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MAHOMMEDAN LAW
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See also:MAHOMMEDAN See also:LAW . The legal situation in the Moslem See also:world is of the highest complexity, and can be made intelligible only by tracing its See also:historical development. First came the See also:system (figh, See also:shari'a) which takes the See also:place in See also:Islam of See also:canon law in See also:Roman Christendom. It begins with See also:Mahomet sitting as See also:judge over the See also:primitive Moslem community at See also:Medina. He was the See also:Prophet of See also:God, and judged, as he ruled, absolutely; any decision of his was valid. But he found it, in See also:general, advisable and fitting to follow the See also:local law or usage of Medina when the new faith did not require a See also:change. It thus came about that his decisions followed, at one See also:time, the usage of the Arab tribes of Medina; at another, the law respected by the Jewish tribes there—a rabbinic development of the law of See also:Moses, deeply affected by Roman law; at another, the more See also:developed commercial law of See also:Mecca, known to his followers who had fled thence with him; or, finally, his own See also:personal See also:judgment, stated it might be as his own sense of right or as the decision of See also:Allah and even incorporated in the See also:Koran. In his use of these he was an eclectic opportunist, and evidently, except as regards such frequently recurring subjects as See also:inheritance, See also:marriage, &c., had no thought of See also:building up a system or See also:code. At his See also:death he See also:left behind only a few specific prescriptions in the Koran and a See also:mass of recorded decisions of cases that had come before him. He had used himself, in our terms, See also:common law, See also:equity, legislation; to See also:guide his followers he left his legislative enactments and the See also:record of his use of common law. Since his death there has been no new legislation in orthodox Islam. The rise of the See also:Abbasids brought a change, but not a See also:great one. They had promised a return to the old religious attitudes, and the promise was formally kept. But in substance they were as much as the Omayyads, and though the See also:state was outwardly on a pious footing, and the religious sentiment of the See also:people was respected, the old, See also:absolute canon law was not restored. It was made possible for more theologians and lawyers to See also:work with the state, but an irreconcilable party still remained, and the situation was fixed as it is to this See also:day. It is true that the struggle to adapt such a single and detailed system to all the varying conditions, climates and times of the great See also:empire was impossible; but the failure marked the great See also:rent in the supposed unity of Islam between the See also: " For See also:thirty years after my death," he is said to have declared, " my people will tread in my path (sunna); thereafter will come See also:kings and princes." This tradition crystallizes the later feeling of Islam. The first thirty years were a See also:golden See also:age; the centre of the state was the Prophet's own See also:city of Medina; the conditions of the state continued in See also:close conformity to those of his own time. The study of tradition, i.e. of his usage, went See also:hand in hand with the study of law. They were vital functions of the state, and it encouraged both. Then came the great debdcle. The ancien regime, a semi-monkish, theocratic empire, went down, and the Omayyad dynasty, kings and princes of the old Arab type, took its place (see See also:CALIPHATE, B). The public See also:life of the state was no longer deeply religious; the pious said that it was godless. Under these .conditions law was indeed still needed; but it had to be opportunist. Its development went on, but became speculative. The study of tradition was now private, and its students were more and more the personally pious. There were, thus, two results. On the one hand, the framers of systems of canon law—as it now was—no longer lived in contact with reality; hypothetical and ideal structures were reared which could never stand the See also:touch of the See also:practical law-See also:court. And on another, traditions and law, even this hypothetical law, came to take See also:separate roads. The See also:interest of the students of tradition became the gathering of traditions for their own See also:sake, going no farther than a striving to regulate each detail of life by some specific, See also:concrete, prophetic dictum. They had no use for systems that went beyond the See also:mere registering of these dicta. The feeling also became widespread that any system of See also:government which did not simply reproduce the patriarchal See also:form of Medina was of the world and the See also:devil—a thing with which no religious See also:man could have aught to do. At every turn he would have to peril his soul. Here we must place the transition of this law with which we have hitherto dealt from being the law of the See also:land to being in essence a variety of canon law. It was always broader than any western See also:secular law. It regulated all the aspects of life—See also:duty to God, to one's See also:neighbour, to one's self. It was really a system of duties, ethical, legal, religious. It did not limit itself to defining the forbidden (haram); but designated actions also as required (See