CHAPTER 3

THE KORANIC ELEMENT IN EARLY MUHAMMADAN LAW

WE had occasion, in the first part of this book, to discuss the systematic place filled by the Koran in the legal theories of the ancient schools of law, of the traditionists and Shāfi'ī, and of the ahl al-kalām.¹ In every single case the place given to the Koran was determined by the attitude of the group concerned to the ever-mounting tide of traditions from the Prophet. The Koran taken by itself, apart from its possible bearing on the problem raised by the traditions from the Prophet, can hardly be called the first and foremost basis of early legal theory. The ahl al-kalām, it is true, profess to make the Koran, interpreted rationally, the only foundation of their doctrine;² but this conscious formula, which shows an anti-traditionist bias, is the outcome and not the starting-point of an intricate theoretical development.

The subject-matter of the present chapter is the historical influence of the Koran on Muhammadan law during its early formative period. Muhammadan law did not derive directly from the Koran but developed, as we saw, out of popular and administrative practice under the Umaiyads, and this practice often diverged from the intentions and even the explicit wording of the Koran.³ It is true that a number of legal rules, particularly in family law and law of inheritance, not to mention cult and ritual, were based on the Koran from the beginning. But the present chapter will show that apart from the most elementary rules, norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage. This applies not only to those branches of law which are not covered in detail by the Koranic legislation—if we may use this term of the essentially ethical and only incidentally legal.