RISĀLAT AL- AL-QAḌĀʼ BY THE CALIPH ʻUMAR IBN AL-KHAṬṬĀB’S LETTER TO ABŪ MŪSĀ AL-ASHʻARĪ, IN THE WORKS OF THE CELEBRATED ORIENTALISM SCHOLARS

RISĀLAT AL- AL-QAḌĀʼ BY THE CALIPH ʻUMAR IBN AL-KHAṬṬĀB’S LETTER TO ABŪ MŪSĀ AL-ASHʻARĪ, IN THE WORKS OF THE CELEBRATED ORIENTALISM SCHOLARS

كتاب القضاء لعمر بن الخطاب رضي الله عنه إلى واليه أبي موسى الأشعري في دراسات المستشرقين.

صالح بن سعيد المعمري (كلية الحقوق، جامعة الشرقية)

 Saleh al Mamari (College of Law, A’sharqiyah University)

هشام بن سعيد بن سيف الغنيمي (قسم المحاسبة والمالية، جامعة الشرقية)

HISHAM SAID SAIF AL GHUNAIMI (A’sharqiyah University)

مقال منشور في  مجلة جيل الأبحاث القانونية المعمقة العدد 55 الصفجة 95.

الملخص:

اعتنى كثير من المستشرقين بدراسة التأريخ الإسلامي ودراساته، ومن أهم ما تم التعمق فيه في دراساتهم خاصة فيما يتعلق بالسياسة الشرعية الإسلامية رسالة القضاء لعمر بن الخطاب رضي الله عنه التي أرسلها لواليه على البصرة أبي موسى الأشعري. وهذه الرسالة تعتبر من أهم الوثائق التأريخية الإسلامية فيما يتعلق بسياسة القضاء وإدارته وإجراءاته. فانعكست هذه الأهمية على اعتناء المستشرقين لهذه الرسالة بتحقيقها وتحليلها سواء في توثيقها أو في دراسة متنها والإجراءات والمبادئ القضائية التي فيها، لذا تبرز أهمية هذا البحث في التحليل النقدي لدراساتهم على هذه الرسالة شاملة الدراسة التأريخية واللغوية للرسالة مع مراجعة نقدهم لسندها ومتنها، ولتحقيق هذا الهدف حاول الباحث الإجابة على إشكالية البحث وتساؤله وهو: إلى أي مدى تظهر أهمية رسالة القضاء في كتابات المستشرقين ودراساتهم؟ حيث خلص البحث إلى توثيق الرسالة لمن نسبت إليه وهو الخليفة الثاني عمر بن الخطاب، وبيان أنها من أهم وأدق ما كتب في الإجراءات القضائية، ولا عجب حتى في اعتمادها في الدراسات القانونية الحديثة. ويذهب البحث إلى حد تسمية الرسالة خطابًا مفصلاً وعصريًا للغاية، وبالتالي، فإن الورقة توصي بمزيد من لاطلاع العقلاني المتجرد والتحقيق في التاريخ الإسلامي والموروث بحيادية مع تطبيق الإستراتيجية المنطقية العلمية المتطورة وتمحيص الأحاديث الواردة في نطاق دقيق، قد يهدي الباحثين للمزيد من خفايا المعارف. 

Abstract:

 Many Western orientalists were interested in Islam and its history. They had critical studies in many of its aspects, especially what was related to Islamic politics. Risālat al-Qaḍāʼ by the Caliph ʻUmar ibn al-Khaṭṭāb (d. 23 AH/644 CE) is one of the most celebrated treasures of Islamic legal judicial doctrine and of Arabic literature. A document, which includes important judicial principles and procedural law. The Orientalists, however, have studied the letter critically and analysed its contents on the basis of their methodologies. An attempt is made in this article to show to what extent these Orientalists approach this Letter. The article is focusing on the works of criticism of the letter, covering the transmission, history, philology and the legal rulings which emanate from the text of the letter. To achieve the above aim, this study answered the question: what is the impact of the letter of al-Qaḍāʼ on the contemporary studies of the celebrated orientalism scholars? Which led to know that this article that the letter in question can indeed be ascribed to ‘Umar ibn al-Khaṭṭāb, and going so far as to call, the under-discussion letter, a letter so detailed, modern, a treatment of the concept of magistrate and of procedure and hence, it suggests reasonable perusing and investigate of Islamic history and legacy concurring to the cutting edge logical strategy and putting the hadiths contained within the scale of precise, the fashion of the author and sender of messages may direct to more comes about.

Keywords: the letter of al-Qaḍāʼ, ʻUmar ibn al-Khaṭṭāb, judiciary system, judicial procedure.

1.1 Introduction:

Undoubtedly justice is one of the social obligations in the establishment of equality, social harmony and the promotion of human values. Islam emerged to promote justice in human society and to create the ideal society for human beings. The implementation of justice requires a high quality of judicial procedure. One of the most celebrated treasures of Islamic legal judicial doctrine was the kitāb^[1] al-Qaḍaʼ, which ʻUmar ibn al-Khaṭṭāb, the second Caliph of the Islamic State sent to his governor and judge of al-Basra, Abū Mūsā al-Ashʻarī. This letter applies the well-accepted principles of judicial theory, practice and procedure, which was sufficient to attract the attention of prominent Muslim scholars and non-Muslim scholars in their studies. Therefore, the present indicated to English readers the method and system used in judicial principles in Islam as well as the impact of this letter on the works and studies of the western scholars and ororientalists.

1.2 Rationale:

The rationale for selecting Risālat ʻUmar fī al-Qaḍāʼ, ʻUmar’s letter on the administration of justice, is based on the significance of this document which includes important judicial principles and procedural law, as one of the most celebrated treasures of Islamic legal judicial doctrine and of Arabic literature. Even in this modern age, this letter remains as important as ever for centuries. Its rulings have been included in the curricula of a number of Muslim works and codes of law. As The under-discussion document has attracted the attention of Western scholars, the present research will critically study their conclusions. 

1.3 Objectives:

To assess the impact of ʻUmar’s letter on al-qaḍāʼ on the later development of Islamic law.

To examine the significance of the letter of al-qaḍāʼ.

To analyse critically the Orientalists approach of this Letter.

In achieving the above aims and objectives the study tries to answer the following questions:

What is the impact of the letter of al-qaḍāʼ on on the contemporary studies of the celebrated orientalism scholars?

What are the reasons for the wide acceptance of ʻUmar’s letter in historical studies?

1.4 Literature Review:

In view of the great contributions made by the second Caliph ʻUmar ibn al-Khaṭṭāb in his time, special efforts have been made to study his achievements and to this end Muslim scholarship has contributed volumes. Nevertheless, ‘Umar’s letter has also attracted the attention of Western scholars. Ignaz Goldziher, in his The Zāhirīs, mentions very briefly the letter and its authenticity^[2]. Meanwhile, D. S. Margoliouth in “Omar’s Instructions to the Kadi” in The Journal of the Royal Asiatic Society of Great Britain, in 1910, critically assesses the authenticity of the letter and remarks that it, “whether genuine or not, is of great importance for the history of Muslim judicial institutions”^[3]. One of those orientalists who discussed the letter elaborately in the last century is Emile Tyan, from the Faculty of Law and Economics at Beirut University, in his “Histoire De L’Organisation Judiciaire en Pays D’Islam”^[4]. Joseph Schacht in “An Introduction of Islamic Law” briefly studied the letter and gives his comments, which are similar to the arguments of Tyan^[5]. In 1984, R. B. Serjeant from the University of Cambridge wrote an article entitled: “The Caliph ‘Umar’s Letters to Abū Mūsā al-Ash‘arī and Mu‘āwiyah” in the Journal of Semitic Studies^[6]. Before Serjeant, Hamidullah examined the criticism of these scholars in relation to the letter and strongly supported its authenticity in his article, “Administration of Justice under the Early Caliphate, Instructions of Caliph ‘Umar to Abū Mūsā al-Ash‘arī (17H)”^[7]. Very close in time and methods to Hamidullah, Guraya did the same in his article, “Judicial Principles as Enunciated by Caliph ‘Umar I”^[8].

1.5 Research Plan:

This research is divided into an Introduction, five main topics, a Conclusion and a Bibliography. The introduction provides the rationale of this research including its methodology. Section 1 is providing the text of the letter. Section 2 on the historical background. Section 3 analyses in detail the philological discussion related the letter. Section 4 is devoted to the criticism related to transmission of the letter. Section 5 is analysing the discussions against the letter. Finally, the Conclusion summarizes the research and lists the most important findings and recommends related themes for further study.

The text of the letter:

An attempt is made to translate the Arabic text of this genius document as follow. In this Letter ʻUmar ibn al-Khaṭṭāb said:

“In the Name of Allah, the Most Gracious, the Most Merciful,

From the slave of Allah ‘Umar ibn al-Khaṭṭāb, the Leader of the faithful, to Abū Mūsā al-Ash‘arī,

Peace be upon you, Verily, I praise to you Allah beside Whom there is no other god.

