LAW – Hybrid Learning

Modern Legal Reform

Batoota — Mon, 28 Jul 2014 07:14:14 +0000

Modern Legal Reform
Reforms affecting Islamic law in the nineteenth and twentieth centuries were more far-reaching than any undertaken previously. The impetus for reform came both from within the Islamic tradition, as specialists in Islamic law sought to reform laws in the face of changing attitudes and social needs, and from without, as political leaders imposed changes designed to eliminate archaic features that impeded governmental modernization programs. Although many reforms occurred during periods of European occupation or colonial rule, some of the earliest were undertaken under indigenous leadership, as in the Ottoman Empire and its semi-autonomous province Egypt, before the British occupation of 1882. Reforms proceeded at the levels both of theory and positive law. At the level of theory, outmoded doctrines were challenged or discarded and changes in methodologies were proposed. Reforms were made in positive law as states expanded the role of legislation to encompass areas formerly covered by juristic formulations of Islamic law. Legal reforms originating in the Middle East often radiated eastward and southward, whereas reforms originating elsewhere had relatively few repercussions in the Middle East.
The course of legal reform was linked to the problematic relationship of the Muslim world with the West. The Islamic law of nations was ill-adapted to the realities of this relationship; it was of necessity discarded. The encounter with European legal models led to extensive borrowings of both their substantive and systemic features and the reworking of Islamic doctrines. Although blends of Islamic and common law traditions emerged in some areas like the Indian subcontinent, Islamic law was for the most part assimilated into the civil law tradition of continental Europe, where laws were set forth in codified form. With the devising of Islamic codes, which offered uniform, systematic statements of Islamic law on various topics, states were able to dictate what would officially constitute Islamic law and to impose one version of it on their territories. Insofar as Islamic law survived as positive law, it was in variants circumscribed by national frontiers and in formulations that inevitably reflected the interplay of local political forces. Once the backlash against westernization made itself felt in the 1970s, states began enacting laws that selectively revived elements of Islamic law and tradition-without, however, abandoning the systemic features that had come in with westernization.
In the Ottoman Empire the process of creating new institutions began in the Tanzimat period with the Council of Judicial Ordinances in 1839, the 1847 establishment of mixed civil and criminal courts staffed by both European and Ottoman judges and utilizing elements of European procedure and evidence, and the promulgation in 1850 of a new commercial code to be applied by commercial tribunals. The latter were merged with the mixed courts in 186o; in the same era new European-style codes were enacted-a land code and a third version of a penal code in 1858, a new commercial code in 1861, and a maritime code in 1863. Commercial procedure and penal procedure codes were also enacted in this period. In 1868 a Council of State modeled after the French Conseil d’Etat and a Divan of Judicial Ordinances were created, the latter headed by Ahmet Cevdet Pasha (1822-1895), who later became minister of justice. In that capacity he instituted new courses for judges and established the secular Nizami courts. This pattern of enacting new codified laws and establishing parallel Western-style courts, including special courts for Europeans, was emulated subsequently in other countries. The expertise of scholars trained exclusively in the traditional Islamic academies of higher learning became less relevant for the actual operation of legal systems as legal education was reconstituted along European lines and the jurisdiction of religious courts was restricted or eliminated. Tensions developed between the `ulama’ and legal professionals trained along Western lines as the latter gained ascendancy in the newly-established Western-style legal institutions. The cultural gulf separating the two classes of legal specialists grew and impeded communication; only rarely did individuals combine full competence in both Western and Islamic systems. [See Tanzimat.]
The pace and extent of nineteenth-century reform varied with the subject involved. European models of public law were widely emulated at an early stage. Islamic criminal law, which was weakly developed and contained principles sharply at variance with modern norms, tended to be replaced by Western penal codes. Reforms in Islamic procedural rules, which were archaic and cumbersome, were neglected, the preference being simply for abandoning the old rules and adopting European ones. Similarly, European commercial codes were commonly adopted in lieu of reforming Islamic law affecting commerce.
The first major attempts to codify Islamic rules were undertaken in the late nineteenth century. The most influential Islamic code was the Ottoman Code of Obligations, the Mecelle (Majallah) compiled in 1869-1876. Its rules concerned contracts, property, torts, and some procedural rules; they were preceded by ninety-eight general maxims distilled from shari `ah law. The Mecelle incorporated rules taken from a variety of Hanafi jurists; regardless of whether they were idiosyncratic or minority views, these rules were selected according to what best furthered social welfare. The Mecelle stayed in force in some former Ottoman territories after the fall of the empire. [See Mecelle.]
The 1917 Ottoman Law of Family Rights embodied an innovative eclecticism, selecting rules not only from the four main Sunni schools but also from opinions of isolated jurists from minority and ancient schools of law, with the goal of making a code that was Islamic in derivation but also suited to the needs of contemporary society. Its impact was reduced by its abrogation in 1919 and the secularizing reforms adopted in Turkey in the 1920s, although it did remain in force in Jordan, Lebanon, Palestine, and Syria.
