Islamic Law in Historical Perspective; A Critical Study of Joseph Schacht's Thought

ABSTRACT

practices and beliefs.Through this historical approach, a person is invited to dive from the idealistic realm to the empirical, realistic, and global realm.From this situation, someone will see a gap or harmony between what exists in the idealistic realm and what exists in the historical empirical realm.
The study of Islamic law is an interesting dimension from a historical perspective which is also a basis for looking further into its dynamics.Islamic legal thought builds a scientific paradigm of historical objectivity (Suud Sarim Karimullah & Arif Sugitanata, 2023).This is what Joseph Schacht, one of the many orientalists who studied Islam, did.He is a very famous scholar in Islamic legal research.
Throughout his life, he devoted himself to the historical study of the development of Islamic law.Schacht presents his research in the field of Islamic law in his works entitled The Origins of Muhammadan Jurisprudence (Schacht, 1975) and An Introduction to Islamic Law (Schacht, 1984).
Schacht himself followed the paradigm that had been initiated by previous orientalists, namely Ignaz Golziher, a famous Hungarian orientalist and editor of The Encylopedia of Islam with his work Muhammedanische Studien, concluding that all hadiths were created by Muslims in the first three centuries of the Hijriyah and were not the words of the Prophet Muhammad.Apart from that, he said that Sharia laws were not yet known to most Muslims in the first century.Ignorance of Sharia law and the history of the Prophet befell the high priests.So the analysis he came up with was "almost" similar to the analysis used by Joseph Schacht.
Then.Goldziher was the first scientist to place hadith in a systematic historical and critical method.Ignaz Goldziher could be said to have had a major influence on Western scientists who also studied hadith.Even his magnum opus, Muhamedanische Studien, contains most of his skepticism towards hadith as if it were a reference book for later scientists, and even like a holy book (Munawwir, Lestari, & Prilia, 2021).Regarding hadith, Goldziher concluded that most of the hadith were simply the result of religious, historical, and social developments during the first two centuries of the Hijriyah.Hadith, for Goldziher, cannot be considered as a historical document of the growth of Islam in the early period, but rather simply as a reflection of various interests that have emerged in Muslim society in more recent times (Afwadzi, 2023).
Besides Schacht, there is also Noel J. Coulson who researches Islamic law from a historical perspective.He presented the results of his research in his work entitled A History of Islamic Law.According to him, all information about legal developments in each period is seen from the cultural factors that influence it, so that not a single legal product is created from a historical vacuum (Coulson, 1964).
The results of the research are presented in three parts.First, it explains the formation of Sharia law, which discusses the legalization of the Koran, legal practice in the first century of Islam, the roots of jurisprudence as the first school of thought, Imam Syafi'i, as the father of jurisprudence and explains the stagnation.Second, talking about the thought and practice of Islamic law in the Middle Ages.It discusses classical legal theory, unity and diversity, the impact of schools on the legal system, the Islamic government, and Sharia law.Third, talking about Islamic law in modern times, which discusses the absorption of European law, contemporary Sharia law, taqlid and legal reform, and neo-jihad (Coulson, 1964).
Schacht and Noel J. Coulson's ideas regarding the development of Islamic law from a historical perspective produce a conclusion that is widely debated by Islamic scholars.Some of them generally accepted their entire concept, such as David S.
Power, S. V Fitzgerald, S. D. Goitein, and M. M. Azmi.Others rejected and criticized certain aspects of their thinking, such as Pazlur Rahman, Nabia Abbott, Fuat Sezgin, M.M. Azmi, and Zafar Ishaq Ansari.However, their ideas have inspired subsequent Islamic researchers (Minhaji, 1992).In this article, the author will only discuss Joseph Schacht's thoughts on Islamic law from a historical perspective.

Biography of Joseph Schacht
Joseph F. education and culture that allowed Schacht to be exposed to Christian religious teachings and the Jewish language from childhood.

