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LAW. [To treat the interaction between religions, this entry comprises four articles: Legal Thought and Jurisprudence Sunni Schools of Law .Shi’i Schools of Law Modern Legal Reform.The first surveys the historical development of religious in Islam; the second and third trace the rise of schools of law in the Sunni and Shi `i traditions; and the last presents an analysis of legal reform in the Muslim world in the nineteenth and twentieth centuries. For discussion of more specific fields of Islamic law, see Criminal Law; Family Law; Public Law. See also International Law.]

Islamic law and Legal Thought and Jurisprudence

The idea of divine law in Islam is traditionally expressed by two words, fiqh and shari`ah. Fiqh originally meant understanding in a broad sense. The specialist usage, meaning understanding of the law, emerged at about the same time as the first juristic literature, in the late eighth and early ninth centuries. All efforts to elaborate details of the law, to state specific norms, to justify them by reference to revelation, to debate them, or to write books or treatises on the law are examples of fiqh. The word connotes human and specifically scholarly activity. By contrast, shari`ah refers to God’s law in its quality as divine. Loosely used, it can indicate Islam, God’s religion. It refers to God’s law as it is with him or with his Prophet, or as it is contained (potentially) within the corpus of revelation. Practitioners of fiqh (the fuqaha’; sg., faqih) try to discover and give expression to the shari’ah. For Muslims, the shari`ah evokes loyalty and is a focus of faith; fiqh evokes at best respect for juristic scholarship and for a literary tradition-and, among some modern thinkers, distaste for dry-as-dust legalism. The word shari `ah is sometimes used in place of fiqh, in which case its positive connotations will be transferred to the scholarly tradition; it has also been applied to actual bureaucratic systems thought to conform adequately to the norms expressed in theoretical writingsalways a matter of perception. Western designation of the Muslim juristic tradition as “Islamic law” has led to the emergence, perhaps in the late nineteenth century, of the calque realized in Arabic as al-qanun al-Islam!, and now part of the vocabulary in all Muslim countries. This phrase, though applied to the tradition as a whole, carries many of the connotations of “legal system” in a Western sense, related to the bureaucratic structures of a nation-state. Such ideas have now permeated much Muslim thinking about the law.

Juristic Schools and Hermeneutical Traditions. The traditional processes of juristic understanding depend on a theological construct that is presented as history. It states that the words and actions of the prophet Muhammad (his sunnah), being an embodiment of the divine command and an expression of God’s law (shari `ah), were preserved by the companions of the Prophet and their followers in the form of discrete anecdotes (hadith). These were transmitted from generation to generation, inspiring first discussion and then systematic juristic thinking (fiqh). Beginning in about the mideighth century, a number of masters made distinctive contributions to the discipline that stimulated the emergence of separate traditions or schools. The most important masters for the Sunnis are Abu Hanifah (d. about 767), Malik ibn Anas (d. 795), Muhammad ibn Idris al-Shafi’i (d. 820), and Ahmad ibn Hanbal (d. 855), associated respectively with the Hanafi, Maliki, Shafi’i, and Hanbali schools. The four Sunni schools acknowledged one another and gave more or less qualified recognition to a number of other short-lived schools that emerged within Sunnism; the most important was probably the Zahirl (Literalist) school, whose major exponent was `Ali ibn Hazm (d. 1064).

Of sectarian groups, only the Ithna `Ashari (or Imami) Shl’is generated a continuous and creative juristic tradition that matched the Sunni traditions. They looked back to the sixth imam, Ja`far al-Sadiq (d. 756), as a founding figure. The Zaydis, Kharijis, and Isma’ilis all produced minor traditions.

