Tape Transcription

Islam Lecture No. 1 Rule of Professor Dallal

ERIK JENSEN: Now, turning to the introduction of our distinguished lecturer this afternoon, Ahmad Dallal is a professor of Middle Eastern History at Stanford. He is no stranger to those of you within the Stanford community. Since September 11, 2002 [sic], Stanford has called on Professor Dallal countless times to provide a much deeper perspective on contemporary issues. Before joining Stanford's History Department in 2000, Professor Dallal taught at Yale and Smith College. Professor Dallal earned his Ph.D. in Islamic Studies from Columbia University and his academic training and research covers the history of disciplines of learning in Muslim societies and early modern and modern Islamic thought and movements. He is currently finishing a book-length comparative study of eighteenth century Islamic reforms. On a personal note, Ahmad has been terrifically helpful and supportive, as my teaching assistant extraordinaire, Shirin Sinnar, a third-year law student, and I developed this lecture series and seminar over these many months. Professor Dallal is a remarkable Stanford asset. Frederick the Great once said that one must understand the whole before one peers into its parts. Helping us to understand the whole is Professor Dallal's charge this afternoon. Professor Dallal will provide us with an overview of the historical development of Islamic law and may provide us with surprising insights into the relationship of and Islamic law to the state and political authority. He assures us this lecture has not been delivered before. So without further ado, it is my absolute pleasure to turn over the podium to Professor Dallal. Ahmad? (Applause.) PROFESSOR DALLAL: Good afternoon, and thank you, Eric, for all the work in putting together this course and this lecture series. Both in terms of its normative influence and the status of its practitioners, the Islamic legal legacy is the most central of all the learned traditions of classical Muslim societies. The legal profession was the most prestigious profession in the medieval Muslim world. The structured the educational patterns for which the Muslim world is famous were first developed in conjunction with the study of the law. Initially, the madrasas, not the madrasas of the Taliban but the old madrasas, the four-year colleges, which were the precursors of our modern university system, were established for the study of the law and allied disciplines in its service. In medieval Muslim societies, the scholar per se was the jurist. As the most consequential manifestation of Islamic thought, it is not possible to speak of Islam in any meaningful way without understanding Islamic law. In its scope and reach, Islamic law is much more encompassing than law in the modern technical sense of the word. It covers worship and such as, for example, prayer, dietary , the rites of pilgrimage and so on and so forth. It covers religious and ethical rules including rules of conduct and ethical behavior. It covers politics, as well as the more familiar aspects of law such as family law, marriage, divorce, etc., inheritance laws, pious foundation laws, Islam Lecture No. 1 - 2

contracts and obligations, commercial law, penal law (although that's the least developed of all aspects of Islamic law, in part because criminal was taken over by the state). It covers taxation, constitutional law, and the law of war. In addition, Islamic law, or what is grouped under the rubric of Islamic law, also covers such technical branches as written documents, the formulaic written documents, and legal devices or tricks, literally, for the evasion of law. The word in is hiyal and it means tricks, legal tricks. And that is part of the law. Like other legal systems, therefore, the mature Islamic legal system with its complex procedures and technicalities is a legitimate object of study in its own right, but at the same time, it is not possible to fully understand Islamic law in its formative past or its contemporary predicaments in isolation from other cultural trends in Islamic history, including sectarianism, , mysticism, and above all of course, politics. Islamic law is a system of law, and as such it is a process, always in the making. It is, however, Islamic, rooted in Revelation, and as such rendered Islamic by virtue of its relationship to this Revelation. Undoubtedly, therefore, Islamic law, like everything Islamic, was occasioned by the Qur’an, but this is only part of the story. To start with, the Qur’an has a historical context, namely, the polity established and headed by in . And it is within this polity that the Qur’an as law gained its meaning. In Medina, Muhammad acted as a , ruler and legislator, and his life example, to the extent that it can be reconstructed, is as significant in defining the rudimentary laws of Islam as the Qur’an is. In fact, it is in the context of this early polity that the Qur’anic rules gain their momentous historical significance as factors that ushered in a new social and political order, an order, which was radically different from the one that existed in Arabia on the eve of the rise of Islam. Basically, the new polity, the new social order that Muhammad established, was different in terms of its self-definition, in terms of structures of authority, in terms of the rules that prevailed, and in terms of so many other things, and all of that therefore is a result of a symbiosis, of a mutual relationship between both the Qur’anic injunctions as well as the polity and social order that Muhammad introduced. Moreover, normative as both the Qur’an and the practices in the newly-formed polity were, and are for throughout the ages, the rudimentary laws and rules articulated in both the Qur’an and the practices of Muhammad, are significantly different from the later complex system of law which they inspired and gave rise to. With some