Joseph Schacht's Thoughts
Traditional beliefs about Islamic law that have been well-established since the is the result of a process of historical development (Rosyid, 2023).
One of Schacht's comments that is very controversial and challenges the faith of a pious Muslim is the statement that referring to hadiths from the Prophet's companions is an older procedure, and the theory about the authority of the Prophet's hadith being more powerful is an innovation.To prove this idea, he examined the evolution of the term Sunnah as it was used in pre-Islamic Arabia in oral traditions, the classical jurisprudence school of the Prophet's companions to the bookkeeping of hadith during the time of Umar Ibn Abdul Aziz of the Umayyad Dynasty, by famous legal experts such as Syafi'i.Syafi'i himself succeeded in creating a flexible idea of the sunnah as a collection of practices that had been accepted in the early madhhabs, which Schacht called the "living traditions" of the madhhabs (Muslim, 2017).
According to Schacht, Islamic law is a product of the reassessment of traditions, then used as jurisprudence based on a historical sociological framework (Tahan, Mohammad, & Mohammadi, 2023).Schacht formulated the theory of Islamic legal jurisprudence with four sources of law.First, the Koran, everything explained in it is accepted.Second, the sunnah or practices of the Prophet Muhammad as narrated by authentic hadith.These two sources of law cannot fully answer all of society's problems, therefore two other sources of law must be added.
One of them is qiyas, analogy, or analogical reasoning, meaning that problems that are not found in the practice of the Prophet Muhammad or his companions are resolved using analogies.The last one is Ijma' or consensus.especially how the term developed (Schacht, 1984).At this point, Schacht acknowledged Imam Syafi'i's greatness in revolutionizing legal science by combining the ideologies of Traditionalism and Rationalism (Mustapha, Nazri, & Ali, 2022).Although Shafi'i was also involved in polemics regarding this issue -the exclusive identification of the sunnah with specific precedents of the Prophet Muhammad SAW or the revelatory nature of the sunnah -it provides sufficient evidence for the existence of a spectrum of approaches to the sunnah before and throughout his career.
Then, according to Schacht himself, the term Sunnah, which means community customs narrated by "oral history", was used in pre-Islamic times.The Sunnah consists of "customary practices, customary procedures or actions, norms, standards or methods supported by hadith".The Qur'an provides evidence that the guiding principle of pre-Islamic moral life was the Sunnah of Arab society which was narrated orally from their ancestors.Whatever is customarily correct and appropriate and has been done by the ancestors, is worth imitating.So Schacht concluded that Islamic law has its roots in pre-Islamic society (Sohail Khan & Habib Ur Rehman, 2021).Therefore, Schacht believes that there are no truly authentic traditions, especially those related to law, which he considers to be the tendency of narrators to rely on the history of previous generations (Ulumuddin, Uyunul Mukarromah, & Sumbulah, 2022) The pre-Islamic idea of Sunnah, in terms of custom, can be used as an example and norm.Islam developed its sunnah, social system, and proper legal methods, whether these were drawn from older customs or laid down by the circumstances of the Prophet.Therefore, it is not surprising that several legal issues in Islam are based on the continuity of pre-Islamic traditions such as family law and hakam.
According to Schacht, several aspects of family law are more important, such as marriage, divorce, inheritance, and Zihar.Then the case of polygamy which is approved by the Koran and the Sunnah of the Prophet is a practice of pre-Islamic Arabs.Although there are various modifications regarding the limit on the number of wives that can be married at once.The practice of divorce in Islam, as in pre-Islamic Arabia, is a simple matter.A Muslim husband can divorce his wife at any time, without clear reasons, even through figurative language.
Inheritance law generally comes from pre-Islamic Arab traditions.It must be admitted that the problem faced by early Islam related to the issue of inheritance was making a transition towards individualism from communalism, especially the matrilineal communalism of Medina where women became a marginalized community.But it cannot be denied that the concept of inheritance originates from pre-Islamic Arab traditions (Schacht, 1975).
