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The Origins of Muhammadan Jurisprudence download epub

by Joseph Schacht


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Origins of muhammad an. Jurisprudence. Muhammadan Jurisprudence in ch a pt e r i zi n g c e rt a i n. books

Origins of muhammad an. books. Schacht argues that the picture painted by Muslim scholars of the origins of Islamic law, "concealed rather than revealed the truth; and I trust that the sketch by which I have tried to replace it comes nearer to reality. If that is indeed the case, not only the early legal history of Islam but its early literary history as a whole would be demolished, and the honesty and integrity of almost all Muslim scholars of the early centuries would be called into serious question.

3 The Origins of Muhammadan Jurisprudence (book). 1 Argument and Method.

On Schacht's Origins of Muhammadan Jurisprudence (Islamic Texts Society). Later still, hadiths with isnads extending back to Muhammad came into circulation by traditionists towards the middle of the second century. Muhammad M. al-Azami. Finally, the efforts of al-Shafi& and other traditionists secured for these hadiths from the Prophet supreme authority. However, the development of prophetic tradition did not cease at this point.

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The origins of. Muhammadan jurisprudence by joseph schacht. PREFACE HIS book is concerned with the origins of Muhammadan jurisprudence. Oxford at the clarendon press. Oxford UniversiV Press, Walton Street, Oxford ox2 6oP OXPORD NEW YORK. 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.

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Comments: (2)

Urtte
Front cover claims ACLS History E-Book Project at University of Michigan, and the website listed is historyebook.com. The website is deeply suspicious ("cheaptextbooks dot com!") I cannot find this particular project in the University of Michigan's site. There does exist a HUMANITIES E-Book Project over there - I guess that's how these "historyebook" guys trick you.

I would give the book a 3/5 if it were a real book; but until we can verify that historyebook is legit (or at least was legit at the time), then please avoid this book.
Watikalate
This book is old, so might be available online as a free ebook or pdf.

