PART 1

THE DEVELOPMENT OF LEGAL THEORY

CHAPTER 1

THE classical theory of Muhammadan law, as developed by the Muhammadan jurisprudents, traces the whole of the legal system to four principles or sources: the Koran, the sunna of the Prophet, that is, his model behaviour, the consensus of the orthodox community, and the method of analogy.¹ The essentials of this theory were created by Shāfi'ī, and the first part of this book, which is concerned with the development of legal theory, centres in a study of Shāfi'ī's achievement.² Closely connected with and not second to his material contribution to Muhammadan jurisprudence, is the part Shāfi'ī played in the formation of technical legal thought: he carried it to a degree of competence and mastery which had not been achieved before and was hardly equalled and never surpassed after him. The fourth part of this book, therefore, is devoted to a study of technical legal thought in Shāfi'ī and his predecessors. The second part starts from the conclusions which can be drawn from Shāfi'ī's attitude to the second of the principles of law, the sunna of the Prophet as laid down in traditions, and aims at working out a method by which these legal traditions may be used for following the development of legal doctrine step by step through the still largely uncharted period before Shāfi'ī. The results so gained will enable us to realize that the starting-point of Muhammadan jurisprudence lies in the practice of the late Umaiyad period, and the third part of this book accordingly tries to trace the transmission of legal doctrine from its start down to the beginnings of the literary period.

Though Shāfi'ī laid down the essentials of the classical theory