In 1923 the Treaty of Lausanne finally ended the regime of capitulations under which Ottoman Turkey had for centuries accorded subjects of Western powers exemptions from the jurisdiction of the local courts. The potential for further Islamic reforms in Republican Turkey was eliminated by the decision of its first president, Mustafa Kemal (1881-1938), later Kemal Atat irk, to adopt European codified laws across the board in 1926. A direct challenge to the popular notion that Islam had a political vocation came in Turkey with the 1924 abolition of the Ottoman caliphate, the 1928 elimination of the clause making Islam the state religion, and the 1937 declaration that Turkey was a secular state. A major controversy was generated in Egypt and elsewhere by the 1925 book, Al-Islam wa-usul al-hukm (Islam and the Principles of Government), by the al-Azhar scholar and judge, `All `Abd al-Raziq (1888-1966); this justified Turkey’s abolition of the caliphate and argued that Islam did not mandate any particular form of government-positions strongly opposed by conservatives.
With the disintegration of the Ottoman Empire and the abolition of the caliphate in the twentieth century, the nation-state emerged in practice as the only viable form of political organization. The political divisions of the state system proved difficult to reconcile with Islamic ideals of a unified ummah, and doctrinal disputes about the compatibility of the nation-state with Islamic law continued through the end of the century. Some national constitutions tried to reconcile the ideal of a supernational Islamic community with provisions affirming national sovereignty by asserting their commitment to promote Islamic unity or solidarity. The 1972 Charter of the Organization of the Islamic Conference, the international organization to which all Muslim countries belong, offered the compromise of affirming that the OIC aimed to promote Islamic solidarity among OIC members, which in turn were obligated to respect the sovereignty, independence, and territorial integrity of all other member states. By joining the United Nations system, Muslim countries in practice indicated their acceptance of a world order based on nation-states. [See Nation; Organization of the Islamic Conference.]
At the end of the twentieth century Atatfirk’s secularizing reforms remained the boldest undertaken in this area. In almost all other Muslim countries, the constitutions enacted after they achieved independence provided that Islam was the state religion-the idea of a state religion being borrowed from the West. Even Saudi Arabia, which only belatedly promulgated a basic law in 1992, adopted the concept of a state religion, providing in article 1 that the kingdom was an Arab Islamic state, enjoying full sovereignty, and that its religion was Islam. The 1973 Syrian constitution was unusual in failing to provide that Islam was the religion of the state. In practice, in all Muslim countries the majority sect of Islam enjoyed the favored status of an established religion. Constitutions commonly required that the head of state should be Muslim and that Islamic law should be either a source or the sole source of legislation. Opinions differed as to whether it was permissible to provide for popular sovereignty, or whether a constitution of a Muslim country should provide for the sovereignty of God. Constitutional rights provisions did not necessarily indicate the degree to which discriminatory features of Islamic law remained in force; constitutions might proclaim that all citizens were equal even though the rules of personal status relegated women to a subordinate status and non-Muslims encountered various forms of de jure discrimination.
Indian Subcontinent. The subcontinent was cut off from developments in the Middle East by being incorporated into the British Empire and thereby made part of the common-law world with its judge-made case law. Under British rule, the subcontinent adapted to a system of judicial precedent supplemented by statutes. The result was Anglo-Muhammadan law, in which English became the language of the law and the overall method and philosophy were of British inspiration. In this system, judges brought from Britain and British policies of justice, equity, and good conscience determined the scope and application of Islamic doctrine. The influence of Anglo-Muhammadan law extended to other Britishruled countries such as Burma, Singapore, and the Malay States. The hierarchy of courts established by the British enabled the appellate courts to exercise a unifying influence on Islamic law, and the impact was largely conservative, the British judges showing a reluctance to challenge doctrines established by great Islamic jurists. British legislative initiatives on the subcontinent included the Caste Disabilities Removal Act of 185o, abolishing the civil disabilities that Islamic law imposed for apostasy. The Muslim Personal Law (Shariat) Act of 1937 provided that the official version of Islamic law as embodied in statutes and case law should supersede conflicting custom. [See Anglo-Muhammadan Law.]
The influence of the reformist thought of Shah Wall Allah (1703-1762) of Delhi was potent. A famous disciple of his, Sayyid Ahmad Khan (1817-1898), rejected the authority of any ijma`, or juristic consensus, advocating that legal rules be freely chosen from the doctrines of the four orthodox Sunni schools. As many Muslims of the subcontinent were inclined to do subsequently, he discounted the hadiths as a source of law, expressing doubts about their reliability and claiming that all those repugnant to reason or to the dignity of prophethood should be discarded. On various controversial issues, Sayyid Ahmad Khan took positions that tended to harmonize Islamic rules with contemporary norms, arguing for example that Islam condemned slavery, that jihad was meant to be defensive in nature, and that simple interest charges were allowable. [See the biographies of Wali Allah and Ahmad Khdn.]
Another influential reformist thinker was Muhammad Iqbal (1875-1938), who downgraded the significance of the juristic treatises and maintained that contemporary Muslims must be free to undertake ijtihad, independent reasoning from the sources. Iqbal maintained that the Qur’an had to be understood in the light of contemporary needs and that the hadiths should be used with caution. In a significant break with traditional conceptions of ijma`, Iqbal maintained that ijma`, could be exercised by the legislative assemblies of Muslim states. [See the biography of Iqbal
After the independence of India and Pakistan, case law and statutes reformed personal status law. In the Pakistani decision Balqis Fatima v. Najm-ul-Ikram Qureshi (1959 PLD Lah 566) the wife was given an absolute right to divorce in return for making an appropriate payment to the husband, a ruling that involved reinterpreting the traditional institution of khul` and borrowing the Maliki rule that a judge might dissolve a marriage on the grounds of discord, or shiqaq, between the spouses. In Pakistan the Family Laws Ordinance of 1961 undertook reforms to curb polygamy by requiring that the husband first obtain permission from his wife and an arbitration council before taking a second wife, and that to obtain a divorce the husband should notify his wife and an arbitration council, which was to try to effect a reconciliation. The wife’s right to a divorce was ensured by requiring that all marriages use a standard marriage contract, which delegated to the wife the husband’s right to divorce. The Indian case Itwari v. Asghari (1960 AIR All 684) ruled that in the conditions of contemporary India, a husband’s taking a second wife constituted such an insult to the first that, barring unusual circumstances, it would be inequitable to oblige the first wife to continue to live with the polygamous husband.