Development of the law within the schools can be seen to depend on two major hermeneutical principles. The first, the synchronic principle, required that any formulation of the law, at any time, must be justifiable by reference to revelation. The second, the diachronic principle, was equally important, though frequently overlooked by observers and possibly underestimated by some practitioners. It required that participants in a school tradition, whether Sunni or Shi i, preserve loyalty to the tradition by taking into account the interpretative achievement of older masters; the law had to be justifiable by reference to the continuity and established identity of the school. Muslim jurists were not, as individuals, in solitary and direct confrontation with revelation: they found their way back to the meaning of revelation through tradition. This principle was a source of strength and flexibility, for the tradition held the accumulated experience of the community and gave it a sophisticated literary form. It was nonetheless sometimes attacked. Within Sunnism, the Z, ahiris objected to precisely this feature of juristic thought and advocated instead a return to a literal reading of the sources. The same mood, if not the same extreme, is expressed in the Salafi (Primitivist-the word salaf refers to the earliest generations of Islam) orientation associated with Ibn Taymiyah (d. 1328), and perhaps in the Akhbari movement within Imam! Shiism. All these movements evince distrust of the complexity and indeterminacy expressed in the ongoing dominant traditions.

Revelation in the classical period meant the canonical collections of hadith (the Shi`is and the Sunnis had different collections) and the Qur’an. These two were equal qua authority, although the Qur’an was superior in its nature and origins (word of God, miracle). The hadith collections, by virtue of their size alone, dominated the hermeneutical process, but the relationship between Qur’an and hadith was difficult to express. Some jurists accepted that the sunnah might “abrogate” the Qur’an; others preferred to say that the sunnah “passed judgement” on the Qur’an, or that it “clarified” and “explained.” There were variant views within schools. Whatever the preferred wording, none would disagree with the statement attributed to the Syrian jurist Awza`i (d. 774) that the Book is in greater need of the sunnah than the sunnah is of the Book. The vitality, complexity, and exuberance of fiqh literature-and many of the fundamental norms of the law-are unthinkable except in relation to the large body of revelation constituted by hadith.

Western Scholarship on Islamic Law. Modern historians have not generally accepted the traditional account of the origins of Islamic law. They have produced an important aiternative account, associated with the names of the three scholars Ignacz Goldziher (1888189o), Joseph Schacht (1950), and John Wansbrough (1977). Goldziher demonstrated that historical and theological h adith could not be accepted as reflecting the lifetime of the Prophet, but must be the product of dispute within the community throughout the first and second centuries after the Hijrah. Schacht extended this insight to include juristic hadith, perceived by him as not a cause but a product of juristic debate in Muslim communities. Wansbrough has argued that the Qur’an too is not a product of the Prophet’s lifetime but a liturgical reflection of two hundred years of community worship and sectarian debate. For this tradition of scholarship, revelation is not an event but a process; its creative agent is not the Prophet but the community (or communities); and its geographical locus is not the Hejaz but the Muslim cities of North Africa, Syria, and Iraq.

With specific regard to the juristic traditions, Schacht argued that these began as local traditions in Medina, Basra, Kufa, and other cities, reflecting local practice at a greater or lesser distance. Even if the local traditions were claimed to be prophetic in origin (which is likely), the idea that legal norms must be related directly to prophetic hadith emerged only gradually, as a result of polemical debate among different communities or segments of community. The real architect of the classical hermeneutical system, according to Schacht, was Saafi’i. In works attributed to him are found the first systematic arguments that defend norms by reference to ,hadith or derive norms directly from them. His Risalah contains the first general account of the methodology of relating law to revealed texts. Many western scholars and Muslims have reacted to Schacht’s theories with dismay and have tried to reassert the core of truth that (it is claimed) must lie behind the traditional accounts of the origins of Islam and of Islamic law.

