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T h e formation of t h e Sunni schools of law n i n t h - t e n t h centuries

C.E.

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Melchert, Christopher, Ph.D.
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University of Pennsylvania, 1992
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UMI
300 N. Zeeb Rd.
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PR
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IEW
 TOE FORMATION OF THE SUNNI SCHOOLS OF LBW

NINTH-TENTH CENTURIES C.E.

Christopher Mel chert

A DISSERTATION

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in History
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Presented t o the Faculties of the University of Pennsylvania i n Partial
Fulfillment of the Requirements for the Degree of Doctor of Philosophy
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1992
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ffi—X~l*J+?-T^
Prof. George
* Makdisi, Supervisor

ll/a/^l^/
Prof. Walter Licht, Graduate Group Chair
 - ii -

To shaykhuna George Makdisi.

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 Ill

ABSTRACT

THE FORMATION OF THE SUMNI SCHOOLS OF LAW, 9TH-10TH CENTURIES C.E.

CHRISTOPHER MELCHERT

GEORGE MAKDISI, SUPERVISE*

The Sunni schools of law are named for various jurisprudents

of the 8th and 9th centuries CE, but 7. show that they did not actually

function so early. Cn the one hand, that is, jurisprudents at that time

were identified mainly not with the later schools but with the two great

parties of ra'y and hadith; on the other hand, such schools as there

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were lacked crucial elements of the schools as we know them from the

11th century onwards, above all their regular means of forming students.
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Relying mainly on biographical dictionaries, I trace back

the constitutive elements of the classical school and find that they
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first came together with the work of Ibn Surayj (d. 306/918), who

virtually founded the Shafi'i school. The new form spread rapidly

during the 10th century. Meanwhile, Abu Bakr al-Khalial (d. 311/923)
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virtually founded the classical Hanbali school. The traditionalization

of Hanafi jurisprudence was completed about the same time, and Hanafi

jurisprudents began to produce commentaries. Their development of a

regular teaching method finally culminated in the work of al-Karkhl (d.

340/952).

The history of Malikism in the West is bound up with

politics. The Maliki, Zahiri, and Jarlri schools of Baghdad were

alternative attempts at a rationalistic jurisprudence that would yet be

acceptable to the traditionalists. For reasons I discuss, none endured

past the early 1000's.

 iv

TABLE OF CONTENTS.

PREFACE vi

TRANSLITERATION AND DATES viii

INTRODUCTION 1
Islamic Law and the Madhhab 1
The Formation of Schools of Law: Previous Studies 8
The Formation of Schools of Law: The Plan of This Study . . 20

CHAPTER 1: THE TRADITIONALISTS OF IRAQ 25

The Split Between ashab al-hadith and ashab al-ra'y 25
Reasons for the Split 34
The Juridical Program of the Traditionalists 41
Mudhakarah 49
Disadvantages of Traditionalist Jurisprudence 54

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CHAPTER 2: THE FORMATION OF A PERSONAL HANAFI SCHOOL 68
From the Kufan School to the Hanafi, From the Hijazi to the
Maliki IE 68
The Basrian School of Ra'y 80

CHAPTER 3: TOWARDS A HANAFI SCHOOL IN THE LATER 200'S/800'S ... 91

The Traditionalization of Hanafi Jurisprudence 91
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The Traditionalization of Hanafi Theology 99
The Growth of a Commentary Literature 108

CHAPTER 4: AL-SHAFri 118

al-Shafi'i Between ra'y and hadith 119
al-Shafxsi Between kalam and hadith 131
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CHAPTER 5: THE FOLLOWERS OF AL-SHAFI^I IN THE NINTH CENTURY . . . 140

