[This essay is part of the Critiques series.]

Certain facts are hidden from mainstream ‘muslims’ about their own history. The majority believes that we can not question the authority of traditional scholars, despite obvious contradictions between their hadith-driven-sharia and the Quran. Most do not know the details of how this authority was derived and cemented. Then there’s the hadith itself, whose importance is thought to be uniform in our history. But there was stiff resistance to it right from the beginning. Since I have already established the academic credentials of Columbia’s Professor Wael B. Hallaq in the previous essay, who is the leading historian in this field, I will make use of three of his books for this one. The aim here is to shed light on the hidden history of those who created these contradictions and show that the fundamental mainstream assumptions, which underpin a defense of traditional jurisprudence, rest on very shaky foundations.

Despite the facts I am about to present, I’m sure that there were many great men among the juristic scholars. Nor do I doubt that many of them were sincere to their beliefs. However, being sincere, does not equate to being right. A person can be fully sincere, and yet be completely wrong. Hallaq himself is very sympathetic (overly so, in my view) to our traditional jurists. He goes to great lengths in his books to try and show that the jurists/scholars were a breed apart. They came from humble beginnings (at least in the beginning) and provided a bridge between the political elite and the underprivileged, often championing the rights of the common man. They were also instrumental in keeping a check on the arbitrary powers of the caliphs, who held the actual authority. We must remember, that once the original Caliphate (created by Muhammad and then led by the Rashidun Caliphs) ended, the new imperial “caliphs” needed their positions justified. After all, they had done none of the hard work of the first four Rashidun Caliphs to merit their position of leadership. This is where the jurists came in, by providing legitimacy to this new breed of “caliphs.” Indeed, the jurists became so instrumental for this very purpose, that even the caliphs did not challenge their social influence over the masses. Hallaq seems to truly believe that the scholars were doing the best they could, given the constraints. But I’m not convinced by Hallaq’s sympathies, for a very simple reason: Given the privilege and unmatched influence that the juristic scholars came to enjoy in our societies, how can we excuse them for the complete and utter failures of those same societies?

So what mistakes did these traditional juristic scholars make, besides providing legitimacy for these imperial rulers? One obvious error was becoming financially dependent on imperial state patronage. The scholars became a class unto themselves, addicted to the social prestige their position provided them. Despite misgivings of a few famous cases like that of Abu Hanifa, by in large, the jurists/scholars became part of the structure of vested interests. This state of affairs began as early as the Ummayad Caliphate and continued to accelerate all the way up to the Ottoman Empire:

“Whereas the pursuit of knowledge in the earliest centuries was, generally speaking, done for its own sake, or, more accurately, for the sake of epistemic and social prestige (and no doubt propelled by a deep sense of religiosity), it had now come to pass that knowledge was being acquired for the sake of a competitive edge, which in part led back to the acquisition of social prestige… a venue for garnering political, economic and social capital. Furthermore, once knowledge itself became (as a source of income) commodified, its standards were manipulated as the need arose.“

Perhaps we can give the scholars some leeway on this. After all, they had to earn a living (which would not be a problem in a true Quranic State to begin with.) What is really troubling and can not be excused, however; are the deeply problematic decisions they made. One such decision was elevating their “consensus” to the level of infallibility. This ‘theory of consensus’ is actually founded in a pre-Islamic principle which referred to “the conscious formal agreement of the tribe.” The technical penalty they incurred when trying to justify it as Islamic, is that in order to do it, they basically had to cheat:

“We now turn to the third source, consensus, which guaranteed not only the infallibility of those legal rulings (or opinions) subject to juristic agreement but also the entire structure of the law… The universal validity of consensus could not be justified by reason, since Muslims held that entire communities or “nations” could go, and indeed had gone, wrong even on important issues. Consensus, therefore, had to be grounded in the Quran and/or the Sunna. But early attempts by theoreticians to articulate a Quranic basis for consensus failed, since the Quran did not offer evidence bearing directly on it. No less disappointing were the recurrent Prophetic reports (mutawattir hadith) which contained virtually nothing to this effect. All that were available were solitary reports speaking of the impossibility of the community on the whole ever agreeing on an error.”