exceptions, Qur’anic law is not the finished product which was articulated and elaborated in Islamic legal manuals and in the canonical books of various schools of law. These manuals and books were not created by a mechanical compilation of Qur’anic or Prophetic legal dictums. Rather, Islamic law was created by a rational method of understanding, and of interpretation, and the difference between these two things is not just one of organization. Much as one tries to rationalize revealed law, it is grounded in and derives its authority from the very fact of Revelation, from the belief that it comes from . The Islamic legal canon, however, is a compilation of the reasoned legal opinions of scholars, of professional jurists who had to justify their opinions. God doesn't have to justify anything. The sacred of course is always present. Above all, it is the source of the religious and moral standards that provide the unifying framework for the Islamic system of law, but the Qur’an and even the traditions of the Prophet Muhammad, on the one hand, and the law, on the other, are not identical. Islam Lecture No. 1 - 3

Now of course there were various components, legal components, legal elements that were integrated into what became Islamic law, including the laws of pre-Islamic Arabia, Jewish law, Roman provincial law, and various aspects of the laws of the conquered territories. All of these systems of law, elements from these systems of law, were recast by Muslims in a completely novel system of law, and they were unified partly by subjecting them to a religious scrutiny on the basis of an emerging and strictly Islamic methodology. Diverse legal subject matter became Islamic law by a subtle but systematic process of organizing and systematizing through which these laws became part of the religious duties of Muslims. There are additional factors that further complicate the process through which the law, Islamic law that is, was produced and, at least in theory, may still be produced. So some of the things that I say today have contemporary significance. I will point out some of these contemporary issues and then I will be more than glad to address more of these in the question- and-answer period. The Qur’an, to start with, is limited in size, and in its legal subject matter. Only 11 percent of the Qur’an deals with legal issues, and of course the Qur’an, the scripture of Muslims, is much smaller than the Torah and the Bible. It's a much smaller book. Many of the legal injunctions of the Qur’an are ambiguous, as the Qur’an says of itself. Historically, many more Islamic laws were based on the and the Sunna, the sayings, traditions, and practices of Prophet Muhammad, and in contrast to the Qur’an, there is no consensus over the authenticity of this body of literature. Muslims believe that the Qur’an is authentic and it has an early provenance, it's what Muhammad brought forth from God, but there is no consensus among Muslims regarding the traditions of Muhammad, the sayings of Muhammad, and this is the largest body of literature, which is used as a source of law. Therefore, from the very beginning the question of who after the Prophet has interpretive authority, was implicated in the articulation of an Islamic legal system. The question of authority, of course, was not restricted to the discussion of the law, and in the early period the law was not even the primary arena where this question was addressed. In the beginning, there was politics. And the political struggles were projected in complex ways into the emerging arenas of sectarianism, theology and law, and later on, even into the arena of mysticism. So, today, I would like to outline some of the historical markers that shaped the process through which the legal tradition was produced, and that determined the character of Islamic law and its role in society. In the early stages of Islamic history, the sociopolitical elite was defined along two main lines, with a core leadership which combined traits of both—political tribal on the one hand and intellectual on the other, and intellectual in a very rudimentary way in the beginning. Now, as far as intellectual authority is concerned, it really had to do with knowledge of the Qur’an, and that knowledge was not defined in any systemic way initially. Before the culture of experts, before the emergence of jurists who had formal training, the early jurists were not professionals but simply people with some sort of knowledge, some sort of rudimentary knowledge of the Qur’an. On the other hand, there were people who had tribal credentials, and although the egalitarian ethos of the Qur’an was supposed to eliminate tribalism, many of the leaders of the Muslim world, certainly within a few decades after the death of the Prophet, most the leaders of the Muslim world had claimed their tribal background as one of their primary credentials. Of course, they were Muslims. They converted to Islam, they defended Islam, they Islam Lecture No. 1 - 4 performed certain social and political functions defined by Islam, but their credentials were at least partly a function of their descent. Now, on the other hand, some of the earliest converts to Islam were, and in fact the earliest converts to Islam when Muhammad was in Mecca, were tribal outcasts, people who had no vested interest in the tribal structure. These people migrated with Muhammad when he left Mecca and went to Medina, when he built the state. Many of them actually did not have a place to live, and Muhammad built a house in Medina when he moved to Medina, and it was the house and the first . It had an outside fence and in the courtyard there were benches, and some of these people used to sleep on these benches, and they are referred to historically as the people of the benches, people who slept on the benches. They were tribal outcasts. They had no claim to fame aside for the knowledge of the Qur’an