"is grounded on the general accord of the Companions and their followers." The election of Abu Bakr to the Khalifate is called Ijmá'-i-Ummat, the unanimous consent of the whole sect. The Companions of the Prophet had special knowledge of the various circumstances under which special revelations had been made; they alone knew which verses of the Qurán abrogated others, and which verses were thus abrogated. The knowledge of these matters and many other details they handed on to their successors, the Tábi'ín, who passed the information on to their followers, the Taba-iTábi'ín. Some Muslims, the Wahhábís for example, accept only the Ijma' of the Companions; and by all sects that is placed in the first rank as regards authority; others accept that of the Fugitives' who dwelt at Madína; and there are some amongst the orthodox who allow, as a matter of theory, that Ijma' may be collected at any time, but that practically it is not done because there are now no Mujtahidín. The highest rank a Muslim Theologian could reach was that of a Mujtahid, or one who could make an Ijtihád, a word which, derived from the same root as Jihád (a Crescentade), means in its technical sense a logical deduction. It is defined as the "attaining to a certain degree of authority in searching into the principles of jurisprudence." The origin of Ijtihád was as follows:-Muhammad wished to send a man named Mu'áz to Yaman to receive some money collected for alms, which he was then to distribute to the poor. On appointing him he said: "O Mu'áz, by what rule will you act?" He replied, “by the Law of the Qurán.” "But if you find no direction therein ?" "Then I will act according to the Sunnat of the Prophet." "But what if that fails ?" "Then I will make an Ijtihad and act on that." The Prophet raised his hands and said, "Praise be to God who guides the messenger of His Prophet in what He pleases." This is considered a proof of the authority of Ijtihád for the Prophet clearly sanctioned it. 1. Mudárij-un-Nabuwat, p. 1009. When the Prophet was alive men could go to him with their doubts and fears: an infallible authority was always present ready to give an inspired direction. The Khalífs who succeeded the Prophet had only to administer the Law according to the opinions which they knew Muhammad had held. They were busily engaged in carrying on the work of conquest; they neither attempted any new legislation, nor did they depart from the practice of him whom they revered. "In the first days of Islám, the knowledge of the Law was purely Traditional. In forming their judgments they had no recourse either to speculation, to private opinion, or to arguments founded upon analogy." However, as the Empire grew, new conditions of life arose, giving rise to questions, concerning which Muhammad had given no explicit direction. This necessitated the use of Ijtihád. During the Khalifates of Abu Bakr, Omar, Osmán and 'Alí-the Khulafai-Ráshidín, or the Khalífs who could guide men in the right way, the custom was for the Faithful to consult them as to the course of action to be pursued under some new development of circumstances; for they knew as none other did the Prophet's sayings and deeds, they could recall to their memories a saying or an act from which a decision could be deduced. In this way all Muslims could feel that in following their judgments and guidance they were walking in the right path. But after the death of 'Alí, the fourth Khalíf, civil war and hostile factions imperilled the continuance of the Faith in its purity. At Madína, where Muhammad's career as a recognised Prophet was best known, devout men commenced to learn by heart the Qurán, the Sunnat, and the analogical judgments (Ijtihád) of the four Khalífs. These men were looked up to as authorities, and their decisions were afterwards known as the 'Customs of Madína.' It is not difficult to see that a system, which sought to regulate all departments of life, all developments of men's ideas and energies by the Sunnat and analogical deductions 1. Prolégomènes d'Ibn Khaldoun, vol. ii. p. 469. therefrom, was one which not only gave every temptation a system could give to the manufacture of Tradition, but one which would soon become too cumbersome to be of practical use. Hence, it was absolutely necessary to systematize all this incoherent mass of Tradition, of judgments given by Khalífs and Mujtahidín. This gave rise to the systems of jurisprudence, founded by the four orthodox Imáms, to one or other of which all Muslims, except the Shía'hs, belong. These Imáms, Abu Hanífa, Ibn Málik, As-Shafi'i and Ibn Hanbal were all Mujtahidín of the highest rank. After them it is the orthodox belief that there has been no Mujtahid. Thus in a standard theological book much used in India it is written: "Ijmá' is this, that it is not lawful to follow any other than the four Imáms." "In these days the Qází must make no order, the Muftí give no fatvá (i.e. a legal decision), contrary to the