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Law, Islamic


Islam, like Judaism and unlike Christianity, is a nomocracy, a religion of the law as opposed to theology. It is evident from the Koranic text that sacred law is a crucial feature of the covenants that God establishes, through prophets, with the various nations of mankind. Prophets are united by their main directive, to worship God alone, by their moral exhortations, and by accompanying miracles proving that their messages are of divine and not human origin. Some prophets also bring with them a Scripture: the Koran mentions the Scrolls of Abraham, the Torah of Moses, the Psalms of David, and the Gospel of Jesus. Some prophets also bring with them a new sacred law. In the Koran, the term that corresponds to this sacred law is din, now the ordinary term for "religion" in Arabic, and individual fundamental laws are termed hudud Allah ("God's limits"). However, the term for the sacred law that gained general acceptance from early Islamic history on is the shari'a ("the way, or path"), parallel to the Jewish term for the sacred law, halacha (also "the way, or path"). The shari'a is Islamic sacred law taken in toto: the idealized system of all religious obligations God has imposed on believers.

Muslim scholars of the sacred law devote themselves to discovering the rulings of the shari'a, in effect seeking to determine God's intentions concerning the specific obligations of believers on the basis of available evidence. Law as a branch of academic study or as a product of human discourse is termed fiqh (literally, "understanding"). A jurist or specialist in law is termed faqih ("one who understands, is perspicacious.") The goal of the jurist is to determine reliably, given a set of circumstancesincluding time, place, identity of the legal agent, and so onthe legal status of particular possible acts. There are five main categories for the legal assessment of acts: forbidden (haram ; e.g., marrying one's aunt); disfavored but allowed (makruh ; e.g., a husband's repudiation of his wife without cause); indifferent (mubah ; e.g., eating raisins); recommended but not obligatory (mustahabb ; e.g., a man's marrying as soon as he can afford to do so); and obligatory (wajib ; e.g., supporting one's elderly parents, fasting during the day in Ramadan). Other legal assessments, such as valid (sahih ) and invalid (batil ), do not apply to acts, but to contracts of sale or marriage contracts, for example. Islamic law is also a moral system; it is intended to preserve morality and not simply mete out justice. It does so by maintaining a stable social order, whereby the five cardinal values of religion, life, off-spring, property, and rationality are conserved.

By the late eighth and early ninth centuries c.e., from which date the earliest extant compendia of the points of law, such as the Kitab al-umm of Muhammad b. Idris al-Shafi'i (d. 820), Islamic law was already a sophisticated science with a substantial tradition behind it. In such works, the law was organized into chapters in a more or less standard order, falling into three main sections: 'ibadat ("devotions"), including ritual purity, prayer, almsgiving, fasting, the pilgrimage, and related topics; mu'amalat ("transactions, contracts"), including sales, debt, rental, pawning and mortgage, partnership, loans, inheritance, marriage, divorce, slavery, gifts, endowments, etc.; and ahkam ("verdicts"), including payment of indemnity for injuries, criminal punishments, and court procedure. Obviously, the law includes not only topics directly related to religious devotions and rituals but also general topics of family, commercial, and criminal law. Not all legal issues were addressed by the jurists in their theoretical writings, and even some that were rarely enforced by them. For example, Islamic penal law only prescribes punishments for six specific crimes: adultery or fornication, false accusation of adultery or fornication, robbery, drinking intoxicants, and banditry. Other offenses, except injury and murder, which are covered by lex talionis, or the payment of indemnity, are subject to discretionary punishments that may be determined by the ruler or the judges he has appointed. For this reason, large bodies of extra-religious law were created by various dynasties, the most developed example being that of the qanun of the Ottoman Empire, which covered many areas of public, fiscal, administrative, and criminal law. Islamic jurisprudence recognizes that not all areas are covered by the scriptural law, and it is generally held that 'urf, or the custom of a particular locale, may serve as the basis of law as long as it does not contradict other legal principles. Custom has played a particularly important role in commercial arrangements, which varied widely from one area of the Muslim world to another.