and the study of the Qur’an; so these were the earliest ideological officers of Islam, if you will. They were the ones who went on campaigns, they were the ones who were extremely interested in the study of the Qur’an, extremely interested in the content of Islam. And also, given that they had no tribal credentials to boast of, they actually considered anyone who invoked these tribal credentials to be un-Islamic. The , the earliest sect in Islam, and other kinds of extremely committed, ideologically committed Muslims, came out of the ranks of this early group. The name given to these, one of the names is the people of the bench, but the more common name is the Qur’an readers, both derived from the root q-r-a, to read, and basically this is the first as it were Qur’anic group, a group which is named after, which derives its name and its very definition from a Qur’anic term. So they were referred to as the Qur’an readers, again, highlighting that their claim to fame, their credentials were intellectual and had to do with their knowledge of the Qur’an. Now, of course the earliest leaders of the Islamic polity after Muhammad died were also people who were extremely knowledgeable of the Qur’an. But they also happened to be members of the distinguished tribe of Quraysh. They had both credentials. They had the descent and they also had their intellectual authority, so they had both—political authority, political/tribal authority, as well as intellectual authority. But these people who actually combined both intellectual authority and political authority only ruled for about three decades, from 632 when Muhammad died until 661, and they are remembered in the collective memory of Muslims as the "Rightly Guided Caliphs." The ideal period of Islam covers both, of course, the lifetime of Muhammad and the period of these Four Rightly Guided Caliphs: , Umar, and . After this early idealized period, rule in Islam became dynastic rule, not Islamic rule, and again, the primary credentials of the people who led the various dynasties, first the Umayyad Dynasty from 661 to 750, and then the Abbasid Dynasty from 750 until the Mongol invasion destroyed in 1258, the primary credentials were based on lineage. In both cases, these were families, dynasties, and the primary reason they were in power was this lineage, although, of course, they tried to add a religious justification for their rule. Some of them were pious, but by and large the primary justification, the primary raison d'etre that justified the legitimacy of these dynasties is their family lineage. From the very beginning, then, aside from the brief period of Muhammad and the four Rightly-Guided Caliphs, there was really a split in authority, a split between intellectual authority and political authority. In later dynastic rule, the political elite, certainly not from the Islam Lecture No. 1 - 5 ranks of people such as the Qurra’ (the Qur’an readers), were purely tribal, and as a result they compromised ideals established in the first period. Now, let me say a few words about the Umayyad period, the development of the law in the Umayyad period, and then I'll move into the Abbasid period and hopefully as I proceed, you will have a sense of why I'm going through all of this history. The first dynasty, the Umayyad dynasty (from 661 to 750), or more accurately the rules and elites of this dynasty, created a framework of a new Arab and Muslim society and empire, and within this system, they appointed pious individuals as , as judges, in charge of the administration of justice. Islamic law was not yet articulated in any systematic way in this period, so there was an administration of justice before there was a full-fledged system of justice. Islamic law, as a matter of fact, came into being as practices within this system cohered. But again it was not yet systematic, and again, it was the various judges who were pious, who had some knowledge of the Qur’an who first articulated Islamic law. These judges also quite often ended up resorting to local laws, depending on where they were functioning. In or in or elsewhere, they invoked local customary laws, and they incorporated some of these customary laws into the laws they enforced within the legal system. The judges in this early period as I said, were pious Muslims with knowledge of the Qur’an. However, they had no clear criteria for deciding on what to include and what not to include. There were no systematic criteria. It was not spelled out. There is no doubt that they tried to exercise their judgment and in their minds they were doing things which were Islamic. But these Islamic rules or these Islamic criteria were not spelled out in any systematic way. And also, they did not have detailed professional standards for the practice of the legal profession. Moreover, there was no systematic distinction between Islamic laws and customary laws, although the more these judges worked on it, the more they were able to distinguish what is Islamic and what is not. So Islamic law in this early period was not a given, but was gradually emerging, gradually in the making. The main organizing principle in the early period, in the first century or so was, once one began to emerge, the tradition of a school, a regional school, a group of people that functioned in a particular region. The tradition of such schools is something that became the organizing principle. People cohered locally on geographical grounds, and basically the ancient, the most ancient schools of law in Islam were geographically based. In particular they were based in and , Kufa more important than Basra, and Medina and Mecca, Medina more important than Mecca, and Syria. The ancient schools of law gradually began to use Qur’anic norms in a more systematic way, and certainly with the passage of time, they became more aware of contradictions and the need for some systematic way of reflecting on the