also:lard, wajib), recommended (mandub, mustahabb), indifferent (ja`iz, mubah), disliked (makruh). It played the See also:part of, or rendered necessary, a religious director quite as much as a lawyer. And for a time at Medina it was really the law of the land. But from the Omayyad See also:period on it has held the position of the canon law of the Roman Church in countries that will not recognize it and yet dare not utterly' reject it. It governs, in one or other of its four schools, the private lives of all pious Moslems, it regulates some semi-public relationships—e.g. marriage, See also:divorce, inheritance; it compels respect, if not See also:acceptance, from the state; and by its ideal See also:standard the world, filled with righteousness by the See also:Mandi, will be ruled in the Moslem See also:millennium. The first school to take definite form was the Hanifite, founded by See also:Abu See also:Manila (d. 767), who left behind him a definite system and many enthusiastic pupils. He was a man of means, in touch with commercial, but not with practical legal life, a speculative or philosophical jurist. Being of non-Arab origin, the usage of Medina had small interest for him. He therefore used few traditions, and preferred to go back to the Koran, and See also:extract from it by reasoning the rulings which fitted his ideas. This he called the use of analogy (qiyas) ; but, in his hands, it became practically legal fiction, the application of a law in some sense undreamed by its first imposer. But he had another, and still freer See also:instrument. The effect of See also:differences in local conditions had been See also:early observed and admitted in general terms. Abu Hanifa reduced it to a subjective See also:formula. Under such conditions he claimed the right of preference (istihsan) of a ruling suited to the local needs, even when the strict analogy indicated otherwise. This met and meets with vehement prote§t when formally stated, but the usage of Islam has practically accepted it. His system, finally, was not developed through the exigencies of actual cases, but was worked out as a system of See also:casuistry, though in a See also:good sense. He tried, that is, to construct a system of rules to See also:answer any conceivable question. After his death his pupils elaborated it still further, and accepted public See also:office. The `Abbasids adopted his school, and threw their See also:influence on its See also:side; its philosophic breadth and casuistic possibilities evidently commended it to them. Later, the See also:Ottoman See also:Turks also adopted it, and it may be said to hold now a leadership among the four legal rites. Its influence has undoubtedly tended to broaden and humanize Moslem law. Twenty-eight years after Abu Ijanifa, Malik See also:ibn Anas, the founder of the Malikite school, died at Medina. In many points his situation was precisely opposite to that of Abu Hanifa, and yet his results were very similar. He was a working jurist, in practical touch with actual life; he was in the centre of the tradition of the usage of the Prophet, in the See also:line, one might say, of the apostolic See also:succession. He, therefore, used traditions much more generally than did Abu Hanifa, and when he, under pressure, took See also:refuge in opinion, he certainly See also:felt that he, under his conditions, had a better right to do so than any outsider. But two of his principles marked a distinct advance and showed that he was no mere traditionalist. For one, he laid down the conception of public See also:advantage (istislah); when a See also:rule founded on even a valid analogy would work a general injury it was to be set aside; See also:justice must not be overcome by See also:logic. And, for the other, he laid stress on the conception of the agreement (ijma-`), an See also:idea which was to have indefinite importance in the future. When the surviving companions of the Prophet, after his death, agreed upon any point as belonging to their See also:store of tradition and experience, their agreement was accepted as final. In the first instance they agreed that such had been the statement of the Prophet. That easily passed over into an agreement that such was the true Moslem view, and finally into an acceptance of the principle that the Moslem Church, when unanimous, could formulate truth—practically as in the canon of See also:Vincent of L6rins, Quod See also:semper, quod ubique, quod ab See also:omnibus. But such a broadly See also:catholic position was still in the future, and for Malik, juristic agreement meant the agreement of Medina, though there are signs that he permitted the same See also:latitude to other places also. It was a way of allowing for local conditions rather than of reaching the See also:voice of the Church. His law See also:book, the Muwatta', the earliest in our See also:possession written by the founder of a school, has already been mentioned. It is a collection of about seventeen See also:hundred traditions of juristic importance, arranged according to subject, with appended remarks on the usage of Medina and on his own view of each See also:matter. So far opinion and local usage had fully held their own, and the philosophical jurist had been See also:free to work out his system. The difference between the istihsan of Abu Hanifa and the istislah of Malik was not great; students attended the lectures of both and combined their systems. But a reaction now began, and the traditionalist party finally made itself felt. We have the inevitable rivalry between the historical-empirical and the speculative-philosophical