Likewise, Zihar is another example of continuity in family law.Zihari is an oath that his rightful wife is like his mother's back.After a husband takes such an oath, a husband has no right to have sex with his wife and the wife has the right to file for divorce.This kind of practice also included the habits of pre-Islamic Arab society.
Hakam is another region based on Arabic traditions.Schacht argues that with the modification of a hakam, a person whose main qualifications are his personal qualities, knowledge, wisdom, integrity, reputation, and spiritual strength, as in the pre-Islamic Arab tradition is a person who is asked to decide or provide advice on a dispute in the Society (Minhaji, 1992).
Based on the above reality, it can be understood that Muhammad, in Schacht's view, maintained pre-Islamic Arab traditions.According to him, Muhammad had little reason to change existing customary law.Apart from that, Muhammad's goal was not to create a new system but rather to teach humans how to act, what to do, and what to avoid to survive in the afterlife.This is why Islam in general and law, in particular, constitutes a system of obligations that includes ritual, legal, and moral obligations on the same basis, and brings them all under the authority of the same religious order.
Schacht goes so far as to say that Muhammad wielded almost absolute power not within, but without, an existing legal system.His authority for believers is not in legal matters, but in religious matters and for hypocrites in political matters.Then, according to Schacht, the idea of Sunnah was used after Muhammad's death, especially Khulafa al-Rasyidin.During this period, Islam began to spread outside the Arabian peninsula, outside the center of Muhammad's teachings.Consequently, there are interactions, adaptations, and even syncretism between Islam and the culture of the newly conquered regions, where there are several aspects of life that people in the Arabian peninsula have not yet faced.As in previous eras, Islam in the conquered territories proved to be a flexible religion.As long as there are no religious or moral objections to a particular transaction or model of behavior, the technical aspects of the law are matters of no interest to Muslims.As a result, certain aspects of life were absorbed and it is not surprising then that there was quite widespread adoption of the legal and administrative institutions and practices of the conquered territories.The presentation of tolerated religions, taxation methods, emphyteusis institutions, and waqf are examples of legal practices originating from the traditions of conquered territories (Minhaji, 1992).
From the proposition above it can be understood that in Islam, the position of theology is determined by law and jurisprudence.Islamic law is known as sharia which covers every aspect of human life -legal issues, rituals, and even health issues.And the actions he performs are called Hadith.
Sunnah in general from the perspective of Muslims is one of the most important elements in Islam.It occupies the second rank -after the Koran -of the sources of Islamic law.In other words, if a problem or case occurs in society, the legal basis for which is not found in the Koran, then the law or the mujtahid must return to the hadith of the Prophet.However, in daily practice, many problems are found that are not contained in the Koran and are only found in the hadith of the Prophet.This is not difficult to understand, because the Koran is Allah's book which only contains general provisions, basic principles, and an outline of problems.
Meanwhile, the details are outlined in the Sunnah of the Prophet, in this case, the hadith functions as the first explanation (tafsir) of the Qur'an.Seeing how urgent the Sunnah is and its essential role in Islam, it is not surprising that many people are surprised to hear the thesis presented by Schacht about the sunnah and the position of the sunnah in the historical trajectory which is considered nothing more than the result of the Prophet's adoption of the pre-Islamic Arab tradition (Schacht, 1984).
In general, through a social history approach, religion is interpreted as a social institution using two models, namely historical evaluation and the historical power model.Schacht defines the sunnah as nothing more than a habit that can be used as an example, a way of life, it is clear that the idea of the sunnah as a principle guidance for society was also taken over and adopted by Muslims after the death of the Prophet Muhammad, especially during the Khulafa' al -Rashidin.This is supported by historical facts, for example when Umar Ibn Khatttab sent a letter to Abu Musa al-'Asyari (Qadhi Basrah) containing instructions to use the applicable Sunnah (al-Sunnah al-Mu'tabarah) as one of the sources of law.important matters relating to legal issues.Schacht believes that the term sunnah itself has theological connotations and provides a link between the sunnah of Abu Bakr, Umar Ibn Khattab, and the Koran.
