Origins and sources of Islamic legal canons

Islamic legal canons appeared right at Islam’s inception and circulated during the ‘founding period’ of the seventh to tenth centuries, and their influence and reach expanded thereafter in central Islamic lands.

1.1 Textual sources: Qur’an and hadith

Some Islamic legal canons are present in the text of the Qur'an itself. The Qur’an is the primary source for Islamic law, even though its law-related verses are a minor portion of the full text. Of some 6,000 verses, only about 500 have explicitly legal content. Of those, most deal with ritual law and acts of devotion, such as rules for prayer and pilgrimage. That leaves approximately 190 verses that address non-ritual aspects of law.⁶ Some of those verses spec­ify what later scholars took to be legal canons. For example, one verse commands Muslims to ‘honor all contracts’.⁷ Jurists treated that statement as a legal canon governing the law of contract and financial transactions.⁸

Islamic legal canons are also present in the corpus of hadith reports.

While it is significant to note that not all of the reports verifiably go back to the Prophet, and that some are attributed to him only after the founding period — neither of these facts stymied the use of legal canons. Put differently, the authenticity of a prophetic attribution did not determine the authoritativeness of a legal canon during the founding period. The requirement of chains of transmission (isnad) linking the Prophet to the articulation of a canon as a measure of authenticity was a feature of textualism that came much later in the development of Islamic law — around the fourth century, at the end of the founding period. Moreover, the need for documenting and authenticating a proper chain of transmission to verify the textual-genealogical provenance of hadith reports did not always apply to legal canons during the founding period. In short, questions of textual authenticity for canons became something of a textualist preoccupation long after the early period in which canons were in regular use.

Were these canons, then, a part of the Sunna? Jurists after the founding period concerned with questions of origins and authenticity sometimes attributed these canons, as otherwise unattributed legal opinions, to the Prophet directly — likely reasoning that they were his word or rational corollaries to it. It is in this way that some legal canons came to be consid­ered foundational texts.¹⁴

1.2 Interpretive sources: consensus and legal reasoning

The second two sources of Islamic legal theory are interpretive, in that they help jurists de­termine which rulings are authoritative; and the legal canons follow this division. The first interpretive source is ‘consensus’, by which early Muslim jurists designated authoritative rul­ings by reference to the view of a majority view on an issue not covered by the foundational texts or on which there was more than one opinion circulating. In step with this notion, a set of Islamic legal canons express a ‘consensus’ (or majority agreement) ofjurists on interpretive rules to resolve contested issues that Islam’s foundational texts alone did not clearly resolve. We can call these interpretive rules ‘consensus canons’.

Some examples of consensus canons, or agreed-upon interpretive rules, are in order. A key consensus canon is the plain meaning canon, directing judges and jurists to ‘make no inter­pretation in the face of clear text’.¹⁵ This canon required judges to apply the plain meaning of foundational texts (ostensibly the Qur'an and hadith reports, but in practice, also many more norms and rulings that came to be regarded as foundational and therefore as texts).

In contrast to the restrictive import of the plain meaning canon, other consensus canons of­fered jurists considerable leeway in interpreting the foundational texts, however expansive they came to be. The no harm canon, contractual condition canon and doubt canon are examples of such in­terpretive consensus canons. In the face of significant ambiguities, these canons provided judges and jurists with tools to resolve questions of when harm is permissible, whether particular contractual stipulations are valid, and whether and how state officials were to enforce or avoid criminal punishments. Muslim writing after the founding period, when these consensus can­ons were widely used, attributed these canons to the Prophet, turning them into texts as well.¹⁶

The second interpretive source is legal reasoning, and refers to varied types of reasoning — from analogy (for Sunnis) to practical reasoning (for Shi’is). The lion’s share of legal can­ons were not products of consensus, but represented these varied types of legal reasoning. Formally, Sunni jurists accepted only text-based analogical reasoning, while Shi'i jurists appealed to practical reasoning and rejected analogy.

Alongside consensus canons, these ordinary canons typically serve as gap-filling rules, de­signed to guide interpretation when the text runs out. For example, jurists might use them to resolve an important question of substantive law: whether the Islamic law of contract recognizes local exchange transactions as valid sales despite their divergence from ordinary Islamic contract forms and despite silence on the issue in the foundational sources. The custom canon addresses that scenario: it specifies that ‘custom has legal authority’ in the absence of a relevant text. This canon — sometimes together with a contractual condition canon — affirms the validity of local forms of exchange transactions and accompanying conditions or implied rights.¹⁹ Other gap-filling canons are interpretive rules, such as the canon against superfluity instructing jurists and judges that ‘giving meaning to a text is better than rendering it superfluous’.²⁰ The sources I have examined show how these and other legal canons significantly shaped juristic and judicial interpretation in Islamic law, both mirroring and expanding the foundational sources of Islamic law.