Algeria. France made Algeria its colony in 1830, and the powerful French influence on Algerian law warrants separately classifying le droit musulman algirien, which was shaped by French legal categories and concepts of equity and natural law. The establishment of a Frenchstyle hierarchy of courts exerted a unifying control on judicial decisions within Algeria. Over the course of French colonization Islamic law on most subjects fell into desuetude, the area of personal status being an exception. Whether Islamic law should be codified along
French lines was debated, and in 1916 the draft code known as the Code Morand presented a modernized version of Islamic principles selected on the basis of what would advance equity, morality, and economic interests, and conform to the state of social development. This draft code, which covered matters such as personal status, real property, and evidence, exerted considerable influence on Algerian jurisprudence even though it was never enacted into law.
Egypt. Among Arab countries, Egypt was the fulcrum of Islamic reform from the late nineteenth century onward. It was also one of the countries where Muslims were first exposed to French law and French legal education, Egyptian students having been sent to study law in France as early as 1828. Egyptians assumed a leading role in efforts to synthesize the French and Islamic traditions.
The most powerful single influence on liberal reformist thought in Islam was the work of the Egyptian `alim Muhammad `Abduh (1849-1905), who was educated at al-Azhar and was associated with the Egyptian nationalist cause. His international eminence as an Islamic reformer was enhanced by the stature he attained on becoming grand mufti of Egypt in 1899, in which capacity he rendered many fatwds. `Abduh’s liberal ideas and his commentary on the Qur’an, Tafsir al-mandr, were disseminated by his disciple Muhammad Rashid Rida (1865-1935) Ibn Taymiyah (1263-1328) was one of his intellectual precursors, particularly insofar as `Abduh held that only the Islamic rules related to matters of worship were inflexible, whereas rules covering the everyday lives of Muslims could be adjusted as circumstances warranted in accordance with the criterion of social welfare. There were also precedents for his ideas in the work of Muhammad ibn `Abd al-Wahhab (17031787), who advocated stripping Islam of its later accretions and restoring it to its original purity, an approach that justified disregarding solutions offered by medieval jurists and returning to the Qur’an and sunnah to make fresh interpretations. `Abduh also resorted to takhayyur, being prepared to devise legal solutions to problems based on a comparative evaluation and selection of rules taken from the doctrines of various schools of law. In his rationalism `Abduh also owed an intellectual debt to the long-suppressed Mu’tazilah. In practice he favored interpretative techniques that would produce rules that promoted the welfare of society. An example of his approach could be seen in his critique of polygamy, which rested on reading the Qur’anic verses 4.3 and 4.129 together. The permission of polygamy in surah 4.3 was accompanied by an injunction to those who feared being inequitable to marry only one woman, traditionally understood as being addressed to men’s consciences. `Abduh treated this as a legal precondition for a valid second marriage, and-given the remark in 4.129, “You will not be able to treat your wives equitably”-he concluded that polygamy should be ruled out except in the case of the exceptional man who was able to treat his wives equitably. `Abduh took into account his own observations that in practice husbands had proved unable to treat their wives justly. Although `Abduh’s influence on reformist thought was far-reaching, his actual impact on the reform of Egyptian law was limited, for by his day the process of adopting French law was already far advanced in Egypt, and the jurisdiction of shari`ah courts had been reduced. [See the biographies of the figures mentioned above.]
Muhammad Qadri (1821-1888) became an expert in the comparative study of Islamic and French law, and during his tenure as minister of justice (1879-1892) he oversaw the promulgation of a number of new codes. He also produced highly regarded codified versions of Hanafi law. `Abd al-Razzaq al-Sanhuri (1895-1971), a scholar who combined expertise in both Western and Islamic law, was one of the most influential figures in modern Arab legal history. Possessing a doctorate in law and political science from Lyon and a doctorate from the Institut des Hautes Etudes Internationales, he later became dean of the faculty of law at Cairo University and president of the Egyptian Conseil d’Etat. He wrote on a variety of legal topics, including the caliphate; he published a treatise on the latter in French in 1926, providing a program for reestablishing it and at the same time converting it into a modern organization along lines of the contemporary League of Nations. He published studies in 1936 and 1938 on the codification of civil law and proposed that the successful revival of the Islamic legal heritage would require that it be restudied in the light of principles of modern comparative law. Civil codes devised by Sanhuri were adopted by Egypt in 1949 and subsequently by most Arab countries. They synthesized Islamic doctrines within a matrix of codified laws inspired by a variety of models, including European law and existing Arab and Turkish codes, and actual court jurisprudence. They permitted reference to Islamic law and custom in default of applicable code provisions. With the adoption of this code, Egypt was able to enact a law abandoning its separate system of mixed courts, which beginning in 1874 had assumed jurisdiction over civil and commercial cases between Egyptians and foreigners, between foreigners of different nationalities, or where a foreign interest was involved. [See the biography of Sanhuri. ]
Egypt’s national courts, organized in 1884, functioned alongside the mixed courts. Personal-status matters remained relegated to shari `ah courts. The government undertook the regulation of the organization of the shari’ah courts and the qualifications of their judges, setting up a new school for their training in 1907. Meanwhile, various millah courts survived, serving the different non-Muslim religious communities as the forums for resolving their personal-status disputes; these were outside state regulation. Only in 1955 did Egypt unify its court system, placing all cases under the jurisdiction of the national courts. However, in personal-status cases, the applicable law remained indicated by the parties’ religious affiliations.