Having said this. Verily, the administration of justice is a binding ordinance of Allah and the Sunnah of the Prophet^[9], which ought to be followed. If a suit is filed before you, decide on it after careful consideration and execute it, for even the most rightful judgment without execution is useless. Consider both litigants as equal before your court and your attention. Thus, no strong person may have the greater share of your partiality and no weak party may despair of your justice. Proof is the responsibility of the one who claims, and an oath is upon the one who denies. Compromise is permissible among Muslims, but not a compromise which legalises what is forbidden or forbids what is lawful. You should not feel prevented by a judgment from returning to the correct opinion when upon reconsideration you have been guided to the correctness of your opinion.

It is better to retract to the right than persist in falsehood. Use your wisdom about matters which perplex you and disturb you and which are neither revealed in the Qur’ān nor experienced by the Sunnah. Study similar cases and evaluate the situation through analogy with similar cases and then compare them with each other. And pronounce the judgment, which you think is most pleasant to Allah and most in conformity with the truth, so follow it and rely on it. Hold the claim of the plaintiff in abeyance or demand proof; assign a term by which it will come to an end.

For this is the better way to remove doubts, clarify obscurities and attain excuse. If he brings his proof, you should allow his claim, otherwise you are permitted to give judgment against him. All Muslims are trustworthy as witnesses against each other, except one who has been whipped for offences with definite penalties, or one who has been proved to have given false witness, or one who is suspected of partiality on the ground of relationship, whether of patronage or of blood. Verily, Allah concerns Himself with your secret character, and postpones suspicions. Avoid uneasiness, annoyance, irritation, and simulation before the litigants in the court of justice, for which Allah will grand you a rich reward and give you a good compensation in the Hereafter. For verily, one whose intention is pure between him and Allah, Allah will protect him in what is between him and the people. Whereas, if a man ostentatiously presents himself to the people in a beautiful form while Allah knows the contrary to be true, Allah dishonours him.

Hence, what do you think of the reward from Allah regarding what he accords here as nourishment and of the treasures of His mercy in the Hereafter?

Salutations!^[10]“.

The historical facts:

‘Arnūs, an Egyptian writer, refutes the authenticity of the letter by quoting the historical fact that Abū Mūsā was appointed in Baṣrah by ‘Umar ibn al-Khaṭṭāb and Kūfah by ‘Uthmān. He goes on to refer to Ibn Khaldūn’s report that ‘Umar ibn al-Khaṭṭāb sent this letter to his governor in Kūfah (Abū Mūsā); meanwhile the qāḍī Shurayḥ was, at this time, the judge of Kūfah. But history shows, as ‘Arnūs claims, that Abū Mūsā governed Kūfah in the time of ‘Uthmān and not that of ‘Umar ibn al-Khaṭṭāb; thus, this letter could not have been addressed to him^[11].

Another Egyptian writer, ‘Alī ʻAbd al-Rāziq in his al-Islām wa Usūl al-Ḥukm, emphasizes that it was not the intention of the Prophet Muḥammad (e) to establish a government or a judiciary system; therefore, he disapproved of most of the appointments of governors and judges.  The same person performing different duties at the same time, according to some reports, led ‘Alī ʻAbd al-Rāziq to reject all official appointments in particular the one of Mu’ādh to the Yemen. These reports, in his view, can be described as mere historical fictions because of their contradictions. With regard to the letter in question, in the view of ‘Abd al-Rāziq, Abū Mūsā was the only governor of Basra who was appointed by ‘Umar ibn al-Khaṭṭāb. He then argues that in ‘Umar ibn al-Khaṭṭāb’s Caliphate there were no independent judges; likewise, ‘Umar ibn al-Khaṭṭāb did not have any judges to whom to address such a document^[12]. 

Tyan argues that the Islamic judicial concepts were more or less the same as the Arabs had used over generation. Hence, the Prophetic practice preserves one from the pre-Islamic times: taḥkīm, arbitration. Concerning the letter in question, Tyan depends on the argument of ‘Abd al-Rāziq and Margoliouth to conclude that Abū Mūsā was sent the letter, for he did not reach the high status on judicial matters which would have been required to understand the letter. In view of this it is difficult to conceive that he has received the letter. Meanwhile, Abū Mūsā’s assignment was administrative rather than judicial, as history indicates that ‘Umar ibn al-Khaṭṭāb sent him as a governor to Baṣrah, but not as a qāḍī^[13].

Serjeant believes that the dismissal of ‘Ammār ibn Yāsir from Kūfah followed by the appointment of Abū Mūsā strengthens his theory that the social and administrative power of the tribe still validated the role of ‘urf, custom to settle all cases by hereditary tribal arbiters. Therefore, he denies that the office of the qāḍī was an established ordinance, which, he believes, in no way “tallies” with the historical facts^[14].

However, Ibn Ḥazm seeks to reject from the letter all aspects which do not confirm its historical references. He apparently believes that the office of qāḍī did exist in the Caliphate of ‘Umar ibn al-Khaṭṭāb.

It is stated that the office of qāḍī was recognised in the lifetime of the Prophet (e) and there were some appointments of judges to certain places. A host of celebrated scholars agree that the Prophet Muḥammad (e) established the Islamic State and managed it with his centralised authority. Madīnah also became a model for a new State in Arabia in which three fundamental elements of a State were exercised: national, regional and political authority^[15]. The Constitution of Madīnah, the letters sent to the rulers inviting them to Islam, the military actions to protect his State and all of his appointments of governors, judges and military commanders are overwhelming evidence that one of the aims of the Prophet (e) was to establish a State and to maintain law and order. It is also illustrating the nature of his power as leader of the Islamic State[16].

The ḥadīth of Mu‘ādh, in which he used his own judgement when he failed to find the evidence in either the Qur’ān or the Sunnah, is regarded as one of the most important pieces of evidence that the institution of qāḍī was in place^[17], as we see from the dialogue between the Prophet Muḥammad and Mu‘ādh ibn Jabal. It is reported that the Prophet Muḥammad (e) asked Mu‘ādh ibn Jabal when he sent him to Yemen as a judge: how you will judge? Or what was his resource on which he would rely in giving decisions? In reply Mu‘ādh referred first to the Book of Allah and then to the Sunnah of the Messenger of Allah, failing in both he will use his own ijtihād. Mu‘ādh said: “I shall decide according to the Book of Allah and if there is nothing on the subject in the Book of Allah, then according to the Sunnah of the Prophet of Allah (e). If nothing is found I will rely on my opinion.^[18] 

The report shows the existing of the institution of al-qaḍā’ in the period of the Prophet Muḥammad (e), al-Bukhārī narrates that the Prophet (e) instructed Mu‘ādh: “Be gentle to them, oppress them not, attract them by good countenance and repulse them not by an ill demeanour.”^[19].

Abū Mūsā was one of those who were appointed by the Prophet (e) as a judge in Yemen. It is reported, as in the Ṣaḥīḥ al-Bukhārī, that the Prophet (e) sent both Abū Mūsā and Mu‘ādh ibn Jabal as governors to Yemen^[20]. This report clearly indicates that both of them administered justice although their essential assignment was to preach Islām.   

Abū Mūsā was also known as one of the most distinguished judges appointed by the Prophet (e), Abū Bakr and ‘Umar ibn al-Khaṭṭāb^[21]. After investigating the history of ‘Umar ibn al-Khaṭṭāb and his system for selecting governors and judges it can be concluded that the system chose only distinguished people with knowledge, honour and power. Ibn Ḥazm maintains that the knowledge of the Companions is recognised in their narrations of aḥādīth for which there is an acceptance from the trust of the Prophet (e). Ibn Ḥazm comments that the Prophet (e) never appointed an ignorant person^[22].

The ten years of serving the office of qāḍī, in the prevailing conditions, were enough for qualify Abū Mūsā to understand and apply the thought-provoking legal content of the letter in question.   

One fact which should not be forgotten in dealing with the early Islamic office of qāḍī is that the judges at that time also performed different functions besides their duties as a judge. J. Schacht in his “Law and Justice” admits that the qāḍī in the early Islamic period were also given various administrative portfolios such as: military command, political management, the collection of zakāh, charity, kharāj, taxes and the leadership of religious institution. He adds that the qāḍīs were the spokesmen of the people; they played an important part not only in preserving the balance of the State but also in maintaining Islamic civilisation and in time of disorder they constituted an element of stability^[23].

As observed by Khuda Bukhsh, the governor in the Caliphate of ‘Umar ibn al-Khaṭṭāb was not merely the Chief Commander of the troops, he was also the head of the Government; representing the Caliph in all the religious and judicial functions such as administration of justice, and leadership in the public Prayer^[24].

Tyan has the same opinion:

…the qāḍī became increasingly conscious of the scope of his mission, which consisted of the arbitration of suits between individuals and the safeguarding of the interest of those who required the protection of the state. Thus, the qāḍī became the guardian of the interests of orphans and absentees, whose property was left without provision for its administration. He was notary, the guardian of ownerless property, and the administrator of waqfs, pious endowments. The qāḍī also exercised functions which are actually compatible with the nature of his office, and which required corresponding knowledge. It was normal for qāḍīs to teach law, to write legal treatises, and to issue fatwā^[25].       

