1. Dutton, Yasin, The Origins of Islamie Law 13-14, 164-165, 173–177 (Curzon Press 1999)Google Scholar.

2. It is generally the practice of modern scholars to use the word ḥadīth to refer to the single tradition, saying, or act of the Prophet Muḥammad or his Companions; the same word capitalized, Ḥadīth, however, designates the abstract collections of these traditions. Furthermore, the terms Sunnah and Ḥadīth are invariably used to refer to the same thing. I will comply to some extent with this convention herein.

3. Id. at 1.

4. As summarized by Dutton, these problems were specifically in the area of texts and isnāds. Id. at 2.

5. Id.

6. Muwạṭṭa' is the title of one of the first collections of ḥadīth and it was reportedly authored by the jurist of Madīnah Mālik Ibn Anas. However, the existing versions of this work are more likely written by his students.

7. Emphasis mine; this word is crucial in understanding the scope of his theory when contrasted with my argument: preservation is not the same as origination of the laws.

8. Dutton, supra n. 1, at 3.

9. See Hallaq, Wael, On Inductive Corroboration, Probability, and Certainty in Sunni Legal Thought, in Islamic Law and Jurisprudence 3 (Heer, Nicholas ed., U. Wash. Press 1990)Google Scholar.

10. After the systematization of Islamic law, Sunni and Shìite scholars alike assert that ijtihād (hence, law making) is permitted only when dealing with matters not addressed in the Qur'ān; and see Maghniyyah, M.J., figh al-imām Jàfar al-Ṣādiq 5:366 (Ansariyān 1982)Google Scholar.

11. Verbalization as used in the critical studies of Islamic law refers to the historical mutations of the language through time. The wording, mood, and syntax change with time signaling the time signature during which a particular document (or speech for that matter) was committed to writing. Philology scholars rely on these patterns in order to date such documents.

12. It should become evident that throughout this paper, I speak of the Qur'ān and the muṣhaf as two different things and that is exactly the case. Essential to the arguments of this paper is the fact that I consider the muṣḥaf to be the physical written document alone which is accessible to all. The Qur'ān on the other hand refers to the historical authoritative tradition which not only includes the wording of the written document but also the culture, practices, rites, and myths associated with it.

13. This conclusion ought to exclude the commentaries that existed before or after the tadwīn time period, for their value is more or less academic as opposed to religious function of any given ḥadīth. See generally Griffiths, Paul J., Religious Reading 76–119 (Oxford U. Press 1999)CrossRefGoogle Scholar (discussing the role and function of the commentaries).

14. The one area in Islamic law that emphasized the need to maintain a written document is the long-term and short-term loans. However, even then, the documents relied on “formularies” in order to allow the reader to guess the meaning and content based on widely used pre-set style. This particular emphasis on written documents in this area was mandated by explicit Qur'ānic edict: yā ayuhā al-ladhīna āmanū idhā tadāyantum bidaynin ilā ajalin musamman faktubūh. In such a case, the difficulty of reading the documents was alleviated by the adoption of the formularies. See Wakin, Jeanette A., The Function of Documents in Islamic Law 2–72 (SUNY Press 1972)Google Scholar.

15. For comparison purposes, see Qāyesh Zādeh's copy of the Qur'ān published by Būzqūrd Press, Istanbūl, the Republic of Turkey 1969; Muṣtafā Naẓīf's copy of the Qur'ān published by al-Anwār al-Muhammadiyyah Press, Cairo, Egypt 1923.

16. Examples: the letter mīm indicates mandatory stop, lām alif instructs the reader not to stop, letter jīm refers to equally permitted stop, and so on ….

17. The general reference for any muṣḥaf will be in a form of a claim stating that the current copy is based on the “riwāyah” of Ḥafṣ Ibn Sulaymān Ibn al-Mughīrah al-Asadī al-Kūfī, conforming to the recitation (qirā'ah) of ՝Āṣim Ibn Abī al-Najūd al-Kūfī al-Tābi՝ī, on the authority of Abī Abd al-Raḥmān Abdullah Ibn Ḥabīb al-Sulamī, on the authority of ՝Uthmān Ibn ՝Affān, Alī Ibn Abī Ṭālib, Zayd Ibn Thābit, and Ubayy Ibn Ka՝b, on the authority of the Prophet (PBUH).