Personal-Status Reforms. In the twentieth century reform efforts focused on personal-status matters, which remained governed by Islamic law. Most governments enacted codified versions of Islamic family law, some of which dramatically deviated from the doctrines of the established schools of law. To minimize objections from conservatives, reforms were often taken indirectly via procedural expedients. For example, new laws commonly imposed requirements that in order to be legally valid marriages had to be registered, and that the spouses had to be of certain minimum ages, thereby deterring child marriages and forced marriages. To discourage polygamy and the husband’s use of discretionary divorce, governments required that marriages and divorces comply with certain bureaucratic formalities and conditions.
The most radical reforms of Islamic family law were taken by Tunisia in 1956, which abolished polygamy and gave men and women equal rights in divorce. This law, in theory based on Islamic principles, was applicable to all citizens of Tunisia. In 1958 adoption was legalized. In recognition of the financial hardships often faced by divorced women under Islamic law, an amendment was enacted in 1981 providing that a divorced wife could be given either a payment or an allowance to maintain her in the same standard she had enjoyed when married.
The Iranian Family Protection Act of 1967 was almost as far-reaching as its Tunisian counterpart. It placed strict conditions on polygamy, requiring that a husband persuade a court that he was able financially and otherwise to treat more than one wife justly. The husband and the wife were accorded the same ability to obtain a divorce from a court, which first had to seek to reconcile the two. Part of the law’s text was deemed to be inserted in all marriage contracts, with the result that the husband’s right of divorce would be in all cases delegated to the wife. Courts were also assigned a central role in deciding matters of child custody and post-divorce maintenance. The Islamic Revolution of 1979 heralded a reversal in the previous policy of enhancing women’s rights; it was followed by laws imposing disabilities on women in the name of adhering to Islamic principles.
In Egypt, a reforming personal-status law was promulgated by decree by President Anwar Sadat in 1979. Among other things, it eliminated a husband’s right to compel his disobedient wife to return to the marital home, required that a husband would have to register a talaq divorce and inform the wife he was divorcing her, provided that a husband’s taking of a second wife constituted grounds for divorce as of right by the first wife, and enhanced the wife’s rights in matters of maintenance, child custody, and post-divorce division of property. Even such modest reforms provoked a strong counterreaction on the part of conservatives, and in 1985 Egypt’s High Constitutional Court ruled that the manner of its promulgation had been unconstitutional, to the great disappointment of Egypt’s growing feminist movement. After the nullification of the 1979 law, in an attempt to placate both sides, a compromise law that diluted the 1979 reforms was enacted by the People’s Assembly.
The conservative shift in legal trends was evinced by Algeria’s decision in 1984, after long debates, to enact a family law that resurrected most institutions of Maliki law, except for forced marriage. The law relegated women to the status of wards of male marriage guardians, accorded the husband the right to divorce at will while requiring the wife to establish grounds, and reaffirmed the husband’s right to have up to four wives.
The aspect of Islamic personal status least susceptible to reform was inheritance law, where one saw only occasional modest reforms-such as measures designed to augment the portion going to the widow and to enable orphaned grandchildren to inherit. The boldest reform measure attempted by an Arab government came in Iraq, the population of which was divided between the Sunni and Sh!’! sects, where a 1959 law adopted German inheritance taw. A 1963 law canceled this change, adopting an original reform scheme, whereby elements of the dissimilar Sunni and Shi’i inheritance rules were combined. The order of priorities by class established under Shi i law was to be followed in all cases, but the schemes for distributing shares within a class could follow either Sunni or Shi’i 11 law. [See Family Law; Marriage and Divorce; Polygyny.]
Developments in Asia. In Indonesia, the Malay States, the Philippines, the Straits Settlements, and Singapore, local customary or adat law was a powerful force. Muslims disputed whether Islam should be understood in terms of the local culture or whether Middle Eastern versions of Islamic law should be treated as authoritative; similar disputes arose in Bangladesh after it separated from Pakistan. Singapore’s Administration of Muslim Law Act of 1966 allowed Malay custom to modify the application of Islamic law. In the colonial era Britain had tended to respect Malay adat law. After independence in 1957, the States of Peninsular Malaysia moved in the direction of Islamic legalism via legislation and setting up religious courts and agencies. Councils were established that could issue fatwas, following Shafi’i doctrine except where it was not in the public interest, in which case they could choose rules from other schools. However, the (secular) High Court remained the ultimate authority in legal disputes. Islamization measures carried out in the 1980s included placing Islamic judges and courts on a par with the civil judiciary, promoting the ideas of Islamic economics, and reinforcing the Malaysian version of Islamic morality with penal sanctions.
