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DEVELOPMENT OF JURISPRUDENCE
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with a superior tone, but still bears. This liberty of variety in unity is again
undoubtedly due to the agreement. It has expressed itself, as it often does, in apocryphal
traditions from the Prophet, the last rag of respect left to the traditionist school. Thus
we are told that the Prophet said, "The disagreement of My People is a Mercy from
God." This supplements and completes the other equally apocryphal but equally
important tradition: "My People will never agree upon an error."
But there is a third principle at work which we cannot view with the same favor. As
said above, every Muslim must attach himself to a legal school, and may choose any one of
these four. But once he has chosen his school he is absolutely bound by the decisions and
rules of that school. This is the principle against which the Zahirites protested, but
their protest, the only bit of sense they ever showed, was in vain. The result of its
working throughout centuries has been that now no one—except from a spirit of historical
curiosity—ever dreams of going back from the text-books of the present day to the works
of the older masters. Further, such an attempt to get behind the later commentaries would
not be permitted. We have comment upon comment upon comment, abstract of this and
expansion of that; but each hangs by his predecessor and dares not go another step
backward. The great masters of the four schools settled the broad principles; they were
authorities of the first degree (mujtahidun mutlaq), second to Muhammad in virtue
of his inspiration only. Second, came the masters who had authority within the separate
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THE CANON AND CIVIL CODES
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schools (mujtahidun fi-l-madhahib) to determine the questions that arose there.
Third, masters of still lesser rank for minor points (mujtahidun bil-fatwa). And so
the chain runs on. The possibility of a new legal school arising or of any considerable
change among these existing schools is flatly denied. Every legist now has his place and
degree of liberty fixed, and he must be content.
These three principles, then, of catholic unity and its ability to make and abrogate
laws, of the liberty of diversity in that unity, and of blind subjection to the past
within that diversity, these three principles must be our hope and fear for the Muslim
peoples. What that future will be none can tell. The grasp of the dead hand of Islam is
close, but its grip at many points has been forced to relax. Very early, as has already
been pointed out, the canon law had to give way to the will of the sovereign, and ground
once lost it has never regained. Now, in every Muslim country, except perhaps the
Wahhabite state in central Arabia, there are two codes of law administered by two separate
courts. The one judges by this canon law and has cognizance of what we may call private
and family affairs, marriage, divorce, inheritance. Its judges, at whose head in Turkey
stands the Shaykh al-Islam, a dignity first created by the Ottoman Sultan Muhammad II in
1453, after the capture of Constantinople, also give advice to those who consult them on
such personal matters as details of the ritual law, the law of oaths and vows, etc. The
other court knows no law except the custom of the country (urf, ada) and the will
of the
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