Another fact to remember is that ‘Umar ibn al-Khaṭṭāb and his predecessor Abū Bakr attended to the judicial duties and served the office of qāḍī in Madīnah by themselves. Mu’āwiyyah, according to Ibn al-‘Arabī^[26], was the first Caliph to close his door to seekers after justice and to appoint a judge to deal with these people. However, the statement of the Imām Mālik that neither the Prophet (e) nor Abū Bakr nor even ‘Umar ibn al-Khaṭṭāb nominated any qāḍīs in their time in power^[27], should apply only to the situation in their capital city Madīnah, as Ibn al-‘Arabī, Ibn ‘Abd al-Barr, Ibn Sahl^[28] and Khuda Bukhsh believe. The last of these adds that the judges were appointed only in important towns where a large number of people resided^[29].     

Keeping the above background in view, it seems logical that besides being the governor of Baṣra, Abū Mūsā also held the office of qāḍī. Furthermore, there are many cases for which Abū Mūsā consulted the Caliph ‘Umar ibn al-Khaṭṭāb.

According to Muhammad Hamidullah, the letter under discussion seems to have been written at the beginning of the governorship of Abū Mūsā and before the appointment of Ka‘b ibn Sūr as qāḍī, who was appointed as an administrator of justice in the year 18 /639^[30]. As a matter of fact, whether this conclusion is true or not, the office of qāḍī was combined with the office of a governor during the time of ‘Umar ibn al-Khaṭṭāb and the governor was the supreme judge in his province. Thus there is nothing confusing or surprising in the discovery that ‘Umar ibn al-Khaṭṭāb could send instructions for a qāḍī to his wālī. In addition ‘Umar ibn al-Khaṭṭāb sent more or less the same instructions to his governors Abū ‘Ubaydah, Shurayḥ and Mu‘āwiyah (the “short letter” related al-qaḍā’).  Neglecting this fact, might lead us, as with ‘Alī ‘Abd al-Rāziq, to reject all appointments of either governors or judges.  

There is no argument that the tribes during the Caliphate of ‘Umar ibn al-Khaṭṭāb played a significant part in assisting the Islamic State. However, proof is needed that the tribe socially and administratively in ‘Umar ibn al-Khaṭṭāb’s Caliphate still resorted to ‘urf, custom, to settle all cases by hereditary tribal arbitrators. This is in spite of the fact that ‘Umar ibn al-Khaṭṭāb instructed his governor Abū Mūsā al-Ash‘arī not to allow any person of his province to act as a judge without being authorised^[31]. Unlike taḥkīm, ‘Umar ibn al-Khaṭṭāb acknowledged that it is pointless to pronounce on a case without having the authority to execute it and therefore, any judge should be fully obeyed in his decisions, for even the most rightful judgment without execution is useless^[32]. Therefore, the point raised by Serjeant that the tribal arbitrators had their own system of judgment is untenable.

Guraya has commented on the argument of ‘Arnūs that his argument is neither supported by historical survey nor by reason and he was simply overawed by Ibn Khaldūn, whose view is controversial in this matter^[33]. Apparently, some modern Muslim writers have been misled into thinking the same thing. Shibli al-Nu‘mani and Anwar Ahmad Qadri in their al-Farooq and Justice in Historical Islam respectively both state that ‘Umar ibn al-Khaṭṭāb appointed Abū Mūsā al-Ash‘arī as the governor of Kūfah and he addressed him as such in the letter in question^[34]. A few pages later Anwar Qadri notes that Shurayḥ, after settling a dispute between the Caliph ‘Umar ibn al-Khaṭṭāb and an Iraqi person, was promoted to the position of judge as the qāḍī of Kūfah, and stayed in the same position until the death of ‘Umar ibn al-Khaṭṭāb^[35].

To conclude, there is a substantial list of the early qāḍīs appointed by the Prophet (e), Abū Bakr, ‘Umar ibn al-Khaṭṭāb and other Caliphs and this can be provided easily from the available sources. Therefore, the idea that the Prophet’s (e) authority was not legal, that the first Caliphs did not appoint qāḍīs and that the conception of Islamic life is the product of later people is unreasonable and untenable. Watt in his Muḥammad: Prophet and Statesman concludes that the Prophet Muḥammad (e) established a State Ummah for his economic, social and political system. The membership of this community was a political as well as religious matter^[36].

Philological discussions related to the letter:

Goldziher believed, after a critical examination of this letter, that these instructions contain concepts and terms, especially the term qiyās, whose precise definitions became current only at a later period^[37]. 

Margoliouth, in turn, to refute the text, goes through the letter word by word. Regarding the word al-qaḍā’, he argues that if it refers to the institution of the Qur’ān it should be quoted at least in a text to justify it^[38]. The phrase “Sunnah muttaba‘ah” cannot have meant any practice of the Prophet (e) but a practice which was not abrogated by Islam^[39]. Furthermore, and because “the Arabic word qis, compare, is used in the letter”^[40] which seems to him certainly borrowed from the Jews who had already studied analogy, Margoliouth concludes that the use of these terms and phrases makes it clear that ‘Umar ibn al-Khaṭṭāb, if these instructions be genuine, must have had a Jewish lawyer at his elbow^[41]. The phrase “Equalize all Muslims, as he translates, in your court and your attention” in the observation of Margoliouth is more likely to be a Jewish rule that both litigants should be allowed the same time for their addresses to the court^[42]. He adds that the text gives a higher place for Muslims over the tolerated sect. He refers the expression “the claimant must produce evidence, from the defendant an oath be exacted” to the Jewish saying: “whoso would get out from his neighbour, on him lies the proof”, and for oaths the Rabbis introduced a somewhat less terrible oath for cases of complete repudiation of a claim^[43]. The clause “al-bayyinah ‘alā man idda‘ā” with Margoliouth is almost certainly translated from a Mishnic rule. He also indicates that the word adla or udliya is evidently identical with the Ethiopic adlawa “he pleased” or “he flattered”^[44]. 

Tyan argues that the terms of the independence of the essential sources in Islamic jurisprudence are as ordered, the Qur’ān, Sunnah, ijmā‘and qiyās this was known decades after the death of ‘Umar ibn al-Khaṭṭāb^[45].

The bad character of Bilāl and his feelings of inferiority, explained by the phrases of adalah, sulḥ and his pride in the office of qāḍī plus the phrase which introduces the Islamic sources and especially analogy qiyās, , in Serjeant’s opinion, evolved in the second century. 

Having given these scholars’ opinions, it may be helpful to try to analyse them systematically.

These Western scholars reject the letter as coming from ‘Umar ibn al-Khaṭṭāb because it contains terms which were not known during the time of ‘Umar ibn al-Khaṭṭāb. The fact is that this letter is considered to be one of the best examples of eloquence in Arabic. It was admired by many authors such as al-Jāḥiẓ, Ibn ‘Abd Rabbuh and al-Mubarrid. The linguistic style and composition of the letter was not new in this period, in which the Holy Qur’ān was sent down as a miraculous language. Some terms such as Ijtihād and Qiyās were well known during the period of the Companions^[46]. The author of Manhaj ‘Umar ibn al-Khaṭṭāb fī al-Tashrī‘indicates in his reply to this claim, “There is no clear evidence to show that some terms did not exist in this period”^[47]. Al-Qāsimī Ẓāfir illustrates that this letter’s being quoted in the work of al-Jāḥiẓ and al-Mubarrid proves its authenticity in the philological sense of its paralleling the language of the time^[48].    

 Although the word qiyās is not mentioned in the Holy Qur’ān, it still an Arabic word and was used before ‘Umar ibn al-Khaṭṭāb, as Ahmad Ḥasan in his Article: the Definition of Qiyās in Islamic Jurisprudence illustrates from old Arabic poems^[49]. It could be concluded that the word qiyās was known and used in ‘Umar ibn al-Khaṭṭāb’s time. Furthermore, Ibn Ḥazm is well known as the famous scholar who opposes this view, but even he never argues that this word is not an Arabic word or that the Prophet (e) never used it as a word. He nevertheless, reports some traditions containing this word. He reports that Shurayḥ the qāḍī said: “the Sunnah has preceded your qiyās,” using the word qiyās. He and Ibn al-Qayyim quote Ibn Mas‘ūd, one of the Companions, using the term qiyās in its concrete meaning^[50]. Assuming for the sake of argument, Hamidullah states, if the technical term of qiyās was invented by the great jurists of the second century of the Hijrah, it does not mean that this word existed in its etymologically earlier sense. This hypothesis, however, is advantageous for the letter under discussion, since it suggests that these jurists were inspired by this earlier word to coin their technical term for the science of jurisprudence and methodology of law^[51].  

Regarding the term Sunnah and its usage, the Prophet (e) states that its value goes side by side with that of the Qur’ān. Sunnah however, was seen to have a stronger base in historical reality and practice, and it was basically in this sense that the word occurred in a reported saying of the Prophet (e):

 “You are to follow, sunnati, my Sunnah and the Sunnah of the Rightly-Guided Caliphs after me”^[52].

 In another ḥadīth, the Prophet (e) praises one of his Companions as aṣabta al-Sunnat “you have done as my Sunnah has required”^[53]. The point, from these two examples, is that the Prophet (e) uses the same word with the same meaning (which Tyan claims was known, in its technical sense, decades after the death of ‘Umar ibn al-Khaṭṭāb). In addition, it is reported that ‘Umar ibn al-Khaṭṭāb specifies the Sunnah only to the Prophet (e), since he explains that the Sunnah means only what has been acted or said by the Prophet (e)^[54].  