Despite the existence of a large Muslim minority, in the Philippines Islamic law had tended to be only erratically applied. In 1977 a Code of Muslim Personal Laws was enacted, which restated general principles of Shafi’i law and set up new shari’ah courts to apply it. The code allowed liberal grounds of divorce for the wife, but it retained the Islamic rule that adoption could not confer legitimacy, a rule which went against the local adat law.
Notwithstanding their official allegiance to the Shafi’i school, Indonesian Muslims tended to follow adat law and to be unfamiliar with fiqh. In Indonesia under Dutch rule, Islamic law was subordinated to adat law and the religious courts accorded an inferior position. The Regulation on Mixed Marriages of 1898 abandoned a fundamental rule of Islamic law by allowing Muslim women to marry non-Muslim men. Generally, however, the Dutch showed little interest in changing Islamic substantive law, being more concerned with regulating the courts and the procedural or bureaucratic aspects of the legal system. After Indonesia achieved independence in 1949, rulings by religious courts generally depended on secular courts for their execution and enforcement; secular courts could review the rulings on procedural, evidentiary, and policy grounds. Subsequent legislation indicated that religious courts had jurisdiction over personal status cases only to the extent that local customary law indicated that they were to be resolved according to the shari `ah. In their approach to cases, Indonesian courts tended more to focus on the practicalities of dispute resolution rather than strictly following Shafi’i doctrine. When liberal reforms of Islamic personal-status law were proposed in the early 1970s, they were strongly opposed by conservatives. The family law enactment eventually passed as the Marriage Law of 1974 was stripped of the bolder reforms that had earlier been proposed; these had included the legalization of adoption, allowing free intermarriage between faiths, and requiring that a husband obtain permission from a secular court to marry more than one wife or to obtain a divorce. Because of the gap between Indonesian and Middle Eastern culture, there was advocacy of establishing a separate Indonesian national madhhab (legal school). [See Adat.]
Islamization Programs. Beginning in the 1970s and continuing into the 1980s initiatives were launched to reinstate Islamic law in Libya, Iran, Pakistan, and the Sudan, and revivalist groups who had long called for the repeal of Western laws in other countries demanded similar islamization measures. These programs resulted in selective retrieval of elements of shari `ah law that were then integrated in legal systems that remained profoundly influenced by the previous westernizing reforms.
The most important islamization program was undertaken in Iran. There the victory of clerical forces in the 1979 Islamic revolution heralded a halt to the process of liberal reform, and the inauguration of policies of entrenching clerical power over political and legal matters, resulting the dismantling of Iran’s westernized judiciary and legal profession. According to article 4 of the constitution, all laws were based on Islamic principles, which were to prevail over not only the laws but even over the constitution. Laws were to be enacted by elected members of the parliament, and their conformity with Islam was to be ensured by having them vetted by six clerical members of the Council of Guardians. Important proposed legislation was blocked by rulings that violations of Islamic principles were involved. In 1989 several constitutional amendments were adopted, including one providing for a new council to try to mediate conflicts between the parliament and the Council of Guardians regarding the compatibility of legislation with Islamic criteria. The rights and freedoms of women and minorities were reduced by new policies and legislation, and Islamic criminal laws were enacted and enforced with zeal. With the adoption of the 1979 constitution, Iran became the first contemporary Muslim country where the structure of government itself was altered to conform to a theory that the state should be headed by an Islamic jurist, following the ideas of Ayatollah Ruhollah Khomeini about vilayat-i faghh (Ar., wildyat al faqih), or government by the jurist. Article 167 of the Iranian Constitution called for courts to make decisions based on codified laws, only in default of which were they to consult Islamic sources or fatwas. [See Wilayat alFaqih. ]
Pakistan struggled since its founding to resolve the role that Islam should play in its government and constitution. In the 1973 constitution, Article 227 provided that all laws should be brought into conformity with the Qur’an and sunnah and that no law should be enacted that was repugnant to their “injunctions.” The Islamic Ideology Council played a major role in the islamization campaign that commenced in 1979 and led to the replacement of many existing laws by rules taken from Sunni fiqh. The most striking changes came with the revival of Islamic criminal law, the enactment of a law converting the zakdt (charitable tithe) into a tax payable to the state, laws designed to eliminate interest from many bank deposits and investments, and the replacement of judges with secular training by persons with Islamic legal education. In 1991 an Enforcement of Shari’ah Act was announced that aimed to make Islamic law the supreme law in the country, overriding both previous laws and the constitution. Because of the turbulence that characterized the political scene in the wake of the death of President Zia ul-Haq (d. 1988), it was unclear to what extent the islamization campaign would be pursued.
In Sudan there was a brief experiment in 1983-1985 with an idiosyncratic islamization campaign conducted by the military dictatorship, a campaign in which the implementation of hudud penalties figured prominently. After a brief interlude of democracy, islamization was pursued in a more sustained and systematic way under a new military dictatorship, which seized power in 1989 and was allied with a Sudanese faction of the Ikhwan or National Islamic Front. Distracting the government from its goal of making Sudan into a model Islamic state was the conflict resulting from determined resistance of African Sudanese in the south, mostly animists or Christians, who opposed both islamization and the arabization policy that accompanied it. The civil war that had broken out over islamization in 1983 continued unabated into the 1990s.
