Fiqh and Hadith, Fiqh versus Hadith The Hadith

trend in Islamic law, commencing in the first century, gaining momentum during the whole expanse of
the second century and culminating in the six canonical third-century Hadith collections of Muslim, al-
Bukhari, Ibn Maja, Abu Dawud, al-Tirmidhi and al-Nasa’i — to cite only the most orthodox editions of a
voluminous literature26 — had its own historical roots and causes, which were not always the same as
those of Fiqh, 27 or jurisprudence properly speaking.27 The contrast and interaction between Hadith
and Fiqh culminated in the figure of alShafi‘i (d. 204), whose synthesis of khabar and ijtihad — textual
report and jurisprudential reasoning — was a self-conscious and determined effort to harmonize these
two fundamental trends of Islamic law in its formative period.28

The tension between the narrators of Prophetic and Companion lore (muhaddithun) and the
independent-minded legists (fuqaha’ ) could be portrayed from a variety of angles and perspectives:
competition for juridical, communal and political recognition; differences in mode of reasoning and in
substantive rulings; and variation in the emphasis on practice vis-à-vis textual report. A sort of division of
labor existed in the juristic community by virtue of which some excelled in reporting and collecting
Prophetic and Companion legal precedent, while others were more concerned with continuing and
elaborating on extant traditions. No sharp boundary is to be drawn, however, between the two trends
of Fiqh and Hadith, as both quite often found expression in the same individual judge or legist.

The contrasting practices of one of the most prominent jurists of the first century, the faqih Sa‘id ibn
alMusayyib (d. 93), testify to the early, complex, interlacing and concordant/discordant relations
between Fiqh and Hadith. The antipathy of the general run of Hadith narrators for the exercise of
personal judgment in religio-legal matters found expression in a common adage attributed to the
Prophetic epoch: 28 “Those of you most ready to venture legal judgment (futya) are the most ready for
Hell.” Sa‘id ibn al-Musayyib was nicknamed “Sa‘id the Daring” (Sa‘id al-jari’ ) for his audacity in trodding
new territory in his rulings. Ibn Qayyim al-Jawziyya informs us: Sa‘id ibn al-Musayyib was versatile in
legal judgment (wasi‘ al-futya). Ibn Wahb reports... that Abi Ishaq said: “In those times, I witnessed
many a man asking for a ruling, with people sending him from one circle (majlis) to another, for they
hated to engage in legal judgment; invariably the man would end up at the circle of Sa‘id ibn
alMusayyib.”29 Yet the self-same Sa‘id was the son-in-law of Abu Hurayra,30 the notorious narrator of
Prophetic Hadith, from whom he transmitted a number of traditions. Furthermore, “he transmitted the
(legal) knowledge of ‘Umar... and was the most knowledgeable person in Madina about the legal cases
(qadaya) of the Prophet, p.b.u.h., and about the cases of Abu Bakr, and the cases of ‘Umar, and the
cases of ‘Uthman...”31 No doubt Sa‘id had collected an inventory of legal material acclaimed as
emanating from the Prophet and his generation, and he put this information to use when trying to sort
out solutions to the new cases presented to him.

There is no mention of the specific logical means he employed to this effect, but it could be surmised
from the preceding that his methods leaned on the reflective and the innovative just as much as on the
transmission of precedent. The following is a sample of 29 the numerous rulings in Malik’s Muwatta’
that are credited to Sa‘id’s name: if a man gives his wife the choice of divorce, and she does not
separate from him but stays with him, then there is no divorce; if a group of (five or seven) men kill a
man unjustly, then all of them must suffer death (transmitted from ‘Umar b. al-Khattab); there is no
compensation due to the injury caused by an animal (attributed to the Prophet); if a slave who is
married to a free woman dies, leaving children from her, and he was not manumitted (lam yu‘taq)
before his death, then the children’s allegiance (wala’ ) is to the patrons of the mother; if a sale
transaction comprises uncertainty (gharar), then the sale is prohibited (from the Prophet).32 The
tension/harmony between Fiqh and Hadith is partly explicable by the aforementioned dual nature of the
practices of each camp. The literalist drive of Hadith jurists, namely their endorsement of none but the
most straightforward and obvious meaning of the Prophet’s words and deeds, to the exclusion of all
speculation, might bewilder the present-day observer: How could a legal system develop and flourish
with such a minimal role assigned to ratiocination? The answer lies in the exemplar of piety and
devotion to the Prophet which those jurists sought to erect. Adhering to the letter of the Prophet’s
phrase, with no admixture on the part of the jurist, was a stronger assertion of pious devotion and thus
it was carried to a great extreme.

This mode of juristic thought had its 30 paradoxical side, as extreme fidelity to the letter of transmitted
Prophetic narrative meant, on occasion, adhering to contradictory reports and rulings. Al-Layth ibn Sa‘d
reprovingly comments on this trait of the muhaddith mentality as it appears in the master narrator
figure of Ibn Shihab al-Zuhri [d. 124]: Ibn Shihab [al-Zuhri] gave accounts at great variance (ikhtilaf
kathir) with one another. If some of us wrote to him, he would respond, according to his judgment and
knowledge, with three distinct types (of ruling) on the same case, each contradicting the other (yanqud
ba‘daha ba‘dan); and he would not feel (the inconsistency of) what passed in his judgment.33 For what
dominated the muhaddith mind was not the canon of logical coherence, viz., that of global and
systematic legal reasoning. Rather, the narrator/scholar was content in his atomistic universe of textual
fidelity: his total reverence for the ideal of Prophetic Discourse underlies his submission to the narrative
as transmitted in all its materiality, discreteness, and possible alterity vis-à-vis other such narratives. This
of course does not signify that Hadith scholars were insensible to blatant contradictions in their reports,
but that what was uppermost in their minds was the faithful reporting of Prophetic and Companion
utterance and deed, leaving the disentanglement of the narratives to the more reflective-minded jurists.