In view of the evidence mentioned above, these principles of Islamic jurisprudence were familiar to Muslims and were already in practice during the life of the Caliph ‘Umar ibn al-Khaṭṭāb.  Thus there is no chance for Margoliouth, Tyan and Serjeant to argue that the terms or at least the usage of Sunnah, ijmā‘and qiyās did not exist during the lifetime  of ‘Umar ibn al-Khaṭṭāb or that these terms came to light a century after his death.

On the subject of the word al-qaḍā’, numerous traditions show that the Prophet (e) uses this word in its technical meaning before ‘Umar ibn al-Khaṭṭāb does.

Although he assumes that the Caliph ‘Umar ibn al-Khaṭṭāb employed a Jewish adviser in his office, Margoliouth does not provide any evidence of this to support his assumption. Even if he did, his argument would prove nothing, as Hamidullah points out, since Arabic and Hebrew are both Semitic languages. In addition, the word qiyās or its root qayasa has been in use in Arabic even before the time of ‘Umar^[55]. 

The criticism related to transmission:

In his work The Zāhirīs, Goldziher disputes the authenticity of this letter because its isnād did not conform to the law of the science of ḥadīth; rather it is spurious^[56].

Margoliouth, in comparing the narrations of al-Jāḥiẓ, al-Mubarrid and Ibn Qutaybah (d. 276/ 889), comments that these transmissions were in the oral tradition rather than documented ones^[57]. Moreover, none of these narrations has isnād except Jāḥiẓ which fails, in his view, to take us near the time of the correspondents. He also notes that the author Qatādah (d.117/735) was born about twenty years after the death of the correspondents, while Abū Bakr al-Hudhalī and ‘Ubayd Allah ibn Ḥumayd al-Hudhalī, two of the narrators, are hard to identify^[58].

Tyan, in his arguments about the letter in question, condemned the Muslim scholars for their blind acceptance of the letter^[59]. Although one of the most important documents in Islamic Law, this letter was ignored until the fifth century^[60], perhaps indicating the rejection of the letter by Ibn Ḥazm, by the early essential sources of the Sunnah and history such as Muwaṭṭā’ by Imām Mālik, the Musnad by Imām Aḥmad, the Ṣaḥīḥayn, the Musnad by Zayd ibn ‘Alī (d. 122/739) and the Ṭabaqāt by Ibn Sa‘d^[61]. Though these sources have mentioned numerous traditions of ‘Umar ibn al-Khaṭṭāb and the matters of qaḍā’, all reference to this letter is completely absent. Holding the argument of Margoliouth and comparing this letter and the one sent to Mu‘āwiyah led Tyan to infer that this letter is part of an oral tradition, which is likely to have developed. The appearance of this letter in al-Jāḥiẓ and al-Mubarrid’s works is of no significance, because the isnād cannot be trusted^[62].

The views of Serjeant are clear from the title of his article; he makes a comparison between this letter and the one which ‘Umar ibn al-Khaṭṭāb sent to Mu‘āwiyah and Abū Mūsā al-Ash‘arī. Serjeant states that “the improved letter”, the long letter to Abū Mūsā, if it is not accepted as being by ‘Umar ibn al-Khaṭṭāb, undoubtedly belongs to the early second century evolved by the ‘Ulamā’^[63]. To support this theory, Serjeant developed a connection between Bilāl (125/742), the grandson of Abū Mūsā, with his companion Qatādah ibn Di‘āmah (117/735) and Sufyān ibn ‘Uyaynah (198/813), who reported both letters; this led Serjeant to believe that the fabrication of the letter would have been made before 118/736 or 125/742^[64]. In addition to this, Bilāl was known as an unjust qāḍī, who was proud of being a judge and bore a complex of social inferiority, which, Serjeant surmises, may have stemmed from his mother’s ‘Um walad, low birth. The bad character of Bilāl and his inferiority complex can be explained by the phrases ‘adālah, ṣulḥ and his pride in the office of qāḍī together with the modification of Iraq’s laws and urban situation and also the patent link between the letters; all these issues support the belief that the long letter to Abū Mūsā had been framed in the period that Serjeant expected^[65].

Analysing the discussion against the letter:

After outlining the arguments of the scholars mentioned above, an attempt is next made to analyse these arguments systematically and in order.

It seems that Tyan and Serjeant base their arguments on the attempt of Margoliouth to weaken the evidence of the transmission of the letter, because they use the same narrations as are used by Margoliouth in his discussion. They both seem to have made no effort to search for other evidence, although this is available – all the data are easy to collect.

Typically, in their common discussion, the Orientalists argue that Umar ibn al-Khaṭṭāb’s letter was first recorded in the sources in the third century A.H. by al-Mubarrid. They argue against the trustworthiness of this letter because of the lack of records of it in the early period. Schacht is of the opinion that these instructions are a product of the third century of Islam,^[66] but Serjeant presumes to be earlier, in the second century^[67].

Generally, Margoliouth, Goldziher and Schacht expended much effort to obtain this result, which ended in a highly sceptical perspective on the authenticity of the Sunnah. According to Schacht, the traditionalists produced the traditions, which are claimed to be the reports of the Prophet (e) handed down orally by an uninterrupted isnād of trustworthy persons^[68]. He says in his The Origin of Muḥammadān Jurisprudence (1950): “…every legal tradition from the Prophet (e), until the contrary is proved, must be taken not as authentic or essentially authentic, even if, slightly obscured, a statement is valid for this time of the Companions, but as the fictitious expression of legal doctrine formulated at a later age^[69]”. Fourteen years later (1964) in his An Introduction to Islamic Law, Schacht says: “Hardly any of these traditions, as far as matters of religious law are concerned, can be considered authentic”^[70] which seems to be a more extreme argument against the Sunnah.

Nabia Abbott used to share more or less the same view of these Western scholars against the Sunnah, but after her painstaking study of early papyri documents she was convinced that much of the suspicion is, in fact, unjustified^[71].

However, it is not the aim of the present study to investigate the legal validity of the Sunnah. But going through the historical data and the cross references to hundreds of statements one is bound to refute the hypotheses of these scholars. Abbott has marshalled overwhelming evidence to show the highly exaggerated character of the above hypotheses.  

In an attempt to analyse these hypotheses, one should bear in mind the conclusion of Ibn ʻAbd al-Barr, al-Khaṭīb al-Baghdādī (463/1070) ^[72], al-Dhahabī (d. 847/1443), Ibn Ḥajar, Abbott^[73] and Muṣṭafā al-A‘zamī ^[74]that in some few cases, the aḥādīth were passed down orally, which for Muslim scholars is a valid record. It was in the mid- to late second century that the aḥādīth were compiled in a written document, the Sunnah. Therefore, the discussion between the Muslim scholars, regarding the first record of the Sunnah does not mean the Sunnah did not exist before the date of its first record.

To make this argument clear we should distinguish between the words used by muḥaddithūn regarding the matter of recording ḥadīth. The word kataba, which was commonly used in the earliest recorded aḥādīth, means writing down, but the word tadwīn means a collection of books/booklets^[75]. The interchanging between kataba and tadwīn may have led to a misunderstanding in the earliest recordings of the Sunnah. In ḥadīth science the term dawwana refers to collecting the Sunnah as the statement says: awwal man dawwana al- ‘Ilm Ibn Shihāb al-Zuhrī, the first to record the knowledge is Ibn Shihāb al-Zuhrī (d. 124/741). He collected both the earliest written aḥādīth as well as recording the oral aḥādīth^[76].     

Historically, the writing down of aḥādīth started quite early in the life of the Prophet (e), while tadwīn apparently started during the Caliphate of ‘Umar ibn ʻAbd al-‘Azīz (d. 101/719) in the second century. The Prophet (e) and the first four Caliphs found it necessary to issue oral and written instructions to their officials. The first Qur’ānic verses revealed as an ordinance to read were unforgettable.^[77]

Since the day that these verses were revealed, the Prophet (e) used some of his Companions to write down what was eventually revealed as the Qur’ān. Al-Kattānī in his al-Tarātīb Idāriyyah mentions the names of forty-two of these writers^[78]. This incredible number of writers was not restricted to the writing of the Qur’ān. They used their ability to write the Sunnah poetry and other things. According to Ibn Ḥajar, some Companions were appointed as teachers of writing^[79]. Azami refers to fifty Companions who used writing as a method to record ḥadīth, either during the life of the Prophet (e) or after his death^[80]. According to Abbott, some of the private papers of these Companions show the earliest collection of aḥādīth^[81].

Besides the constitution of Madīnah, numerous reports maintain that the Prophet (e) recommended his Companions to write his words or acts, the Sunnah. Because of the Prophet’s (e) approval, ‘Abd Allah ibn ‘Amr ibn al-As (d. 65/) ^[82]wrote a book named al-Ṣaḥīfah al-Ṣādiqah, which contained some aḥādīth. He also has some booklets on maghāzī, (early history and the biography of the Prophet (e)). Abū Shat, a Yemenite, requested to have some written aḥādīth and the Prophet (e) responded to his request and ordered someone to write them for him^[83]. The encouragement of the Prophet (e) to learn how to write appears clearly after the battle of Badr (2/623) in which the freedom of the war prisoners was contingent upon their teaching the children of the Companions how to read and how to write^[84].