Modern scholarship has made little progress in describing the characteristics of Islamic law in the classical period or in providing a sensible and justified periodization. From the tenth century to the nineteenth, the formal structures of juristic literature, and many specific statements, imply that the shad `ah is a set of static and unchanging norms. This is an illusion deliberately contrived to stress diachronic continuity and synchronic harmony with revelation. The literature in fact admits (to a degree) the reality of development, for example, in ubiquitous reference to the moderns and the ancients (al-muta’akhkhirun, al-mutaqaddimun). Western scholars have not found it easy to describe or assess this development. Failing to find a terminology that will uncover the purpose or acknowledge the degrees of openness and creativity that characterize hermeneutical traditions of this kind, they have perpetrated a number of errors. At the most general level, they have described nearly all of the tradition in terms such as decline, decay, failure, or ankylosis. More specifically, Schacht, in an uncharacteristically muddled set of arguments, asserted that the “closing of the door of ijtihdd,” meaning an end to independent reasoning in the law, began about goo. He may have intended something sensible, but the pernicious results of these comments have haunted academic descriptions of Islamic law ever since; recent studies suggest improvement.

Juristic Literature. The literature of fiqh is of two kinds, furs` al -fiqh (branches) and usul al -fiqh (roots). It is sometimes said that works of the latter type explore the four sources (or roots) of the law, namely Qur’an, sunnah, consensus (ijma`), and analogical reason (qiyas). [See Consensus; Usul al-Figh.] This is an indigenous but inadequate description. Such works do contain a definition of revelation, which may be extended to include the words and actions of the companions, but their main purpose is to describe the intellectual structures that can be brought to bear on revelation for the purposes of interpretation. These begin with linguistic and rhetorical sciences, usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. With regard to hadith alone, the epistemological categories of multiple and single transmission (tawatur and shad, with only the former giving certain knowledge) are discussed. The workings of abrogation (naskh), the application, ramifications, and limitations of analogical argument, and the value and limits of consensus, are all discussed, along with a variable body of other materials. The whole set of interpretative structures is brought together in the idea of ijtihdd. As a juristic term, this means the exertion of the utmost possible effort to discover, on the basis of revelation interpreted in the light of all the rules, the ruling on a particular juristic question. The theory of ijtihdd in its several forms concedes that there will be variant views on all but the fundamental structures of the law. By acknowledging dispute, it preempts its capacity to divide. It justifies the authority of the fuqaha’, who alone have the right to give rulings, which must be obeyed by the masses. Finally, it controls and justifies intellectual play and so permits the remarkable florescence of juristic literature that characterizes all Islamic societies down to the nineteenth century (and in some areas beyond it).

In spite of many differences of detail, the broad structures and all the major topics of usul works are the same for Sunnis and Shi`is. Initially resistant to the idea of ijtihad, the Shi’i tradition embraced it in the works of `Allamah al-Hills (d. 1325), and, in spite of internal disputes, they have made it a central part of their juristic thinking. The Shi’is also lay considerable theoretical stress on the independent capacity of the intellect to make moral and ethical judgements, but this scarcely affected the overall structure of their works. [See the biography of Hili. ]

The literature of furu’ consists fundamentally of norms that regulate (or appear to regulate) all areas of community ritual and public social life. They are usually divided into `ibadat (rituals) and mu`amalat (social relations). More sophisticated divisions have been attempted, but the preferred approach of the fuqaha’ was atomistic, topic by topic. Only the superior significance of ritual was consistently marked by placing it at the beginning of a work. The topics of ritual are purity, prayer, alms (zakat), pilgrimage, fasting, and sometimes jihad. The remaining topics occurred in no stable order and included at least the following: marriage, divorce, and inheritance; rules of buying, selling, lending, hire, gift, testamentary bequest, agency, deposit, and so on; crimes, torts, penalties, and compensations for injury; judicial practice and procedure; rules relating to slaves, land ownership and holding, contractual partnerships, slaughter of animals for food, oaths and their effects, and more. The list was capable of considerable conceptual refinement, but it was finite and more or less closed. Its major technical terminology was static. Real developments in social life following the formation of the tradition might be caught in the network of the law through exploration and refinement of concepts, but much was not; moreover, little was lost from the tradition, even when it became irrelevant to real life. Thus the terminology and the reality of governmental administration scarcely entered works of fiqh, even when it was more or less recognized by the fuqaha’ as a realization of shard `ah (as under the Ottomans). Conversely, between theory and practice is not predictable. Different areas of the law generated different kinds of theory/ practice relationships, few of which have been given serious consideration by modern scholars. Criminal law in the shari`ah is limited to only a few specified crimes. Exploration of these within fiqh is extensive but almost never refers to the reality of practical administration, though the fuqaha’ were not unaware of the governmental systems, often based on local practice, that actually existed. Some principles of international law are articulated under the topic jihad, but the fuqaha’ explored the tradition and not the needs or the desires of contemporary governors. No Sunni faqih, for example, denied the right of every individual Muslim to issue a valid and binding contract of safe-conduct (aman) to individuals from non-Islamic territory, yet no governing institution could ever have tolerated such practice. [See Diplomatic Immunity.]