As in Rabbinic Judaism, in Islam it was primarily expertise in the law that endowed one with religious authority. Although legislative authority, the right to set the law itself, theoretically belongs to God alone, interpretive or declarative authority belongs to the jurists, on the grounds that their interpretations represent the closest possible assessment of God's will with regard to legal questions. Other groups have claimed religious authority in the course of Islamic history, including theologians, mystics, and charismatic leaders, but the jurists have succeeded in establishing and justifying their authority as a group more than any other ever since the tenth century c.e. Nevertheless, the jurists regularly assumed the existence of an Islamic polity under a Muslim sovereign with absolute political authority. In a historical compromise, the jurists carefully delimited the sphere within which the sovereign could exercise his authority, granting him a great deal of latitude in public law, such as taxation and public safety, while endeavoring to maintain the jurists' own control over private law, including marriage, divorce, sales, and so on. There therefore exists something akin to a split between church and state, but it is between private and public law, and both the jurists and the rulers justify their position on claims to religious authority and divine sanction.

Islamic law differs from the common law in some important respects. In the Islamic judiciary system, there are no lawyers (i.e., advocates for the plaintiff or defendant), nor is there a jury. Trials are conducted by the judge, and the plaintiff and defendant represent themselves. They may call witnesses or produce evidence as needed. The decision is up to the judge alone, though he may consult other jurists, experts, and so on. Attached to the judge's court were one or more notary-witnesses (shahid ) and a document clerk. Their function was to serve as character witnesses for the people of their district, draw up and execute legal documents, record the court proceedings, and certify the judge's verdicts and other documents. However, court decisions or judges' verdicts do not have law value; they do not set precedent, as in the common law system. Law value resides in the jurists' theoretical elaboration of the law, found in fatwa s ("consultative legal opinions" or "answers to legal questions"). The fatwa is a responsum to a legal question posed by a lay petitioner (mustafti ) to a legal expert or issuer of legal opinions (mufti ). The problem may be potential or actual, but the answer is not binding on the petitioner, in contrast with a judge's verdict, which must be carried out. It is this process of legal consultation and response, followed by the open debate of disputed questions among the available authorities, that creates new law. Nor were there traditionally any codes in Islamic law, in contrast with the Napoleonic legal system, and, surprisingly, with Rabbinic law since the sixteenth century, which has treated the Shulchan Aruch by Joseph Karo more or less as a code. All later development of the law is presented in the form of commentaries on that law. Scholarship to date has emphasized that Islamic law is a jurists' law, developed by the jurists themselves without governmental interference. It was therefore relatively uninfluenced by rulers' edicts and decrees. It was, however, shaped by two crucial institutions that have lasted from the tenth and eleventh centuries until the modern period: the madhhab, which one may render variously as "legal school," "jurists' guild," or "tradition of legal study," and the madrasa, or college of law.

Legal Literature and Institutions

The origins of Islamic law are obscure, mostly because many seminal works have been lost. As mentioned earlier, the oldest extant legal compendia show that the study of the law was already quite sophisticated; there are indications that its systematic formulation dates back to the first half of the eighth century. It is likely that it was significantly influenced in its early stages by Roman provincial, Byzantine, Sassanian, and Rabbinic law. A few specific instances of influence have been suggested, such as P. Crone's study on the law of the patronate, but scholarship in this field is still in its infancy. The theoretical development of the law seems to have taken off in Iraq under the Abbasid caliphate (7501258 c.e.). By 900 c.e., all the main genres of legal literature had been established, including extensive legal compendia (mabsut ), epitomes of the points of law (mukhtasar ), collections of model legal documents (shurut, watha'iq ), collections of model court records (mahadir, sijillat ), manuals for judges (adab al-qadi, adab al-qada' ), collections of responsa (fatawa, masa'il ), and manuals of jurisprudence or legal method and interpretation (usul al-fiqh ).