law. Still, they had no definite organization, no strict uniformity of legal doctrine, and they didn't have formal teachings, so although there were references, both in the early literature and certainly in modern scholarship to the ancient schools of law, we don't know of a systematic doctrine or formal teaching that was adopted by these schools. In the Abbasid period, things began to change. The Abbasids took over in the year 750. The Abbasid period, especially of the first two centuries, was the formative period of Islamic thought in general and of Islamic law in particular. Most of what became classical Islamic thought, normative Islamic thought, was articulated in this very period. The schools of law that Islam Lecture No. 1 - 6 survive today emerged in this period. Various traditions and the various disciplines of learning emerged and took their classical form during this period as well, and so on and so forth. One of the characteristic characteristics of the Abbasid dynasty was the use Islamic law as the law of the state, and the legitimization of Abbasid rule partly on account of this official patronization of Islamic law. This was a staple of Abbasid dynastic authority, and this commitment to the legal enterprise engendered a tendency among jurists to engage in increasing systematization of the law. Qadis were also supposed to be bound by the law. Whether or not they actually were is a different story, but they were supposed to strive to abide by the dictates of Islamic law, to figure our, first of all, what these dictates were, and then to abide by them. During the early Abbasid period, there were various attempts to articulate an ideology which would accord the Abbasid ruling elite religious authority in addition to their political authority. The struggle, and eventual failure, to establish such authority had a formative influence on the character of Islamic law, and I would like to spend the remaining time today talking about this subject. The early Abbasids had far-reaching ambitions, and the early period of their rule witnessed successive attempts to combine both political authority and religious authority. The early Abbasids invoked the absolutist ideals of the old Persian Empire; they had sweeping powers, certainly in the first century; and they introduced all sorts of hierarchies and court traditions. The first Abbasid caliph ruled only for four years, and he dealt with mundane issues and attended primarily to the immediate challenges facing the emerging dynasty, but it's really under the second caliph that some of the main characteristics of the Abbasid rule began to take shape. The second Abbasid Caliph, al-Mansur, who ruled from 754 to 775, attempted to consolidate the foundations of the dynasty, and a number of things happened under his rule. One of the chief ministers, an early chief minister under this Caliph was a man by the name of Ibn al-Muqaffa‘, a very prolific man who, after serving as chief minister, eventually lost his life. This was the hazard of political life at the time. Before he was executed, Ibn al- Muqaffa‘ wrote a number of important books, including one very important book by the title of A Treatise on the Companion. This was basically a memo addressed to the Caliph in which he gives him policy recommendations. It's exactly, well, perhaps a bit more learned than some of the contemporary memos and policy recommendations; these recommendations were meant to help the state consolidate its power over the empire, and there were two main recommendations that were made in this memo. First, that the Caliph should reconcile Iranian agrarian gentry, and rally them to the support of the state, and should rely on them in the effort to bolster the central authority of the state. So, again, a very deliberate and conscious vision of how to centralize the authority of the state. The second, and more important recommendation from our perspective is a recommendation to transform the ’, the religious scholars, into an official institution that is controlled by the state. This transformation of the ulama’, according to the recommendation of Ibn al-Muqaffa‘, who again was the equivalent of a prime minister, was to be done by creating a clerical hierarchy which is part of the official hierarchy, and which reports to the Caliph. The example which the Ibn al-Muqaffa‘ used is extremely telling. He basically described the way Islamic law is applied in the various parts of the Empire. He said, that if one goes to a court in Syria with a particular legal case, one gets from the , the judge in that court in Syria a particular ruling; if then one goes to to Iraq with the exact same case, one gets the exact opposite ruling from the qadi in that court, and so on and so forth. So Ibn al-Muqaffa‘’s memo argued Islam Lecture No. 1 - 7 that there was no central code of law, and that this can be remedied only if the Caliph adopted a central code of law and sent it to the various provinces as the officially sanctioned code, which has the stamp of caliphal authority to back it. So the Caliph would become the final authority in legal matters, and therefore the Caliph would be the source of legal authority and not just political authority. And it is his choice, the Caliph's choice that determines the law of the land. Now, al-Mansur did not exactly execute this policy, although he actually patronized some very important legal scholars and appointed them as chief judges. There are three major legal scholars of this period who all belong to what later became the School. You have the names on the handouts. I'll talk about the schools in a minute. But there are three major legal scholars, all belonging to the so-called Hanafi School, two of whom accepted appointment as chief judges or local provincial judges under the Abbasids. The third, after whom the school is named, was a well-off merchant. He didn't need to work for anyone, and