Review of Studies in Early Muslim Jurisprudence

by Norman Calder
Book Reviewed
Book Title
Studies in Early Muslim Jurisprudence
Book Author
Norman Calder
Book Publisher
Oxf. U.P.
Place of Publication
Year
1993
ISBN
Book Review Citation
Review Author
Irene Schneider
Year
1995
Publication
The Journal of Religion
Volume
75
Issue
4
Pages
604-606
Publisher
Language
English
License
Select License
URL
Updated
September 27th, 2012
Abstract

The Journal of Religion

tradition as a classic instance of God assuring Muhammad of ultimate victory: "When comes the help of God, and victory, and thou seest men entering God's religion in throngs, then proclaim the praise of thy Lord, and seek His forgiveness, for He turns again unto men" (Arberry, trans.).

Similar instances occur throughout the quotations, especially from the Lqe. The survival of the one above in such a book as this is doubly baleful because of the odd light it casts on both the early biographies of the Prophet and the Holy Qur'an itself. One would have expected more sensitivity from the author. A final cavil has to do with the astonishing number of typographical errors, no doubt due to the unhappy but not infrequent combination of haste and spell checker. A second edition that takes into account the above problems is likely to be adopted by many university teachers of Islamic religion. TODD LAWSON,

McGill University.

CALDER,NORMAN.

Studies in Early Muslim Jurisprudence. Oxford: Clarendon Press, 1993. x+257 pp. $35.00 (cloth).

Norman Calder's aim in this new book is to investigate the history of earlyfiqh- literature in its social context. He is particularly interested in reconstructing the organic growth of these texts by examining their different layers. Thus, in the first six chapters he concentrates on the most important early juristic texts: the Mudawwana of Sahnfin (d. 240), the Muwatta' of Malik (d. 179) (recension of Yahya b. Yay%), the early Hanafi Texts, that is, the Asl, f;iuja and Muwaga' of Shaybani (d. 182), the Kita'b al-Umm of Shafi'i (d. 204), the Mukhtasar of Muzani

(d. 264), and the Kita'b al-Khara'j ofAbfi Yfisuf (d. 182). All these texts contain legal norms but should be seen in a theological context as Islamic law is derived from, and hence legitimized through, its divine origin.

More general remarks are made on the background of the fiqh-literature in chapters 7-9. Calder investigates the Islamic fiqh-literature in its literary form (chap. 7), normative content (chap. 8), and hermeneutic theory (chap. 9). The last chapter (10) is entitled "Transitions" and contains a synopsis of his results. He concludes that the end of the formative period and the beginning of the classi- cal period of Islamic jurisprudence is marked by the production of Mukhtasars (abridged manuals), authored texts, which came into existence in the fourth and fifth centuries Hijra.

Calder bases his argument on the assumption that the evolution of legal thought in Islam is marked by the increasing sophistication of legal reasoning on the one hand, and an increasing reliance on Prophetic hadfth as a source of law on the other. He thus accepts Joseph Schacht's theory about the development of Islamic law, as laid down in hisOrigins of Muhammadan Jurisprudence (1950), but dates this process later than Schacht did (p. 19). He carefully analyzes selected passages taken from the above-named texts and compares them with one another, on the basis of the assumption that those layers of the texts which either show rudimentary reasoning, or do not rely on Prophetic hadfth, are older than the ones based on sophisticated arguments and/or Prophetic hadfth.

Thus, for example, considering a passage from Shafi'i's Kita'b al-Umm, he ob- serves that the material from Shafi'i's pupil Rabi' shows "miserable rudimentary arguments" (p. 74) and must therefore be older, whereas Shafi'i's arguments are more sophisticated. He concludes that they cannot go back to Shafi'i but must have been added to the Kita'b al-Umm much later. For this reason. if we are to

Book Reviews

believe Calder, the Kitdb al-Umm does not contain much of Shafi'i himself. Fur- thermore, he claims, Shafi'i was not regarded as an outstanding jurist in his life- time but gained his fame only later.

Concerning the Malikite text, the Mudawwana, attributed to Sahnan, Calder argues that it presents precisely the characteristics which correspond to an older stage of the development offiqh-literature, because it does not often rely on pro- phetic hadfth. Comparing it with the Muwatta' of Malik, which is normally taken to be the oldestfiqh-text of all, he concludes that the Mudawwana of Sahnan is even older than the Muwatta' of Malik in Yahya's recension (pp. 21 ff.).

These conclusions are surprising. Until now it has been generally accepted that these texts were collected and edited by students of their alleged authors and contain the authors' sayings, as well as questions and comments by the students. Calder dates the origins of these texts not only later, to the third or fourth decades of the third century (p. 146), but, more significantly, he wants to prove that they contain little if any contribution from their alleged authors. The phrase "qdla" ("he said"), by which sayings of Malik, Shafi'i, and others are introduced, has, in his opinion, no significance in assessing the authenticity of attributions. Thus, he writes with regard to Shafi'i's Kitdb al-Umm: "Precisely that material in the Umm which is thought to be most characteristic of Shafi'i the jurist, namely the sophisti- cated exegetical argument based on explicitly adducted Prophetic hadfth, may be amongst the last lavers of material to enter the text" (D. 75).