‘Amr ibn Ḥazm, when governor of Najrān, received a letter from the Prophet (e) containing some Sunan including the times of the prayers, taxation, booty, ṣadaqāt, charity and diyāt blood money.^[85] Abū Dāʼūd (d. 275/888) reports that ‘Umar ibn al-Khaṭṭāb had a boxful of documents written^[86] by the Prophet (e), Abū Bakr and himself which was kept by his family after his death. Ibn Shihāb al-Zuhrī was able to make a copy of these documents after getting access to it through Sālim ibn ‘Abd Allāh ibn ‘Umar ibn al-Khaṭṭāb (106/724)^[87].

A preponderance of historical evidence exists to indicate that an interest in the collection of the Sunnah began at a very early date. Abbott after studying the history of the aḥādīth recording states that it was not the failure on the part of the Companions to write down aḥādīth but in fact they liked better to collect written Sunnah than to memorise them^[88]. This preference grew so rapidly after the death of the Prophet (e) that it even alarmed ‘Umar ibn al-Khaṭṭāb and a few other Companions.                 

The Ṣaḥīfah, book of Hammām ibn Munabbih (d. 131/748), and many more, are regarded as the earliest documents belonging to the age of the Companions. Muḥammad al-Khatīb in his “al-Sunnah qabla al-Tadwīn” assumes that this Ṣaḥīfah was written before the death of Abū Hurayrah (d. 59/678) as it was done at his dictation^[89]. However, this book, which parallels the copies of Ibn Hanbal and that of al-Mūṣānaf by ‘Abd al-Razzāq, was published and edited by Muḥammad Hamidullah^[90].

However, it is argued that some Companions, such as Abū Bakr, ‘Umar ibn al-Khaṭṭāb and ‘Alī ibn Abū Tālib, used to dislike the writing of aḥādīth. This attitude was not based, according to Ibn ‘Abd al-Bar and al-Khaṭīb al-Baghdādī, on any Prophetic order but, perhaps, due to a concern that the Qur’ān should not be mixed with non-Qur’ānic material. Yet most of these Companions are reported to have reassessed their approach at the end and were tacitly instructed to write down aḥādīth after they gained confidence that the Qur’ān and non-Qur’ānic materials would not be mixed^[91]. Ibn Hanbal and al-Bukhārī report that Abū Bakr sent a letter to Anas ibn Mālik containing some sunan of zakāh and ṣadaqāt^[92]. In another report, ‘Umar ibn al-Khaṭṭāb did the same and sent a few sunans to ‘Utbah ibn Farqad, one of his governors^[93]. It is a historical fact that ‘Umar ibn al-Khaṭṭāb wrote instructions to his officials, which usually contained the teaching of the Prophet (e) as clearly shown in the present study. Al-Bukhārī also reports that ‘Alī ibn Abū Tālib possessed a ṣaḥīfah of aḥādīth on diyāt and some rules about prisoners of war^[94].       

Moving close to the end of the first century and the beginning of the second century of Hijrah, we find the documents mentioned above were compiled as a result of the literary pursuits of ‘Umar ibn ‘Abd al-‘Azīz and other scholars of his time, who took great pains  to collect the Sunnah in order to preserve them. Ironically enough, these materials were preserved continuously in written form from the second and third centuries through to the present. 

The letter of ‘Umar ibn al-Khaṭṭāb can be traced back to its early references in the works of Ma‘mar ibn Rashīd (d. 153/770) in his al-Jāmi‘, the Imām Mālik (d.179/795) in al-Muwaṭṭa’ and Abū Yūsuf (d.182/798) in his al-Kharāj.    

In fact, the omitting of this document from the ṣaḥiḥayn, al-Bukhārī and Muslim, does not mean that there is doubt about its authenticity, for al-Bukhārī quotes about four thousand aḥādīth in his al-Jāmi‘ al-Ṣahīh out of one hundred thousand which he could have used. Al-Bukhārī, according to Ibn al-Ṣalah (d. 643/1245), and Muslim in his al-Jāmi‘ al-Ṣaḥīḥ, both confess that they left out more ṣaḥīḥ than they quote in their works^[95]. Essentially, the Ṣaḥīḥ of al-Bukhārī is entitled, according to Ibn al-Ṣalāh^[96], “al-Jāmi‘ al-Musnad al-Ṣaḥīḥ al-Mukhtaṣar, min ʼUmūr Rasūl Allah wa Sunanih wa Ayyāmih”. In this title the word “al-Mukhtaṣar”, epitomises the fact that al-Bukhārī made no effort to compile a comprehensive collection of ṣaḥīḥ al-ḥadīth. Al-Bukhārī has another compilation that contains many uninterrupted aḥādīth, called al-’Adab al-Mufrad.

It should not be forgotten that al-Ḥakīm Abū ‘Abd Allah (d. 405/1014), using the system and method that al-Bukhārī and Muslim used for recording the ṣaḥiḥayn, compiled volumes of aḥādīth in his al-Mustadrak ‘ala al-Ṣaḥīḥayn which were omitted by al-Bukhārī and Muslim. Ibn Taymiyah, the distinguished scholar, comments on the omitting of a ḥadīth by some scholars while it is recognised by others that the author might have forgotten the tradition in question or he might not have deemed it an authentic one or he might not have liked to repeat it^[97]. Ample evidence exists that even Companions who were close to the Prophet Muḥammad (e), such as Abū Bakr and ‘Umar ibn al-Khaṭṭāb, remained ignorant of some of the aḥādīth. It is reported that Abū Bakr knew nothing regarding the grandmother’s inheritance until two Companions witnessed that the Prophet (e) giving a grandmother one-sixth^[98]. ‘Umar ibn al-Khaṭṭāb, moreover, did not know that a woman could inherit from the diyah, blood-money of her husband until he was told by al-Ḍaḥḥāk ibn Sufyān (d. 11/632), that the Prophet (e) had sanctioned it^[99].

Since Abū Bakr and ‘Umar ibn al-Khaṭṭāb were not aware of some of the aḥādīth, it is logical to assume that later scholars who had less knowledge about the Sunnah could have omitted some aḥādīth from their collection. 

Although later scholars compiled thousands of aḥādīth, it is certainly unreasonable to claim that the Sunnah is confined only to these works. Ibn Taymiyah concludes that to say that any single authentic Sunnah is identified by any single distinguished Muslim scholar is highly incorrect^[100].     

Azami asserts that the early scholars did not feel the need to cite all the aḥādīth available to them^[101]as he supposes, logically enough, that the collection of the entire tradition by one or two scholars is impossible, otherwise the gate of ijtihād would be closed and the use of reason would be blocked.

It has already been mentioned that the prominent Imāms Mālik, Shāfi‘ī and Aḥmad ibn Ḥanbal are among those who cited this letter in their narratives or included it in their works. Furthermore, it is difficult to believe that this letter was produced in the third century for the document has been narrated through several conduits by the people of Ḥijāz, Iraq, the Levant and Egypt. Physical distances and logistics in this period posed serious problems for people to get together to produce a phraseology of consensus. In addition, most of those narrators had never met each other and their ways of narration differed from each other. Bearing all these facts in mind, it is untenable to say that this document was produced in the third century. Basically, the variety of these narrations, as Ibn Ḥajar indicates, strengthen the authenticity of the document^[102]. Naturally, this letter is a historical document, which can be accepted.   

 Unfortunately, Margoliouth, Tayan and Serjeant adopt the narrations of the lexicological books^[103], which do not directly deal with the authenticity of the transmission of the document in the narrations. Hence, it is not productive to remain confined to such sources for the establishment of the authenticity of the letter, given that a wide range of Ḥadīth sources are available.   

Furthermore, as the narrations of al-Mubarrid and Ibn Qutaybah have no links with the correspondence, Margoliouth, Tayan and Serjeant focus on the narration of al-Jāḥiẓ written by Qatādah and ignore the uninterrupted narrations. Although that the narration of Qatādah is not reliable alone, yet the uninterrupted narrations supported its authenticity. In spite of the absence of a chain of narrations of al-Mubarrid, his narration does not depart from the text given by other authors which strengthen his narration^[104]. Apparently Serjeant passed over to the narration of Sa‘id ibn Abū Burdah, as in footnote (55) of his work.^[105] 

These scholars conclude that the variety found in the different words and phrases used in the different narrations weakens the authenticity of the letter in question and makes it inseparable from oral tradition. This conclusion has led Serjeant not, indeed, to reject its authenticity but to claim that it was framed and improved by the descendant of Abū Mūsā^[106].