So when they could not justify the infallibility of their consensus using either the Quran or the mutwattir hadith, they decided to use a collection of weaker hadiths. The argument they invented in order to do this, was that there were numerous weaker hadiths with the same thematic content, and combined, these weak hadiths could reach a level of certainty (al-tawattur al-lafzi.) This is why I argue that they essentially cheated, by playing around with induction, when they could not deductively derive authority for consensus using the Quran. The problem with this is that Inductive Reasoning, by its very nature, can never yield “certainty,” yet, these scholars used this tool to validate the certainty of their authority! Scientists, for example, never use the Scientific Method (which is inductive) to arrive at “certainty.” All theories can be overturned at any moment given contradicting empirical evidence. The only way to validate the infallible authority of their consensus with logical certainty, they needed to deductively derive authority for it from the Quran, which they failed to do.

If the alarm bells haven’t started ringing for you already, then consider this:

“… the underlying assumption, coupled with the conclusive authoritativeness of consensus, gives rise to the doctrine that consensus is superior to the Quran as well as to the Sunna… This superiority means that whenever a consensus is reached on a particular matter, the textual evidence resorted to in this consensus becomes, even though it may only be a solitary report (non mutawattir), superior to any competing evidence, including evidence from the Quran and the concurrent Sunna.”

Let me highlight the point that is being made here by Hallaq: According to mainstream scholars, if there is “consensus” on anything (e.g. any hadith, authentic or not,) then that consensus will overrule the Quran. Yes, you read that right. This is how the non-mutawattir hadiths (which form the vast majority of ‘sahih hadiths’ in Bukhari) are allowed to overrule the Quran when forming sharia law, even though they clearly contradict the Quran. I gave just one example in the previous essay to prove this point: Slavery. But there are many other examples like it (e.g. death penalty for apostasy, the 4 witness requirement for rape victims etc.)

Now, once “consensus” is raised to a level of infallibility superior even to the Quran’s, questioning any ruling on which there is consensus “would amount to questioning certainty, including conclusive texts in the Quran.” This seems like sheer desperation for divinity, by an entire class of people looking to justify their influence and prestige, much like the Catholic Church did in Christian history. Once the juristic scholars, as a class, achieved their pseudo-divinity, they got to work. This insidious idea that they then planted, completely abusing their newfound influence, that questioning their flawed ‘theory of consensus,’ equates to questioning the authenticity of the Quran itself, is based on their claim that the authenticity of the Quran is itself guaranteed by consensus. Hallaq summarizes the traditional mainstream position as follows: “In terms of transmission (of the Quran) it is regarded as wholly certain, since the entire community of Muslims was involved in its conveyance from one generation to the next. This position stems from the theory of consensus, namely, that it is inconceivable for the entire Muslim community to conspire on a falsehood, including forging or distorting the holy Book.”

At first, this seems like a very powerful claim indeed. That is, until one realizes that it is basically a scare-tactic, a very shallow attempt at scaring people into believing the authority of traditional ‘consensus.’ The obvious problem with this argument is that the Quran is considered authentic by modern scholars not because of the flawed and dogmatic ‘theory of consensus.’ F.E. Peters, Professor Emeritus of History, Religion and Middle Eastern and Islamic Studies at NYU, states that modern historians are convinced of the authenticity of the Quran primarily for two reasons:

No significant variations have been discovered in the partial fragments of the Quran from the pre-Uthmanic compilation. All the arguments which claim the Quran has been altered in any way, are “so patently tendentious and the evidence adduced for the fact so exiguous that few have failed to be convinced that what is in our copy of the Quran is in fact what Muhammad taught, and expressed in his own words.”

As you can see, non-traditional modern scholars do not rely on the ‘theory of consensus’ in their validation of the Quran’s authenticity. So the argument that challenging the ‘theory of consensus’ equates to challenging the authenticity of the Quran, again, is completely misguided, a false equivalence fallacy. What these traditional ‘scholars’ hide from their followers, is that God has no need for their flawed and dogmatic ‘theories’ in order to protect the integrity of His Quran. The authenticity of the Quran stands verified even by secular Western historians, without any consideration given to their traditional ‘consensus.’