In the course of the ninth and tenth centuries, the madhhab s, or schools of law, were formed, in an attempt, it has been claimed, to maintain autonomy from the caliph and exclude the dogmatic theologians and sectarian groups from religious authority. They had no charters, patents, or membership lists; their organization was informal. Nevertheless, by the mid-tenth century, it became impossible to study and teach Islamic law without belonging to one of the established schools. Six legal madhhab s, each named after a famous jurist of the past, gained recognition in Sunni Islam: the Hanafi madhhab, named after Abu Hanifah (d. 767); the Maliki madhhab, named after Malik b. Anas (d. 795); the Shafi'i madhhab, named after Muhammad b. Idris al-Shafi'i (d. 820); the Hanbali madhhab, named after Ahmad b. Hanbal (d. 855); the Dawudi or Zahiri madhhab, named after Dawud b. Khalaf al-Isbahani (d. 884); and the Jariri madhhab, named after Muhammad b. Jarir al-Tabari (d. 923). The projection of the institution back to the time of these jurists is anachronistic except in the case of al-Tabari, and perhaps Dawud b. Khalaf. The Dawudi and Jariri madhhab s, although important in the tenth century, dwindled and died out in the eleventh; the four remaining madhhab s survived until modern times. In general, the jurists of the madhhab s recognized each other's traditions as legitimate and their opinions on disputed legal questions as equally valid. Together, the four surviving legal madhhab s have represented Sunni legal orthodoxy, an idea confirmed by such historical developments as the establishment of four chief judge-ships, one for each madhhab, under the Mamluks (12501517) in Egypt and Syria. They played the crucial role in shaping legal interpretation and the transmission of legal knowledge, and at the same time provided a strong element of continuity and homogeneity in Islamic society over space and time.

Closely related to the madhhab was the institution of the madrasa, or college of law, which began in the eleventh century in Baghdad with the founding of the Nizamiyya in 1067 and subsequently spread throughout the Muslim world. The madrasa was usually a building that provided space for teaching large classes as well as lodging for students, often on an upper story. It was supported by a perpetual endowment (waqf ) that generated income from the produce of agricultural land or the rent from a row of shops, for example. These funds paid the salaries of the overseer of the endowment (nazir, mutawalli ), the professor of law (mudarris ), the repetitor (mùid ), and other staff, as well as student stipends, repairs, and other expenses. Generally, the madrasa was devoted in the endowment deed (waqfiyya ) to the law of one of the four madhhab s and had one professor who taught the law of that madhhab. Stipends were also provided for students who studied the law of that particular madhhab. Madrasa s soon became the most important institutions of learning in the Muslim world. They tended to exclude the teaching of the Greek sciences, including philosophy, medicine, astronomy, and so on, relegating their teaching to private settings, and to accept the teaching of other religious sciences, such as Arabic grammar, rhetoric, hadith, scriptural commentary, and so on, but as ancillary to the study of the law. The system of legal education that developed in conjunction with the madhhab and the madrasa involved three main levels: ancillary studies in Arabic grammar, rhetoric, and related fields; intermediate study of the legal tradition of the madhhab ; and advanced study on the disputed questions of the law (khilaf ). Disputation and dialectic (jadal ) were major foci of the advanced law student's training; they played an important role in the elaboration of the law. Certainly by the thirteenth century, but possibly earlier, the completion of legal study was recognized by the conferral of a diploma termed the ijazat il-ifta' wa'l-tadris ("authorization to grant legal responsa and teach law"), granted by a master jurist to his student.

Jurisprudence: The "Sources" of the Law

Overall, the main focus of Muslim jurists has been the interpretation of scripture. Classical Sunni Islamic jurisprudence has at its heart a theory of four "roots," or bases, of the law, generally listed as (1) the Koran, (2) the Sunna of the Prophet Muhammad, (3) consensus (ijma' ), and (4) legal analogy (qiyas ). The Koran is granted pride of place as a legal source, yet many do not realize how little of the law is based on the text of the Koran itself. Muslim jurists reckoned that only five hundred verses of the Koran, about one-thirteenth of the entire text, have legal content. A genre of legal literature styled Ayat al-ahkam ("The Verses of Legal Rulings") developed that was a commentary on these verses in particular, extracting the legal content. Of these verses, many are not very specific, such as the many commands to hold prayer and give alms that do not specify how, when, and where to perform these actions.