However, the arrangement of the clauses of the letter and its variations in linguistic style do not change its meaning since some narrators depend on the text of the letter itself and others rely on memorization; therefore, the letter has different words and phrases^[107]. Al-Murāghī, the editor of Tārīkh al-Quḍāh by Wakī‘, emphasises that the scholars of the science of Ḥadīth agree that a variety of narrations in a tradition does not impugn a document’s authenticity unless they create a contradiction in its meaning^[108]. Ibn Daqīq al- ‘Īd (d. 702/1302), in referring to the fact that there can be differences of words and clauses in the same ḥadīth, states that the priority should be given to al-ḥadīth al-aqwā, the strong narrations. He goes on to say that if al-ḥadīth al-ḍa’īf, the weak tradition contains a contradiction with stronger tradition the former should be removed^[109]. Regarding the letter in question, Ibn Ḥajar argues that the large number of its narrations is enough to prove its authenticity. He concludes in his comments on Ibn Ḥazm’s words: “Controversy emerging from the letter has strengthened the genuineness of the letter, especially from the narration that shows that the letter was registered.^[110] “It should be also borne in mind, as Hamidullah points out, that if by chance there are several reporters of the same fact, each independent of the other, there is less possibility of their plotting to falsify it and there is even some evidence that the unacceptable witnesses have not told a lie in this particular case^[111]. On another occasion he remarks that the greater the number of narrators of a fact, the greater the probability of its authenticity^[112]. On these grounds, Ibn al-Qayyim states that when the narration is transmitted by generation after generation, Muslim scholars are usually satisfied by this transmission and they do not seek a chain of narrations mentioning it. He educes a few famous aḥādīth which Muslim scholarship accepts although their chains are in parts doubtful^[113].    

Furthermore, Abū al-Malīḥ, one of the narrators of the letter under discussion, was a disciple of ‘Umar ibn al-Khaṭṭāb and his father was a Companion. Qatādah, even though he did not link his narration to Abū Mūsā, transmitted a few aḥādīth from Abū Burdah ibn Abū Mūsā and from his son Sa‘īd ibn Abū Burdah. Al-Sha‘bī, although he does not mention the name of his intermediary link to Abū Mūsā, was a well-known narrator. He transmitted a number of aḥādīth from the great Companions, Abū Mūsā al-Ash‘arī, ‘Alī ibn Abū Ṭālib, Sa‘d ibn Abū Waqqāṣ, Anas ibn Mālik and ‘Āʼisah, the wife of the Prophet (e). He also transmitted a few aḥādīth from Abū Burdah ibn Abū Mūsā. These narrators had a great chance to obtain it from Abū Burdah or his son Sa’īd ibn Abū Burdah with whom the written text of the letter under discussion was kept; although they did not obtain the knowledge of the letter directly from ‘Umar, they and the narrators affirm having copied the text directly from it^[114].         

In fact this letter was originally a document^[115] memorised by the narrators who transmitted it orally from the most reliable narrations of Sa‘īd ibn Abū Burdah, the one who presented this document in its original form. Moreover, it can be referred to Idrīs al-Awdī and the others who received this letter from Sa‘īd ibn Abū Burdah in speech, as this was the prevalent system of reporting any traditions. This appears in the transmission of Wakī’ and Ibn al-Qayyim “walā yay’asa waḍī‘un wa rubbamā qāla ḍa‘īfun” and “yatalajlaj fī ṣadrika wa rubbamā qāla fī nafsika” which reflect ambiguity in some of the words reported by the narrators. In another narration with Ibn al-Qayyim, the narrator Abū ‘Ubaid doubts whether it is al-khuṣūmah or al-khusūm^[116].

In view of the facts mentioned above, there is no room to argue that Muslim scholars used the oral tradition as a written document^[117].       

Academically, it seems that the conclusion of Serjeant is not untenable. Even though Bilāl, who was accused by Serjeant of fabricating ‘Umar ibn al-Khaṭṭāb’s letter, was an unjust person, no single scholar has reported that this document comes to us through his chain. Moreover, although Bilāl had many enemies, no one accused him of fabricating a single ḥadīth; in fact, he was classified as thiqat, trustworthy in the science of al-rrijāl, the narrators^[118]. Bilāl’s narrations sound authentic and reliable due to the comments of Ibn Ḥibbān, the distinguished traditionalist^[119].

Bilāl and Qatādah were closely acquainted since Bilāl was the qāḍī of Baṣrah and Qatādah was his consultant. Furthermore, according to the sources available, the “short letter”^[120] to Qatādah cannot be traced. However, it is not academically sound to create facts to prove a weak theory. Thus, the assumption by Serjeant that the letter is fabricated, perhaps by Bilāl, is untenable. Serjeant mistakenly indicates that ‘Umar ibn al-Khaṭṭāb addressed the short letter to two governors only^[121], Abū Mūsā and Mu‘āwiyah; in fact, it was sent also to Shurayḥ and Abū ‘Ubaydah. Serjeant also relies on the narration of Ibn Abū al-Ḥadīd, which he had not found in the edition available to him but had related to him by another scholar^[122]. In fact, Ibn Abū al-Ḥadīd mentions the letter without saying whether it was fabricated or not.^[123] 

After looking at the evidence, one reaches the conclusion that it is weak and untenable to say that this letter was found late because the first narration was recorded in the third century. According to Abbott, if the Western scholars’ increasing objectivity in their study of comparative religions and cultures continues, a new phase in the study of Islamic tradition promises to be more enlightening than had been expected^[124]. Norman Daniel, another Western scholar, show, using detailed references, that many complex factors led Western scholars to misinterpret the true picture of Islam and its religious sources^[125].  

Thus, we can say that ‘Umar ibn al-Khaṭṭāb’s letter, essentially a document, concerning the instruction of qāḍī, was narrated orally by more than forty celebrated scholars.

Conclusion:  

The discussion in this article has led the researcher to believe that the letter in question can indeed be ascribed to ‘Umar ibn al-Khaṭṭāb, regardless of what its detractors say. The researcher agrees with Ibn Ḥazm in regarding his four narrations as weak, but, it should be borne in mind that there are four other sound narrations which support its authenticity. These narrations are those of Ibn ʻAbd al-Barr (two narrations), Wakī‘and al-Dāraquṭnī.

The other narrations could be classified as shāhid and should be taken into account because they are supported by ṣaḥīḥ narrations. The researcher also agrees with Margoliouth and Tyan that the narration of Qatādah does not take us to its originator, for it is known as mursal. Nevertheless, this kind of tradition is not agreed on by scholars as an authentic one, yet there are other reliable narrations which strengthen the acceptability of the mursal.

According to the science of ḥadīth, the narration, although its isnād is uninterrupted, shall neither be in conflict with the Qur’ān nor with another stronger ḥadīth, nor with reason and experience. However, the letter does not create conflict in any of these categories which can challenge its authenticity. Neither the language nor the legal rulings of the letter can be assumed not to have come from ‘Umar ibn al-Khaṭṭāb. Both the terms and the legal rulings which were used in the letter were known and used during the time of ‘Umar ibn al-Khaṭṭāb. Revoking the testimony’s rules mentioned in the letter by ‘Umar ibn al-Khaṭṭāb himself is itself evidence of the existence of the letter. Regardless of his criticism against the authenticity of the letter, Tyan greatly admired this document, going so far as to call it a letter so detailed, almost so modern, a treatment of the concept of magistrate and of procedure[126]. Finally, the present article validates the statement that the letter is an authentic document sent by the Caliph ‘Umar ibn al-Khaṭṭāb to his governor of Baṣrah, Abū Mūsā al-Ash‘arī.

The research also recommends fair reading and research of Islamic history and heritage according to the modern scientific methodology and putting the hadiths contained in the scale of accurate modern craftsmanship, and following the style of the writer and sender of messages in his time may guide researchers to more results.

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[1]-The word kitāb generally has two meanings, a letter or a book. In the case of the kitāb under discussion it may be taken in the sense of a letter as the general rule in the use of this word in reference to the Companions’ writings. See; Al-A‘zami, M.M., Studies in Early Hadith Literature, (Indiana: American Trust Publications, 2001), p. 28.

[2]-Goldziher, Ignaz, The Zāhirīs Their Doctrine and Their History (Leiden: E.J. Brill, 1971), p. 9-10.

[3]-Margoliouth, D. S., “Omar’s Instructions to the Kadi”, The Journal of the Royal Asiatic Society of Great Britain, (1910): pp. 307-326.

[4]-Tyan, Emile, Histoire de L’Organisation Judiciaire en Pays D’Islam (Leiden: E.J. Brill, 1960), pp. 77-82.    

[5]-Schacht, J., An Introduction to Islamic Law (Oxford: The Clarendon Press  1964), p. 16.; Schacht, J., “al-Ash‘arī Abū Burda”, Encyclopaedia of Islam (Leiden: E. J. Brill, 1960), vol. 1, pp. 694-695.

[6]-Serjeant, R.B., “The Caliph ‘Umar’s Letters to Abū Mūsā al-Ash‘arī and Mu‘āwiya”, Journal of Semitic Studies, 29, (1984): pp. 65-79.

[7]-Hamidullah, Muhammad, “Administration of Justice under the Early Caliphate, Instructions of Caliph ‘Umar to Abū Mūsā al-Ash‘arī (17H)” in Journal of the Pakistan Historical Society, 19, (1971): pp. 1-50.

