ‘followers’ could no longer suffice to feed this passion or enrich the literature of the hadith. Every source was tapped, secular history and Biblical religions were ransacked. The ‘qass’, popular preachers, distinguished themselves in this pious sport. It is amongst such people that Muhammad is credited with the aphorism: ‘If you meet with a lofty utterance, do not hesitate to attribute it to me. I must have said it.’ It is, therefore, not surprising to find among the collections of hadith Biblical plagiarisms and quota­tions from the Gospels, including the Lord's Prayer, all hardly disguised. We may mention the parable of the workmen hired at the eleventh hour, applied to Muslims, and the dictum: ‘Let not thy left hand know what thy right hand doeth.'

CRITICISM. These excesses were bound to provoke reaction. This is plainly visible from the third century A.H., i.e. the ninth century A.D., a period of stabilization for Muslim orthodoxy. Under pressure of ijma', the need for unity and systematic regulation began to be felt. There was a sort of gathering up of doctrines, a first classification. This was the movement destined to give birth to the collection of the ‘Six Books’ and the constitution of the four canonical rites. The un­limited liberty allowed in the search for hadith, and

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This method is prudent and innocuous to a degree, far removed from that suggested to the mind by the term criticism. It avoids finding fault with the substance of the traditions, namely, the text of the matn. One would need to be a Mu‘tazilite to denounce in them certain assertions of a character too strongly anthropo­morphic. No question of internal criticism can therefore arise. The ‘science of the hadith’ only employs external criteria. It shuts its eyes to the anachron­isms and impossibilities, logical or historical, of the matn. When the isnad is formally unassailable, the hadith itself must be declared ‘sahih’, sound. On the other hand the isnad is submitted to the most meticulous investigation. Is it not the ‘foot’ upon which tradition rests, ‘the bond of the hadith’ which enables the parts of the matn to hold together?

But the isnad is composed exclusively of proper names. It is, then, important to prove the historical reality of these names; next, to become acquainted with the past of the ‘rijal’, men or attestors, quoted in the isnad. This operation is called in technical language ‘ma'rifat ar-rijal’—the ‘knowledge of the men’. And since everything depends on the considera­tion which these witnesses merit, it is necessary to fix, to apportion exactly their intellectual and moral value, another operation entitled ‘jarh wa ta'dil’—lesion and justification.

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Even this inquisition did not appear adequate. The isnad postulates an uninterrupted and oral transmission. In Islam oral testimony alone is recognized. Necessity, however, sometimes forces the acceptance of a written transmission, and one may even go so far as to recognize the ijaza. This is the ‘licence’ issued by a master to transcribe and transmit his collected hadith. These are concessions made after the first three centuries. As regards the previous period it remains to be proved that breaks in continuity or lapses of time have not slipped in between the links of the isnad, that the attestors met or might have met, or at any rate that they were contemporaries. This is an exceedingly difficult matter to check, and often in the end nothing more than an approximate statement can be made. It must be added that unscrupulous forgers have sought to frustrate criticism, to fill up the gaps in the isnad, by introducing names at hazard,

THE ‘SUNNA’ 75
or, as they were designated, unknown persons, ‘majhul’. The presence of these intruders is sufficient to render the hadith suspect.

It is certain that all these precautions taken together did at least enable Muslim criticism to weed out thousands of apocryphal traditions and draw attention to what it called ‘the disorders of the hadith’. The great Bukhari had recourse to it, with the result that he retained in his collection not more than about ten thousand traditions out of the three hundred thousand which he had at first gathered up. Of this total, he declared two hundred thousand to be entirely apocry­phal (Dhahabi, II, 135). But when all is said this unilateral criticism confines itself to settling the degree of credibility of the attestors and the possibility of their meeting. Beyond this, it leaves in suspense the very essence of the debate, namely, the judgment to be passed on the value of the tradition, that is to say, the matn. This method ended by establishing abso­lutely unassailable chains of the isnad in conformity with the rules laid down by ‘the knowledge of the men’. The forgers hastened to attach these genuine isnad to apocryphal hadith, a proceeding of which the works dedicated to the Maudu'at complain unceasingly.