In Egypt in the 1970s and 1980s proposals for measures to islamize laws were put forward that would have, among other things, reinstated Islamic criminal law, banned interest charges, and imposed a strict version of Islamic morality according to which women were to be segregated from men in public transport and university education and excluded from certain professions. Egypt’s Coptic community objected to some of the Islamization proposals-such as the one that would have made apostasy from Islam a capital offense-and confessional tensions rose in consequence. Although most proposals came to nothing, a law prohibiting alcohol was passed and came into force in 1976-but with exceptions that vitiated its impact. Meanwhile, drafts of various new codified versions of Islamic law were prepared under governmental auspices, but after their presentation to the People’s Assembly in 1982, none of the draft codes were ultimately enacted into law. As a concession to the sentiment favoring Islamization, the second article in Egypt’s constitution was altered in 198o to make the shari `ah “the principal source” of legislation, rather than “a principal source” as it had been in the previous wording. An attempt in 1985 to obtain a ruling from the High Constitutional Court that a civil code provision calling for interest to be charged when a loan repayment was delayed should be voided as being contrary to the reworded article 2 was rejected, the court ruling that the article had no retroactive effect on existing legislation that was in conflict with the shari `ah. In Egypt the calls for making the state and its laws more Islamic were countered by proponents of the idea that the unity of religion and state under modern conditions was deleterious to both, among them Muhammad Said al`Ashmawi and Faraj Fawdah (d. 1992).
Powerful fundamentalist movements, appealing to popular sentiment and favoring the application of the shari’ah and the reinstatement of Islamic law, were vigorously repressed in many countries, where governments with basically secular outlooks saw in them a threat to their hold on power. In Algeria in 1991 a fundamentalist party almost came to power by democratic processes, but it was forestalled from actually taking over the government by military intervention in early 1992.
Recent Trends. Especially from the 1960s onward, the implications of the Islamic sources were developed in areas where Islamic law had not previously been elaborated or where earlier doctrines were deemed inadequate, such as matters of public law. As Muslims produced theories that eluded traditional categories, the barriers formerly dividing the doctrines of schools of law and Shi’is and Sunnis became more permeable. A new literature was produced by Muslims with a variety of educational backgrounds and outlooks, many of whom were oriented more toward ideology than jurisprudence. A major concern was rethinking the application of Islamic precepts to public-law issues such as government, penal law, and macroeconomic principles. In the area of macroeconomics, the traditional prohibition of riba (interest or usury) was reinterpreted as a principle that required the elimination of interest charges. Among those writing on this subject were Sayyid Abu al-A`la Mawdudi (1903-1979) a Pakistani fundamentalist ideologue, and Muhammad Baqir al-Sadr (1931198o), an Iraqi Shl’! cleric. However, whereas proponents of Islamic economics concurred that Islamic banks needed to be established in which interest would be prohibited, they disagreed sharply on other economic issues, such as whether Islam allowed for a free market or required the adoption of socialist policies, as evinced by the controversies in Iran after the Islamic revolution over issues like land reform and state control of trade. Proponents of islamization advocated establishing “Islamic” states, that is, states constituted according to Islamic criteria, although there was no consensus as to what this model entailed. One of the influential writers on the role of Islam in the state was the Sudanese Hasan al-Turabi, a Western-educated law professor who went on to a career as an ideologue of Islamic revival and a leading force in Sudanese politics. In these circumstances, theoretical debates went on about the degree to which Islam was compatible with the post-World War II system of international law and the degree to which an Islamic system could incorporate democratic principles. [See Banks and Banking; Interest; and the biographies of the figures mentioned above.]
Meanwhile, international organizations like the Organization of the Islamic Conference sponsored initiatives that had the potential to encourage greater uniformity in approaches to Islamic law. For example, the OIC issued a statement of Islamic human rights principles in 1990. [See Human Rights.] Controversies were engendered about women’s rights in Islam, in which fundamentalists and other supporters of shari`ah rules as they had stood in the past were pitted against increasingly outspoken Muslim feminists. Muslims’ growing familiarity with feminist ideas and international human rights principles meant that laws affecting women, including those of Islamic provenance, were increasingly evaluated in terms of their conformity with the modern norm of male-female equality. Fatima Mernissi, a Moroccan, became one of the most vigorous advocates of the proposition that male attitudes rather than authentic Islamic teachings stood in the way of women’s equality. [See Feminism; and the biography of Mernissi.]
Mohammed Arkoun, an Algerian Islamologist teaching in France, produced provocative and original analyses of the state of Islamic thought and proposals for updating methodologies and enhancing interdisciplinary and comparative dimensions of the study of Islam. Although not specifically directed to the problems of legal reform, the implications of Arkoun’s work for the science of interpretation of the Islamic sources are potentially great. [See the biography of Arkoun. ]
Kuran, Timur. “The Economic Impact of Islamic Fundamentalism.” In Fundamentalisms and the State: Remaking Polities, Economies, and Militance, edited by Martin E. Marty and R. Scott Appleby, pp. 302-341. Chicago, 1993. Examination of Islamic economics and review of recent experiments in applying its tenets.
Lewis, Bernard. The Emergence of Modern Turkey. 2d ed. London and New York, 1968. Fine history of the late Ottoman period and the early republic, exploring reformist influences and trends.
Mayer, Ann Elizabeth. “The Fundamentalist Impact on Law, Politics, and Constitutions in Iran, Pakistan, and the Sudan.” In Fundamentalisms and the State: Remaking Polities, Economies, and Militance, edited by Martin E. Marty and R. Scott Appleby, pp. 110-151. Chicago, 1993. Assessment of the legal changes wrought by fundamentalist programs in three countries.