schools of See also:jurisprudence, rendered all the more See also:bitter in that the historical lawyers believed, in this See also:case, that they were defending a divine institution. There resulted, first, one of the most important schools, the Shafi'ite; secondly, an extremely literal school for which ash-•Shafi'i did not go far enough, and which has now vanished; and thirdly, the Hanbalite school, still surviving in small See also:numbers, more moderately traditional than the last. The school founded by ash-Shafi'i (d. 820), a See also:pupil of Malik, came first in See also:order of time. The others were really revolts against the mildness of his See also:compromise. His characteristics were a broad-minded, steady grasp of means and ends, a See also:perception of what could and what could not be done, a willingness to admit all the tried principles in due See also:balance, and, at one point especially, the insight of See also:genius as to the possibilities of these principles. He laid great stress on tradition; a clear, See also:authentic tradition he regarded as no less valid than the Koran itself. If the tradition was chronologically later than a Koranic passage and corrected that passage, he followed the tradition. But in this he was only regulating a fixed tendency. The Koran may be regarded theoretically as the first of all the See also:sources of law and. See also:theology; practically its clear statements have been over-ridden in many cases. Most important of all, the principle of agreement (ijma') came finally with him to its full rights. The agreement of the Moslem peoples was to be the voice of God. " My people," said a tradition from Mahomet, " will never agree in an See also:error." And so, over traditions and over the Koran itself, the agreement tacitly or explicitly ruled and rules. It stamps as authoritative that which the other principles See also:lay down. At the See also:head of each See also:section of a Shafi'ite law book we read, " The basis of this, before the agreement, is such and such." But with the aid of a principle of this breadth it was easy to reject the opinion which was so objectionable to the traditionalist party. In its place he took analogy (giyas), which, discreetly used, could serve almost the same purpose. The Koranic passage or the tradition with which an analogy was suggested should, he taught, be examined to see if there was a See also:reason clearly stated for the command. If so, that reason would give a basis for the analogy. Analogy based on the See also:mechanical or See also:external could not hold. The four bases thus laid down by ash-Shafi'i—Koran; prophetic usage as expressed in traditions; analogy; agreement—have come to be accepted by all existing schools. This applies to all See also:spheres of life, ethical, social, theological, legal, and it should never be for-gotten that the Koran is only one of the sources for Moslem faith and conduct. Few words are needed for the other, reactionary schools. One, now long See also:extinct, was founded by a certain Da'ud uz-Zahiri, " See also:David the Literalist," See also:born three or four years before the death of ash-Shafi'i, and so called because he insisted upon an absolutely literal See also:interpretation of his texts—Koran or tradition—without See also:account of context or See also:metaphor. In consequence he had to reject analogy, and limited agreement to that of the companions of Mahomet; the Church of Islam was to have no constructive authority. In one point he showed great sanity of judgment, namely in his rejection of the principle jurare in verba magistri, otherwise regnant in Islam. His school had long and interesting consequences, mostly theological, but is now extinct, and never took See also:rank with the others. The Moslem world found his positions too impossible, and now no one swears to his words. The other, the Hanbalite school, was founded by the scholars of Ahmad ibn Hanbal after his death in 885. He himself would never have revolted against his See also:master, ash-Shafi'i, but it was soon felt that his system, so far as he had any, was in essential opposition. He had been no lawyer, but a theologian and a See also:collector and student of traditions. All his life had been a protest against See also:speculation in divine things. Where the Koran and traditions were silent, he, too, had been silent. For this agnostic principle he had witnessed and suffered, and his See also:standing with the people was that of a See also:saint. Naturally, then, the last still existent school of traditionalist protest was launched in his name. It minimizes agreement and analogy, is literal in its interpretations, and is now by far the smallest of the four surviving schools. Its external See also:history is that of a testifying and violent minority. Other men, such as See also:Tabari, the historian and commentator, have had dreams that they, too, might join the Four Imams (see See also:IMAM) as founders of legal rites, but none has succeeded. The Four remain the ultimate exponents of this canon law, and under the banner of one or other of them every Moslem must range himself. As there is a principle of unity in Islam, expressed in the alleged prophetic saying, " My people will never agree in an error," so there is a principle of variety, also expressed in an alleged prophetic saying, " The disagreement of my people is a See also:mercy from God." The four rites may differ upon many points, yet the adherents of one never See also:dream of regarding the adherents of the others as outside the Church of Islam; they are not " dissenters " in the English sense. God is merciful to his creatures, and gives them so much liberty of choice. Yet in practice this liberty is not gr t. The principle of See also:swearing to the words of the master is a dead hand laid upon Islam. A man's legalrite is generally settled by the place and other conditions of his See also:birth, and after he has once accepted a rite, he must, if good and pious, follow it in all its details. Only the avowed sceptic or the recognized See also:eccentric can be an eclectic. The See also:geographical See also:distribution of the rites is roughly as follows: Moslems in Central See also:Asia and See also:northern See also:India and the Turks every-where are Hanifites; in See also:Lower See also:Egypt, See also:Syria, See also:southern India and the See also:Malay See also:Archipelago they are Shafi'ites; in Upper Egypt and in See also:north See also:Africa, See also:west of Egypt, they are Malikites; only the See also:Wahhabis (q.v.) in central See also:Arabia are Hanbalites. But the will of the See also:sovereign has also had a powerful influence and has frequently dictated the legal, as well as the theological, affiliations of his subjects. The Turks, for example, have thrown their See also:weight almost everywhere on the Hanifite side. Their policy is to appoint only Hanifite See also:judges (see See also:CADI), although for private and personal questions they appoint and pay Muftis (q.v.) of the other rites. In other cases, with a See also:population of mixed legal adherence, the government has been known to appoint judges of different rites. The Shi'ite canon law is dealt with separately, but some mention of two outstanding sects is here in place. The Ibadites (see MAHOMMEDAN RELIGION: Sects) have a system of canon law which in essentials is of older codification than that of any of the orthodox schools, going back to Abdallah ibn Iliad himself, of the first century of the Hijra (See also:Hejira). Its basis is above all the Koran, then a sparing use of traditions, natural to their early origin, and finally the agreement of their own learned men, again natural to an extreme dissenting See also:sect, and it still rules the Ibatlite communities at See also:Oman, See also:Zanzibar and the Mzab in southern See also:Algeria. At all these places they, the last descendants of the Kharijites, hold severely apart, while the other Moslems shrink from them as heretics of the worst. Not nearly so far from See also:ordinary Islam, but still of an extreme self-conscious See also:Puritanism are the Wahhabis. They are really Hanbalites, but apply the rules of that school with uncompromising, reforming See also:energy. The See also:doctrine of the agreement of the Church of Islam they reject; only that of the immediate companions of Mahomet is valid. The people of Mahomet can err and has erred; each man must, on his own responsibility, draw his doctrine from the Koran and the traditions. Here they follow the Zahirites. All these schools of law administer a See also:scheme of duties, which, as has already been remarked, comes nearest to the canon law of the Roman Church, and which for centuries has had only a partial connexion with the real legal systems of the Moslem peoples. Among the Wahhabis and Ibadites alone is it the whole of law. Elsewhere, since the Omayyad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized at best with the coming of the millennium. The causes and methods of this change See also:call now for detailed See also:notice. As Islam spread beyond the See also:desert and the conditions in which the life of Mahomet and his companions had been See also:cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina See also:ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. It was rather the Moslem leaders who were compelled to abandon their ideas and for the sake of the spread of Islam to accept and incorporate much that was diametrically opposed to the See also:original legislation either of the Koran or of Mahomet's recorded decisons. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there See also:grew up a customary code (`See also:Mat) for each See also:country, differing from every other, which often completely obscured and annulled the prescriptions of the canon law. The one was an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts. But besides the obstinate adherence of various peoples to their old paths, the will of individual rulers was a determining See also:factor. When these ceased to be See also:saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own See also:objects and pleasures, no system could hold which set a limit to their authority. The See also:Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an See also:academic fixedness. There thus arose a new and specific See also:statute law, emanating from the sovereign. At first he judged in the See also:gate as seemed good in his eyes and as was his right and duty (cf. " court of oppressions "; see MAHOMMEDAN INSTITUTIONS) ; later, his will was codified as in the See also:Turkish statute law (gawanin) derived from various See also:European codes. Thus there has grown up in almost every Moslem country at least two systems of courts, the one administering this canon law, and taking cognisance of private and See also:family affairs, such as marriage, divorce, inheritance, its officials also giving rulings on purely personal religious questions, such as details of the See also:ritual law, the law of oaths and vows, &c.; the other, the true law courts of the land, administering codes based on local See also:custom and the decrees