The Students of al-Shafi'i in the Hijaz 140
The Students of al-Shafi'I in Baghdad 142
al-Karabisi 143
al-Za"farani 145
Abu Thawr 146
Ahmad ibn Hanbal 149
Abu "Ubayd 150
Abn *Abd al-Rahmah al-Shafi % i 153
Ishaq ibn Raiia'.rayh 154
The S h a f i ' i School of Iraq i n t h e Later Third Century . . . . 157
The Shafi^i School of Egypt 159
al-Muzanl 164
al-Rabi" ibn Sulayman al-Muradl 174
a l - R a b i ' ibn Sulayman a l - J I z i 176
al-Buwayt.I 176
Harmalah 177
Yunus ibn sAbd a l - A v l a 179
Ibn "Mod al-Hakam 181
The S h a f i ' i School i n Egypt After t h e Students of
al-Shafri 184
 - v -

CHAPTER 6: IBN SURAYJ AND THE CLASSICAL SHAPI'I SCHOOL 185

Ibn Surayj as Jurisprudent 186
Teachers and Students 192
The Commentary on the Mukhtasar of al-Muzani 204
Chief of the School 206
Besides Jurisprudence 213

CHAPTER 7: AL-KARKHI AMD THE CLASSICAL HANAFI SCHOOL 222

al-Tahawt in Egypt 222
Aba Khazim and al-Barda't in Baghdad 232
al-Karkhi 234
The Hanaf i School in the Maghrib 241
In Khurasan and Transoxania 244

CHAPTER 8: AL-KHALLAL AND THE CLASSICAL HANBALI SCHOOL 252

The Collection of Ahmed's Opinions by His Immdiate

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Followers . 252
The Collection of Ahmad's Opinions by Abu Bakr al-Khallal . . 260
al-Khallal as Chief of the School
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CHAPTER 9: THE MALIKI SCHOOL 282

The Maliki School in the West 282
The Maliki School in the East 294
The Maliki School of Baghdad 302
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CHAPTER 10: TWO SCHOOLS THAT DID NOT LAST 315

The Original Zahiri School 315
The Jariri School 332
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CONCLUSION 338

WORKS CITED 346

Primary Sources, Manuscript 346
Primary Sources, Printed 347
Secondary Sources 355

INDEX 363
 vi
PREFACE.

My interest in Islamic law goes back to my two-years'

residence in Cairo, 1978-1980. Morality was certainly no new concept

for me, nor earnestness in living by one's principles, but I had never

been amongst so many people so continually conscious of doing what must

please God, avoiding what must anger him. "Legalism" is evidently a

horror to many Christians in this country, but the legalism I most often

witnessed in Egypt was not at all horrible: on the contrary, it was the

occasion for continual remembrances of obligation to God, on the one

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hand, of the kindness of God, on the other. It was also, more subtly,

an occasion for continual reinforcement of Muslims' solidarity with

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other Muslims. My study of the formation of schools of law expressly

deals little with the everyday piety of its subjects. At several

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points, I refer to the tendency of Muslim historians to minimize

conflict within the community, whereas much of my argument admittedly

has to do with the depth and sharpness of such conflict in the past.
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Let me say that my purpose is not to expose the Muslims' idea of

community as a falsehood, nor to show that one side or the other lacked

the fear of God.

On the contrary, I have conceived of this study of the

schools of law as part of a larger study of the formation of the Sunni

community. The schools of law were a form to facilitate mutual recogni-

tion and toleration; that is, to re-affirm the solidarity of the

Muslims. Like other institutions of Muslims' communal life, the schools

were formed without any central arbiter like emperor or pope. It is

probably, in part, because all parties were concerned to secure their

 - vii -

salvation, to please God, that they pulled off the formation of a

community largely independent of central authority.