Peters, Rudolph. Islam and Colonialism: The Doctrine of Jihad in Modern History. The Hague, 1979. Thoughtful examination of how the doctrine of jihad has evolved.
Sanhuri, `Abd al-Razzaq al-. Le califat, son evolution vers une societe des nations orientale. Paris, 1926. Treatise by an eminent Arab jurist on how the principles of the caliphate can apply in contemporary political circumstances.
Ziadeh, Farhat. Lawyers, the Rule of Law, and Liberalism in Modern Egypt. Stanford, Calif., 1968. Excellent historical survey of the development of modern legal institutions and the legal profession in Egypt.
ANN ELIZABETH MAYER
BIBLIOGRAPHY
Adams, Charles C. Islam and Modernism in Egypt: A Study of the Modern Reform Movement Inaugurated by Muhammad `Abduh. London, 1933. Excellent study of `Abduh’s life and impact on Islamic reform.
Ahmad, Aziz. Islamic Modernism in India and Pakistan, 1857-1964. London, 1967. Valuable general study.
Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Concise overview of contemporary legislative reforms.
Arkoun, Mohammed. Pour une critique de la raison islamique. Paris, 1984. Collection of essays offering original and critical perspectives on the Islamic heritage, by a distinguished Muslim intellectual. Borrmans, Maurice. Statut personnel et famille au Maghreb de 1940 d nos jours. Paris, 1977. Outstanding in-depth study of law reform affecting personal status in North Africa.
Enayat, Hamid. Modern Islamic Political Thought. Austin, 1982. Survey of trends in Sunni and Shl’! thought.
Esposito, John L. Women and Muslim Family Law. Syracuse, N.Y., 1982.
Ghunaymi, Muhammad Tal`at al-. The Muslim Conception of International Law and the Western Approach. The Hague, 1969. Useful survey comparing Islamic and Western approaches to international law. Hooker, M. B. Islamic Law in South-East Asia. Singapore, 1984. Surveys of recent developments involving Islamic law in the region. Kerr, Malcolm H. Islamic Reform: The Political and Legal Theories of Muhammad `Abduh and Rashid Rida. Berkeley, 1966. Scholarly examination of the ideas of two central figures in Islamic reformist thought.

Shi`i Schools of Law

Batoota — Mon, 28 Jul 2014 07:07:53 +0000

1-see Law
2-see sunni school of Law
3-Shi`i Schools of Law Shiism maintained a strong eschatological and legalist tradition through its central doctrine regarding continued divine guidance available through the living imam, whether manifest or concealed. Muslim eschatology taught that the Mahdi among the descendants of the Prophet would come as the ultimate ideal ruler to establish the ideal public order. The Shi’is identified the Mahdi as their imam, and he also served as the authoritative precedent in extrapolating the terms of the Islamic revelation in order to formulate fresh legal decisions. Since the ShMs also believed that the imam like the Prophet was infallible, the imam’s guidance was treated as the living tradition, enjoying the same unequivocal status as that reserved by the Sunnis for the Qur’an and the sunnah (received custom).
Besides the Qur’an and the sunnah as sources for deriving religious praxis, Shi’i legal theorists regarded human reason as an equally decisive basis for determining the scope of divine purposes for humanity.
Shi’i legal thought was closely related to its rational theology in which reason, as a discoverer of a legal injunction, was prior to both sources of Islamic revelation, the Qur’an and the sunnah. Reason guides a person to ethical knowledge, and it asserts that good and evil are rational categories. However, reason needs a more categorical verdict on the religious injunctions, which can be derived only from the absolute religious authority of the Prophet and his legitimate successors, the imams. In practice the role of reason is confined to establishing the correlation between the requirements of al-shar` (the revelation) by extracting the general rules from the Qur’an and the sunnah and inferring the ruling in particular cases through al-`aql (reason). Consequently, besides the Qur’an and the sunnah, the Shi`is included reason as a valid source for the judicial decision that was essentially deduced from the revelation. As for the ijma` (consensus), which in Sunni jurisprudence occupies a decisive status as a a source of legal prescriptions, the Shi’i jurists admitted it as evident only if it included the infallible imam’s opinion, sometimes transmitted by his associates who had participated with him in reaching a consensus. Otherwise consensus lacked authoritativeness for deducing law. The authority of the imam’s utterances was so central to the decision-making process in jurisprudence that even when ijtihdd (independent reasoning) was admitted as a valid intellectual process in deducing judicial decisions, it was reasoning based on revelation and not on the intellect that was regarded as valid.