It should be understood that the social history approach uses a historical evaluation model and a historical power model, looking carefully at changes in the bureaucracy of the object under study, traditional, changes in educational paradigms, religion and the modernization process, religion and the penetration of other religions, as well as religion in the context of creative individuals (actors).).
So here Schacht examines the historical process of the Sunnah concept from pre-Islam to the stage of legalization of the Sunnah itself.
Then the Umayyad regime was an important period in which the further development of the sunnah was determined and started from here.Classical schools, hadith experts, and later Imam Syafi'i were people who were very meritorious because they were directly involved in the development of the sunnah (Salman, 2022).Schacht even claims that Imam Syafi'i was the earliest legal expert to define the sunnah as the Prophet's role model (Riady, Nadhiroh, & Khairuddin, 2023).
The mujahid group in the classical fiqh school pursues the concept of the ideal sunnah, even though some classical schools define the term in terms of the Prophet's sunnah, so in reality, the term is nothing more than a living tradition as the ideal practice of society, which is expressed in the doctrine accepted by those schools.
Apart from that, Schacht reiterated that the term Sunnah of the Prophet has not been specifically applied to the hadiths of the Prophet.
The continuous development of doctrine in the classical school was accelerated by the movement of hadith experts.According to hadith experts, formal hadiths originating from the Prophet replaced the living traditions of that sect, as a result, several hadiths have developed which are claimed to be reports from witnesses who heard or saw the words or actions of the Prophet, which is narrated orally by an unbroken series (isnad) of trusted people.This analysis leads Schacht to a controversial conclusion that undermines traditional Muslim understanding, these hadiths, as far as they are concerned with matters of religious law, can hardly be considered authentic hadiths (Minhaji, 1992).
There can be no doubt that the noblest motifs of the hadiths were propagated by the hadith scholars themselves from the first half of the second century onwards.
This conclusion is based on his analysis of the isnad which is a key element in determining the authenticity of each hadith.In Schacht's view, the study of isnads makes it possible to date the hadiths (Schacht, 1984).Much evidence was provided by Schacht to confirm his ideas and thus he was able to show that the isnads tended to "regress backward" and claim higher and higher authority until they reached the Prophet."The earlier a hadith appears, the less likely it is that the hadith has a complete isnad.The more complete the isnad, the later the hadith appears.From this, according to him, there is no reason to suspect that the practice of regularly using isnad is not older than the beginning of the second century.Furthermore, he expressed his views regarding the origin of the hadith, saying that without making hasty attempts at generalization, it is justified to look for the origin of the largest part of the legal hadith in the first half of the second century Hijriyah with which the written period began.
The main views of hadith experts regarding the concept of the Prophet's sunnah peaked in the hands of Shafi'i.murder requires residents to pay diyat.In political matters, the pre-Islamic Arab traditions taken by Islam are the caliphate and shura (Minhaji, 1992).
If we pay close attention to Joseph Schacht's works The Origins of Muhammadan Jurisprudence and An Introduction to Islamic Law, we will find many positive sides to the progress of Islam, for this reason, there is a need for a critical study of these two works using the same methodology, namely a historical approach with So we will be able to see it objectively and at the same time be able to test Joseph Schacht's objectivity and any weaknesses in his work.Schacht's views on the origins of Islamic law and its early development are still quite significant and are still used as a starting point for research on Islamic law in the Western world (Fakhruddin, 2009).Hallaq even concluded that Schacht's view of Islamic law was "the most typical manifestation of the Islamic way of life, the heart and essence of Islam itself (Ahmad, 2015).
Apart from that, it is time for us to quote what Hasan Hanafi said about carrying out Occidentalism against Western civilizations.So that there will be a balanced transformation of science between West and East (Islam) and there will no longer be any justification for wrong or right when viewing a particular civilization.

CONCLUSION
From the description above, it can be concluded that the source of Islamic law according to Schacht through a social history approach is not a set of revealed norms, but rather a historical phenomenon that is closely related to the social setting.So, Islamic law was formed as a result of the process of historical development.