The only areas of the law that were, in premodern times, systematically transformed into administrative structures were those related to the office of judge (qadi). His competence traditionally covered many aspects of family law (marriage, divorce, inheritance, testamentary bequest), the administration of charitable endowments (waqf) and the property of orphans, declaratory judgments on the significance and validity of contracts, and civil disputes. In order to make this administrative system work, there had to be compromises with theory. In the Sunni system, the governor (just or unjust) was accorded the absolute right to appoint judges and to define their spheres of competence; he also had the right in areas of juristic dispute to declare the rules that would be put into effect. Various types of judicial hierarchy emerged to ensure predictability and order in judicial decisions. Numerous subordinate officials and deputy judges derived their authority from appointment by the qadi. (In spite of the de jure illegitimacy of Shi’i rulers, the practical situation was not very different under Shi i governments.)

Many aspects of civil and criminal law could not be dealt with under the norms of the shari`ah, and some of the norms of the shad `ah could not be rendered practically effective. (If the laws of evidence were preemptively stringent in the case of fornication, they were probably too easy in the case of wine-drinking; few qadis could listen to unlimited complaints against neighbors who drank wine.) Careful definition of spheres of judicial competence was one way of dealing with these problems. But already by early `Abbasid times, a system of courts was required in addition to the qadis courts, which would take a more expedient and flexible approach to shar’i rules and might in some areas go beyond them. These were initially called mazalim (“injustices”) courts, though the nomenclature varied through time. They were administered directly by the governing bureaucracy, usually with the help and advice of trained jurists. They dealt with complaints against government officials and administered an extended criminal law that was only loosely related to shad `ah. Petty crimes were often dealt with by local police and market inspectors in accordance with local custom, again loosely linked to shari `ah.

Probably the most significant theoretical exploration of the law in relation to judicial practice, in the classical period, is contained in the Kitab adab al-qadi of the Shafi`i jurist al-Mawardi (d. 1058), one of a long tradition of monographs on judicial authority. The most effective and complex practical exploitation of the qadi. s office took place in the Ottoman Empire. Here the integration of the qadi. s office into a bureaucratic structure was accompanied by a considerable expansion of the practical and administrative duties of the judge, causing the separate mazalm-type structures to disappear.

The second major institutional office that emerged to serve the structures of fiqh was that of mufti. Originally, a mufti was any qualified mujtahid who was capable of providing reasoned responses (fatwas) to the questions of those not educated in the law. Informal muftis never disappeared, but, in the Sunni community, governmental structures often signaled official preference for some muftis over others. In the Ottoman period, officially appointed muftis became fully integrated into the structures of government. The rulings of a mufti could be issued on request to individuals, to gddis, and to agents of government, and could have broadly legitimizing effect (e.g., in respect to government policies) or, if translated into government edicts, strict practical effect (e.g., in relation to judicial practice).

