Legal Theory

Chapter 2
Legal Theory


After this rather short but necessary historical overview attention now turns to the legal theories of Islamic, Jewish and Zoroastrian law in order to distinguish historical reality from theoretical postulations of legal theory. In doing so, this chapter first discusses the underlying principles of the legal systems, followed by conclusions which compare postulations of jurisprudence with the findings of modern legal history.


Jewish and Islamic Law


As seen in the previous chapter, the formation of an autonomous Jewish kingdom had no reality after the return from Babylonian captivity. What Jews could realize for themselves was a limited autonomy within the framework of the Achaemenid Empire. The house of David, however, symbolized the independent kingdom, the restoration of which was an impossible end to achieve. As argued by Freedman, Ezra therefore reorganized the Jews around Moses, another outstanding hero of Jewish history whose name was not linked to the monarchy and hence was acceptable to both the Jews and the Persian authorities. Obviously, traditions related to Moses were not the work of Ezra because they go back centuries. At the same time, by shifting the focus from David and the kingdom to Moses and his work Ezra ensured a new cohesive force for Jews now living within the boundaries of the Persian Empire. As a result, society was no longer organized around the state and its head in a single political community, but by law related to Moses and known by divine revelation. Thus the laws of Moses did not go back to Moses the lawmaker as a king (he was never referred to as king) but to Moses the mediator of law (‘a prophet’), since the origin of norms is ultimately divine revelation. Here the idea of the covenant which created an alliance between God and His people is of importance because it makes obedience to God necessary. Yet obedience to God is not to be separated from obedience to the revealed legal norms for which state and its institutional structure is not a necessary precondition. As a result of Ezra’s work the historical aspect survived (David and his house continued to be a dynasty enjoying great authority and ultimately the Messiah would also come from his house), but was pushed into the background and the legal aspect came to the foreground. The observance of law which was learned through Moses ensured the covenant with God.1


As a result, already existing norms acquired divine legitimacy and became a new cohesive force to the community. These norms were either part of customary law going back centuries or were introduced by legislation during the monarchy, when the king had the right to legislate. In other words, legal norms were linked to Moses later and the assumption that the laws of Moses were known in their present form in that period is a historical anachronism,2 although it shares common topics (e.g. the goring ox) and rules with the major law collections of the Ancient Near East.3


As the turning point in Jewish law was the activity of Ezra, so the beginning of a new understanding of Islamic law could be linked to the name of al-Shāficī, a process which Rainer Albertz called ‘die Theologisierung des Rechts’ in respect of Jewish law. Although al-Shāficī made every effort to prove the divine sanction of the prophetic traditions and to show that legal rulings were formulated either on the Qur’ān or on the sunna, just the opposite happened. To put it differently, legal norms historically precede the Prophet’s sunna, yet theoretically they derive from it. In fact we are facing a subsequent theologization of an already existing corpus of norms in which the key element is the norm’s relationship to the sunna: if a norm is based on a prophetic sunna it is regarded a rule of Islamic law, irrespective of its origin. Thus, sunna guarantees the validity of a great number of already existing rules, while in terms of historical reality it is not their source.