18. It was easy decoding the manuscripts once one or two successive words were successfully identified to be part of the Qur'ān, Ḥadīth, or a proverbial or idiomatic saying. However, regarding the one manuscript that might be a personal document, it was impossible to read beyond the parts that are considered “formulary” passages. This would explain the need by early Arabs to record documents in poetry-like format. In fact, even some of the books on grammar were written not as prose, but as poetry. It is easy to “guess” words or missing information from metered poetry and known adage; indeed, even the Qur'ān which is not poetry was composed in poetry-like style. The short verses, the rhymed endings, and speech-like tone all made it easy for the reciters to commit it to memory.

19. See Muţṭafā Naẓīf's muṣḥafand that by Qāyesh Zādeh, supra n. 15.

20. See Wansbrough, John, Quranic Studies (Oxford U. Press 1977)Google Scholar; Juynboll, G.H.A., Studies on the Origins and Uses of Islamic ḥadīth (Variorum 1996)Google Scholar; Juynboll, G.H.A, Muslim Tradition (Cambridge U. Press 1983)CrossRefGoogle Scholar.

21. The multiplicity and diversity of monographic and bibliographic books produced by early Muslim scholars shows the strong interest in establishing reliable reference mechanism.

22. The adjective “traditional” and its derivatives used here are used merely to describe individuals involved in the study, teaching, and maintenance of religious traditions, be it the Qur'ān or the ḥadīth.

23. For a good discussion on the subject whether early Arabs relied on memory and orality in the absence of writing, see Graham, William A., Beyond the Written Word 90 (Cambridge U. Press 1987)Google Scholar.

24. For the practicing Muslim, whether in the mosque or at home, he cannot read the Qur'ān silently; he must recite it (tartīl). This is a Qur'ānic mandated practice: “thus We have revealed it to you so that we feel comfortable and supported on your claim, We have made it a great recital (rattalnāhu tartīlā).” [S25: V32]; “And recite the Qur'ān great recital (wa rattil al-qur'āna tortīlā).” [S73: V4]; also see [S2: V113], [S2: V121], [S2: V129], [S4: V127], [S18: V27], [S29: V48], [S29: V51], [S62: V2], and [S46: V30]. The instances where Qur'ān may be recited/read silently include performing some or parts of the prayers or other rituals where parts of the Qur'ān are recited in silence.

25. The current stance on the two forms (the oral and the written) of the Qur'ān is that they are dependent on one another: the primacy of the oral discourse in terms of function must be balanced by the written documents in terms of practice. However, I would go further to argue that if the oral discourse existed by itself, whereas the written document needs the oral component, it is reasonable to argue for independence for the oral form from the written but not visa versa. Oral expression can exist and mostly has existed without any writing at all, writing never without orality. Ong, Walter J., Orality and Literacy 8 (Methuen 1982)CrossRefGoogle Scholar. For more on the counter argument see Graham, supra n. 23, at 110-111. The fact that there is a different value placed on the oral report is further manifested in the legal practice: a judge in the Western world today will admit a written note as evidence in a court of law. In the classical Islamic judicial system, such note would be considered immaterial unless backed by the oral testimony of a witness.

26. Graham, supra n. 23, at 114-115.

27. If orally transmitted information were to be written down, it is only natural that the newly written document would reflect the language and the style of that time period. This is especially the case with ḥadīth since it was not transmitted verbatim. However, neglect of the Prophetic license to paraphrase the ḥadīth and the role of orality in the first two Islamic centuries have led many modern scholars on Islam to conclude that there was a widespread “fabrication” of ḥadīth. See Goldziher, Ignaz, Muslim Studies vol. 1 (Stern, S.M. ed., SUNY Press 1967–1971)Google Scholar; Schacht, Joseph, The Origins Of Muhammadan Jurisprudence 149 (Clarendon Press 1979)Google Scholar; Calder, Norman, Studies In Early Muslim Jurisprudence 244 (Clarendon Press 1993)Google Scholar; Burton, John, The Sources of Islamic Law 1–8 (Edinburgh U. Press 1990)Google Scholar; Juynboll, supra n. 20; Muranyi, Miklos, ՝Abd Allāh B. Wahb (Harrassowitz 1992)Google Scholar; Wansbrough, supra n. 20, at 44, 52, 84, 117, 148, 159, 175, 179, 182; Powers, David S., Studies In Qur'ān And ḥadīth 17 (U. Cal. Press 1986)Google Scholar.