The great Ottoman jurist-administrator and grand mufti of Istanbul, Abu SAW (d. 1574), may be taken as representative of those jurists whose achievement in the law was thoroughly practical. He brought the real taxcollecting activities of the empire (in practice varied and based on regional traditions) under the formal, technical terminology of fiqh. This was in part a control on arbitrary taxation, but it also provided a reasonable degree of legitimacy and authority to the working system of the day. For Abu Sa’ud, the Ottoman system was a broad realization of the shari`ah, and his aim was to ensure that it was a practical, efficient, and more or less just system. This required the recognition of governmental decrees (gdnuns), the promulgation of administrative rules that were not reflected in traditional fiqh (though they were felt not to contravene shari`ah), and decisive rulings on matters of dispute. In a fatwd, Abu Sa`ud declared that there can be no decree of the sultan ordering something that is illegal according to the shad `ah, thereby committing jurists to a considerable hermeneutical task or to formal, discursive opposition. He declared that marriage without a qadi’s knowledge was invalid, subsequent to the issue of a sultanic decree to that effect-thereby serving the interests of orderly administration, even though the shari`ah does not require any form of registration for a valid marriage. He also gave rulings in favor of the cash-waqf (pious foundations in the form of cash). Governmental decrees confirmed the latter ruling, but in the tradition of Hanafi fiqh, the legitimacy of cash-waqfs remained a matter of dispute.

In the Shi`i world, though low-ranking jurists might serve the government, the highest-ranking jurists preserved their independence. Consolidation of theory and improvements in communication led in the nineteenth century to a strengthening of their position and the emergence of a new titulature (notably marja` al-taqlid) reflecting their increasing status. They had great capacity for political gestures, usually marking their dissociation from government, but, significantly, no opportunity for the mundane, bureaucratic, participatory legitimizing activities of Sunni fuqaha’. [See also Marja` al-Taqlid. ]

Modern Developments. The nineteenth century brought changes, and in many areas a gradual end, to the indigenous traditions of fiqh. New ideas from the West, a defensive analysis of Islam, and not least the emergence of secular educational systems that excluded traditional juristic studies, all helped to precipitate new approaches to the law. Muslim administrators and Muslim reformists alike began to feel that the shad `ah ought to be practical and to resemble Western codes. The earliest sign of movement in this direction came with the enactment of the Mecelle in 1876 by the Ottoman authorities. This was a Hanafi codification of some parts of the shari`ah, designed for practical purposes. It remains partially effective in some former Ottoman territories (e.g., Iraq and Israel). [See Mecelle.] The Egyptian reformer Muhammad `Abduh (d. 1905) advocated a new, creative approach to ijtihdd: a disregard of school traditions as such, and an eclectic approach to the tradition as a whole (an approach known as talfiq, “patchwork”). His aim was to define and embody in administrative and institutional forms specific rules that would serve the needs of independent Muslim communities. The Shi`i tradition showed its ability to accommodate modern law-making techniques when a majority of high-ranking jurists rallied to the cause of the constitution in Iran in 1906.

With the withdrawal of imperialist and mandate authorities from the Middle East and elsewhere, modern Muslim nations have for the most part provided themselves with practical, eclectic law codes that draw on ideas from both the Muslim tradition and the West. It is in the traditional practical areas of marriage, divorce, and inheritance that the influence of the shari’ah has been strongest. Some countries (e.g., Tunisia) have achieved notably progressive codes of personal status while still asserting a very creative interpretative link between the code and the tradition of fiqh. The greatest theoretician of the idea that the shari`ah could be a source for practical and effective codification was probably the Egyptian jurist `Abd al-Razzaq al-Sanhuri, who played a part in drafting new civil codes for more than one Arab country. The magnitude of the achievement of modern Muslim states in creating and implementing their new legal structures is rarely appreciated outside legal circles, but it is an achievement of immense importance and complexity, and not one that is unduly at odds with the practical history of the shari`ah.

