The Origins of Islamic Law: The Qur'an, the Muwatta' and Madinan 'Amal by Yasin Dutton Review by:

Harald Motzki Journal of Law and Religion, Vol. 15, No. 1/2 (2000 - 2001), pp. 369-373 Published by: Journal of Law and Religion, Inc. Stable URL: http://www.jstor.org/stable/1051526 . Accessed: 24/07/2012 08:04
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THE ORIGINS OF ISLAMICLA W. THE QUR 'AN, THEMUWATTA' AND MADINAN

Curzon Press1999. Pp. 280. 'AMAL. YasinDutton.Richmond, Surrey: By $80.00. ISBN:0-700-71062-0. For half a century,Westernscholarsof Islamusuallyimaginedthe in originsof Islamiclaw andjurisprudence termsof JosephSchacht. In
his study The Origins of Muhammadan Jurisprudence, published in

1950, he claimedthatthe Qur'anhad played only a marginalrole in the developmentof Islamiclaw, whose beginningshe datednot earlierthan towards the end of the first century A.H. Schacht considered all traditions about Islamic legal practices and discussions in the first centuryand many reportson legal doctrinesascribedto scholarsof the first half of the second centuryA.H. as later fictions. Muslim scholars, are by contrast, used to thinkingthatIslamiclaw andjurisprudence grew continuouslyon the basis of the Qur'an and the transmitted practice (sunna) of the ProphetMuhammadand was fixed by the consensus (iUjm') of scholars and developed further by analogical reasoning (qiyas). In the study under review, Dutton suggests a third view concerningthe beginningsof Islamic law andjurisprudence.He finds this view embodiedin the Muwatta'of Malik b. Anas (d. 179A.H./795 C.E.), one of the earliestIslamiclegal workspreserved. Dutton'sstudy focuses on a analysis of Malik's methods to derive judgments (legal rulings)fromthe Qur'anand the factorswhich influencethe application of his methods. On the basis of Malik's methodology,Duttonintendsto reconstructthe earlyhistoryof Islamiclaw in Medina. The study is divided into three parts (1) "The Madinan (2) Background," Malik's Use of the Qur'anin the Muwatta',and (3) "Implications."The first chaptercompiles the traditionsabout Malik (family, study, teachers, scholarly career). Strikinglyhis study and scholarly activity focused almost exclusively on Medina which finds expressionin the authoritieshe refers to in the Muwatta'. With few exceptions, they are Medinans. The second chapter presents the of Muwatta' andlists the nine transmissions it which arepreservedmore or less completely. DuttondefendsMalik's authorship againstthe claim of N. Calderthatthe Muwatta'was compiledin Cordoba hundred years afterMalik'sdeath. He offers severalarguments his conclusionthat for it was composed by Malik before 150 A.H. and underwent only of marginalchangesuntilhis death. Finally, the structure the book and
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the reasons for its compilation are explained. The third chapter is dedicatedto the concept of 'amal (practice)of Medina which plays a crucialrole in Malik's legal scholarship. Dutton describesthe concept are as following:"Itsbasic constituents kitab' and 'sunna', dating from the time of the Prophet,but there is also the additionalelement of the into ra 'y of later authorities this ra y, in turn,becomes incorporated as the existing 'amal."(35)' A few examples illustratethat the 'amal of Medina has an overrulingauthorityfor Malik. In cases of conflict between the legal practice of the Medinans and hadiths or possible of interpretations a Qur'anicverse, Malik always prefers the 'amal of Medina. The four chaptersof the secondpartare the core of the study. The fourthchapteris concernedwith the questionsof which reading(qira'a) of the Qur'anMalik followed andwhathe thoughtof variantswhich did not tally with the mushaf (codex) of 'Uthman. The fifth chapter describes the different types of reference to the Qur'an (quotations, direct and indirect references)which are found in the Muwatta' and which can arise "even in the explains the problems of interpretation texts." (77) The sixth chapter is most seemingly straightforward dedicated to the techniques of Qur'anic exegesis in the Muwatta'. Dutton illustrateswith several examples Malik's general principles of the interpretation; exceptionsand extensionswhich he allows; and the he of intratextual forms interpretation handles. In his descriptionof these methods, Dutton relies on categories and terms which became establishedin the usul al-fiqh (juridical theory)only much later,such as of inclusion ('umum);literalmeaning (zahir) of terms and assumption grammaticalforms; different types of special meaning (takhsis aletc. The examplesshow that Malik's methodsof exegesis are 'umum) guided by a higher principle, the 'amal (traditionalpractice) of the Medinan scholars. In the seventh chapter, Dutton discusses the aspectsof Malik'slegal thinking,firstly,judgmentsgoing chronological back to the time of the Prophet,as naskh (abrogation)and asbab alof nuzul (circumstances revelation)of Qur'anicverses, and, secondly, of caliphs and governorsof the Umayyadperiod. Dutton judgments to takes the last mentionedtopic as an opportunity criticize the theories which Schacht and Crone/Hindshave put forward concerning the relationbetween the sunna of the Prophetand Umayyadadministrative pratice.