According to Schacht, only a few hadiths are truly original from the Prophet Muhammad, and through careful study, we can estimate when a hadith was distributed.Meanwhile, the term sunnah, which is used as a reference source for 19th century have begun to face serious challenges.Through colonialization and imperialism, Western influence on the Islamic world is very dominant.As a result, several aspects of Islamic teachings are questioned and challenged.One of them is aimed at the doctrine of the source of Islamic law itself.Joseph Schacht is one of the many Western critics who are very enthusiastic in criticizing the traditional understanding of Islamic legal sources.In contrast to traditional understanding, Schacht's study is neither theological nor juridical, but more historical and sociological.He offers Islam not as a set of norms revealed by God, but as a historical phenomenon that is closely related to the social setting in the sense that Schacht examines the authenticity of Islamic legal sources through a historical process.Because no matter how the past influences the present and the present influences the future.So it is not surprising that Schacht's comments still shock most Muslims.Schatch shows that most of Islamic law, including its sources, Initially, the Muslims acted based on the customs of Arab society, but the formation of a politico-legitimate society in Medina required the Muslims to face new problems, slowly the Koran established rules regarding this matter.Then the Prophet Muhammad SAW completed it based on the sunnah or practices carried out by the Prophet Muhammad himself in the form of expressions, actions, and decrees.
Islamic law, has been used by pre-Islamic Arab society, early Islam, the classical jurisprudence school, and by the famous legal expert Shafi'i through the legalization mechanism of his jurisprudence (Ushul Fiqh), and especially how the term developed.In fact, after research, the term sunnah, which means community customs narrated by oral tradition, was used in pre-Islamic Arabia.Sunnah itself consists of customary practices, procedures, or customary actions, norms, standards, or methods supported by hadith.Especially when looking at several aspects of family law such as marriage, divorce, inheritance, Zihar, and Hakam are other areas that are based on Arabic traditions.This perspective has sparked anger among certain communities, who say that the concept of sunnah ultimately originates from the Prophet and is the result of the Prophet's paradigm of thinking.However, if we want to look at it from various sides, Schacht's idea is a very constructive idea for the progress of Islam, if this idea is seen selectively, innovatively, and proportionally, rather than being attacked blindly without seeing the truth in it.Of course, this requires openness and high awareness of the importance of science, especially among figures who call themselves representatives of Muslims.Although of course, other parts are not in line with Islamic teachings.
Schacht is a leading Western scholar.He was born on March 15, 1902, In contrast to his predecessors, Shafi'i defines the Sunnah as the sole model of the Prophet's behavior.Like the hadith experts, he expressed his main view that nothing could reject the formal authority of the Prophet.He established the Sunnah of the Prophet as the main source of Islam on par with the Koran.Sunnah, in Shafi'i's view, cannot even be applied to the Koran.At the same time, Syafi'i also created a very detailed methodology to draw out legal doctrine from Islamic legal sources and then create a collection of rules and structures of Islamic law.The science of extracting legal decisions from these sources is called the principles of jurisprudence (useful fiqh) and this science is very important in Islamic law.Then Schacht's opinion was "followed" by many contemporary Islamic experts, one of whom was Khalil Abdul Karim.He said it must be acknowledged that the teachings in the Islamic religion are a legacy of pre-Islamic Arab traditions such as glorifying the Baitul Haram (Kaaba) and the holy land, Hajj, and Umrah, sacralizing the month of Ramadan, glorifying the Haram months, respecting Abraham and Isma.'il in the rites of worship.Then polygamy, slavery, al-Istijarah (hiring bodyguards to protect someone), and al-Jiwar (a strong person who has enemies) in social rites.Apart from that, in the punishment rites inherited from pre- Islamic Arabia, there are al-Aqilah and al-Qayamah, namely the oath of fifty people from a certain locus in which a mysterious murder victim whose identity is unknown is found, while the guardian (representation of the victim's family) )