Constructing Authority in Early Islamic Legal History

Anyone who is a student of early Islamic history is familiar with the numerous controversies surrounding the rise of Islam and whether Muslim accounts of early Islamic history can be deemed to be generally reliable or whether Muslim histories of the early community should be dismissed as little more than pious accounts of sacred history.  The recently deceased Patricia Crone was probably the most famous of the “revisionist” historians who adopted an extremely skeptical stance toward the early Muslim sources.

In the particular context of Islamic legal history, however, the revisionist school preceded Crone by at least two generations, with the work of Ignaz Goldziher and Joseph Schacht, whose book The Origins of Muhammadan Jurisprudence cast aspersions on the integrity of the entire edifice of hadiths (reports attributed to the Prophet Muhammad that form a substantial basis for Islamic law and theology), suggesting that what came to be understood to be “Islamic” was little more than backward projections of the beliefs of Muslim communities living no earlier than the second-half of the second Islamic century (ninth century of the common era) and perhaps as late as the second-half of the third Islamic century (tenth century of the common era).

The incentive for later generations of Muslims to project backwards their convictions onto the early community, according to Schacht, was the result of the success of Muhammad b. Idris al-Shafi’i, who died at the beginning of the third Islamic century, in elevating the status of hadiths (anecdotes attributed to the Prophet Muhammad) to the most important source for the derivation of Islamic norms.  According to Schacht, once Shafi’i’s thesis was accepted, Muslim jurists and theologians began a systematic process of attributing their own doctrines to the Prophet Muhammad through the construction of elaborate, but ultimately false, chains of transmission that were used to conceal the post-Prophetic origin of various doctrines by removing them from the mouths of contemporaries and placing them into the mouth of the Prophet Muhammad.

The late Norman Calder, in his work, Studies in Early Muslim Jurisprudence, applied Schacht’s argument to question the conventional dating of various foundational texts of Islamic law, arguing that to the extent that a text was consistent with a theory of what he called “apostolic authority”, in which the authority of the jurist was limited to the interpretation of the words of either the Prophet Muhammad himself or his companions and successors, the text must have been composed after al-Shafi’i.  Where a text’s authority was discursive, meaning that it focused on the opinions of the jurist as such, and the jurist engaged in a dialogic give-and-take with his interlocutor (taking, typically, the form “What is your opinion regarding such-and-such?” and “If so you say such-and-such about this or that, then I would say such and such in response”, Calder concluded that it must have been authored in the pre-Shafi’i period, when jurists were indifferent to grounding their doctrines in the words of the Prophet Muhammad.  Using that theory, Calder suggested that contrary to prevailing wisdom, the Mudawwana, which is a collection of the opinions of Malik b. Anas (died in the last quarter of the second Islamic century), pre-dated his other famous work of law, al-Muwatta’.  Muslim tradition dated the latter to the last-quarter of the second Islamic century on the theory that Malik himself was the actual author of the Muwatta, in contrast to the Mudawwana, which Muslim tradition asserted was a later collection of his opinions compiled by one of Malik’s followers, Sahnun b. Said, who did not even meet Malik, but instead, studied Malik’s opinions with Malik’s leading student, Ibn al-Qasim.

In a forthcoming volume in honor of my Ph.D. advisor at the University of Chicago, Wadad Kadi, I contributed a chapter on the construction of authority that considers how the fourth Islamic century Qayrawani Maliki jurist Ibn Abi Zayd al-Qayrawani constructed authority in his monumental al-Nawadir wa-l-Ziyadat, a collection of the legal opinions attributed to Imam Malik b. Anas as transmitted in sources other than the Mudawwana, the most famous book of Maliki jurisprudence. In that chapter, I analyze the positions that Ibn Abi Zayd includes in his book on two separate questions, the first being the rules governing judicial proceedings against an absentee defendant, and the second on the moral consequences of a judge’s decision.

My basic argument in the chapter is that while Calder’s distinction between apostolic authority and discursive authority is interesting, it is not a useful tool for dating legal texts insofar as it is possible for both kinds of authority to exist in parallel, as is unquestionably the case in the doctrines I analyze in my chapter.