1. All citationsin the text referto the bookunderreview.

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The thirdpart of the study develops the conclusions. The eighth chapteremphasizesthe essential importancewhich the Qur'anhad for the old legal school of Medina, i.e., for Malik and his predecessors, '. accordingto the Muwatta Duttonrefutesthe claim made by Schacht, and othersthat the Qur'anplayed only a marginal Crone,Wansbrough role in the early development Islamiclaw andjurisprudence.Dutton of of stressesthe impactof the Prophet'ssunna for Malik's understanding the Qur'anis stressed:"Thesunna is, as it were, the living embodiment of the Qur'anicmessage."(163) The last chapteris concernedwith the issue in which form this sunna was transmittedin Medina. Dutton betweensunna and hadithsandthatthe stressesthatMalikdistinguishes latterhave a differentfunctionin Malik's methodologyas comparedto that of al-Shafi'i. For Malik hadithsonly have normativevalue if they agree with the sunna preservedin the practice('amal) of the Medinan scholars. Thatis why he sometimesignoreshadithsthathe nevertheless in considersreliableandtransmits his Muwatta'. Duttonthinksthatthe of the sunna (of the Prophet) with hadiths which was equation introduced al-Shafi'iwas one of the reasonswhy Schachtcame to his by erroneousassumptionthat the hadithsin generalbelong only to a later stage of legal developmentand have, therefore,to be considered as fictitious. Duttonconcludeshis studywith the statement thatfor Malikat least,andat leastbeforethe year 150 A.H ..., Islamiclaw was quitedefinitelybased on the two-foldsourceof Qur'an and sunna (i.e., the sunna of the Prophet)and quite elementof laterijtihad,andthat included additional the naturally underthe umbrellaof 'amal. all three elementswere subsumed (180) The development of this 'amal as described in the Muwatta' is, accordingto Dutton,a reflectionof the real historicaldevelopmentof in Islamiclaw andjurisprudence Medina. Dutton's excellent study grew out of a doctoral dissertationat Oxford. The authorknows how to presenteven ratherdifficultsubjects very clearly. His statementsare generally accompaniedby proofs or a illustrated examples. Frequent cross-references, glossaryof Arabic by notes of the individuals mentioned, and indices terms, biographical make it easy for the reader,even for someone who is not acquainted with the subject,to graspthe argument. The book is based on a wide into rangeof sourcesandtakesmost of the relevantsecondaryliterature account. Research published in German,however, is only sparingly cited.

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Followers of Schacht's ideas and other skeptics who generally distrustMuslim traditionson the first two centuriesof Islamic history will certainlylike Dutton'sconfidencein those traditions,be it reports on Malik himself or on judgmentsof individualsflourishingin the first century A.H. Sometimes the author's confidence in reports is of provocative. For example,his admiration Malik ("one of the greatest of all time" 55) leads him to present of hadith-scholars his day-indeed comment(e.g., 15, withoutfurther reportsthatextol Malik'sscholarship amountof pupils). To take the wind out of earlyteachingactivity,huge the skeptics' sails, the authorcould have been more cautious in some places. In others,he could have explainedwhy he thinks that certain reportsdeserveconfidence. For example,in presentingthe biographical on information Malikthatis partlyis derivedfromlate sources,it would have been helpful to mentionthe origin of the reports(if given) or to for give arguments theirreliabilityderived from their content. Dutton follows the principle that Muslim traditionsconcerningthe first two centuriesare to be trustedas long there are no indicationsare absent which suggest the contrary. Skeptics in the wake of Schacht's ideas, however, consider those traditionsas unreliableuntil the contraryis proven. Dutton can argue in favor his approach. First, his study of Malik's Muwatta'shows that Schacht's claim that the hadith emerged only late as a secondaryphenomenonis wrong. Second, this result is of of independent his appreciation the traditions.Third,the main reason for the radicalskepticism collapses. againstthe Muslimtradition I would like to point out that my own work on the Finally, in developmentof earlyjurisprudence Makkahand Medinacorroborate Dutton'sconviction that Medinan 'amal as depictedin the Muwatta' representsa of continuous development the 'practice'of Islamfromits initial
origin in the Qur'an, via the sunna of the Prophet ... and the

efforts (itihad) of the Rightly-Guided Caliphs and the other the time of the earlyUmayyad caliphs right Companions, through and and andgovernors otherauthorities amongthe Successors the
Successors of the Successorsup to ... Malik."(180)2

2. Cf. my TheOriginsof IslamicJurisprudence.MeccanFiqhbeforethe ClassicalSchools the 1991); Stuttgart (forthcoming, Englishversionof Die Anfangeder islamischenJurisprudenz, and in: die ("DerFiqhdess -Zuhri: Quellenproblematik", Der Islam68/1991 and"TheProphet the in: Cat: on DatingMalik's Muwatta'and Legal Traditions", JSAI 22/1998) which focus on the des cf. beforeMalikfor a summary my "Die Entstehung islamischenRechts",in: A. generations seinerGeschichte, Noth/J. Paul(Hg.),Derislamische 1998,151-173). Wiirzburg Orient-Grundziige

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Reviewedby HaraldMotzkit

t Professor of Islamic Studies, University of Nijmegen, Institute for Languages and Cultures the Middle-East, of NL-6500 HD Nijmegen,TheNetherlands.