Given all of this, the mainstream today still cites verses like 4:59 which tell Muslims to obey “those in authority among you” as evidence for the absolute authority of their traditional scholars. Even though the traditional theoreticians themselves knew such verses were not enough, otherwise they would have used them to support a deductive argument in the first place. One reason for this is easy to see. The root of the word for authority used here is (أ م ر) and the same derivative (أَمْر) is used in the same chapter (verse 4:83) to specify its proper context: “And when there comes to them information about [public] security or fear… if they had referred it back to the Messenger or to those of authority among them, then the ones who [can] draw correct conclusions from it would have known about it.” This same word is also used for the “authority” Pharaoh exercised in verse 11:97. This particular term has not been left general, but context is already supplied for it in the Quran. The proper context of this “authority” is executive or security related, and the juristic scholars didn’t have either. This type of authority rested with the caliphs, who saw themselves as “God’s direct agents,” and it was their job to implement God’s decrees on Earth. Even the fatwas the muftis issued were not technically binding on the state. Given this, “those in authority” refers to the public officials in charge of the security of the Quranic State (which by the way did not even exist after the period of the Rashidun Calips came to an end) and/or the executive leadership. Verse 4:59 is basically telling Muslims to maintain order and discipline in a Quranic society. It is not telling us to blindly follow the flawed ‘theory of consensus’ of private juristic scholars, who themselves were dependent on the patronage of empires.

Before I move on, I should highlight one more crime against God that the scholars have been guilty of: “Abrogation.” One aspect of this idea is that one Quranic verse can repeal another. There are very few reports alleging that the companions of the Prophet accepted the theory of abrogating. None of these reports are mutawattir. But nonetheless, in the generation following that of the Prophet’s this controversy began. The likely reason for the introduction of abrogation was that certain verses clashed with the practices of the local communities, so the scholars decided to introduce abrogation and cherry pick verses that suited their biases and ignore the ones that did not: “It is likely that the theory of abrogation developed in a context in which some Quranic prescriptions contradicted the actual reality and practice of the community, thus giving rise to the need for interpreting away, or cancelling out, the effect of those verses that were deemed inconsistent with other verses more in line with prevailing customs.”

Let’s pause here for a moment to reflect… I’m sure that many individuals within this juristic class were upright and moral men. However, collectively as a class, they clearly failed to uphold the principles of God, which they claimed to be the guardians of. They received too much patronage, made gross logical errors in justifying their authority and institutionalized the practice of arbitrarily “cancelling out” Quranic commands that did not suit their own desires. If all of this wasn’t enough, they also pushed sectarian bias into their methods. All of this evidence is coming, keep in mind, from the leading academic professor/historian on this subject, who by no means is an anti-traditionalist, and is himself generally sympathetic to these traditional scholars.

Now let’s turn to the case of hadith directly. Mainstream traditionalists claim that: ‘Obeying the Prophet requires the Hadith.’ I’ve established in the previous essay that hadiths contradicting the Quran have been given priority over the Quran, and now we can see how exactly they accomplish this, via their “consensus.” This is how they can overrule their own order of priority, which only superficially claims to place the Quran at the top. In practice, however, it is their own ‘consensus’ which is on top. By the way, let me make something clear, I am not arguing for a rejection of all hadiths out rightly, but rather the application of the same order of priority that the mainstream claims it is applying. Such travesties have been pushed into sharia law based on the over-reliance on hadith, via their traditional consensus. If the Quran was actually given priority, we wouldn’t have these problems, as all contradictory material (hadith based or not) would get filtered out when forming laws.

It’s true that obeying the Prophet is without a doubt, part of the Quranic commands. But where did the idea of obeying hadith come from, for the generations following the death of the Prophet? These days, it’s just taken as a given. But that was not always the case. The emphasis on hadith was a development of “later legal theory.“ It gained importance in the second half of the second century of the Islamic Calendar (770–810 AD). Before this time, the Sunna of the Prophet was determined by local practices of communities based on their own memories of either the Prophet or the Sahabba. Hallaq states that the pre-hadith local models were in all likelihood much more accurate than the “highly contradictory and inconsistent” narratives of hadith. The emphasis on hadith was hammered in by the traditional scholar Shafi’i, who was born in Palestine. His thesis was that the Prophet’s Sunna could only be determined through hadith, and nothing else. Regarding this whole hadith enterprise, Hallaq’s skepticism and caution is very evident: “It would be ironic, therefore, if the very narrative that claimed the authority to unravel the true Prophetic example ended by masking rather than revealing this Prophetic history.”