he went into hiding to avoid being appointed as chief judge, chief justice, the highest legal authority in the empire. So he lived several years of his life in hiding to avoid such appointment. And it is telling that the school was named after this particular scholar Abu Hanifa, although the two other scholars perhaps produced in way of systematic legal doctrine more than Abu Hanifa did. It's telling that the school was named after him; they all had similar legal reasoning and comparable scholarly credentials, but the school was named after him, not the other two. The recommendations of Ibn al-Muqaffa‘ were taken up three Caliphs later, by Harun al- Rashid, the famous Harun al-Rashid of A Thousand and One Nights (although in reality he was very different from the character in the stories of the Thousand and One Nights). So Ibn al-Muqaffa‘’s recommendations were taken up at a time when the Abbasid Empire was at the peak of its territorial expansiveness. Harun al-Rashid instructed his governor in Medina to approach —again, you have the name on the handouts—the leading scholar of Medina at the time, and ask him, ask Malik ibn Anas to approve the adoption a book of his by the title of al-Muwatta’, as the central legal code of the empire. So, again, the Caliph instructs his governor to go to this legal scholar in Medina and to have the legal scholar hand over his book which was one of the most developed legal books at the time (although, by the standards of later legal thought, it was not very developed); Malik was thus asked to allow the use of his book as the central legal code of the state, of the empire. Malik refused. The word Muwatta’ means confirmed, and Malik said that this book has been confirmed only on the scholars--according to the authority of the scholars--of Medina, just this one particular city. Malik further argued that there were many other legal scholars throughout the empire who had different opinions, whose opinions were equally legitimate as his, as Malik’s, and therefore it was not right, not legal to impose the opinions of one individual or a group of scholars from Medina on other scholars from the rest of the Muslim empire. As a result, Malik was put in prison, and his shoulder was broken in the process. Eventually he was released, but he soon died of old age and the injuries he suffered during this episode. Now, personal schools of law emerged gradually from what initially was regional schools of law, and these personal schools of law were named after individuals. The individuals in question did not intend to form schools—there is no indication that any of the individuals in question intended to establish schools. In all cases, the schools were not named schools when their eponyms were alive. So they were named retrospectively by later communities of scholars Islam Lecture No. 1 - 8 in recognition of the achievements of the various members of these schools. I have already mentioned two of the scholars after whom schools were named. One of them is Abu Hanifa, and he and the Hanafi school operated mainly in Iraq, and the other is Malik, and he and the School operated in Medina. (I'll talk about the two other schools in a minute). Now, there are differences among these schools in the principles and methods of legal reasoning, but in my view the primary basis for naming these particular schools after four individuals is not just a function of legal doctrine. At one time, we are told in many historical sources, there were over three hundred schools, named basically after distinguished legal scholars, and out of these, only four were chosen. In other words, all of these individual schools cohered into four schools only; again, the naming of these schools was not only a function of the legal erudition of the scholars after whom the schools were named, although all were certainly erudite in different ways, but I think that one of the primary reasons in addition erudition had to do with their stand on the question of intellectual authority and the relationship to the state. After Abu Hanifa and Malik came al-Shafi‘i, the third major legal scholar in chronological order. Shafi‘i produced a large amount of work on applied law, but he is probably mostly reputed for his work on legal theory. He wrote a treatise called al-Risala, and it was mainly an attempt to come up with Islamic criteria, criteria for Islamic legal reasoning, legal theory, an Islamic legal theory as it were. In this book he outlines the method, the theory, a way of systematically linking what he considers to be the four major sources of the law, namely the Qur’an, then the Practices and Sayings of Muhammad, and after that the Consensus for the Community, and finally, Legal Analogy. Now, in Shafi‘i’s method, first of all Hadith is recognized as a source of law, and this was actually being done in practice, and everything that Shafi‘i talked about was already in the making, was already being done in practice, but Shafi‘i gave it formal articulation—the virtue of his work is that it was elegant theoretically, and also he took arguments to their logical ends. So first of all Hadith (the sayings and traditions of Muhammad) was recognized as a source of law. The first-hand experience of Medina, then, was replaced by Hadith and by Sunna, the sayings, the collections, the eyewitness reports about thousands of details of the life and practice of Muhammad; to some extent, this was a transformation from the actual living experience which was immediately remembered and only partly reported through informal traditions to a more formal organization of these traditions. Now, at the time of Shafi‘i (and Shafi‘i himself, of course, articulates this idea clearly now,) these reports were collected and formalized and canonized. By the way, Hadith is not just law but it is also a reservoir of pious opinions. Now, what’s interesting about the reasoning of Shafi‘i is that he