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MAHOMMEDAN LAW

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Originally appearing in Volume V17, Page 417 of the 1911 Encyclopedia Britannica.
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MAHOMMEDAN LAW. The legal situation in the Moslem world is of the highest complexity, and can be made intelligible only by tracing its historical development. First came the system (figh, shari'a) which takes the place in Islam of canon law in Roman Christendom. It begins with Mahomet sitting as judge over the primitive Moslem community at Medina. He was the Prophet of God, and judged, as he ruled, absolutely; any decision of his was valid. But he found it, in general, advisable and fitting to follow the local law or usage of Medina when the new faith did not require a change. It thus came about that his decisions followed, at one 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 Moses, deeply affected by Roman law; at another, the more developed commercial law of Mecca, known to his followers who had fled thence with him; or, finally, his own personal judgment, stated it might be as his own sense of right or as the decision of Allah and even incorporated in the Koran. In his use of these he was an eclectic opportunist, and evidently, except as regards such frequently recurring subjects as inheritance, marriage, &c., had no thought of building up a system or code. At his death he left behind only a few specific prescriptions in the Koran and a mass of recorded decisions of cases that had come before him. He had used himself, in our terms, common law, equity, legislation; to guide his followers he left his legislative enactments and the record of his use of common law. Since his death there has been no new legislation in orthodox Islam. The rise of the Abbasids brought a change, but not a 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 state was outwardly on a pious footing, and the religious sentiment of the people was respected, the old, absolute canon law was not restored. It was made possible for more theologians and lawyers to work with the state, but an irreconcilable party still remained, and the situation was fixed as it is to this 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 empire was impossible; but the failure marked the great rent in the supposed unity of Islam between the church and the world, religion and law. Yet the Abbasids did, in their way, encourage legal studies, and under them processes and results, long pursued in private, became public. Almost within the first century of their dynasty the four legal schools, or rites, were formed and the principles established which survive to this day. tney went, and it was the policy of their leaders to take over the administrative systems of the countries which they seized. Even the Arabic legal nomenclature shows evident signs of literal translation from Latin, and many Moslem principles can be traced to the Roman codes. One important development was plainly influenced by the liberty involved in the Responsa prudentium of Roman lawyers, and by the broad conception of the law of nature in the Edict of the Praetor. In its earliest stages Moslem law recognized in the judge a liberty of opinion (ra'y) which went beyond even that of the Responsa and became plain equity, in the English sense, and one school (the Hanifite) established as a basis the right of preference (istihsan) even when the analogy of the code dictated otherwise; while another (the Malikite) used the term istislah, "a seeking of (general) benefit" to the community, in a similar situation. But these developments were bitterly contested, and the liberty of opinion was in the end narrowed down to a principle of analogy (qiyas), the nearest approach to which in Western law is legal fiction. It is necessary now to return to the first successors of Mahomet. " For thirty years after my death," he is said to have declared, " my people will tread in my path (sunna); thereafter will come kings and princes." This tradition crystallizes the later feeling of Islam. The first thirty years were a golden age; the centre of the state was the Prophet's own city of Medina; the conditions of the state continued in close conformity to those of his own time. The study of tradition, i.e. of his usage, went 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 CALIPHATE, B). The public 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 touch of the practical law-court. And on another, traditions and law, even this hypothetical law, came to take separate roads. The interest of the students of tradition became the gathering of traditions for their own sake, going no farther than a striving to regulate each detail of life by some specific, concrete, prophetic dictum. They had no use for systems that went beyond the mere registering of these dicta. The feeling also became widespread that any system of government which did not simply reproduce the patriarchal form of Medina was of the world and the devil—a thing with which no religious 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 land to being in essence a variety of canon law. It was always broader than any western secular law. It regulated all the aspects of life—duty to God, to one's 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 (lard, wajib), recommended (mandub, mustahabb), indifferent (ja`iz, mubah), disliked (makruh). It played the 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 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, divorce, inheritance; it compels respect, if not acceptance, from the state; and by its ideal standard the world, filled with righteousness by the Mandi, will be ruled in the Moslem millennium. The first school to take definite form was the Hanifite, founded by Abu 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 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 instrument. The effect of differences in local conditions had been early observed and admitted in general terms. Abu Hanifa reduced it to a subjective 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 casuistry, though in a good sense. He tried, that is, to construct a system of rules to answer any conceivable question. After his death his pupils elaborated it still further, and accepted public office. The `Abbasids adopted his school, and threw their influence on its side; its philosophic breadth and casuistic possibilities evidently commended it to them. Later, the Ottoman 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 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 line, one might say, of the apostolic succession. He, therefore, used traditions much more generally than did Abu Hanifa, and when he, under pressure, took refuge in opinion, he certainly 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 advantage (istislah); when a rule founded on even a valid analogy would work a general injury it was to be set aside; justice must not be overcome by logic. And, for the other, he laid stress on the conception of the agreement (ijma-`), an 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 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 Vincent of L6rins, Quod semper, quod ubique, quod ab omnibus. But such a broadly 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 latitude to other places also. It was a way of allowing for local conditions rather than of reaching the voice of the Church. His law book, the Muwatta', the earliest in our possession written by the founder of a school, has already been mentioned. It is a collection of about seventeen hundred traditions of juristic importance, arranged according to subject, with appended remarks on the usage of Medina and on his own view of each matter. So far opinion and local usage had fully held their own, and the philosophical jurist had been 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 jurisprudence, rendered all the more bitter in that the historical lawyers believed, in this 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 numbers, more moderately traditional than the last. The school founded by ash-Shafi'i (d. 820), a pupil of Malik, came first in order of time. The others were really revolts against the mildness of his compromise. His characteristics were a broad-minded, steady grasp of means and ends, a perception of what could and what could not be done, a willingness to admit all the tried principles in due balance, and, at one point especially, the insight of genius as to the possibilities of these principles. He laid great stress on tradition; a clear, 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 sources of law and. 