opinion of the four Imáms." "To follow any other is not lawful." So far then as orthodoxy is concerned, change and progress are impossible." Imám Abu Hanifa was born at Basra (A.H. 80), but he spent the greater part of his life at Kúfa. He was the founder and teacher of the body of legists known as 'the jurists of Irák.' His system differs considerably from that of the Imám Málik who, living at Madína, confined himself chiefly to Tradition as the basis of his judgments. Madína was full of the memories of the sayings and acts of the Prophet; Kúfa, the home of Hanífa, on the contrary, was not founded till after the Prophet's death and so possessed none of his memories. Islám there came into contact with other races of men, but from them it had nothing to learn. If these men became Muslims, well and good: if not, the one law for them as for the Faithful was the teaching of Muhammad. Various texts of the Qurán are adduced to prove the correctness of this position. "For to thee have we sent down the book which cleareth up every thing." (Súra xvi. 91) "Nothing have we passed over in the book." (Súra vi. 38.) "Neither is there a grain in the darkness of the earth nor a thing green or sere, but it is noted in a distinct writing." (Súra vi. 59). These texts were held to prove that all law was provided for by anticipation in the Qurán. If a verse could not be found bearing on any given question, analogical deduction was resorted to. Thus: "He it is who created for you all that is on earth." (Súrații. 27). According to the Hanifite jurists, this is a deed of gift which annuls all other rights of property. The 'you' refers to Muslims. The earth may be classified under three heads :-(1) land which never had an owner; (2) land which had an owner and has been abandoned; (3) the person and property of the Infidels. From the last division the same legists deduce the lawfulness of slavery, piracy and constant war against the unbelievers. To return to Abu Hanífa. He admitted very few Traditions as authoritative in his system, which claims to be a logical development from the Qurán. "The merit of logical fearlessness cannot be denied to it. The wants and wishes of men, the previous history of a country-all those considerations, in fact, which are held in the West to be the governing principles of legislation, are set aside by the legists of Irák as being of no account whatever. Legislation is not a science inductive and experimental, but logical and deductive.”2 Imám Ibn Málik was born at Madína (A.H. 93) and his system of jurisprudence is founded, as might be expected from his connection with the sacred city, on the "Customs of Madína." His business was to arrange and systematize the Traditions current in Madína, and to form out of them and the "Customs" a system of jurisprudence embracing the whole sphere of life. The treatise composed by him was called the "Muwatta" or "The Beaten Path." The greater part of its contents are legal maxims and opinions 1. Journal Asiatique 4me série, tom. xii. delivered by the Companions. His system of jurisprudence, therefore, has been described as historical and traditional. In an elegy on his death by Abu Muhammad Ja'far it is said: "His Traditions were of the greatest authority; his gravity was impressive; and when he delivered them, all his auditors were plunged in admiration." The Traditions were his great delight. "I delight," said he, "in testifying my profound respect for the sayings of the Prophet of God, and I never repeat one unless I feel myself in a state of perfect purity," (i. e., after performing a legal ablution.) As death approached, his one fear was lest he should have exercised his private judgment in delivering any legal opinion. In his last illness a friend went to visit him, and enquiring why he wept, received the following answer: "Why should I not weep, and who has more right to weep than I? By Allah! I wish I had, been flogged and reflogged for every question of law on which I pronounced an opinion founded on my own private judgment."3 2 Imám As-Sháfa'í, a member of the Quraish tribe, was born A. H. 150. He passed his youth at Mecca but finally settled in Cairo where he died (A. H. 204). Ibn Khallikan relates of him that he was unrivalled for his knowledge of the Qurán, the Sunnat, and the sayings of the Companions. "Never," said Imám Ibn Hanbal, "have I passed a night without praying for God's mercy and blessing upon As-Sháfi'í.” "Whosoever pretends," said Abu Thaur, "that he saw the like of As-Sháfi'í for learning is a liar." Having carefully studied the systems of the two preceding Imáms he then proceeded on an eclectic system to form his own. It was a reaction against the system of Abu Hanífa. As-Sháfi'í follows rather the traditional plan of Ibn Málik. The Hanifite will be satisfied if, in the absence of a clear and a direct statement, he finds one 1. Ibn Khallikan's Biographical Dictionary, vol. ii. p. 594. 3. Ibid., vol. ii. p. 548. |