included with the act of Revelation itself, the tradition that sprang from it; so the tradition that sprang from Revelation, the tradition that was occasioned by the Qur’an, by Revelation, the tradition of Muhammad, the practice of Muhammad, was now included in the act of Revelation, became yet another expression of the act of Revelation. Moreover, more interestingly and perhaps more problematically, Shafi‘i also included the Consensus of the Community, of the historical communities of Muslims, as somehow being part, a continuation of that same act of Revelation. Therefore, the primary achievement of Shafi‘i, the third person after whom a school is named, was perhaps in his theorizing of scriptural authority, of the authority of the scripture, various levels, layers of scriptures, and his systematic exposition of the Islamic criteria which Islam Lecture No. 1 - 9 ought to be used to Islamize the law. Again, this had already started before Shafi‘i, but Shafi‘i gave it its classical theoretical articulation. Hadith compilations in the period of Shafi‘i and beyond, together with compilations of responses, answers to legal questions and so on, were being offered in that period, and all sorts of books were being composed—short manuals, long compilations of responses to legal questions, abridgements, glosses and so on and so forth, and together these became the school texts, what eventually became the school texts, objects of study, canons that people who were engaged in the study and practice of the law actually studied, examined and so on. The above two tendencies—first, to theorize scriptural authority, and second, to resist state control--culminated in the experience of the fourth person after whom a school is named, . So the Hanafi School was named after Abu Hanifa; the Maliki school was named after Malik; the Shafi‘i school after al-Shafi‘I, and the school was named after Ahmad Ibn Hanbal. These, by the way, are the Sunni schools of law. For the Shi‘is, there is the Ja‘fari School and there are also other smaller groups. The difference between the Sunnis and the Shi‘is at the legal level is not significant. The difference between the Sunnis and the Shi‘is has more to do with doctrinal issues and sectarian issues, but as far as the law is concerned, Shi‘I and Sunni legal doctrines are very similar, with some characteristic distinctions. The Sunnis are about 85 percent of Muslims, depending on who’s counting. The Shi‘is are about 15 percent of Muslims. I will not discuss the Shi‘I legal tradition here, although I will be glad to answer questions about the Shi‘i legal tradition later. Now, Ahmad Ibn Hanbal. The story of Ahmad Ibn Hanbal is one of the most interesting political stories, and stories which are relevant to our topic today. Again, I don't have time to get into the details of this story, but let me highlight some of its important features. Ahmad Ibn Hanbal lived in the ninth century, in the beginning of the ninth century, through the middle of the ninth century. The Abbasid Caliph al-Ma’mun, a very important Caliph and one of the sons of Harun al-Rashid, was yet another figure in the Abbasid dynasty who wanted to undertake the same project of combining political and religious authority in the hands of the political establishment, under the authority of the Caliph. He went about doing this in a variety of ways, and finally, one of the last attempts that he made was to adopt the theological doctrine of a school of law called the Mu‘tazili School. Again, the story is quite complicated, and I don't have time to get into all of its details. The Mu‘tazilis were concerned with theological questions such as the nature of God, divine justice, issues of monotheism which of course is very important in Islam, and they were sort of fanatical monotheists, and they wanted to eliminate anything that compromised monotheism in Islam. One of the issues that—and I'm simplifying a little bit here—but one of the key rallying slogans of the Mu‘tazili was the so-called question of the createdness of the Qur’an. Basically, again, in a very simplistic way, they argued that if the Qur’an, as the Qur’an itself says of itself over and over again—if it is the eternal word of God, then there are two eternal things, not just one—God, and the Qur’an, which compromises the concept of the oneness of God, the fundamental concept of monotheism; so, the Mu‘tazilis argued that this is simply unacceptable, and therefore, they argued, that the verses of the Qur’an which talk about the eternity of the Qur’an ought to be interpreted metaphorically. In his attempt to control religious doctrine, al-Ma’mun adopted the doctrine of the Mu‘tazila, and started what eventually became the only large scale inquisition in the . Occasionally, there were minor inquisitions here and there, but this was the only large- scale inquisition in Islamic history. So al-Ma’mun adopted the theology of the Mu‘tazila, and he Islam Lecture No. 1 - 10 first summoned officials and employees of the state, and later on other public figures, and he asked them to declare their views regarding the main doctrines of the Mu‘tazili school, including the question of whether the Qur’an was created in time of eternal. Most of those summoned, of course, as spineless intellectuals usually do, capitulated and said what the inquisitors wanted to hear so that they can keep their jobs and avoid persecution. Ahmad Ibn Hanbal was summoned, and when questioned, his position was that he wouldn't ask for trouble, he wouldn't start a confrontation with the state. If his inquisitors wanted to believe that the Qur’an was created and not eternal, Ibn Hanbal would still want to avoid confrontation with them. As far as he is concerned, however, he was not willing to say in public that he did not believe in the eternity of the Qur’an. For him, the authority in this issue, as in any other religious issue, was the scripture