1.3 Extrinsic sources: procedural and societal norms

Not all canons come directly from Islamic law’s textual or interpretive sources, even in cases in which the tradition maintains that they otherwise should.

1.3.1 Judicial practice: precedents and procedures

Judges and jurists expressed many precedents and procedures in Islamic law through le­gal canons elaborated through judicial practice, common-law style. For instance, the central-most organizing principle for classical sharl'ah courts is the evidence canon, allocating burdens of proof: ‘the claimant has the burden of proof, and the respondent may swear an oath of denial’.²¹ To be sure, virtually all jurists attribute this canon to the Prophet Muhammad (as part of a longer statement in one of the decisions from his own judicial practice). But — as was typical for legal canons — various legal actors filled out the contours of this skeletal rule through judicial practice and juristic deliberation in ways that far out­stripped any explicit prophetic directive. To be sure, to say that judges and jurists elaborated legal canons through judicial practice is not to say that the canons did not have roots in early practice or even statements of the Prophet or other early authorities in the understanding of these same canon-elaborating interpreters. But it is to say that they later came to conceive of legal canons as drawing on elements from early Islamic history as well as elements arising from the later history of Islamic legal interpretation and judicial practice.

In a similar vein, the single most important procedure for deciding criminal cases is the doubt canon. This canon requiring judges to ‘avoid criminal punishments in cases of doubt’ emerged and expanded through judicial practice as well.²² As detailed at length my book, Doubt in Islamic Law, the doubt canon also reflected value-laden forms ofjudicial authority and morality.²³ Judges used the canon at times in opposition to, or in cooperation with, political rulers; and in some instances the canon reflected moral anxieties about harsh punishments. For example, in an eighth-century episode of its use, the prominent Abbasid judge and jurist Abu Yusuf reportedly relied on the doubt canon to absolve the caliph’s son of punishment for a sex crime.²⁴ He also ad­vised the caliph to apply the doubt canon more broadly in a treatise written to provide guidance on taxation and other areas of public law over which the caliph wielded authority (including criminal law).²⁵ Like many procedural canons, the doubt canon was not known as a hadith during the founding period, but rather it became a hadith text in the eyes of later jurists keen on adducing textual supports for their claims. The doubt canon was nevertheless authoritative as a basis for deciding cases of criminal law and changed dynamicallyn throughout Islam’s history.²⁶

All of these canons proved central to the definition and construction of early Islamic law and procedure.²⁷ What is important to note is that, regardless of textualist claims, the mean­ing and application of these canons, and thus the meaning and application of the Islamic law of procedure, often came from common law-like judicial practice.

1.3.2 Practical principles: presumptions and governance norms

Within the first two centuries of Islam’s advent, the small community formed during the Proph­et’s time quickly spread from Medina to towns in places as far-flung as Iraq, Iran and Central Asia to the east, and as far as Andalusia and Sicily to the west. As new cases and controversies arose, so did legal canons suited to serve the changing needs of a rapidly expanding community.

Hanafi jurists led the development of legal canons literature.²⁸ Abu Hanifa’s disciple Muhammad al-Shaybani, for example, announced that ‘every matter made permissible by ownership or marriage cannot be made impermissible except by dissolution of ownership or marriage’.²⁹ His statement was a canon giving form to a general standard for determining the law of social relations and transactions, and it aligned with a general presumption of permis­sibility, stipulating that ‘transactions are presumed permissible’.³⁰ Both of these formulas are examples of reason-based presumptions used to render Islamic law operable, packaged in the form of legal canons.

As another example, Abu Yusuf, operating in the same Hanafi circle, generated a le­gal canon to allocate power between judicial and political authorities. This canon accorded authority over ‘discretionary penalties to the caliph in proportion to the seriousness of the crime or lack thereof’, as determined by judges or jurists in individual cases.³¹ During the reign of the caliph Harun al-Rashid in the eighth century, Abu Yusuf had debated vigor­ously with fellow Hanafi jurists about the permissible scope of discretionary penalties. Some of these jurists set the upper limit of punishment at less than the lowest fixed criminal law penalty of 40 lashes, some at up to 75 lashes, and some at no cap all.³² AbU YUsuf’s canon merely represented his stance on the issue. The canon did not itself resolve the debate with a rule, but rather, it provided judges and jurists with a standard to address problems of punish­ment in novel, individual cases.³³ Abd Yusuf’s statement is a good example of a governance canon — a principle by which he as a jurist allocates power among Islam’s rather diffuse insti­tutional actors. On its face, the canon confers power on the political authorities to determine the extent of discretionary punishments. But the jurist generating and applying the canon has assumed the power to make that very power-allocating determination.³⁴