So what then, is the real history of the hadith? In a way, the formalization of the Sunna, via the hadith, came about similarly to how Christians mixed pagan-Roman religion in their own tenets in order to gain legitimacy in the Roman Empire. In the second half of the first century, when the capital was transferred to Damascus, the process of assimilation began all over again. Religious scholars and “especially story tellers” mixed local customs with the Prophet’s historical Sunna in order to help this assimilation. Remember that by this time, the moral force of the Prophet and his Sahaba was long gone. The caliphate which was originally a Quranic State, was now an empire. These new stories invented about the Prophet, which mixed local customs with actual historical events helped this assimilation project. At this time though, neither the sunna nor the hadith was taken as legally binding. This is evident from the fact that when Umar II, the caliph at the end of the first century ordered the first collection of hadith, to help the judges and administrators, this Ummayad caliph’s “enterprise failed, for it appears that at that time disregarding the Prophet’s Sunna was not yet looked upon as a serious matter.”

This may sound odd to the mainstream, but putting this into context helps. Before the time of Umar II, during the Rashidun period, the original caliphs looked to the Quran as the central source of law. Using an example of early jurisprudence, Hallaq states: “While his (Abu Bakr’s) enforcement of this law indicates the centrality of the Quranic injunctions, it also demonstrates that beyond the Quranic prohibition there was little juristic experience or guidance to go by.” It must also be noted that the lack of sources from the early period of Islam has hampered research: “the paucity of credible sources from this period frustrates our attempt at gaining a comprehensive view of historical developments.” Still though, Hallaq goes as far as to state that it was because of this reliance on the Quran as a legal authority, that the Caliph Uthman began the enterprise of compiling the Quran, so the Muslims would have their revealed scripture to draw on for the “legally minded.” This makes sense, given the content of the Quran. Since God is clearly declaring axioms of an economic and political system for civilization in it. The process of deriving laws from those axioms still falls on humanity, which is why the Rashidun caliphs, as Hallaq cites, felt free to modify laws, as long as they could logically justify that they stayed within the bounds of those axioms. What should have happened is a continuation and refinement of this original deductive method based on the Quran, but instead the hadith took over.

The process of attributing legal doctrines backwards in time, using the Successors, and then the Sahaba, and then ultimately to the Prophet, began in Kufa, Iraq, towards the end of the first century, and it was first attributed to Ibrahim al-Nakhai. Even later on, by the time of Abu Hanifa, the reliance hadith was still “relatively insignificant.” Keep the timeline in mind here: This was now the third generation after the Prophet’s own. The Prophet had died, all his companions had died, and even their successors had died, and the successors to the successors were on their way out. Two things are happening in parallel around this time. The judges are using the Quran axiomatically, but they are also using non-codified practices that are being attributed to the Prophet by informal routes, including the ones which were invented by storytellers as a part of the assimilation process. It was really the generation that came in the second half, of the second century, that began to anchor its doctrines in prophetic reports. While on the opposite end were the rationalist Mutazilites, who held the position that the Quran was sufficient for everything. The Mutazallites demanded that for any hadith to be authentic, it needs to be basically transmitted “by many, from many” (recurrent/mutawattir) a very high standard which most hadith reports simply could not meet. These rationalists argued for an application of reason in judging matters i.e. deductive reasoning, using the Quran as it’s only axiomatic source. This shows that there was opposition to the hadith as soon as the traditionalists tried to institutionalize its importance, by the second half of the second century. Which contradicts the argument some mainstreamers use that ‘hadith rejection’ is a modern phenomenon. When in fact, the importance placed on hadith was originally the controversial innovation, and the rationalist Mutazilites had opposed it even back in those early centuries.

Then came Shafi’i, a figure who would change everything, albeit, well after his own death. Shafi’i was the juristic scholar who formalized the idea that Revelation encompassed not just the Quran, but the Sunna as well (including the non-mutawattir hadith) and that all law must be derived from both these sources combined. He did this by saying that any detail that is missing in the Quran is to be determined specifically via the Sunna. This idea would eventually become extremely influential. What this idea did, is exactly what the rationalist Mutazallites did not want to happen: the severe restriction of reason. Once the hadith is also raised to the level of axiom, it greatly restricts the application of reason and the flexibility allowed by the Quran for Muslims to work within the boundaries allowed by God, according to their time and place dynamically.