itself. So his public stand was that the Qur’an says of itself that it is eternal, and it says this in no ambiguous terms and in many different places; to Ibn Hanbal, therefore, the Qur’an is eternal and is itself the source of ultimate authority. Ahmad Ibn Hanbal was thrown in prison. Al- Ma’mun died, and the second Caliph after him continued his policy; Ahmad Ibn Hanbal was in prison and there were riots in the streets of Baghdad and protesting his imprisonment; Ahmad Ibn Hanbal was subject to recurrent persecution, and still he did not compromise his doctrines until finally, the third Caliph after al-Ma’mun decided to reverse the inquisition policy and gave up on it and the Mu‘tazili doctrine was finally abandoned. Now, this is again a very complex story and I can't cover all of its aspects here. What's relevant for our purposes is that despite the recurrent attempts by the Abbasids, the rulers of what at the time was the most powerful empire in the world at the peak of their power, despite their recurrent attempts to control the production of normative Islam, the outcome of the confrontation between the Abbasid rulers, between the political authorities and the intellectual authorities, was a program of Islamic culture which restricted the law allowed for the caliphal authority of the Abbasid dynasty. So basically, the Abbasid attempt to co-opt intellectual authority was defeated. They continued to have political authority to some extent at least. Ahmad Ibn Hanbal was not a legal scholar. None of his contemporaries considered him to be a legal scholar; he was a scholar of Hadith, the traditions of Muhammad. Still, despite the fact that unlike the three other scholars after whom schools were named, Ibn Hanbal was not a legal scholar to start with, despite this fact, a school of law was named after him, apparently in recognition of his resistance to attempts by the state to co-opt intellectual authority as well as his insistence on the ultimate authority of scripture in matters of law and religion. Now, the autonomy of legal scholars and scholarship was also secured through several additional mechanisms that further guaranteed the stability and continuity of the legal sciences. One such mechanism was the introduction of intellectual standards, canons, curricula, disciplines such as the discipline of principles of , legal theory, usul al-. Basically what this discipline ensured was that a person could not issue rulings unless s/he had command of certain disciplines and knew the jargon, as it , used in these disciplines. Now, obviously the rulers, generally speaking, did not have these professional abilities, so their input was ruled out, was excluded simply by virtue of introducing rigorous intellectual standards. Another mechanism was the establishment of endowed colleges, the Madrasas, which secured the relative financial autonomy of these legal scholars who did not depend on state revenue to live. Scholars and teachers needed some source of income that could either come from the state or should come from another source, and basically most of the classical education in Muslim societies was subsidized by charitable endowments. People, including sometimes members of the state acting Islam Lecture No. 1 - 11 in their capacity as individuals and not in their official capacity, established endowments such that the revenue from these endowments would pay not just for the salaries of the teachers but also for the stipends of the students and for the upkeep of the premise in which the teaching is conducted, and so on. So basically through a variety of mechanisms, but primarily through the resistance of figures such as Abu Hanifa, Malik, Shafi‘i, Ahmad Ibn Hanbal and many others, the traditions of state power and the ability of the state to interfere in intellectual matters and to control the production of normative Islamic thought was curtailed. One of the consequences of this process was that the creation of an ideal Muslim society was not a responsibility that is relegated to the state; so in the final outcome of this process, the state was not considered responsible for the ordering of society—and this is something which is discussed in legal literature and in other sorts of literature as well. Rather, the only function of the state was to provide a framework within which such an idea, such an ideal society can be created. Society, on the other hand, structured itself through the agency of its relatively autonomous representatives and above all, these representatives who basically were the historical brokers of social power, these representatives—the ulama’, the religious scholars—above all came from the ranks of the jurists, scholars of law (an later on from the ranks of Sufis as well, but this is a different story.) The government, as it should be, was marginal to the daily life of most Muslims. Every day control in cities belonged to the urban elites, to the merchants and landlords on the one hand and to the religious scholars and judges on the other hand. And one of the most enduring characteristics of this process, the characteristics of Islamic legal system which is a product of this process, of this history, one enduring characteristic in my view is the fact that Islamic law is an extreme case of jurist law. The legislator is the jurist, not the state. The legislator is not the state but the scholars and scholarly handbooks. Law is thus established by fatwa (fatwa means the issuing of a legal ruling by legal scholars), by rulings issued by pious and learned private individuals (in theory by men or women, although in practice there were more men than women), and so—in other words, is produced through this process of juristic rulings and not by the decree of the Caliph or his agents. The Caliphs employed parties, employed judges, and for the execution of the law a judge of course needs the muscle of the state. The judge