I should like to thank several persons and institutions for

helping me to complete this dissertation. The Department of History at

the University of Pennsylvania has always dealt fairly with me and stood

by me in crises. In particular, I should like to thank my two readers,

there, Professor Edward M. Peters and Associate Professor Lee Cassa-

nelli, for advice and support. The Fulbright Ccmmssion for Turkey gave

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me the money to spend fifteen months in Istanbul, where I completed the

bulk of my research. I must also thank numerous Turkish librarians for

their generous help, above all Muaxmner Ulker, director of the Suleyman-

iye library, with his staff, and Ekmeleddin thsanoglu, director of the
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Islamic Research Centre, with his. I was a foreigner with only rudimen-

tary Turkish, but they welcomed me like a friend. A graduate disserta-

tion fellowship from the Charlotte Newccmbe Foundation, administered

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through the Woodrow Wilson Foundation, let me devote the final year of

my graduate studies entirely to writing. Finally, let me thank my

parents, Jim and Mary Ann Mel chert, for their most valuable support and

encouragement. As I review my debt to these and others, it seems very

great. May this dissertation seem a meet start toward repayment.

 viii

TRANSLITERATION AND DATES.

My transliteration of Arabic follows the system that the

Library of Congress reconmends. It distinguishes between alif and alif

maqsurah (e.g., ma, 'ala) but not between alif-lam before sun and

alif-lam before moon letters (e.g., al-Shafi'I, al-Bajuri). In

alphabetical lists, al- is ignored at the beginning of a name (e.g.,

al-sAbbadi precedes "Abd Allah) but not in the middle (e.g., Ibn

al-Salah precedes Ibn Hajar).

I give years first according to the Hijri calendar, then

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according to the Christian; e.g., 204/820, the year al-Shafixi died.

Often, our sources tell us the Hijri year in which something took place
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but not the month, or the month but not the day, so that one cannot tell

in just which Christian year it took place. In such cases, I use a

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hyphen to indicate that the event took place during a period of 354 or

355 days overlapping those two Christian years; e.g., 150/767-768, the

year al-Shafi'i was born. Centuries I give only by the Christian

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calendar, except where I expressly indicate otherwise; e.g., "the ninth

century" means A.D. 801-900 (roughly A.H. 184-288).

 1
INTRODUCTION.

Islamic Law and the Madhhab.

This study concerns the formation of schools of law in Sunni

Islam. Law is central to Islamic piety. On the one hand, the Qur'an

continually relates faith in God to obedience. "He who believes in God

and does good works," "Those who believe and give alms"—again and again

such phrases recur. A natural comparison is with the New Testament,

which may stress obedience, even law, more than some Christian theolo-

gies acknowledge, yet surely far less than a loving response toward God

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himself. [1] On the other hand, it has been observed that much of

Islamic law has little relevance to how normal Muslims lead their lives:
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its chief significance is less its regulating lives than its marking out

the community of the Muslims as the community that saves.[2] I can

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testify from personal experience of living amongst Muslims to the dig-

nity and pride that comes of Muslims' confidence that they know what God

expects of them.
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An expression of the centrality of law to Islam is that

Muslim men of religion, the 'ulama', are jurisprudents, trained to give

juridical opinions. Even the great medieval mystics were mostly trained

jurisprudents; e.g., NAbd al-Qadir al-JIlanl (d. Baghdad, 561/1166),

to whom goes back the earliest Sufi order, was also a jurisprudent of

[ljWilliam David Davies, The Setting of the Sermon on the

Mount (Cambridge: Cambridge Univ. Press, 1964); Marshall G. S. Hodgson,
The Venture of Islam (Chicago: Univ. of Chicago Press, 1974) 2:337f.

[2]W. Montgomery Watt, "The Conception of the Charismatic

Community in Islam," Numen 7 (1960):77-90; more succinctly, "The Place of
Religion in the Islamic and Roman Empires," Numen 9 (1962):113f.
 - 2 -

the Hanbali school, while Ibn al-sArabi (d. Damascus, 638/1240), the

great master of theosophical Sufism, gave juridical opinions and wrote

books on legal duties. Contrast Western figures like Bernard of Clair-

vaux and Meister Eckhart, normally discussed without the least reference

to their knowledge of canon law.