Let’s analyze an example from this new set of restrictions that Shafii’s methodology introduced into the legal structure, and its negative social consequences. In his Risala, Shafi’i gives the example of marriage. He says that while the Quran lays down the law of marriage in the Quran, only the sunna can define what is legally considered to be a valid marriage. In that sunna-derived definition, Shafi’i introduces multiple rules which are not to be found in the Quran. One of those rules is a requirement for two witnesses. Another is that the woman has to be “given” in marriage by a “guardian” relative. Now these two rules may seem completely mundane to the traditional ‘muslim’ reader, but ask yourself this question: What if the man and woman are marrying against the wishes of their families? In that case, fulfilling this requirement of “two witnesses” and a “guardian” would not be easy to satisfy (by the way, why does a woman of sound mind and legal age require a ‘guardian’?!) The net effect of these non-Quranic restrictions is a perpetuation of class-systems, whereby the biases of the older generation are reinforced into the next generation. Sure parents must be respected, but no where in the Quran is the older generation given the authority to enforce the choice of who to marry on the newer generation, but this is exactly what these hadith-based restrictions enable, thereby preventing intermingling between social classes, ‘castes,’ and races.

Shafi’i was not taken seriously by his own generation. It took time for his ideas to gain momentum. Before the fourth century, he wasn’t even cited by other scholars. When he did begin to attract attention, he generated “at least two rebuttals.” There was simply an “absence of interest” in Shafii’s work, and Hallaq argues that this was mainly due to the fact that his Risala was mostly just a defense of hadith, rather than a “proper legal theory.” Eventually though, things took a turn sharply in the favor of the traditionalists, like Ibn Hanbal and al-Zahiri, and the Mutazalite rationalists fell out of favor with the general public. Hallaq argues that this was most likely due to the vast proliferation of hadiths in society, and since the traditionalists were in favor of hadith, they began to gain in influence. This group now obviously approved of Shafi’i. Finally, his influence became so strong that even highly regarded intellectuals such as Ghazali fell into his camp. It is a mystery to me how a person of Ghazali’s intellect could place blind faith in Shafii’s system without questioning its obvious flaws. But Ghazali is another topic altogether. However, this is a seminal tragedy of our history, and the mistakes made in that era still haunt us today.

Before I close, I must ask, if the Sahaba actually believed the Sunna to be a revealed source of knowledge with legal authority for all times to come, why did they not bother codifying it? Think about it, if there actually were two sources of revelation, what possible reason could there be to codify one, and not the other? Did they run out of printer cartridges? What happened?! … Well, I think they understood verses like 6:114 perfectly well, which declare that, as far as deriving law goes, the Quran must be the only axiomatic source: “Shall I then seek a judge other than Allah? And He it is Who has revealed to you the Book (which is) made plain; and those whom We have given the Book know that it is revealed by your Lord with truth, therefore you should not be of the disputers.” As well as the verse 6:19, which make it clear that the Quran was the only revelation given to Muhammad: “Say, ‘Allah is witness between me and you. And this Qur’an was revealed to me that I may warn you thereby and whomever it reaches.'” Obeying the Prophet was an obvious requirement for those who could actually verify that they were obeying him. We have no access to the Prophet. We only have access to the Quran, who’s authenticity has been verified unequivocally. God wisely took the protection of the Quran upon Himself (via the Sahaba.) He clearly anticipated the stunts these ‘scholars’ would pull later. Like the claim that they could somehow magically verify that every person in a chain of transmission, (stretching over hundreds of years, many generations and thousands of miles) never told a lie, had perfect memory, and was morally righteous. There is nothing ‘scientific’ about such shenanigans, because obviously these claims could never have been empirically verified by the ones who put the hadith compilations together, let alone us.

I asked earlier if it makes sense to excuse the traditional scholars for the failures of our societies. After all, not only were our societies defeated, they were conquered and carved up, like a sirloin steak. It’s one thing to suffer a tactical defeat in battle, or even a strategic loss in a war, but it’s quite another to be conquered to the extent that we were. We could not keep up in any dimension at all with the Western world. Our fundamental systems were proven to be failures, in the most decisive way possible. I want to make this point crystal clear to the Muslim readers: The device that you’re reading this on right now, the software that is operating on it, the electricity that is running through it, and the transistors that allow its miniature existence, all of this technology, was sold to you, by your conquerors. We didn’t invent any of it, nor did we discover the deeper physics behind it. That’s how far we’ve fallen. Ibn al-Hatham may have invented the Scientific Method, but that was literally a thousand years ago, in the year 1021. It’s now 2016, and there is no escaping the fact that the juristic scholars, given the influence they had, must share a major part of the blame for this fall. Thus, correcting the historical narrative so we can see the flaws in the idols worshiped by our societies, must be a part of the solution.

Note: Two of the three books by Hallaq cited here are freely available in PDF. Check the Resources Page.