of the local rulers. A rift almost as important entered the legal life of the Moslem lands on another side. Non-Moslem communities, settled in Moslem territory, have been uniformly permitted to administer and judge themselves according to their own customs and See also:laws. See also:Save when they come into See also:direct contact and conflict with Moslems, they are left to themselves with a contemptuous tolerance. The origin of this attitude in Islam appears to be threefold: (i) The Islam of theory cannot conceive of a mixed state; it takes account, only, of a state containing none but Moslems, and its ideal is that the whole world will, in the end, form such a state. In practice, then, Moslems try to shut their eyes to the existence of non-Moslems in their midst and make no See also:provision for them until compelled. That a non-Moslem should have the same See also:civil position as a Moslem is unthinkable. (ii) This, of course, produces an attitude of extreme contempt. The only citizens are Moslems and all others are to be looked down upon and left to themselves. What they do or think among themselves does not matter; they are outside the See also:ring-fence of Islam. (iii) A different, but equally important, cause is the Moslem indolence. When the See also:Arabs conquered, they knew that they must administer the conquered lands, and they, very wisely, sought help from the machinery which they found in operation. But besides the ordinary organization of the state, they found also various ecclesiastical organizations, See also:Christian and Jewish, and to these they gave over the See also:administration of the non-Moslem sections of the community, making their rabbis and bishops their responsible heads and the links of contact. with' the Moslem rulers. They, unquestionably, found the same method in use by the See also:Byzantine government; but in Moslem hands it went so far as to make a number of little states (See also:millet, milal) within the state and effectually to preclude the possibility of ever See also:welding all the inhabitants of the land into one corporate life. But this indolence, when applied to See also:resident aliens, had consequences still more serious, because external as well as See also:internal. Following the same method of leaving the unbeliever to See also:settle his affairs for himself, the European See also:merchant, living and trading in the See also:East, was put first by usage and finally by treaty under the See also:jurisdiction and See also:control of his own See also:consul. Thus there grew up the extra-territorial law of the See also:capitulations and conventions, by which the sanctity of the See also:person and See also:household of an See also:ambassador is extended to every European. And this in turn, has reacted on the status of the non-Moslem subject races, and has come to be the indirect but See also:chief support on which they lean. Through it, an See also:element has developed which makes it practically impossible for a Moslem state to introduce legal changes even remotely affecting its non-Moslem population, See also:alien or subject, without the consent of the European embassies. Any change may be upset by their refusal to accept it as incompatible with the capitulations and conventions. The embassies have thus, as interpreters of a part, at least, of the constitution, come to hold a position remarkably, if absurdly, like that of the Supreme Court of the See also:United States (see See also:Young, See also:Corps de See also:droit Ottoman, passim). There may be said, then, in See also:short, to be three elements in the legal life of a Moslem state: the sacred and fixed canon law of Islam; the civil law, based on the usages of the different peoples, Moslem and non-Moslem, and on statutes going back to the will of rulers; the See also:international law of the capitulations, with a contractual See also:sanction of its own. The See also:hope for the future in Islam, there can be little doubt, lies in the principle of the agreement of the Moslem people, with its conception of catholic unity, and its ability, through that unity, to make and abrogate laws. As the Moslem peoples advance, their law can, thus, advance with them, and the grasp of the dead hand of the canon law be gradually and legally released. See I. See also:Goldziher, Muhammedanische Studien, I. and II. (See also:Halle a.S., 1889–189o) ; Zahiriten (See also:Leipzig, 1884) ; E. Sachau, Zur altesten Geschichte See also:des muhammedanischen Rechts (See also:Vienna Akad., 187o) and Muhammedanisches Becht (See also:Stuttgart and See also:Berlin, 1897) ; Snouck Hurgronje, See also:review of preceding in Z.D.M.G. liii. 125 seq. and " Le droit musulman " (Rev. de l'hist. des religions, See also:xxxvii. I seq. and 174 seq.); Juynboll, Handleiding tot de Kennis von de mohammedaansche Wet (See also:Leiden, 1903); Von Kremer, Culturgeschichte des Orients unter den Chalifen, i. 470 seq. (Vienna, 1875–1877) ; See also:Hughes, See also:Dictionary of Islam, pp. 285 seq. (See also:London, 1896) ; D. B. See also:Macdonald, Development of Muslim Theology, &c., pp. 65 seq. (New See also:York, 1903) ; Bukhari, See also:Les Traditions islamiques traduites . . . See also:par 0. Houdas et W. See also:Marcel (See also:Paris, 1906) ; N. B. E. Bailie, See also:Digest of Moohummadan Law (2 vols., London, 1875-1887). A good bibliography appeared in the Bulletin of the New York Public Library for See also:January 1907. (D. B. Additional information and CommentsThere are no comments yet for this article.
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