A Muslim finds out what the law is by asking a jurisprudent

to give his opinion. The jurisprudent has been taught the basic evi-

dence of what God wants, mainly the Qur'an and Sunnah (in effect,

selected reports of the words and deeds of Muhammad), and how to derive

Islamic law.
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practical answers from that evidence. He goes over the evidence in his

mind, comes to a conclusion, and when he gives it, voila, there is

The notion of Islamic law as a code to be applied by

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public authority is modern: classically, Islamic law is much nearer to
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a process than a code.

Although Islamic law is classically deduced anew every time

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a question is raised, answers are to some degree predictable. In the

first place, most basic points are covered by a consensus among the

scholars; for example, that one should pray five times a day, which all

Muslims accept as the rule even though neither the Qur'an nor any

prophetic hadith report explicitly requires it. In the second place,

jurisprudents always adhere to one or another school of law, each with

its own answer to many questions, or its own range of answers. In prac-

tice, jurisprudents almost never depart from the range of answers pre-

ferred by their schools.

The Arabic word I translate as "school" is madhhab (pi.

madhahib). It means literally the way one goes. As such, it is some-

 - 3 -

times used interchangedy with tarigah. For example, the Baghdadi

Mu^tazili Muhammad ibn Zayd al-Wasiti (d. 307/921-922) is quoted as

jeering, "Whoever wants to go to the utmost in ignorance, let him read

kalam (dialectical theology) according to the tariqah of al-Basi,

jurisprudence according to the tariqah of Dawud, and grammar accord-

ing to the tariqah of Niftawayh." The later biographer Ibn Hajar

explains that Niftawayh (d. 323/935) practiced kalam according to the

tariqah of "al-Basi", jurisprudence according to the madhhab of

Dawud.[3]

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Ibn Hajar's preference for tariqah in grammar, madhhab in

law, agrees with later convention. Similarly, Ibn Abi al-Wafa' will

refer to someone as Hanafi of madhhab (i.e., as to the rules of juris-

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prudence), Mu'tazili of kalam. [4] Earlier, just as Muhanmad ibn Zayd
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al-Wasiti would apply tariqah to a body of teaching m jurispru-

dence, so madhhab would be applied to schools of theology; hence, for

example, al-Khwanzmi (fl. 365/975) speaks of the seven madhahib of

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the Muslims: Mu'tazilah, Kharijites, ashab al-hadith, Mujbirah,

Mushabbihah, Murji'ah, and Shiites.[5] Similarly, his contemporary

al-Muqaddasi (fl. 375/985) divides the Muslims among 24 madhahib, of

which four concern jurisprudence, four kalam, four both jurisprudence

[3]Ibn Hajar, Lisan al-Mlzan (Hyderabad: Matba'at Majlis

Da'irat al-Ma^arif," 1329-1331) 5:173. "Al-Basi" is _probably a
corruption of al-Nashi' (d. 292/904-905), on whom v. Lisan 3:334.

[4]al-Jawahir al-mudlyah 2 (Hyderabad: Majlis Da'irat

al-Ma^anf al-Nizamiyah, 1332): 245.

[5]Liber Mafatih al-olum, ed. G. van Vloten (Leyden: E. J.

Brill, 1895), 24-31.
 - 4 -

and kalam, and so on.[6] For this reason, I speak of "schools of law,"

not simply "schools."

The term madhhab most often refers to doctrine. At its

simplest, this means a particular tenet. For example, Ibn al-Nadim

(fl. 377/987-988) accuses the Sufi al-Hallaj of espousing the madha-

hib of the Shiites before kings, the madhahib of the Sufis before the

general.[7] Here, madhhab has no special reference to law.