28. In a manuscript by al-Baḥrānī for instance, we find that all major books of ḥadīth are referenced when a tradition is taken from them, but in other instances, only the oral report is listed. Al-Bahrānī, , Ghāyat al-Marām (Mu'assasat al-A'lamī li al-Mṣtbū՝āt 1968)Google Scholar. For example ṣaḥīḥ Muslim, Musnad Ahmad, and ṣaḥīḥ al-Bukhārī were quoted many times. Id. at 1:100, 1:101, 2:203, & 1:90. At the same time, other traditions were quoted as an oral report: Abdullah Ibn Ḥanbal qāla ḥaddathanā abī … suggesting that even after writing down the musnad, the non-recorded traditions were still available and quoted along with the traditions recorded in the books. Id. With time however, the number of oral reports quoted appear to diminish while the reliance on the written books of tradition becomes more widespread. Id.

29. Ibn Khaldūn has it right when he considers the art of writing to be the mere translation of the “audible words,” as only audible words indicate what is intended. Ibn Khaldūn believes, no doubt, that writing is “second after oral expression.” See Khaldūn, Ibn, The Muqaddimah vol. 2, 377 (Rosenthal, Franz trans., Princeton U. Press 1967)Google Scholar.

30. Even though Muslim scholarship refers to muwạṭṭa' Mālik as the first book of ḥadīth, it must be noted that although Mālik is mentioned in the ṣiḥāḥ as a narrator of some ahādīth, the muwạṭṭa' was never referenced as the source of these traditions being recorded.

31. Not only religious tradition is rooted in the oral discourse. Even the law has relied on the power and effectiveness of orality. British common law, for instance, was exclusively maintained and transmitted orally until the second half of the eleventh century (1066). Cf. Clanchy, M.T., From Memory to Written Record 23 (Harv. U. Press 1979)Google Scholar.

32. See Jaffee, Martin S., Torah in the Mouth 84–85 (Oxford U. Press 2001)CrossRefGoogle Scholar.

33. Transferring religious authority from the oral discourse into written documents allows everyone access to it; however, the utility and the function of the transferred message is often appropriated by the political leadership. In a sense, writing the laws—be they religious or otherwise—better serves the political establishment and diminishes the power of the religious institutions.

34. Burton, supra n. 27, at 9.

35. Some scholars have taken the liberty to study the text of the Qur'ān in order to establish a different reading of the original text thereby producing a new set of rulings in matters of law. See generally Powers, supra n. 27, at 135-197.

36. Admittedly, many scholars have shown some awareness of the role of orality in Islam; almost any work dealing with the history of the Qur'ān would contain a section emphasizing that awareness. However, and to my knowledge, their awareness did not go beyond mere observation. There is no suggestion or recommendation as to how the oral reports are to be included in the critical study of Islam. Au contraire, one is left with the impression that it was only a matter of time before writing was to be adopted in order to “fix” and determine the historicity and authenticity of any given tradition. What I am proposing however, is that if we are to accept the notion that orality is the medium of choice for maintaining and transmitting religious authority for the Semitic people, then it should follow that the primary focus is placed on this practice, not the other way around.

37. The term “shares” used above denotes the Qur'ānic portions assigned for the class or relatives who are specifically mentioned. Muslim jurists coined the term furūḍ. Interestingly, the same word is used to mean “obligations.” That common root is indicative of the importance of the system of shares and the need to distribute inheritance in a predetermined manner as an obligation per Qur'ānic mandate.

38. I am using this term to denote the fact that there is no specific order of heirs in Sunni jurisprudence; that is to say who should inherit first and who should inherit last or whether one class of heirs has priority over another.

39. ՝awl is the pro-rata diminishing of the determined shares.

40. al-Mardāwī, ՝Alā' al-Dīn, al-inṣāf 316 (Dār Iḥyā' al-Turāth al-՝Arabī 1986)Google Scholar.

41. This decree was issued first in the mubāhalah case.

42. ՝Ashūr, Muhammad al-Ṭāhir Bin, Tafsīr al-Taķrīr wa al-Tanvīr 4:260 (al-Dār al-Tunisiyyah li al-Nashr 1971)Google Scholar.

43. The same way there are predetermined shares (fractions) that are explicitly stated in the Qur'ān, there are also heirs mentioned who must be matched with those fractions.