executes law, but there is a big difference between a judge and a . The mufti is the one who issues a fatwa, the one who issues the ruling, while the one who executes it is a judge. The mufti issues the ruling based on is knowledge, or her knowledge, and of course the ruling is not binding, but it gains its moral authority in time through the recognition by either the people, if it's a very important issue, people in general, or by a community of scholars, if it's a more technical issue. Authority, therefore, of the jurists is not derived from the coercive power of the state, but it is a function of the respect which is accorded to whoever issues this ruling, the respect accorded to him or her by society. And, again, this is a function of the expertise which results in turn from professional training and so on and so forth. The qadi is appointed by the state, and is dependent on the power of the state to execute his rules. Now, even if the qadi happens to be a qualified mufti who is capable of issuing legal opinions, in his capacity as a qadi, as a judge, he is compelled to use a fixed code or legal manual, and has no right to use his own opinions in court (again, there is a whole genre of literature which discusses the differences between the qadi and the mufti and how each should function). If qualified, a qadi could issue legal opinions outside his court, and he could compile Islam Lecture No. 1 - 12 these opinions in a book, and if this book is recognized by a community of legal scholars, then maybe someone else might use it as a code of law in a court of law. But in his capacity as a judge, he has no right to use his personal opinions. He has to follow procedures, and he has to use manuals which are common in the particular school over which he is presiding. So Islamic law was created and developed by private specialists. Legal science and scholarly handbooks had the force of law, and not the state, and here lies perhaps the greatest challenge to Islamic law in contemporary times, the challenge to canonize through the state a diverse legal legacy which never lent itself to such attempts of canonization. Another enduring characteristics of Islamic law pertains to the way the four , the schools of law, relate to each other. As already mentioned, none of the people after whom the schools were named, actually intended to found such a school. These schools do not demand adherence or conformity or exclusive loyalty. Most legal cases were settled out of court, often with the help of an informal legal scholar of sorts. But if a case was drastic enough and needed to be brought before the court of law, an individual Muslim had the right to choose whatever school of law he or she wanted to follow. This is the ideal, the theory, even if historical legal practice did not permit open and free access to all schools. Of course in practice people usually adhered to schools, but this was more a function of interest groups rather than the theoretical function of the law. So a Muslim could bring a case to a court of law, let's say a Hanafi court. If the ruling issued by the Hanafi court was not to the liking of that particular Muslim, he or she can go to the next court, the Maliki court. If the Maliki court doesn't issue the right ruling, they then go to the Shafi‘i or the Hanbali court, and so on. Of course this is not how things happened in reality, and people usually were restricted by whatever resources they had, the dominant schools in their regions, and other similar practical considerations, but in theory individual Muslims had the ultimate word in deciding which jurisdiction applies to them. Schools, then are not binding, and again, they do not demand adherence or conformity. They recognize each other, they recognize each other as mutually legitimate opinions. And this is a function of the very fact that Islamic law is a jurist law. Every jurist who conforms to procedures, who does what should be done, in theory, produces a legal opinion which is legitimate. Also, schools of law are not distinguished by uniform legal rulings on individual cases. Individual schools are characterized by shared methodologies and approaches to the law in general, but there are numerous substantive differences within each school on various aspects of applied law. What different schools share is a common interest in a specific body of legal doctrine. More than anything else, what defines a school of law the canon that scholars within this school read, and this canon is produced through a very slow process of recognition, either by the larger community of Muslims or, more commonly, by a community of scholars within each legal tradition. Above all, the schools of law emerged through the effort of pious and fiercely independent scholarly elites who managed to wrest authority from the political elite. Of course there are many, many other things in the history of Islamic law which I did not discuss, and there are later developments which are also significant which I would be glad to address later. Still, what I discussed today is a set of essential characteristics of Islamic law, which were shaped through a historical process which lasted for centuries. These characteristics did not emerge over night. They are not direct byproducts of the Revelation, nor were they introduced at the time of the Prophet Muhammad. Rather, they are the products of a historical Islam Lecture No. 1 - 13 process which could have unfolded in different directions, but happened to take the shape it did for no deterministic reason other than contingent historical developments in Muslim societies. In conclusion, if I am to single out a single salient trait of the Islamic legal system that emerged over the course of a long historical process, I would suggest that, in classical Muslim societies, the only Rule of Law was an Islamic Rule of Law. The alternative, historically, was tyranny. Thank you.