In the field of law, madhhab may similarly refer to a juris-

prudent's opinion concerning a particular case. Indeed, this is its

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most common meaning when one comes across it in a juristic text. For

example, Ibn Qudamah al-Maqdisi (d. Damascus, 620/1223), discussing

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whether someone's hand is to be amputated for stealing the clothes of a

negligent bather, says that it is the madhhab of al-Shafi'l not to do

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so, "and the apparent meaning (zahir) of the madhhab of Ahmad."[8]

If a madhhab can have an apparent meaning but also, implicitly, a hidden

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one, then it must be practically equivalent to the very words that the

jurisprudent has used. On the next page, indeed, Ibn Qudamah uses

madhhab interchangeably with qawl, literally "saying," contrasting the

madhh.J) < ' c>' • r,)<Afi"±, ibn al-Qasim, Abu Thawr, and Ibn al-Mundhir

to the qawl of ashab al-ra'y (adherents of opinion), with which

L6]Ahsan al-taqaslm fl ma'rifat al-aqalim, ed. M. J. de

Goeje, Bibliotheca geographorum Arabicorum 3, 2nd edn. (Leyden: E. J.
Brill, 1906), 37.

[7]Ibn al-Nadim, Kitab al-Fihrist, ed. Gustav Fliigel w.

Johannes Roediger & August Mueller (Leipzig: F. C. W. Vogel, 1871), 190.

[8]al-Mughni, ed. Taha Muhammad al-Zaynl (Cairo: Maktabat

al-Qahirah, 1388-1390), 9:113.*
 - 5 -

latter Ahmad ibn Hanbal happens to have agreed.[9]

Often, though, madhhab as an opinion concerning a particular

case has a collective reference. Hence, for example, a Hanafi juris-

prudent is said to have held that a threefold ritual ablution was abso-

lutely required in a certain case, whereas "the madhhab" is that only

the first pass is absolutely required, the second and third just highly

recommended or that only the second is highly recommended, the third

supererogatory.[10] Here, madhhab means the doctrine of the school

concerning this question, from which it is unusual for an adherent of

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that school to depart. (In this particular case, the man is said to

have been the only Hanafi to take up this position.)

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As the doctrine of a school, madhhab very often appears

without reference to any particular case at all. Hence, for example,

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the Sufi Ibn Tahir al-Maqdisi (d. 507/1113) is said to have been

"Dawudi of madhhab"[ll]; i.e., his juridical practice was generally

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that of Dawud al-Zahirl (d. 270/884) and his followers. Ibn

al-Nadim associates one man after another with the madhhab of Malik,

of the Iraqis, of al-Shafi"i, and so on ('ala madhhab Malik), alter-

natively identifying men as Maliki, Iraqi, Shafi'i, and so on. Here,

madhhab has reference to a range of doctrines concerning many particular

cases, within which a jurisprudent was expected to answer questions.

Madhhab may occur with this meaning more often than any other.

[9]al-Mughni 9:114.

[10]Ibn Abl al-Wafa', 2 (Hyd.):239.

[Il]al-Samsanl, apud Ibn Hajar, Lisan 5:209.

 - 6 -

Finally, madhhab will refer to a school of law, a body of

jurisprudents who somehow follow the teaching of one leader, mainly the

jurisprudent for whom the school is named. Hence Ibn al-Nadlm refers

to al-Istakhri (d. 328/940) as a chief (ra's) in the madhhab of

al-Shafi'I.[12] It is with this sense of madhhab, the school as a

body of jurisprudents, that I am here chiefly concerned. More particu-

larly, it is with the madhhab as a body of jurisprudents with a regular

method of reproducing itself, of training new jurisprudents. The famous

Shafi'i jurisprudent al-Mawardi (d. Baghdad, 450/1058) refers to a

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colleague who holds that a cadi known for adhering to one school may no

longer rule according to the doctrine of any other, "since the settling

of the schools and the distinction of those qualified in them (ba"da

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istigrar al-madhahib wa-tamayyuz ahliha)."[13] There were no fully
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formed schools until there were clear means to distinguish those quali-

fied from those not qualified, first to give authoritative opinions,

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then to teach jurisprudence.