" \1 1

Calder is open to the criticism that the fragmentary extracts he analyzes may not be representative of the compilations as a whole. Furthermore, his analysis remains restricted to the texts only, whereas one would have expected him to extend his observations more to the social context of transmission dealt with in chapter 7. Here he shows that early juristic reasoning was passed on, in the con- text of teaching, through different kinds of transmission, for example, that teach- ers carried at best only notebooks and the students either learned their lectures by heart or took notes. Authored books were not known at that time. Unfortu- nately, however, Calder fails to provide information on the teaching sessions of Malik, Shafi'i and others-that is, on how they passed on their materials, who attended their sessions, how the recensions of their works originated, and so on. (For Shafi'i, e.g., see Heinz Halm, Die Ausbreitung der Sdfi'itischen Rechtsschule von den Anfangen bis zum 8./14.Jahrhundert [Wiesbaden, 19741, pp. 15 ff.). Further- more, he ignores the very important contributions on this question in the second- ary literature (Fuat Sezgin, in his Geschichte des arabischen Schrzfttums [Leiden, 19671, 1:82 ff.; Gregor Schoeler, "Die Frage der schriftlichen oder miindlichen ~berlieferun~

der Wissenschaften im fruhen Islam," der Islam 62 [1985]: 201 ff., and, important for Calder's parallels to Jewish literature [p. 1951, Schoeler's "Mundliche Thora und Hadit: Uberlieferung, Schreibverbot, Redaktion," der Zs- lam 66 [1989]: 213 ff., and "Weiteres zur Frage der schriftlichen und mund- lichen Uberlieferung der Wissenschaften," der Islam 66 [1989]: 38-39).

Schoeler, for example, argues that as no authored books existed at that time, and as only notebooks were used, the topics of the lectures may have varied from one lesson to the other. Furthermore, as the students only reproduced the texts after the lessons were over, discrepancies were inevitable. These are only two reasons why different versions of the same text could have come into circulation (cf. Schoeler, "Die Frage der schriftlichen oder mundlichen Uberlieferung,"

p. 210). Furthermore, it must be taken into consideration that teachers may have improved their argumentation in subsequent sessions. Different levels of reason- ing in the texts could therefore be attributed to this improved argumentation of

The Journal of Religion

the teachers themselves and need not be seen as a result of later recensions. As Calder himself states, the casuistic and the generalizing styles are likely to have coexisted even in early periods (p. 5), and the scholar's notebook was always sub- ject to change (pp. 163, 173-74). So why should we not explain the different layers of the texts as arising out of the context of teaching and discussion during the lifetime of the authors?

Calder's results are stimulating for further discussion, but disappointing for those historians who expect firmer grounds in the first two centuries of Islamic law. We are sharply reminded that there is still no consensus even on the rough dating of the origins of thefiqh-literature. IRENESCHNEIDER,

University of Koln.

STEPANIANTS,

MARIETTA 
T. Sufi Wisdom. SUNY Series in Islam. Albany, N.Y.: SUNY Press, 1994. 132 pp. $12.95 (cloth). 

Advertisements on the cover praise this study for its "distinctly Russian" approach to Islamic mysticism marked by "a profound sympathy for the sources." Neither is true. What the reader finds is a typical Soviet view of religion based largely on secondary (Western) sources. Structurally the book includes four unrelated essays on what the author sees as the major issues of Islamic mysticism: the doctrine of unity of being, Sufi esotericism, Sufi concepts of divine authority and human free will, and Sufism and modernity. These are followed by the conclusions culled from two Ph.D. dissertations on Sufism supervised by the author. A Russian ver- sion of this book, published in 1987, was, in the author's own words, "not free from some ideological clichCs of bygone times" (p. 7). These clichCs, however, persist in the English translation. Throughout, Marx, Engels, and Lenin are cited as major authorities on the study of religion (e.g., on pp. 66, 89, 11 1-12, 118, and bibliography) and even defended against their dogmatic interpreters (pp. 3-4). Wittingly or not, the author applies Marxian methodology to her sub-

ject in seeking to separate "progressive" tendencies in Eastern intellectual tradi- tions from those associated with the "reactionary" social classes and their learned backers. The author's entire discourse is informed bv this dichotomv. Over and over she seeks to bring out the "progressive" potential of Sufism and to contrast it with the "doctrinaire" teachings of medieval Islamic theologians or modern "fundamentalists." And yet the author is painfully aware of Sufism's ideological "shortcomings" (quietism, social passivity, manipulation of the murids by the shaykhs, etc.), which are implicitly denounced.

The book raises many important issues related to Islamic mysticism. Unfortu- nately, its author is ill-equipped to resolve them due to serious gaps in her Islamo- logical and philological training. Unable to read primary sources, she has to rely on secondary scholarly literature and Western translations of Islamic sources, the choice of which leaves much to be desired. Thus, in her analysis of Ibn al-'Arabi's thought-which purports to be one of her main concerns-the author uses Titus Burckhardt's translation of the Fusq al-hikam which is dated, incomplete, and moreover itself translated from French. Al-Hallaj's theosophical paradoxes are translated from Louis Massignon's French rather than the original Arabic text available in critical editions. More irritating are the author's amateurish forays into the field of Islamic studies. Thus, she explains hadith qudsi (i.e., an apocryphal statement attributed directly to God but not included in the Qur'an) as "a 'sacred' hadith, the authority of which is asserted by Sufis only" (p. 17). In another pas-

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