[8]-Guraya, Muhammad Yusuf, “Judicial Principles as Enunciated by Caliph ‘Umar I”, in Journal of Islamic Studies, 11 (1972): pp. 159-185.

[9]-The Arabic text accepts this meaning as the Sunnah of the Prophet or the sunnah, which means the custom, or the method of people’s lives.

[10]-I strongly depend on the translation of Hamidullah in his article, ‘Administration of Justice Under the Early Caliphate’, pp. 7-8; and Muhammad, Y.G. in his article, ‘Judicial Principles As Enunciated by ‘Umar ibn al-Khaṭṭāb’ 1’, p. 170.  

[11]-‘Arnūs, Maḥmūd, Tārīkh al-Qaḍāʼ fī al-Islām (Cairo: al-Maṭba‘ah al-Miṣriyyah al-Ḥadīthah, 1943), vol. 1, p.15.

[12]-‘Abd al-Rāziq, ‘Alī, al-Islām wa Usūl al-Ḥukm, p. 39.

[13]-Tyan, Histoire de L’Organisation Judiciaire en Pays D’Islam, 77-82.

[14]-Serjeant, The Caliph Umar ibn al-Khaṭṭāb’s Letter, p. 74.

[15]-MacDonald, Duncan B., Development of Muslim Theology, Jurisprudence and Constitutional Theory (London: George Routledge & Sons Limited, 1903), p. 67.

[16]– The numerous works devoted only to the verdicts of the Prophet Muḥammad (e) show the enrichment of the judiciary in his period. An example of these works is “Aqdiyat Rasūli Allāh, Ṣallā Allāh ‘Alayhi wa Sallam” by Ibn al-Ṭallā ‘(d. 497/1103).

[17]-This tradition has been discussed vary widely by Muslim scholars who differ over the authenticity of this tradition. For more detail see: al-Albānī, Muḥammad, Da‘īf Sunan Abū Dā’ūd (Beirut: al-Maktab al-Islāmī, 1992), pp. 354-355; Ibn al-Qayyim, I‘lam al-Muwaqqi‘īn, vol. 2, pp. 344-351 (footnote by the editor). 

[18]-Al-Sajistānī, Abū Dā’ūd, Sunan Abī Dā’ūd (Cairo: Dār al-Ḥadīth, 1988), vol.3, p.302; and: al-Tirmidhī, Muḥammad, Sunan al-Tirmidhī (Makkah: al-Maktabah al-Tijāriyyah, (n. d.)), vol. 3, p.618, (Ḥadīth no. 1331).

[19]-Al-Bukhārī, al-Jāmi‘ al-Ṣaḥīḥ, p.735.

[20]-Al-Bukhārī, al-Jāmi‘ al-Ṣaḥīḥ, p. 1231 and 1235.

[21]-According to Muḥammad Yūsuf Guraya, the Caliph ‘Umar ibn al-Khaṭṭāb wrote about 425 letters to his officials, Abū Mūsā received seventy of these missives, the highest number received by any of ‘Umar ibn al-Khaṭṭāb’s officials. See: Guraya, “Judicial Principles as Enunciated by Caliph ‘Umar ibn al-Khaṭṭāb I”, p. 159.

[22]-Al-Nabhān, Muḥammad Fārūq, Niẓām al-Ḥukm fi al-Islām, (Beirut: Mu’assasat al-Risālah, 1988), p. 151.

[23]-Schacht, J., “Law and Justice” in The Cambridge History of Islam, vol. 2, p. 558. 

[24]-Khuda Bukhsh, M. A., The Orient Under The Caliphs, (Beirut: United Publishers, 1973), p. 111.

[25]-In Surty, M.I., “The Ethical Code and Organised Procedure of Early Islamic Law Courts, with Reference to al-Khassaf’s Adab al-Qāḍī” in Criminal Justice in Islam: Judicial Procedure in the Shari’a, eds. Muḥammad Abdel Haleem, Adel Omar Sherif and Kate Daniels (London: I.B. Tauris, 2003), p. 154.

[26]-Ibn al-‘Arabī, Muḥammad, ‘Āriḍat al-Aḥwadhī (Beirut: Dār al-Kutub al-‘Ilmiyyah, 1997), vol. 6, p. 54.

[27]-Wakī‘, Akhbār al-Quḍāh, vol. 1, p. 111, (footnote).

[28]-Ibid.

[29]-Khuda Bukhsh, The Orient Under The Caliphs, p. 130.

[30]-Hamidullah , Muḥammad, “Administration of Justice Under the Early Caliphate: Instructions of Caliph ‘Umar ibn al-Khaṭṭāb to Abū Mūsā al-Ash‘arī 17 A.H.” p. 2.

[31]-Al-Ṣan‘ānī, ‘Abd al-Razzāq, al-Musannaf, ed. Ḥabīb al-‘Aẓamī (Beirut: al-Maktab al-Islāmī, 1983), vol. 11, p. 328.

[32]-As it is clear in the letter in question.

[33]-Guraya, “Judicial Principles as Enunciated by Caliph ‘Umar ibn al-Khaṭṭāb I”, p. 175.

[34]-Al-Nu’mani, Shibly, al-Farooq: The Life of Omar the Great (New Delhi: International Islamic Publisher, 1992), p. 259; Qadri, A. Ahmad, Justice in Historical Islam (Lahore: Sh. Muḥammad Ashraf, 1980), pp. 19, 23. 

[35]-Qadri, A. Ahmad, Justice in Historical Islam, p. 23.

[36]-Watt, W.M., Muḥammad: Prophet and Statesman (London, Oxford and New York: Oxford University Press, 1974), pp. 224-225.

[37]-Goldziher, The Zahiris, pp. 9-10.

[38]-Margoliouth, “Omar’s Instructions to the Kāḍīs”, p. 312.

[39]-Ibid, p. 314.

[40]-Ibid, p.320.

[41]-Ibid, p. 320.

[42]-Ibid, p. 318.

[43]-Ibid, p. 318-319.

[44]-Ibid, p. 316.

[45]-Tyan, Histoire de L’Organisation Judiciaire en Pays D’Islam, p. 81. 

[46]-Drayb, Sa‘ūd, “Risālat al-Farūq li Abū Mūsā al-Asha‘rī -raḍiya Allah ‘anhumā- wa al-Mabād’ī al-‘Āmmah fī Uṣūl al-Qaḍāʼ”, Mijallat al-Buḥūth al-Islāmiyyah, 7, (1983): p. 281. 

[47]-Baltājī, Muḥammad, Manhaj ‘Umar ibn al-Khaṭṭāb fī al-Tashrī ‘(Cairo: Dār al-Salām, 2002), p. 432.

[48]-Al-Qāsmī, Ẓāfir, Niẓām al-Ḥukm fī al-Sharī‘ah wa al-Tārīkh al-Islāmī (Beirut: Dār al-Nafā’is, 1978), vol. 2, p. 460.

[49]-Ahmad, Hasan, “The Definition of Qiyās in Islamic Jurisprudence” Islamic Studies, 19, (1980): p. 1.

[50]-Ibn Ḥazm, al-Iḥkām fī Uṣūl al-Aḥkām, vol. 2, p. 539-542; Ibn al-Qayyim, ‘Ilām al-Muwaqqi‘īn, vol. 2, p. 105.

[51]-Hamidullah, Muḥammad, “Administration of Justice Under the Early Caliphate: Instructions of Caliph ‘Umar ibn al-Khaṭṭāb to Abū Mūsā al-Ash‘arī 17 A.H.” p. 37.

[52]-Ibn Ḥanbal, al-Musnad, vol. 4, p. 126.

[53]-Al-Bayhaqī, al-Sunan al-Kubrā, vol.1, p. 231.

[54]-Ibn Ḥazm, al-Iḥkām fī Uṣūl al-Aḥkām, vol, 2, p. 225.

[55]-Hamidullah, Muhammad, “Administration of Justice under the Early Caliphate, Instructions of Caliph ‘Umar ibn al-Khaṭṭāb to Abū Mūsā al-Ash‘arī (17H)”, p. 28. 

[56]-Goldziher, Ignaz, The Zāhirīs Their Doctrine and Their History, p. 9-10.

[57]-Margoliouth, “Omar’s Instructions to the Kādī”, p. 307.

[58]-Ibid, p. 308.

[59]-Tyan, Emile, Histoire de L’Organisation Judiciaire en Pays D’Islam, , pp. 78.

[60]-Ibid.

[61]-Ibid.

[62]-Ibid, p. 80.    

[63]-Serjeant, R.B., “The Caliph ‘Umar ibn al-Khaṭṭāb’s Letters to Abū Mūsā al-Ash‘arī and Mu‘āwiya”, p. 66. 

[64]-Ibid, p. 78.

[65]-Ibid, p. 79.

[66]-Schacht, An Introduction to Islamic Law, p. 16.

[67]-Serjeant, The Caliph ‘Umar ibn al-Khaṭṭāb’s letter, p. 79.

[68]-Schacht, J., An Introduction to Islamic Law, p. 34

[69]-Schacht, The Origin of Muḥammadān Jurisprudence, p. 149. 

[70]-Schacht, An Introduction to Islamic Law, p. 34. 