The history of any early madhhab as a particular juridical

opinion is almost surely beyond our reach, at present. So is the his-

tory of any early madhhab as a collection of juridical opinions.

Although new editions appear every year, too many early sources remain

unpublished or poorly edited. Moreover, the historian of legal doctrine

should probably have had a thorough Islamic training in jurisprudence as

well as a Western training in history. For one without the Islamic

[12]al-Fihrist, 213.

[13]Adab al-gadl, ed. Muhyl Hilal al-Sarhan, Ihya'

al-turath al-islami 4 (Baghdad: Diwan al-Awqaf, 1972)', 1:185.
 - 7 -

training, it is difficult to tell the significance of any departure from

the usual. I know of no one who has mastered both disciplines. One

day, a history of Islamic jurisprudence (figh) itself will emerge. What

I offer is another modest preliminary. I believe that on the basis of

the biographical sources now available, it is not overambitious to study

the madhahib as bodies of jurisprudents; i.e., schools of law. I set

out here to determine at what point in time each school came to be.

Some Roman Catholic Islamists have preferred the term "rite"

to "school" on the ground that "rite" implies difference but mutual

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recognition, while "school" implies more difference than in fact one

finds amongst the Sunni madhahib. [14] I prefer the term "school" for
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two main reasons. First, the term "rite" may in its own way exaggerate

the characteristic differences among the madhahib, inasmuch as transfer

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from one Roman Catholic rite to another requires formalities unlike

anything a Muslim jurisprudent undergoes in transferring from one madh-

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hab to another, not to mention giving an occasional opinion that agrees

with a madhhab not his own. [15] Second, mutual recognition did not

always characterize relations among the schools. On the one hand, the

formation of schools in the classical form was a major step in the

direction of mutual recognition: in the eleventh century CE, when

schools of law were well established, the interests and procedures of

[14]Henri Lammens, Islam, Beliefs and Institutions, tr. E.

Denison Ross (London: Frank Cass, 1929), 84; Louis Gardet, La Cite
musulmane: vie sociale et politique. Etudes musulmanes 1 (Paris: Librarie
Philosophigue J. Vrin, 1954), 130fn.

[15]George Makdisi, "The Significance of the Sunni Schools of

Law in Islamic Religious History," International Journal of Middle East
Studies (1979):1.
 - 8 -

the Hanafiyah, Shafisiyah, and Hanabilah were much more alike than

those of their unorganized precursors of ashab al-hadlth and

ashab al-ra'y in the ninth century. On the other hand, it is not

rare to find the adherent of one school of law condemning the adherents

of another for unorthodoxy, even unbelief, before about the thirteenth

century CE.[16] To choose between "school" and "rite" on the ground

that one term suggests sharper differences is impossible, for the dif-

ferences among the Islamic schools were not only unlike differences

among Western ecclesiastics, but became less sharp over time.

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The Formation of Schools of Law:
IE Previous Studies.

There is no easy way to tell when the schools of law came to

be. None of the schools of law is associated with anything like a

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datable charter. Neither has any of the Sufi orders or other institu-

tions of Islam: the Muslims recognize no authority that might issue

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such charters, beyond the consensus of the community. The literature of

jurisprudence is very large, but Muslim writers have seldom directly

addressed the question of how and when the schools began. After all, it

is something of an embarrassment that the schools began at all, and did

not go back to the beginning. The disciples of al-Shafi'i did not

present him as the inventor of an epochal compromise theory of jurispru-

dence, as an admiring Western historian might do, but as the renewer of

[16]e.g., Muhammad ibn Ahmad al-Balasaghuni al-Turki

(d. 506/1112), cadi for Damascus, who remarked that if it had been up to
him, he would have exacted the jizyah of the Shafisiyah: al-Dhahabi,
Mizan al-i"tidal fi naqd al-rijal, ed. "All Muhammad al-Bijawi
(Cairo: sIsa al-Babi al-Halabi, 1963) 4:52.
 - 9-

his age, acting in the tradition of a revered caliph from a century

before.[17]