Recourse to internal criticism would have cut short this abuse. We may quote as an example ‘Allah's cock the crowing of which in Paradise gives the signal to the cocks on earth to announce the hour of prayer'. The authors who denounce the apocryphal character of this tradition are usually satisfied with pointing out the weaknesses of its isnad and the slight worth of the attestors who are mentioned in it. We may likewise recall the Shi‘a legend of the miracle of Joshua, repeated by Muhammad on behalf of ‘Ali. While recognizing the flaws in the isnad, Suyuti, in the end, seeks to save the hadith by this quotation from Shafi'i:

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PRINCIPAL COLLECTIONS. The oldest date from our ninth century. This period saw the beginning of a systematic classification of the material which was to constitute the collections of hadith. The theory and technology of the hadith date from the following century. That also was the time when the auxiliary disciplines which came to be attached to them appeared: biographies and ‘classes’ of the attestors, philological exegesis of the gharib, rare words met with in the hadith, etc. All these collections have been drawn up in accordance with the principles of a purely formal criticism. They are indistinguishable from one another except in their varying degrees of strictness, in the composition of the isnad. Fundamentally, the matn remains manifestly unchanged, the same verses and narratives reappearing, sometimes preceded by new isnad and embellished by variants which are always picturesque and often suggestive. The principal differ­ence lies in the grouping of the traditions adopted by the authors of the ‘Musnad’, or of the ‘Musannaf’.

THE MUSNAD have arranged them in accordance with the isnad; whence their name of Musnad. There the hadith is placed under the name of the attestor last quoted in the chain of the isnad. It is the personal order. Thus we find arranged under the name of ‘Ayesha or Fatima all the narratives whose transmission can finally be traced back to the widow or the daughter of the Prophet; or again, under the heading of Abu Horaira, the hundreds of hadith which we owe to this loquacious Companion. One of the oldest and the typical Musnad is the compilation in six quarto volumes, the work of the celebrated Ahmad ibn Hanbal. This collection of 2,885 pages of closely-written text com­prises about 30,000 hadith traceable to 700 ‘Companions'.

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THE ‘SIX BOOKS’. The compilation of hadith, collected by Bukhari, is called ‘al-jami'as-Sahih’, the Authentic Collection. The author has only included those traditions which a scrutiny of the isnad has permitted him to regard as perfectly ‘sound’, that is to say, non-suspect. He no more than others ever dreams of applying the rules of internal criticism to the matn before giving it entry to the pages of his ‘Sahih’. The headings (tarjuma) of the paragraphs discreetly suggest how to use the narratives, often, too, the doctrinal opinion which they may serve to support. Bukhari sometimes adds a very concise commentary to the hadith. This annotation is not found in the collection of Muslim (†874) , a contemporary of Bukhari, which bears the same title and is compiled on the same method.

As regards the hadith, Muslim and Bukhari are regarded as classical authors; they are the ‘two Sheikhs’ par excellence. No better title could be found to indicate the high esteem in which their compilations, which are commonly called the ‘two Sahih’, are held. Thus it would be very ill-advised to contest the traditions collected by them and the worth of the attestors named in their isnad. As to the latter, this mention is equivalent to the hall-mark

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After Bukhari and Muslim four great collections of traditions are known. They are commonly called ‘Sunan’, or collections of Sunna, that is, of hadith coming to the support of the Sunna. In a lesser degree they too are accepted as traditional authorities. With the two first-mentioned they form the collection of the ‘Six Books’. They are the collections of Abu Daud (†888), Tirmidhi (†892), Nasa'i (†915) and of Ibn Maja (†886) to which are sometimes added the ‘Sunan’ of Darimi (†869). Tirmidhi was at once the disciple of Ibn Hanbal, Bukhari and Abu Daud. While preserving the scheme of the ‘two Sahih’, the ‘four Sunan’ are distinguished from them by a greater zeal in compiling the hadith which serve to elucidate the practice of the Sunna and of the canonical law. They put aside the narratives whose interest is more expressly doctrinal or merely historical like the details of the Prophet's Sira, which the ‘two great Sheikhs’ were careful to preserve. On the other hand, the ‘four Sunan’ are more accommodating about the value of the isnad, without becoming more exacting as to the substance of the matn. Thus they do not hesitate, Ibn Maja especially, to admit doubtful attestors whenever their insufficiency or improbity is not established by general agreement. Nasa’i goes into the very

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smallest details of religious practice. Tirmidhi often points out the canonical rite for which the hadith that he reproduces may serve.

The inclusion of the ‘Sunan’ of Ibn Maja among the ‘Six Books’, or the ‘Six Divans’, as they are also called, encountered opposition in the beginning. He was reproached for his ‘weakness’ in the isnad. Agreement on this point was not reached until the seventh century A.H. But in this collection of the Six, in which the Musnad of Ibn Hanbal, likewise highly esteemed, has not been able to gain admission, the believers unhesitatingly declare their preference for the ‘two Sahih’, especially for that of Bukhari. His collection has become the object of exceptional venera­tion. It is used in taking an oath, an honour generally reserved for the Qoran. In public calamities, such as plague, drought, etc., it is carried in solemn procession. A number of reciters divide up the sections of the Sahih so as to give a complete public reading of them in one day, and this collection is supposed to preserve from shipwreck and fire. The author is buried near Samar­qand, where his tomb has become the object of a pilgrimage.