In addition to the Koran, early jurisprudence relied on Sunna, which seems to have originally meant the general or time-honored usage of the community, and ra'y, which at this stage meant "sound opinion" or "considered opinion." With the work of al-Shafi'i, and generally for Sunnis in the course of the ninth century, it became standard theory that there was not one scripture in Islam, but actually two. The definition of Sunna narrowed to refer to the usage of the Prophet, and then further narrowed to mean "the usage of the Prophet as established by hadith, " oral reports concerning the Prophet's statements and behavior transmitted from the Companions, early Muslims who were eyewitnesses of the Prophet's mission. These reports were gathered and published in collections arranged according to the Companion transmitters (musnad ), or in collections arranged for easy reference by jurists according to the standard chapters of the law (sunan ). Six collections, dating from the middle to late ninth century, came to be recognized as more or less canonical by Sunni Muslims of all madhhab s: the Sahih s of al-Bukhari (d. 870), Muslim (d. 875), and al-Tirmidhi (d. 892), and the Sunan of Ibn Majah (d. 886), Abu Dawud (d. 888), and al-Nasa'i (d. 915). In the ninth and tenth centuries, the relative importance of hadith as a body of scripture was highly contested. Some rationalist jurists threw it out completely; most rationalists restricted the use of individual reports severely, setting very stringent requirements for establishing its authenticity. Many traditionalists, on the other hand, based their understanding of the law almost entirely on hadith reports and sought thereby to emulate the Prophet's sunna, or exemplary behavior, as closely as possible, even in everyday matters such as trimming one's mustache and letting one's beard grow long, or using a miswak twig as a sort of toothbrush. They set out to avoid all innovations, bid'a in opposition to sunna, which could lead one into error. Even these traditionalist scholars realized that many hadith reports were forged: some hadiths spoke for and against sectarian and other theological positions that had only arisen generations after the Prophet. Others contained translations of Bible verses or other Jewish or Christian lore. They devised criteria for establishing the authenticity of hadith reports, but most of these were formal, probabilistic criteria, based on examination of the authorities in the chain of transmission (isnad ) of the hadith report. If they were all known to be reliable and each could have met the preceding person in the chain, then the report was considered formally reliable, even if the text itself was recognized to be odd.

In the genre of usul al-fiqh, Islamic jurisprudence developed sophisticated scriptural hermeneutics, focusing on the interpretation of God's address (khitab Allah ) to mankind, in which He conveyed the law. Particular attention was paid to commands (awamir ) and prohibitions (nawahi ) in the text, for they establish obligations and set up legal boundaries. Several concepts were developed to cope with apparent contradictions in the text, including abrogation, according to which a later prooftext canceled out the legal effect of an earlier prooftext, the distinction between general and particular prooftexts, which allowed jurists to distinguish the intended audience or set of legal agents to which a particular command was addressed. Over the centuries, the discussions of these topics grew more and more elaborate and linguistically sophisticated, anticipating a number of theories of modern linguistics and philosophy by many centuries.

The third "source" of the law according to classical Sunni jurisprudence was consensus, usually defined as "the unanimous agreement of legal authorities of a given generation on a particular legal." This has often been confused with popular opinion, but is in essence the agreement of the community of interpretation constituted by qualified master jurists, after debate has subsided. The existence of consensus is established through the absence of dissent. The legal questions subject to consensus, together with the disputed questions, on which a number of authoritative variant opinions are held, form the range of orthodox opinion.

The fourth "source" of the law has been variously designated as qiyas ("legal analogy") or ijtihad ("exhaustive investigation"). They both came about in an attempt to eschew ra'y ("considered opinion") as a source of the law and to tie elaboration of the law more closely to scripture. By the tenth century, and particularly in traditionalist circles, ra'y came to take on the pejorative meaning "completely unfounded or idiosyncratic opinion," as opposed to its early usage. All four Sunni madhhab s eventually renounced ra'y and accepted qiyas. Qiyas, in its simplest form, is an analogy tying the ruling of Y to the ruling of X based on a crucial similarity, termed the 'illa ("cause") of the ruling. For example, it is established from the Koranic text that drinking alcoholic beverages is forbidden, but there are no scriptural texts that apply to other drugs, such as hashish or opium. If jurists could show (1) that God declared drinking alcoholic beverages forbidden specifically because they intoxicate and (2) that hashish and opium intoxicate in a manner similar to alcohol, then the consumption of hashish or opium should also be forbidden. The jurists of the short-lived Zahiri madhhab rejected qiyas altogether, arguing that it is impossible for humans to assign a cause to God's legal declarations without explicit designation in scripture. To do so is to usurp God's legislative power. Qiyas also came to serve as a general rubric encompassing a number of logical arguments, many of which were not actually based on analogy, including reductio ad absurdum, a fortiori, and other logical arguments.