If codification is one aspect of the heritage of nineteenth-century reform, another, more complex, is Islamic fundamentalism. This term is used in many ways, not always carefully. In the history of religious doctrine it can describe those movements that deny the authority of tradition and overleap the accumulated historical and intellectual experience of the community to return to the sources, the early generations, the fundamentals. In this sense, it is possible to recognize in the history of Islam a recurring fundamentalist tendency, which can be associated with, for example, the Zahiris (Literalists) and the Salafis (Primitivists). The word fundamentalist is also used to describe groups that espouse radical or activist political views. It is not accidental that many of these groups, from the Wahhabis of the eighteenth century to the Muslim Brothers of the twentieth, have also been fundamentalist in a strictly doctrinal sense. They are explicitly Salafi, and they look back to the great Salafi theoretician Ibn Taymiyah as symbol and hero. Here too Muhammad `Abduh bears a measure of responsibility for initiating a tradition of distaste for the Muslim intellectual traditions (as well as for the mystical experience of the Sufis). Sayyid Qutb, the ideologue of the Muslim Brothers executed in Egypt in 1966, was in this respect an intellectual descendant of `Abduh. For him, in the end, all of Islamic history after the early generations was only a continuation of the Jahiliyah, the Age of Ignorance, and the works of the fuqaha’ were something like a betrayal of the existential task they should have executed. In his work of Qur’anic exegesis, Fi zildl al-Qur’dn, he frequently made the point: “The shari`ah has been revealed in order to be implemented, not to be known, to be studied, and to be changed into culture in books and treatises” (Beirut, 1971, vol. I, p. 746). This reverses the priorities and denies the achievement of an ancient juristic tradition of thought and literature; and it promotes the word shari`ah as if it designated a blueprint for the Islamic state. In this form, shari `ah could be part of a call to political action, and it was subject to the usual constraints of political expediency. This has sometimes taken the form of promoting fragments of the law as symbols of islamization. For example, in Sudan in 1983, President Nimeiri enacted the Islamic canonical penalties for fornication, wine-drinking, and other offenses. Politically insensitive at best, these moves (reenacted and extended later by an Islamic government) were also a trivialization of the tradition of fiqh.

The Islamic Revolution in Iran (1978-1979) is sometimes described as a fundamentalist movement, but it is not so in the strictly doctrinal sense. The theory that underlay the Ayatollah Khomeini’s propaganda and provided him legitimacy in his own eyes and in those of his followers was central to the tradition of juristic thought in ShN Islam. Khomeini built on the tradition; he did not abandon or cheapen it. And the tradition was not in the end incompatible with substantial continuity in the constitutional and legal structures of Iran, as well as in its political institutions.

Islamic law has been throughout the history of Islamic culture the prime focus of intellectual effort. It is a correspondingly complex affair, a structure in which several traditions of juristic thought and many types of social reality have had to be discovered to be in some kind of justificatory harmony with one another and with the texts of revelation. Its rewards as an object of study are evident. For the Muslim community, the assimilation of its messages to the needs of the current generation is,  now as in the past, both an intellectual and an imaginative challenge, as well as a generally acknowledged a religious duty.

 

BIBLIOGRAPHY

Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Goldziher, Ignacz. Muhammedanische Studien. z vols. Halle, 18881890. London, 1967.

Heyd, Uriel. Studies in Old Ottoman Criminal Law. Edited by V. L. Menage. Oxford, 1973.

Liebesny, Herbert J. The Law of the Near and Middle East: Readings, Cases, and Materials. Albany, N.Y., 1975.

Schacht, Joseph. The Origins of Muhammadan jurisprudence. Oxford, 1950.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Wansbrough, John. Quranic Studies. Oxford, 1977.

NORMAN CALDER

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Modern Legal reforms

 

Azhar Niaz Article's Source: http://islamicus.org/law/
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