Persian theologians carried their inherited views into the new religion they had adopted, the conquering power enriched the poverty of its own religious store with elements supplied by the experience of a profound religious life, such had been a native growth among the conquered Persians from of old. Hence it is hardly possible to overestimate the importance of the part played in the development of Islam by the spiritual movement which came to birth in ’Irak and is associated with the schools of Bacra and Kufa. In analysing the elements of which Islam is composed we are not surprised to find many of Persian origin, the outcome of this connection.[43]
These influences are brought into fullest play by the great revolution which befel the Moslem empire in about the hundred and twenty-eighth year of its existence—the fall of the Omayyads and the usurpation of the sceptre of the caliphs by the Abbasids. The worldly spirit which had guided the policy of the fallen dynasty—a spirit genuinely Arab, devoid of any real comprehension of the religious aims and the transcendental interests of Islam—now makes way for a theocratic bias, which drew its ideas in the main from the character of the Persian “divine monarchy.” It is the Sassanid spirit in an Islamite garb. The indifferentism of the ruling powers gives place to the encouragement of religious tendencies. The religious tolerance of earlier days is at an end. Sectarianism, pietism, harsh dogmatism, and, linked with them, the persecuting spirit—are the dominant notes of public life. Disputations concerning matters of religion impress their characteristic stamp upon the intellectual tendencies which find favour in high places. Opposing religious parties come into the field and frame their subtlest arguments.
Moreover, this was the opportune moment for working up into practical juridical systems the suggestions in the department of jurisprudence derived in earlier days from Roman law. In the second century of the Hegira, Islamite jurisprudence enters upon the classic period of its efflorescence and completion. The scene of its glory is the scholarly world of Mesopotamia, which sheds its rays upon every quarter of the Mohammedan empire. Even such advances in the sphere of law as come to light outside this birthplace of systematised jurisprudence are the fruit of the intellectual movement on the soil of the ancient empire of Persia. And even the demonstrations of antagonism to the aspirations which took shape there (for it aroused tremendous opposition) are affected by its influence.
Abu Hanifa (699-767) of Kufa, the grandson of a Persian, is recognised in Islam as the father of that jurisprudence which, by the employment of the free speculative method already described, found ways and means to make provision for the whole vast sphere of legal activity (which includes both law and religious ceremonial) out of the scanty stock of positive legal documents. This completion of the legal system of Islam was arrived at by laborious development along the lines of its main principles, by modification of the method evolved in some particular school, by open contravention of the fundamental ideas of some particular tendency, and, lastly, by deliberate compromise between antagonistic lines of thought. It was reached with a rapidity which is characteristic of all the intellectual creations of Islam. It is a singular feature of the whole literature of Islam that everything reaches its prime with amazing rapidity, only to decline as rapidly. In the fourth century of the Hegira every branch of Arabic literature had come to full maturity, to flourish for a brief while, and enter upon its period of decadence about the beginning of the sixth.
By the end of the third century (ninth century A.D.) jurisprudence had reached its classic prime. Leaving out of account some other heads of schools who soon retire from the scene, there are four men in particular to whom it does honour as to its founders and fathers, four men whose disciples represent the main currents which flow side by side through the construction of Islamite law: (1) Abu Hanifa (died 767), the true representative of the ’Irak method; (2) Malik b. Anas (died 795), the most celebrated imam in the prophet’s city of Medina; (3) Mohammed b. Idris al-Shafii, a pupil of the latter (died 820), most famous for his educational work in Egypt, where his sepulchral chapel (in the Karafa at Cairo) is reverenced by the natives as a place of pilgrimage; and (4) Akhmed b. Hanbal (died 855), the pious teacher of Baghdad, the principal champion and valiant apostle of the old conservative views in religion, whose tomb in the Harbiah graveyard at Baghdad has, in the phrase of Guy l’Estrange, the writer of the monograph on the ancient city of the caliphs, “become the object of a devotion savouring of idolatry.”
The views which have been enumerated, borrowed from the method of legal deduction in Roman law, were not employed to the same extent by all schools of jurisprudence. While in that of Abu Hanifa the validity of the opinio goes so far as to accord recognition to the personal inclination of the administrator of the law, other schools were not disposed to give such free scope to the subjective judgment. The principle of istiçhab (præsumptio) was most fully recognised in the school of Shafii; that of regard for the public weal (istiçlah) in that of Malik.
In the erudite world which busied itself with the theoretical exposition of the law there were, however, large bodies of scholars, who took up their parable to proclaim that, generally speaking and on principle, they could not profess to recognise principles of method which depended for their authority on the subjective work of the human reason. They would recognise two things only as the sole basis of legal deduction—Scripture and tradition; that is to say, the Koran and the traditions or positive decisions of the prophet, his companions and their successors, of whom it could be safely assumed that they had acted and given judgment in the spirit of the founder of the faith. Only in cases of extreme necessity, and when these authoritative sources obstinately refused to yield an answer, was it lawful to admit the authority of ra’j (opinio), or more particularly, of kiga (analogy). These latter were “like the vulture, the eating of which was permitted as an exception in time of dearth when other food could by no means be obtained.” Under normal circumstances it was not permissible to reason; the only right course was to abide by the letter of tradition, since nothing outside of that could be set on a par with it. Truth manifests itself not in answer to the question “What is reasonable?” but in answer to “What did the prophet say and how did he act?”
Here we find ourselves face to face with the idea of the sunna which had come down from the Arabs of old (the idea explained at the beginning of this article), in its most rigid form, but with this difference—that the sunna, as now understood, does not look back to a remote antiquity but to a very recent past. The genuine sunnist only feels solid ground beneath his feet when he can base his judgment and conduct on the authentic text, or on well-accredited tradition concerning the words and deeds of the earliest authorities recognised by the Islamite world. Of all the four schools, the Hanoblalite, the one founded by the youngest teacher, was that in which this rigid view found most favour. In modern times it has been brought into prominence as a principle of government by the puritanical state of the Wahabees, the “Tempelstürmer von Hocharabien,” as they are called by Karl von Vincenti in a historical novel in which he describes their proceedings.
It is, however, an easy thing to say, “Tradition and nothing but tradition!” But what if, with the best will in the world, no answer can be wrung from tradition to the most pressing questions of ordinary life? The judge must give judgment; the shepherd of souls must lay down rules for his flock on questions which hourly crop up for decision in a state of life ordered by religious laws in even the most trifling details; and in doubtful cases the mufti must be able to expound the meaning of the divine law with no uncertain voice. What, then, if Scripture and tradition be dumb, and no effort can draw forth the least enlightenment from them? Where all the sources of tradition ran dry, men had to make concessions, whether they would or not, to individual opinion and the right of speculative interpretation. This led to the rise of a school of thought which endeavoured to reconcile the two sharply antagonistic tendencies. It was absolutely necessary to discover a middle course between excessive subjectivism and rigid traditionalism, and to define accurately the juridical spheres of the two conflicting elements. It was necessary to discover rules, in accordance with which speculative methods might be used to supplement tradition in the work of legal deduction, and to set up standards for the right use of traditional data in the correct formulation of the law. This work of reconciliation was done by the founder of the second school on the list, at Shafii.