Ibn Khaldun (d. Cairo, 806/1408) is a notable exception,

devoting a chapter of his prolegomena to the origins of the various

schools of law. Treatments by modern scholars often bear the impress of

his discussion. He begins with the jurisprudents of Iraq and the Hijaz,

the former skillful at analogy (giyas), the latter knowing many hadith

reports. The foremost of the Iraqis was Abu Hanlfah: on him and on

his disciples the school became fixed (istagarra). Similarly, the

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foremost of the Hijazis was Malik.[18] This is very close to Joseph

Schacht's explanation of how the old regional schools became personal-

ized, as the followers of Abu Hanlfah, chiefly by their literary

I
activity, made themselves the sole surviving fraction of the Kufans,
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while the followers of Malik similarly transformed themselves into the

whole of the Hijazi school.[19] Later, says Ibn Khaldun, al-Shafivi

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blended the doctrine of the Hijazis (mazaja tariqat ahl al-Hijaz)

with that of the Iraqis to produce his own school. [20] Implicitly, for

Ibn Khaldun, the distinguishing feature of a school was a body of

rL'7]Ella Landau-Tasseron, "'The 'Cyclical Reform': A Study of

the Mudjaddid Tradition," Studia islamica 70 (1989):99.

[18]al-Muqaddimah (Beirut: al-Matba'at al-Adabiyah, 1900;

repr. Beirut: Dar al-Qalam, 1978), 446 = M. cjuatremere, ed., Notices et
extraits des manuscrits de la Bibliotheque imperiale et autres biblio-
theques 3: Prolegomenes d'Ehn-Khaldoun (Paris: Didot Freres, Fils, &al.,
1858), 2f.

[19]"The Schools of Law and Later Developments of Jurispruden-

ce," Law in the Middle East, ed. Majid Khadduri & Herbert J. Liebesny
(Washington, DC: The Middle East Institute, 1955), 63.

[20]Muqaddimah, 448 = Quatremere, ed., 3:5f.

 - 10 -

distinctive juristic opinions. A school was formed when a body of

opinions was collected and ascribed to a particular teacher.

The mechanism by which there came to be four schools, not

more or fewer, was taglld, servile imitation, whereby one does not

search the sources for one's own answer to a question (ijtihad) but

merely repeats the opinion of a former jurisprudent. "Taglld m the

great centers came to rest on these four; those who servilely imitated

others died out."[21] This is very close to the recent explanation of

George Makdisi, stressing that a school died out at the point when

W
advocates for it were no longer to be found.[22] Ibn Khaldun goes on

to explain that jurisprudents stopped trying to come up with their own

IE
solutions "when the ramification of technical terms became too great;

when it became difficult to reach the rank of ijtihad; and when they
EV

began to fear to depend on the unqualified and untrustworthy."[23] This

is very close to Joseph Schacht's account of why the formation of new

PR

schools came to a halt: that after about AD 900, all the essential

problems had been solved and nothing was left to do but to elaborate the

minutiae.[24]

Still, although eminently worthy of attention, certain to

[21]aI-Muqaddimah, 448 = Quatremere, ed., 3:6.

[22]The Rise of Colleges (Edinburgh: Edinburgh Univ. Press,

1981), 4f.

[23]Mugaddimah, 448 = Quatremere, ed., 3:6.

[24]"Schools of Law," 73. Schacht must also have known of

such works as Ibn Kamal Pasha (d. 940/1533), Tabaqat al-mujtahidln
(apud Ibn Abi al-Wafa', 2:558f), which suggest a similar scheme by
ranking jurisprudents according to the degrees of ijtihad that they could
practice, plainly dwindling with time.
 - 11 -

command admiration, Ibn Khaldun's analysis does have its shortcomings.

