The Origins and Evolution of Islamic Law
Welton, Mark D., The Middle East Journal
LAW The Origins and Evolution of Islamic Law, by Wael B. Hallaq. Cambridge, UK and New York: Cambridge University Press, 2005. x + 206 pages. Maps. Gloss, to p. 210. Short bios, to p. 216. Bibl. to p. 224. Index to p. 234. $70 cloth; $24.99 paper.
Professor Wael Hallaq offers both the interested reader and the serious student a comprehensive, engaging introduction to the elements and contours of Islamic law. He covers its origins in the pre-Islamic cultures of the Near East to its final construction as a functioning legal system about three centuries after the Prophet's death. By itself, or coupled with his earlier introduction to Islamic legal thought,1 which might profitably be read subsequent to this book, Hallaq's exploration of the development of Islamic law provides a solid foundation for understanding the major themes of the subject, as well as a starting point for its more detailed and specialized study.
Hallaq suggests that the four essential attributes of the Islamic legal system - a fully functional judiciary with a court system and rules of evidence and procedure, the elaboration of a legal doctrine, the emergence of a science of legal methodology and interpretation, and the maturation of the doctrinal legal schools - were in place by the middle of the 10th century C.E., and subsequent developments refined but did not further shape this system. His chapterby-chapter examination of these four attributes revolves around a central process that established the defining characteristics of each one. To cite three examples, the important function of the qadis in restraining the power of the caliphs was made possible by the transformation of the military and bureaucratic office of the proto-qadi into a more narrowly defined but increasingly independent role of the qadi as judge. Regarding legal methodology, the declining influence of the rationalists (ahl al-ra'y) in favor of the traditionalists (ahl al-hadith) culminated in a "great synthesis" of the two approaches to legal reasoning that established the parameters of legal thought in Sunni Islam. In the final stage of development, the Sunni juristic "schools" (maddhab) were established through a process of scholarship that evolved throughout the formative period from scholarly circles to personal schools, culminating in four primary doctrinal schools whose scholarship was then projected back to an eponym, such as Shafi'i. The formation of Islamic law is thus revealed as series of related dynamic processes that built upon existing customs and norms, but rapidly took form as an entirely new and distinctive system of legal thought, institutions, and practices. …