44. For an illustration of the Sharers and Shares as understood by most Muslim scholarship and a general understanding of the hierarchy see al-Sharbīnī, Shams al-Dīn, al-iqnā' fi ḥall alfāẓ Abī Shujā՝ 204–216 (Dār al-Kutub al-՝llmiyyah 1994)Google Scholar. It must be noted that the views expressed therein may be the same in Shi՝ite tradition; however, the promotion or demotion of certain heirs may force a different outcome.

45. See mir'āt al-՝uqūl, 1:136.

46. See majtna ՝al-zawā'id, 9:39.

47. See the ṣaḥīḥ by al-Bukhār¯, 2:200; sunan of Ibn Dāwūd, 2:49; sunan of al-Nasā'iyy, 2:179; musnad Aḥmad, 1:6, 9; tabaqāt of Ibn Sa՝d, 2:315.

48. See futūḥ al-buldān, 1:34–35Google Scholar.

49. See Aḥmad's, musnad, 1:4Google Scholar; sunan of Ibn Dāwūd, 3:50, al-Thahbīyy's, tārīkh, 1:346Google Scholar.

50. The author of sharḥ al-nahj, Ibn Abī al-Ḥadīd, reported that the dominant view was that none but Abū Bakr had ever reported this ḥadīth. Seé sharḥ al-nahj, 4:82–85Google Scholar. Also, it is believed that it is because of this dispute that Shi՝ite jurists became more and more skeptical of the singular (aḥād) traditions in general.

51. And know that out of all the booty that you may acquire (in war), a fifth share is assigned to God, and to the Messenger, and to near relatives, orphans, the needy, and the wayfarer, if you do believe in God and in the revelation We sent down to our Servant on the Day of Testing, the Day of the meeting of the two forces. For God has power over all things.

[S8: V41].

52. See sharḥ al-nahj, supra n. 50, at 4:81; tārīkh al-islām, 1:347Google Scholar.

53. See Burton, supra n. 27, at 18 et seq.; Powers, supra n. 27, at 143-172.

54. al-Şābūnī, Muḥammad Alī, tafsīr āyāt al-aḥkām 101 (Maktabat al-Ghazzālī 1977)Google Scholar; Farghally, Muhammad Mahmoud, al-naskh bayna al-ithbāt wa al-nafyi 89 (Dār al-Kitāb al-Jāmi՝ī 1976)Google Scholar; al-Athīr, Ibn, Jāmi՝ al-uṣūl 151 (Maktabat Dār al-Bayān 1969)Google Scholar.

55. This category is a controversial one; an example is the stoning of the muķṣan adulterer or adulteress which was mentioned in ՝Umar's tradition.

56. The status and distribution of fay' is a good example of the Qur'ān overturning the practice of the Prophet, but the original practice was not seen by Muslims as a form of waḥy, rather as a personal ijtihād on the part of Muhammad.

57. Salāmah, Abū al-Naṣr Ibn, Asbāb al-Nuzūl 12 (Egypt)Google Scholar.

58. Mohammed Ibn Idrīs Ibn al-՝Abbās Ibn Shāfi՝ Ibn al-Sā'ib Ibn Ubayd Ibn ՝Abd Yazīd Ibn Hāshim Ibn ՝Abd al-Muţţalib Ibn ՝Abd Manāf al-Qurashī a.k.a. Abu ՝Abd AUāh al-Shāfi՝ī was born in the year 150 and died in 204.

59. See Burton, supra n. 27, at 205.

60. The dominance of Ḥadīth over Qur'ān during the formative period of Islamic law should not surprise Muslim scholars. Al-Dāramī reported that explicitly: “al-sunnah qāḍiyah ՝alā al-Qur'ān wa laysah al-qur'ān biqāḍin ՝alā al-sunnah.” (The Sunnah supersedes the Qur'ān and the Qur'ān does not supersede the Sunnah). See sunan al-Dāramī, tradition 586.

61. See Juynboll, Muslim Tradition supra n. 20, at 4-10; Juynboll, Studies supra n. 20.

62. Recall that there is a principle in the Islamic jurisprudence that bars overturning an earlier consensus by a later consensus even in the light of the discovery of new evidence; such a principle would explain the persistence of historically weak legal findings.

63. I prefer to use the word “adherent” instead of “religious person” because even non-religious individuals still adhere to some religious instructions from religious authorities, therefore become willing actors and participants; hence, the term is more inclusive and relevant to the point being made herein.