The theologization of law was a long process surrounded by debates among Muslim scholars for centuries. The work of al-Shāficī had almost no influence in his own age and his contemporary, Ibn anbal, branded the work of al-Shāficī as not even worth reading.4 It was unacceptable to the traditionalists because he allocated a significant role to the set of rational arguments; at the same time the rationalists did not support him either because of his basic tenet about the central role of the sunna and the secondary nature of rational argumentation compared to it. In the decades following his death no commentaries were written to his work. It is important because respect and acceptance of a work were manifested in commentaries written by members of the subsequent generations. By contrast, lack of such works was a tacit sign of dismissal. Moreover, he had only a handful of followers and few of his disciples remained faithful to him. One century later, however, we can witness just the opposite happening. He was referred to as the founder of legal theory, the number of his followers increased rapidly, his works were copied in numbers and commentaries were written on them. Thus there was a fundamental change in the assessment of al-Shāficī within one century. The reason, according to W. B. Hallaq, was the change in the intellectual environment: while the debate between the rationalists and traditionalists was under way, no one paid attention to the intermediate theory of al-Shāficī. As the debate was resolved in favour of the traditionalists, yet at the same time extreme traditionalism was pushed to the background, the almost forgotten theory of al-Shāficī stressing a synthesis of rationalism and traditionalism was discovered: a compromise of the two major camps, with greater emphasis on tradition. The work of Ibn Surayj, one of the greatest scholars of the Shāficīte school, also contributed to this development which significantly promoted interest in al-Shāficī and his understanding of uūl al-fiqh. Thus both intellectual movements and the work of outstanding scholars contributed to making al-Shāficī one of the most outstanding authors of jurisprudence in the ninth century.5


Norman Calder has found another explanation. According to him all the works written by the most eminent figures of the early period of Islamic law (Sanūn: Mudawwana; Mālik: Muwaa’; al-Shāficī: Kitāb al-Umm; Muzanī: Mukhtaar; Abū Yūsuf: Kitāb al-Kharāj) were produced continuously by handing down texts and by textual inserts of later generations (‘organic process’). Therefore, these texts cannot be linked to persons who are indicated as authors of those works. This process can be observed in relation to the work of al-Shāficī, too: the theory of law by which he became famous was inserted later and the work known now is the product of the Shāficīte school, probably around 300 AH.6


For legal historians it is evidently an important question when and under what historical circumstances the theory linked to the name of al-Shāficī emerged; but currently what matters is that the sources of Islamic law were defined by a post-event theologization of an already existing corpus of norms – a theory that was attached, wrongly or not, to an outstanding legal scholar. Studying these sources was the task and privilege of the legal scholars and, therefore, Islamic law was further elaborated by men of learning and not by law making. Thus, Islamic law evolved as a jurists’ law, as Schacht correctly observed.7


The summary of the achievements of both al-Shāficī and Ezra – or, properly speaking, theories attached to their names – is the posterior divine legitimization of already existing norms of customary origin on the authority of a prophet accepted by all. Though historical circumstances were different and, consequently, different motivations were behind this intellectual achievement, the final outcome is the same in both legal systems. As a result, law moved to a central position in religious life as a set of norms which leads the believers to God and guarantees the maintenance of the covenant, provided obedience to God and His laws is observed. As a result, studying law became the most eminent activity and those who devoted their entire life to it shared their prestige with that of their subject. It is small wonder that in such an intellectual environment other subjects (like philosophy) were pushed into the background.


Jewish law has a different attitude to revealed norms than Islamic law. Jewish law differs from its Islamic counterpart in two issues: it acknowledges the possibility of legislation within a limited sphere (takkanah); and distinguishes between written and oral law. The possibility of legislation was ensured by a distinction between norms dealing with ritual issues (issura’) and those of social coexistence (mamōna’). Obviously a clear-cut caesura cannot be drawn between these two areas, yet the acknowledgement of the relative autonomy of these fields resulted in two consequences. First, legislation in the field of mamōna’ was accepted and manifest while it had only a marginal role in ritual law. Second, within these two areas of law different principles were asserted and, therefore, no inferences could be drawn from the norms of social coexistence to the norms of ritual law and vice versa.8 Yet the rightfulness of legislation posed a question to Jewish legal scholars and there was disagreement among Rabbis concerning rabbinic legislation. But independently of theoretical disputes they did not accept rabbinic legislation only as a mere possibility but put it into practice, proven by innumerable pieces of takkanah (gezerah) from Antiquity to this day.9


Oral law (Torāh shebecal peh) is not oral because it was not committed to writing; here writing reflects the Bible, therefore oral law is every norm that cannot be found in the Bible. Consequently rules in the Mishnah and the Talmūd qualify as oral law just as much as interpretation or the corpus of rules produced by takkanah

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