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 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 lay down. At the head of each 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 reason clearly stated for the command. If so, that reason would give a basis for the analogy. Analogy based on the mechanical or 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 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 extinct, was founded by a certain Da'ud uz-Zahiri, " David the Literalist," born three or four years before the death of ash-Shafi'i, and so called because he insisted upon an absolutely literal interpretation of his texts—Koran or tradition—without account of context or 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 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 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 collector and student of traditions. All his life had been a protest against 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 standing with the people was that of a 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 history is that of a testifying and violent minority. Other men, such as Tabari, the historian and commentator, have had dreams that they, too, might join the Four Imams (see 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 mercy from God." The four rites may differ upon many points, yet the adherents of one never 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 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 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 eccentric can be an eclectic. The geographical distribution of the rites is roughly as follows: Moslems in Central Asia and northern India and the Turks every-where are Hanifites; in Lower Egypt, Syria, southern India and the Malay Archipelago they are Shafi'ites; in Upper Egypt and in north Africa, west of Egypt, they are Malikites; only the Wahhabis (q.v.) in central Arabia are Hanbalites. But the will of the 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 weight almost everywhere on the Hanifite side. Their policy is to appoint only Hanifite judges (see CADI), although for private and personal questions they appoint and pay Muftis (q.v.) of the other rites. In other cases, with a 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 (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 sect, and it still rules the Ibatlite communities at Oman, Zanzibar and the Mzab in southern 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 ordinary Islam, but still of an extreme self-conscious Puritanism are the Wahhabis. They are really Hanbalites, but apply the rules of that school with uncompromising, reforming energy. The 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 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 call now for detailed notice. As Islam spread beyond the desert and the conditions in which the life of Mahomet and his companions had been cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina 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 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 grew up a customary code (`Mat) for each 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 factor. When these ceased to be saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own objects and pleasures, no system could hold which set a limit to their authority. The Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an academic fixedness. There thus arose a new and specific statute law, emanating from the sovereign. At first he judged in the 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 Turkish statute law (gawanin) derived from various 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 family affairs, such as marriage, divorce, inheritance, its officials also giving rulings on purely personal religious questions, such as details of the ritual law, the law of oaths and vows, &c.; the other, the true law courts of the land, administering codes based on local 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 laws. Save when they come into 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 provision for them until compelled. That a non-Moslem should have the same 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 ring-fence of Islam. (iii) A different, but equally important, cause is the Moslem indolence. When the 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, Christian and Jewish, and to these they gave over the 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 Byzantine government; but in Moslem hands it went so far as to make a number of little states (millet, milal) within the state and effectually to preclude the possibility of ever welding all the inhabitants of the land into one corporate life. But this indolence, when applied to resident aliens, had consequences still more serious, because external as well as internal. Following the same method of leaving the unbeliever to settle his affairs for himself, the European merchant, living and trading in the East, was put first by usage and finally by treaty under the jurisdiction and control of his own consul. Thus there grew up the extra-territorial law of the capitulations and conventions, by which the sanctity of the person and household of an 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 chief support on which they lean. Through it, an element has developed which makes it practically impossible for a Moslem state to introduce legal changes even remotely affecting its non-Moslem population, 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 United States (see Young, Corps de droit Ottoman, passim). There may be said, then, in 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 international law of the capitulations, with a contractual sanction of its own. The 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. Goldziher, Muhammedanische Studien, I. and II. (Halle a.S., 1889–189o) ; Zahiriten (Leipzig, 1884) ; E. Sachau, Zur altesten Geschichte des muhammedanischen Rechts (Vienna Akad., 187o) and Muhammedanisches Becht (Stuttgart and Berlin, 1897) ; Snouck Hurgronje, review of preceding in Z.D.M.G. liii. 125 seq. and " Le droit musulman " (Rev. de l'hist. des religions, xxxvii. I seq. and 174 seq.); Juynboll, Handleiding tot de Kennis von de mohammedaansche Wet (Leiden, 1903); Von Kremer, Culturgeschichte des Orients unter den Chalifen, i. 470 seq. (Vienna, 1875–1877) ; Hughes, Dictionary of Islam, pp. 285 seq. (London, 1896) ; D. B. Macdonald, Development of Muslim Theology, &c., pp. 65 seq. (New York, 1903) ; Bukhari, Les Traditions islamiques traduites . . . par 0. Houdas et W. Marcel (Paris, 1906) ; N. B. E. Bailie, Digest of Moohummadan Law (2 vols., London, 1875-1887). A good bibliography appeared in the Bulletin of the New York Public Library for January 1907. (D. B. MA.)
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