The founding figures from the other schools oflaw — Sunni and Shi' i schools alike — developed myriad other legal canons based on the practical needs of adjudication. The legal treatises writ­ten by Shaffi, Malik, Abu Hamfa’s associates, and Ibn Hanbal, as well as Abu Dawud, and all of their disciples are replete with legal canons. For instance, Shafi'i’s Kitab al-Umm includes 30—50 legal canons, and Malik includes a sizeable number in his Muwatta ’.³⁵ Similarly, legal canons are abundant in early Shi'i law, especially from collections of reports and notebooks attributed to the disciples of the Prophet as well as to 'All, Ja'far al-Sadiq and other Imams.³⁶ These works all include several of the most widespread canons — such as the previously mentioned no harm canon, the evidence canon and the doubt canon — which are thus on display as playing an instrumental role in the definition and construction of Islamic law during its founding period.

1.3.3 External borrowing: regional and foreign law norms

In addition to legal canons that originated in judicial practice and practical need among the Muslims of the Hijaz, Iraq and surrounding lands, other canons may have had regional origins in the Late Antique Near Eastern or Roman laws that governed before the people of the region became ‘Muslim’.³⁷ One such canon is the paternity canon, which assigns paternity to a husband for offspring from marriages in the following formulation: ‘the child belongs to the [marital] bed: al-walad li-l-firash’. The meaning and origin of this Islamic canon are much debated, but it correlates with a well-known Roman canon: ‘pate rest quem iustae nuptiae demonstrant: The father is he who is married to the mother’.³⁸ Joseph Schacht, a leading scholar of Islamic law as a relatively new field for early 20th-century America and Europe, hypothesized that the correla­tion between the two canons (he calls them ‘legal maxims’ — following earlier, now displaced, usage in English-language scholarship on Roman law alongside English and American law³⁹) implied causation and concluded that Muslims borrowed the canon from Roman law.⁴⁰ In so saying, he ignited heated scholarly debate on the possible origins of this ‘Islamic’ canon. Some scholars argued that Schacht’s theory of Roman law-borrowing was unlikely, even if formally possible.⁴¹ Others suggested that the Islamic version of the canon originated in pre-Islamic Arabian law or came from a Jewish law principle in the Babylonian Talmud.⁴² Perhaps most notably, one scholar asserted that the canon was sui generis ‘Islamic’, on the grounds that it deliberately opposed pre-Islamic Arab norms for paternity disputes.⁴³ Notwithstanding correla­tions between the Islamic paternity canon and others, it was not Jewish or Roman law norms that would have been circulating in seventh-century Mecca, which was rather isolated. In­stead, he demonstrates that Arab norms were circulating, where judges evaluated physiognomy rather than marriage to determine paternity.⁴⁴ The Islamic norms came to oppose the Arab ones.⁴⁵ To this day, scholars debating the issue have not arrived at a definitive conclusion about the origins of Islam’s paternity canon. However, the debates confirm that jurists used the canon during the first century of Islam’s history and that (as with the doubt canon) they later regarded it as a hadith — attributing it to the Prophet likely to bolster its authority and use as a legal canon.

It stands to reason that some Islamic legal canons originated in local norms. That much is consistent with other features of law and governance now regarded as Islamic. For example, other historians have identified governance structures that Islamic law absorbed as the em­pire spread.⁴⁶ They have also highlighted various judicial rulings and juristic opinions that are only explained by the weight that local customs bore on the construction of and diver­sity within Islamic law. In that vein, they have identified arguments internal to Islamic law that support the use of custom in resolving questions of Islamic law — in fact best expressed through a universal custom canon: ‘custom has legal authority’.⁴⁷ Yet to determine when and from where Islamic law may have borrowed specific legal canons from Roman, Sassanian or Near Eastern norms requires more work.⁴⁸

Canons that come from various types of legal reasoning and from other extratextual sources serve as gap-filling presumptions, tie-breakers, or clear statement rules — all designed to guide interpretation when the text runs out.⁴⁹ This first section has classified these canons according to their textual and extratextual origins, whether explicit or implicit. The next section classifies them according to their functions.

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