Ijtihad (literally, "effort") is the term used to describe the process of legal interpretation undertaken by a qualified expert in jurisprudence. Such an expert is termed a mujtahid and is forbidden from adopting the opinions of other experts on authority (taqlid ). Only a layman, or a jurist who is not fully qualified, is permitted to perform taqlid. A great deal of controversy surrounds the term ijtihad; it was until recently commonplace to claim that "the gate of ijtihad " was closed long ago, as early as the ninth or tenth century, and that from that time forward, "independent" interpretation was forbidden. This is not true. Those who claimed that the gate of ijtihad was closed meant that it was forbidden or impossible to establish a new legal madhhab, not that there was a moratorium on independent thought. Manuals of jurisprudence throughout the middle ages and up until the present have stressed the necessity of performing ijtihad on the part of the qualified jurist, and Muslim jurists have been addressing novel issues in the law and coming up with new interpretations throughout history. Nevertheless, it is true that many jurists felt that their interpretative leeway had narrowed considerably by the late middle ages and that they were constrained by the tradition of their own madhhab in ways that earlier jurists had not been.

By the eleventh and twelfth centuries, Sunni jurists had come to accept the role of probability in legal interpretation. In the absence of clear scriptural prooftexts, the individual jurist, after exhaustive investigation of a legal question, professed that answer that was preponderant in his mind. This opinion did not rest on certitude (yaqin ) but on strong presumption (ghalabat al-zann ). Although it was not guaranteed to be correct, the mujtahid was not held to have sinned for coming up with the wrong answer as long as he had investigated the topic exhaustively, and the lay petitioner was permitted to perform his religious obligations according to this opinion. Probable answers to legal questions acquired authority in the absence of a certain answer.

The Modern Period

In the modern era, traditional Islamic law and its institutions have been eclipsed by secular law and institutions at the hands of the colonial powers and modern nation-states. In most Muslim nations, the endowment properties that supported legal education have been confiscated by the government and put under the control of a government ministry. The professors and others who teach and work in these institutions have become government employees. Secular education has radically reduced the importance of the madrasa s in the contemporary world. There has been a widespread application of Western legal codes, whether the Napoleonic code or the related Swiss code, on the law of modern nation-states in the Muslim world, especially in the areas of commercial and criminal law. The only areas that have remained under the purview of Islamic law in most countries are family law, including marriage, divorce, inheritance, and related topics. In these areas, the flexibility of the law has been radically reduced by attempts to establish a standard code. In British India, for example, the Hidaya by al-Marghinani (d. 1196), Minhaj al-talibin by al-Nawawi (d. 1277), and Shara'i' al-Islam by al-Muhaqqiq al-Hilli (d. 1276) were chosen to serve as the law codes for Hanafi Sunnis, Shafi'i Sunnis, and Twelver Shiis, respectively.

At the same time, beginning in the nineteenth century, Muslim reformers such as Muhammad 'Abduh, Rashid Rida, and others attempted to reform Islamic law from within. Approaches have varied widely. Some thinkers have criticized the insularity of the individual madhhab s, arguing for a sustained study of comparative law (fiqh muqaran ) within traditional institutions. Other methods include choosing freely (takhayyur ) among the opinions of past authorities, or combining the legal doctrines of various madhhab s to come up with an appropriate solution, a process termed talfiq ("patching, piecing together"). These last methods have been used in many actual reforms of Islamic family law, such as the well-known reform of Anglo-Muhammadan law that drew on the Maliki tradition to alter Hanafi marriage law so as to facilitate access to divorce for women in bad marriages. Other, more radical thinkers have argued that the law of the madhhab s should be jettisoned altogether and that a new Islamic law should be derived directly from the scripture, from the Koran alone, or from that portion of the Koran that was revealed at Mecca. These radical reforms have met with little success, as most movement in the Muslim world today seems to be in the opposite direction. In Saudi Arabia, Iran under the Islamic Republic, Afghanistan under the Taliban, and Sudan, various forms of Islamic law have been applied. In addition, Islamist political groups throughout the Muslim world are clamoring for application of the shari'a in an attempt to fend off Western cultural influence, fight corruption, and engender public morality and social justice. The classical legal system has not lost its vitality, and, given the centrality of a divinely ordained law to Islam, it cannot easily be replaced or substituted.

See also Islam ; Law ; Sacred Texts: Koran .


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D. J. Stewart

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Islamic law

Islamic law: see SHARĪʿA; FIQH.

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