Schacht's main concern is the origin of Islamic law, the shari'a, and particularly the role of al-Shaft in its development. This traditionist and legal theorist is thought to be responsible for champion¬ing the sunna - sunna specifically understood as the model behaviour of Muhammad as opposed to the `living tradition' of the Muslim community which might or might not claim to have such a direct connection to Muhammad. In so doing, Schacht discusses the process of development of hadith material (and hence its authenticity and chronology).
Schacht asserts that hadiths, particularly from Muhammad, did not form, together with the Qur'an, the original bases of Islamic law and jurisprudence as is traditionally assumed. Rather, hadiths were an innovation begun after some of the legal foundation had already been built. "The ancient schools of law shared the old concept of sunna or `living tradition' as the ideal practice of the community, expressed in the accepted doctrine of the school." And this ideal practice was embodied in various forms, but certainly not exclusively in the hadiths from the Prophet. Schacht argues that it was not until al-Shafi`i that `sunna' was exclusively identified with the contents of hadiths from the Prophet to which he' gave, not for the first time, but for the first time consistently, overriding authority. Al-Shafi`i argued that even a single, isolated hadith going back to' Muhammad, assuming its isnad is not suspect, takes precedence over the opinions and arguments of any and all Companions, Successors, and later authorities. Schacht notes that:
Two generations before' Shafi reference to traditions from Companions and Successors was the rule, to traditions from the Prophet himself the exception, and it was left to Shafi to make the exception the principle. We shall have to conclude that, generally and broadly speaking, traditions from Companions and Successors are earlier than those from the Prophet.
Based on these conclusions, Schacht offers the following schema of the growth of legal hadiths. The ancient schools of law had a `living tradition' (sunna) which was largely based on individual reasoning). Later this sunna came to be associated with and attributed to the earlier generations of the Successors and Companions. Later still, hadiths with isnads extending back to Muhammad came into circulation by traditionists towards the middle of the second century. Finally, the efforts of al-Shafi` and other traditionists secured for these hadiths from the Prophet supreme authority. However, the development of prophetic tradition did not cease at this point. In fact, as a result of the new authority conferred upon them, Schacht suggests that a large number of the hadiths preserved in the classical collections originated both during and after al-Shafi's time. That is, most Prophetic hadiths in the collections of Bukhari, Muslim, and the others originated, not with Muhammad, but circa the middle of the second century A.H., while hadiths citing the opinions of Companions and other authorities originated somewhat earlier. In one of his most emphatic statements, Schacht concludes that: "every legal tradition from the Prophet, until the contrary is proved, must be taken not as an authentic or essentially authentic, even if slightly obscured, statement valid, for his time or of the time of the Companions, but is the fictitious expression of a legal doctrine formulated at a later date." Schacht therefore dismisses Muslim scholarship on hadiths, which itself is based on the study and criticism of isndds as "irrelevant for the purpose of historical analysis."
Although Schacht offers a far more refined argument than Goldziher, he has not yet gone far beyond him in his theories. His unique contribution lies in his alternative to the "irrelevant" methods of Muslims; he suggests that the date of a hadith can be ascertained from its first appearance in the legal discussion, from its relative position in the history of the problem with which it is concerned, and from certain indications in the text and the isnad.
What is meant by 'its first appearance in the legal discussion' is obvious. If a particular hadith is adduced in one text but is not to be found in an earlier text in which that same hadith would have been of crucial importance, then it is safe to assume that the hadith was not yet extant and was invented sometime after the writing of the earlier one. This is essentially an argument from silence, but quite a compelling one.
By 'its relative position in the history of the problem' Schacht means to suggest that hadiths were frequently fabricated in a polemical context. That is to'say, they were designed specifically to refute certain pre-existing doctrines or practices. A new hadith or set of hadiths would then provoke the supporters or practitioners of the attacked doctrine or practice to manufacture hadiths to both defend it and to undermine the refuting hadiths. Their opponents would then respond with more and usually more elaborate hadiths. Thus, by juxtaposing various parallel .or related hadiths and comparing their mains, one may be able to reconstruct the chronology of the hadiths surrounding a particular controversy. The doctrine or practice being attacked is, of course, chronologically prior to the hadith countering it. A hadith defending the practice or doctrine is likely to be after the counter-hadith.
'Indications in the text' means looking at the authority cited in a hadith. In the course of polemical discussions, each group was forced to project its doctrine to increasingly higher authorities. That is, teachings once ascribed to Successors become those of Companions, and (lie Iatter in Win become the words of the Prophet himself. Schacht argues that: Whenever we find, as frequently happens, alleged opinions of Successors, alleged decisions of the Companions, and alleged traditions from the Prophet side by side, we must, as a rule and until the contrary is proved, consider the opinions of the Successors as the starting point, and the traditions from the Companions and .from the Prophet as secondary developments, intended to provide higher authority for the doctrine in question.
Closely related to these textual indications are the 'indications in the isnad,' by which Schacht means his the backward growth of isnads. This theory is summed up in his famous dictum: "The more perfect the isndd, the later the tradition." Thus, Schacht sees the isnads as the most arbitrary part of the hadiths, but because their fabrication and develop¬ment follows certain patterns, they nevertheless allow the hadiths to be dated in many cases.
As the depth of the isnads grew (that is, backward growth), so too did their breadth grow. This 'spread of isnads' occurred because additional isnads were created to support a particular hadith and in this way obviated the charge that the hadith was 'isolated.' Thus mutawatir hadiths have no more claim to authenticity than do other hadiths. Schacht argues that: Any typical representative of the group whose doctrine was to be projected back on to an ancient authority, could be chosen at random and put into the isnad. We find therefore an number of alternative names in otherwise identical isnads, where other considerations exclude the possibility of the transmission of a genuine old doctrine by several persons.
Because of the arbitrariness of this isndd manufacture, Schacht feels that it would be pointless to attempt to reconstruct the opinions and doctrinal positions of the Companions. "They are the products of schools of thought which put their doctrines under the authority of the Companions. He also dismisses the claim to genuineness of the hadiths with family isnads (that is, those that were transmitted exclusively within several generations of one family). For Schacht "the existence of a family isnad [is] not an indication of authenticity but only a device for securing its appearance."
Schacht observed another phenomenon that he feels can be employed in determining the provenance of report. He notes that in many cases, the isnads of hadiths with similar or related contents often contain the same transmitter somewhere in the middle of the isnad. Schacht's own example of this phenomenon shows `Amr ibn Abi `Amr as the common link or common transmitter for three instances of the same main. For Schacht, this is a case where a report has been put into circulation by traditionist or by someone using his name. As the report
Schacht's examination of the development of isnads is also premised on his hypothesis that legal hadiths go back only as far as 100 A.H., that is, in the last years of the Umayyad rule - when, according to him, Islamic legal thought began. This concurs with the statement, attributed to Ibn Sirin, that interest in isnads began from the time of the fitna (strife) after which people could not be trusted to give non-partisan reports.
The Origins of Muhammadan Jurisprudence download epub
Legal Theory & Systems
Author: Joseph Schacht
ISBN: 1597401188
Category: Law
Subcategory: Legal Theory & Systems
Language: English
Publisher: ACLS History E-Book Project (December 31, 1899)
Pages: 368 pages