Above all, it suffers from a definite Maliki bias, for which modern

scholars have not always made sufficient allowance; more subtly, from a

disinclination to dwell on sharp conflicts within the community (a

disinclination common to most Muslims, usually indeed stronger than Ibn

Khaldun's). The Maliki bias is evident in Ibn Khaldun's equation of

ahl al-hadith, the traditionalist party, with ahl al-Hijaz, the

Hijazi party of which Malik was the most prominent representative.[25]

The equation re-appears in the twentieth century; e.g., when S. G.

EW
Vesey-Fitzgerald refers to Malik as "founder of the ahl ul-hadith."[26]

The equation makes a puzzle of where Iraqi traditionalism came from.

Ibn Khaldun's own account, Malik related only 300 hadith reports in
I By

his Muwatta', which included all that he considered sound, whereas

EV

Ahmad ibn Hanbal related 30,000 in his Musnad.[27] Vesey-Fitzgerald

immediately admits that Malik "does not hesitate on occasion to use

qiyas or even to propound his own opinion as authoritative." Schacht

PR

[25]Muqaddimah, 446 = Quatremere, ed., 3:2.

[26]Muhanrnadan Law, 14.

[27]Quatremere, 2:404. The textual tradition is confused:

Quatremere, 2:400 has 31,000 for the Musnad, a footnote to 2:404 states
that two other manuscripts read 40,000, the Beirut edition (444) has
50,000. A Hanball tradition puts the number at 30,000 (al-Khatib
al-Baghdad!, "Tarlkh Baghdad [Cairo: al-Khan;ji, 1931] 9:375); Ibn
al-Nadim states 40-odd thousand (229); oddly, N. J. Coulson states that
the Musnad contains 80,000 traditions (A History of Islamic Law [Islamic
Surveys, 2, Edinburgh: Univ. Press, 1964], 71). Ibn Khaldun's figure
for the Muwatta' is low: Joseph Schacht quotes commentaries according
to which different recensions contained 822 traditions from the Prophet,
898 from others, or 429 from the Prophet, 750 from others (The Origins of
Islamic Jurisprudence [Oxford: Clarendon Press, 1950], 22). The point
remains that Ahmad collected far more traditions than Malik.
 - 12 -

has always emphasized the similarity of Iraqi and Hijazi attitudes

towards ra'y and hadith but still, like Ihn Khaldun, offers no

account of where and how the traditionalist movement began.[28] (I

suggest below that the growth of polemics against ashab al-ra'y, the

opponents of traditionalism in law, indicates an Iraqi origin, and that

the postulate of a create Qur'an is what precipitated an open break.)

A survey of modern scholarship on the schools of law and

their origins reveals much vagueness, some downright error, but few

answers more direct than what Ibn Khaldun provides. Ignaz Goldziher

EW
speaks of foundation by disciples, but does not describe in detail the

formation of any school. [29] His article on the Hanbali movement draws

attention to its active enforcement of orthodoxy over several centuries,

I
but concerns itself not with the Hanbali school of law.[30]
EV

Duncan Black Macdonald, heavily indebted to Goldziher, at

first refers to their eponyms as "founders" of the historic schools.[31]

This is impossible: even if we suppose that the operation of a school

PR

is signalled by no more than the existence of a body of juridical opin-

ions, we cannot consider Abu Hanlfah the founder of the Hanafi

school, for he left no books. Macdonald acknowledges as much two pages

[28]V. "Ashab al-ra'y," "Ahl al-hadith," Encyclopaedia

of Islam, new edn.

[29]Introduction to Islamic Theology and Law, tr. Andras &

RuthHamori, Modern Classics in Near Eastern Studies (Princeton: Princeton
Univ. Press, 1981), 49.

[30]Goldziher, "Zur Geschichte der hanbalitischen Bewegungen,"

Zeitschrift fur der deutsche morgenlandische Gesellschaft 62 (1908): 1-28.

[31] Development of Muslim Theology, Jurisprudence, and

Constitutional Theory (NY: C. Scnbner's Sons, 1903), 94.