The success of the ‘Six Books’ is explained by the fact that they came at the right time, at the moment when Qoranic religion was about to take definite shape, to become traditional Islam; on the eve of the day when ‘the door of ijtihad, or independent research, was to be closed’. The method adopted by the com­pilers, the classification of matter in books, chapters and paragraphs, under clear rubrics, answered to the needs of the teaching and of the doctrinal currents which appeared in the bosom of the ‘four canonical schools’. Their concern for orthodoxy could not but be generally appreciated—they excluded the strictly Shi‘a hadith, even Nasa’i, personally favourable to

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After the success of the ‘Six Books’, every tradition desirous of securing public favour had to conform to the method observed by Bukhari, Muslim and their associates, especially by the two first-named. With the end of the fourth century A.H. the era of commen­taries, manuals and compendiums opens in the ‘science of the hadith'. The fourth century A.H. sees the appear­ance of a few new compilations, such as that of Dar­qutni (385 A.H.). The subject-matter remains the same and the method also. The terminology and predicates conceded to the attestors of the isnad are more precisely stated than before.

Among the summaries of manuals of the fifth cen­tury A.H., we should note that of Baghawi (†1117 or 1122), ‘Masabih as-sunna’, ‘Torches of the Sunna’. The author, one of those who obtained the honorific title of ‘reviver of the Sunna’, summarized and arranged the traditions under three heads, correspond­ing to their degree of credibility. First, the ‘Sahih’, sound, all borrowed from the classical ‘two Sahih’.

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Lastly, we must refer to a special class, that of the hadith called ‘qudsi’, sacred, or ‘ilahi’, divine. They are supposed to preserve the text of aphorisms and sayings attributed directly to Allah. On these grounds they enjoy a quite special consideration. While clearly distinguishing them from the other hadith, called ‘nabawi’, or prophetic, and collected by Bukhari, his emulators and successors, tradition has not consid­ered itself authorized, as one would have had a right to expect, to incorporate them in the text of the Qoran. Anyone contesting their authenticity would not thereby incur the stigma of infidelity. The collections which include them may be touched without the previous performance of ablutions which is required in the case of the Qoran, but they may not be used in ritual prayer, a privilege reserved for the Qoranic verses.

V

JURISPRUDENCE AND THE LAW OF ISLAM

Now the Shari'a, setting up as the interpreter of revelation, lays down for him the family code, penal and public law, his relations with non-Muslims; it regulates, in short, his religious, political and social life, reserving to itself the right to superintend its multiple manifestations and to direct its complicated rhythm.

Thus the ‘faqih’, the ‘alim (plum. ‘ulama, whence our ‘ulema) or scholars, engaged in this study are not so much professional jurisconsults as theologians and
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THE ‘ROOTS’ OF ‘FIQH’. In theory the fiqh is as a whole and in all its parts a revealed law. To this conception it owes its rigid and immutable char­acter. It draws its life from the two roots, ‘usul’, of revelation, the Qoran and the Sunna.

Practice has nevertheless rendered inevitable the widening of this theoretical concept.

Just as the Sunna had come to complete and explain the Qoran, so experience compelled Muslims to recog­nize that the fiqh could not dispense with the operations of logic. It was admitted that it had become lawful to settle new cases by applying to them the rules laid down to meet analogous circumstances. It is thus that ‘qiyas’ or analogy became a new root of the law. A fourth is called ‘ijma'’, or universal consent. This will be dealt with later.

Finally, in the absence of any ‘nass’ or text in the Qoran or the Sunna, of any antecedent recognized by ijma', the creators of the fiqh were obliged to have recourse to the light of ‘ra’y’, or liberty of opinion. But it was tacitly understood that such recourse would be exceptional and would not render ‘ra’y’ worthy to be considered as a fifth root.

EARLY SCHOOLS. It is the predominance, more or less apparent, of traditional or speculative elements in the fiqh, the real or fictitious importance accorded to

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each one of the ‘four roots’,—which explain the birth of the juridical schools ‘Madhhab’, rite, or guidance (not sect, as the word is sometimes translated). In the beginning each man sought his own path and there reigned a rich variety of opinions. Those who were too lightly suspected of attachment to ‘r’ay’, to the detriment of the Qoran and the Sunna, had at first to struggle for a place. It was not so much a question of principles as of winning over the multitude and securing the favour of authority, the dispenser of posts in the magistracy. One after the other we see the disappearance of these early schools, those of the Syrian Auza'i (774) and the celebrated historian and exegetist, Tabari (v. p. 44). Such will also be the fate of the Zahirites, a school founded by Daud ibn ‘Ali (883) which long numbered adherents in Spain and in the Maghrib. They are called Zahirites because among the ‘roots’of the fiqh they recognize only the Qoran and the Sunna, which they interpret according to the ‘Zahir’, i.e. the apparent and servilely literal sense. They reject with the utmost energy all speculative elements, but have recourse to them by devious routes. The Qoran (