[71]-Abbott, Nabia, Studies in Arabic Literary Papyri I (Chicago: The University of Chicago Press, 1967), p. 17. 

[72]-It is not clear who was the first to discuss this issue, but the work of Ibn Abd al-Barr (463 A.H.) Jami‘ bayān al-‘Ilm wa Faḍlih are more or less devoted in this subject and so is the work of al-Khaṭīb al-Baghdādī (463 A.H.) Taqyīd al-‘Ilm. Al-Khaṭīb, al-Baghdādī, Taqyīd al- ‘Ilm, ed. Yūsuf al-‘Ish, (Beirut: Dār Iḥyāʼ al-Sunnah al-Nabawiyyah, 1974).

[73]-Abbott, Nabia, Studies in Arabic Literary Papyri, p. 17. 

[74]-Al-A’zami, M.M., Studies in Early Hadith Literature, a Ph.D. thesis of Cambridge University, (Indiana: American Trust Publications, 1978), p. 20.

[75]-The Dīwān of ‘Umar ibn al-Khaṭṭāb, the first systematic official record in Islamic civilization, is classified in this category. For more detail see: Vida, “‘Umar ibn al-Khaṭṭāb”, in Encyclopaedia of Islam, vol.10, p.819.

[76]-Al-A‘zami, Studies in Early Hadith Literature, p. 20.

[77]– As Allah Almighty says:

“Read! In the Name of your Lord Who has created.

He has created man from a clot.

Read! And your Lord is the Most Generous.

Who has taught by pen.

He has taught man that which he knew not.” Al-Qur’ān, 96/1-5.

[78]-Al-Kattānī, al-Tarātīb Idāriyyah, vol. 1, p. 115-117 mentions forty-two names and according to Azami this number could be increased to fifty from the list of Hamidullah, al-Wathā’iq al-Siyāsiyyah. See: Azami, Studies in Early Hadith Literature, p. 5. 

[79]-Ibn Ḥajar, Aḥmad ibn ‘Alī, al-Iṣābah fī Tamyīz al-Ṣaḥābah (Beirut: Dār al-Kutub al- ‘Ilmiyyah, (n. d )), vol. 2, pp. 27-28.

[80]-Azami, Studies in Early Hadith Literature, pp. 34-70.

[81]-Abbott, Studies in Arabic Literary Papyri I, vol. 2, p. 11.

[82]-Al-Baghdādī, Taqyīd al- ‘Ilm, p. 84.

[83]-Ibn Ḥanbal, Aḥmad, al-Musnad, vol. 2, p. 238.

[84]– ‘Arjūn, Muḥammad Rasūl Allah, vol. 3, p. 527.

[85]-Al-Bayhaqī, al-Sunan al-Kubrā, vol. 4, p. 88-89.

[86]-It should be known that the Prophet was illiterate and did not write, thus these documents were prepared under his authority and stamped by him. 

[87]-Abū Dāʼūd, Sunan Abū Dāʼūd, no. 1568, 1570.

[88]-Abbott, Studies in Arabic Literary Papyri I, vol. 2, p. 17.

[89]-Al-Khatīb, Muḥammad, al-Sunnah qabla al-Tadwīn (Beirut: Dār al-Fikr, 1981), p. 357.

[90]-Ibid, pp. 295-361.

[91]-Ibn ‘Abd al-Barr, Jāmi‘Bayān al-‘Ilm wa Faḍlih (al-Dammām: Dār Ibn al-Jawzī, 1994), vol. 2, p. 1003.

[92]-Al-Khatīb, al-Baghdādī, Taqyīd al- ‘Ilm, p. 87.

[93]-Al-Bukhārī, al-Jāmi‘al-Ṣaḥīḥ, p. 1028.

[94]-Ibid, p. 24.

[95]-Ibn al-Ṣalāḥ, Abū ‘Amr, Muqaddimat Ibn al-Ṣalāḥ fī ‘Ulūm al-Ḥadīth (Beirut: Dār al-Fikr, 1988), p. 10.

[96]-Ibn al-Ṣalāḥ, Muqaddimat Ibn al-Ṣalāḥ fī ‘Ulūm al-Ḥadīth, p. 13.

[97]-Iby Taymiyah, Aḥmad, Raf’ al-Malām ‘an al-Aʼimmah al-A’lām 5^th ed., (Makkah: Mu’asasat Makkah li al-Ṭibā‘ah wa al-I‘lām, 1976), pp. 5-19; also: Ansari, Z.I., “The Authenticity of Traditions: a Critique of Joseph Schacht’s Argument e silentio” Hamdard Islamicus, 7 (1984): p. 58.

[98]-Al-Dhahabī, Abū ‘Abd Allah, Tadhkirat al-Ḥuffāẓ (Beirut: Dār Iḥyā’ al-Turāth al-‘Arabī, 1956), vol. 1, p. 2.

[99]-Al-Shāfi‘ī, al-Risālah, ed. Aḥmad Muḥammad Shākir (Beirut: Dār al-Kutub al-‘Ilmiyyah, (n.d)), P.426.

[100]-Ibn Taymiyah, Raf’ al-Malām, p. 17; Ibn al- ‘Arabī, Abū Bakr, al-Maḥṣūl fī Usūl al-Fiqh (Amman: Dār al-Bayāriq, 1999), p. 117.

[101]-Azami, On Schacht Origins…, p. 121.

[102]-Ibn Ḥajar, Talkhīṣ al-Ḥabīr, vol. 4, p. 196.

[103]-Such as the narrations of al-Jāḥiẓ, al-Mubarrid and Ibn Qutaybah.

[104]-Mubarrid, al-Kāmil fī al-Adab, vol. 1, p. 15.

[105]-In this footnote he states that Sa’id ibn Abū Burdah had unequivocally implied support for the improved text, which means that he passed over this narration; Serjeant, The Caliph ‘Umar ibn al-Khaṭṭāb’s letter, p. 76.

[106]-Serjeant, “The Caliph ‘Umar ibn al-Khaṭṭāb’s letter”, pp. 78-79.

[107]-Bāzmūl, Aḥmad, Risālat ‘Umar ibn al-Khaṭṭāb Ilā Abū Mūsā al-Ash’arī fī al-Qaḍāʼ wa Ādābih-Riwāyah wa Dirāyah, p. 34.

[108]-Wakī ‘, Akhbār al-Quḍāh, vol. 1, pp. 73-75

[109] -Ibn Daqīq al- ‘Īd, al-’Iqtirāḥ fī Bayān al-Iṣṭilāḥ (Beirut: Dār al-Bashā’ir al-Islāmiyyah, 2006), p. 198.

[110]– Ibn Ḥajar, Talkhīṣ al-Ḥabīr (Beirut: Dār al-Kutub al- ‘Ilmiyyah, 1998), vol. 4, p. 473.

[111]-Hamidullah, Muhammad, “Administration of Justice under the Early Caliphate, Instructions of Caliph ‘Umar ibn al-Khaṭṭāb to Abū Mūsā al-Ash‘arī (17H), p. 19.

[112]-Ibid, p. 35.

[113]-Ibn al-Qayyim, I‘lām al-Muwaqqi‘īn, vol. 2, pp. 344-354.

[114]-Hamidullah, Muhammad, “Administration of Justice under the Early Caliphate, Instructions of Caliph ‘Umar ibn al-Khaṭṭāb to Abū Mūsā al-Ash‘arī (17H)”, p.27.

[115]-Documents were also called book in the Ḥadīth literature. In the narrations of the letter in question the authors say: fʼakhraj lanā kitāban, he, Sa’id ibn Abū Burdah showed us a “book”. This book in fact was a piece of writing. 

[116]-Ibn al-Qayyim, I‘lām al-Muwaqq‘īn, vol. 2, p. 159; Wakī‘, Akhbār al-Quḍāh, vol. 1, p. 71.

[117]-It is the view of Margoliouth that Muslim scholars used the oral tradition as a written document; see: Margoliouth, “Omar instructions to the Kādī”, p. 308; he says: “It is no surprise to the student of Muslim history that even for a letter oral tradition should be preferred to written document.” 

[118]– Al-Zirakly, Khayr al-Din, al-A‘lām (Beirut: Dār al-Ilm li al-Malāyīn, 1999), vol. 2, p. 72.

[119]-Ibn Ḥibbān, Muḥammad, Kitāb al-Thiqāt (Hyderabad: The Dā’irat al-Ma‘ārif al-‘Uthmāniyyah, 1980), vol. 6, p. 91.

[120]-Serjeant has called the letter sent to Mu‘āwiyah the short letter. His language is adopted here for academic reasons.

[121]– Serjeant, The Caliph Umar ibn al-Khaṭṭāb’s letter., p. 70.

[122]-Ibid, p. 68.

[123]-Ibn Abū al-Ḥadīd, Sharḥ Nahg al-Balāghah, ed. Muḥammad Abū al-Faḍl (Beirut: al-Markaz al-Thaqāfī al-Libnānī, 2003), vol. 12, p.72.

[124]-Abbott, Studies in Arabic Literary Papyri I, vol. 2, p. 83.

[125]-Ibid.

[126]-Tyan, Emile, Histoire de L’Organisation Judiciaire en Pays D’Islam, p. 82.