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THE ORIGINS OF MUHAMMADAN JURISPRUDENCE By JOSEPH SCHACHT OXFORD AT THE CLARENDON PRESS Oxford UniversiV> Press, Walton Street, Oxford ox2 6oP OXPORD NEW YORK KUALA LUMPUR DELHI LONDON TORONTO OLASOOW MELBOURNE SINGAPORE JAKARTA BOMBAY NAIROBI CALCUTTA DAR U WELLINGTON HONG KONG MADRAS IALAAN TOKYO KARACIII CAPP. TOWN First published 1950 Reprinted r953, 1959, 1g67, and I975 First published in Paperback 1979 All rights reserved. No part of this publication ml!Y be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press British Library Cataloguing in Publication Data Schacht, Joseph The Origins of Muhammadan jurisprudence. 1. Islamic Ia w I. Title 340.5'9 (Law) 79-40261 ISBN 0-19--825357-5 Printed in Great Britain at the UniV«rsity Press, Oiford by Eric Buckley Printer to the University PREFACE HIS book is concerned with the origins of Muhammadan jurisprudence. I shall, of course, often have occasion to refer to examples taken from Muhammadan law, which is the material of Muhammadan jurisprudence. But the history of positive law in Islam as such, and the relationship between the ideals of legal doctrine and the practical administration of justice fall outside the scope of the present inquiry. The sacred law oflslam is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in the narrow sense) legal rules. In choosing the examples I shall concentrate as much as possible on the (properly speaking) legal sphere. This course not only recommends itself for practical reasons; it is also historically legitimate. For the legal subject-matter in early Islam did not primarily derive from the Koran or from other purely Islamic sources; law lay to a great extent outside the sphere of religion, was only incompletely assimilated to the body of religious duties, and retained part of its own distinctive quality. No clear distinction, however, can be made, and whenever I use the term Muhammadan Jaw, it is meant to comprise all th01;e subjects which come within the sacred law of Islam. I feel myself under a deep obligation to the masters oflslamic studies in the last generation. The name of Snouck Hurgronje appears seldom in this book; yet if we now understand the character of Muhammadan law it is due to him. Goldziher I shall have occasion to quote often; I cannot hope for more than that this book may be considered a not unworthy continuation of the studies he inaugurated. Margoliouth was the first and foremost among my predecessors to make more than perfunctory use of the then recently printed works of Shafi'i; in reviewing the field which is surveyed here in detail he came nearest, both in his general attitude to the sources and in several important details, to my conclusions. Lammens, though his T vi PREFACE· wntmgs rarely touch Muhammadan law and jurisprudence directly, must be mentioned in the preface to a book which is to a great part concerned with the historical appreciation of Islamic 'traditions'; my investigation of legal traditions has brought me to respect and admire his critical insight whenever his ira et studium were not engaged. In the present generation, Bergstrasser, with penetrating insight, formulated the main problems posed by the formative period of Muhammadan law and offered a tentative solution. Although my results arc rather different from those which he might have expected, I must pay homage to the memory of my late teacher who guided my first