The major Shi`i legal school with an uninterrupted tradition of jurisprudence is the Ja’fari madhhab. The school derives its name from Abu Ja’far Muhammad alBaqir and Ja`far al-Sadiq (eighth century), the fifth and sixth imams, whose disciples are among the earliest fuqaha’ (jurists) of the Shi`ah. Members of the Ja’fari school (also known as the followers of al-madhhab alkhdmis [“fifth school”], after its accreditation by Mahmud Shaltut, the rector of al-Azhar in Cairo, along with the four Sunni schools in 1959) are Twelver Shi’is-believers in the line of twelve imams, of whom the last one is in occultation and is awaited as the messianic imam, or Mahdi. The other minor Shi i schools of law, such as the Zaydi and the Musta`li Fatimid Isma`iliyah, although sharing the centrality of the Shi`i belief in the imam’s position as the absolute legal precedent, have maintained close affinity with the Sunnis in matters of law. A number of Zaydi jurists, including Muhammad ibn Ibrahim ibn al-Wazir (d. 1436), Muhammad ibn Isma’il al-San’ani (d. 1768), and Muhammad ibn ‘Ali al-Shawkani (d. 1839), have argued that their form of jurisprudence, which shares features with Twelver fiqh, constitutes a fifth school of jurisprudence alongside the four Sunni schools. The Musta`li school, resembling in many respects the Twelver praxis, is closer to Sunnism and has retained its symbiotic relation with the Maliki school as formulated by the Fatimid judge Nu’man ibn Muhammad al-Tamimi (d. 974), originally a Maliki himself.
Medina and Kufa were the centers of Shi`i learning under the early Shi`i imams. Rulings of the imams were circulating in the form of hadith reports among the close associates of the imams and were systematically compiled in the tenth century under appropriate juridical rubrics which were established by such Sunni compilers as al-Bukhari and Muslim. The four major compilations of the transmitted material needed to guide the socialpolitical and religious life of the ShMs are: Muhammad ibn Ya’qub al-Kulayni’s Kitab al-kafi; Muhammad ibn ‘Ali ibn Babawayh’s Man la yahduruhu al -faqih; and Muhammad ibn al-Hasan al-Tusi’s Tahdhib al-ahkam and Al-istibsar.
These four books are held with same esteem among Shi`is as the six famous Sunni compilations among the Sunnis. However, the most widely used work in the Shi`i tradition is Wasa’d al-Shi`ah by al-Hurr al-`Amili (d. 1699), which compiles traditions dealing with all legal topics from the above four books and other Shi’i sources. After the transmitted traditions were epitomized and systematized, they were subjected to the strict discipline of the usul al -fiqh (principles of jurisprudence), which lays down the rules for deriving legal norms. This period of testing was the most productive period of Shi’i jurisprudence, headed by leading Shi’is in eleventh-century Baghdad. The element of the Shi’i jurisprudence that favored reasoning based on the textual evidence provided by the Qur’an and the Shi’i traditions was firmly incorporated into legal theory. Both the method of deducing legal norms and the procedure of reasoning were laid down in the usal works. The profound training of Shi’i jurists in Mu`tazili rational theology, and their own exposition of Shi i theology on the basis of those rational principles, inseparably joined Shl’i jurisprudence to the two fundamental doctrines of Shiism: Justice of God and the imamate.
Ongoing theological debate on the priority of reason over revelation had far-reaching implications for Shi’i law in view of the absence of the infallible imam through his prolonged concealment. In theory, only the Hidden Imam could ascertain that the interpretation of revelation was categorical. With the development of a legal theory that critically examined the documentation used as evidence for rulings, the authority of the akhbar (traditions) could not be maintained without question. Some Shi’i jurists, however, were inclined to accept the authority of the traditions uncritically and tended to be rigid in their juridical rulings. In the seventeenth century Akhbari jurists, who were staunchly opposed to the Usuli methodology based on assigning human reason a substantive-normative role in deriving new decisions, emerged. Toward the end of the seventeenth century the Akhbarl thesis was defeated, and Usuli methodology, with ijtihad as its recognized intellectual process, became the benchmark of Shi’i jurisprudence. Shaykh Murtada al-Ansari (d. 1864) is regarded as the “seal” of the mujtahids for applying the principles of legal theory in deducing laws. Leading ShM jurists, such as Ayatollah Ruhollah al-Musavi Khomeini (1902-1989), who are also regarded as the maraji` al-taqlid (supreme legal authorities) by their followers, were heirs to the Usuli methodology of al-Ansari. Rapid sociopolitical development in the context of modern intellectual currents in the Islamic world, in the years following World War Il, brought about significant change in the general education of Shi f jurists; they began to address some of the problems faced by a modern Shi ah in managing public life. Additionally, the creation of the Iranian Islamic Republic marks a new era in Shi’i jurisprudence. The convergence of the moral-legal and political authority in a modern nation-state under a Shi’i mujtahid has, for the first time, forced Shi’i jurists to provide authoritative guidance to the Shi’ah in the modern world.
[See also Akhbariyah; Isma’lliyah; Ithna `Ashariyah; Marja` al-Taqlid; Shi’i Islam; and Usuliyah.]
BIBLIOGRAPHY
Sachedina, A. A. The Just Ruler (al-Sultan al-`Adil) in Shiite Islam: The Comprehensive Authority of the Jurist in Imamite Jurisprudence. New York, 1988.
Tabataba’i, Hossein Modarressi. An Introduction to Shi`i Law: A Bibliographical Study. London, 1984.
ABDULAZIZ SACHEDINA
see also modern legal reforms

SUNNI SCHOOLS OF LAW

Batoota — Mon, 28 Jul 2014 06:56:24 +0000

continue from LAW

The beginnings of the schools of law in Islam go back to the late Umayyad period, or about the beginning of the second Islamic century, when Islamic legal thought started to develop out of the administrative and popular practice as shaped by the religious and ethical precepts of the Qur’an and the hadith. The role of the Qur’an at this very early stage can be taken for granted, but the role of hadith, or traditions of the Prophet, has been subject to dispute among scholars; some maintain that they became efficacious only after Muhammad ibn Idris al-Shafi’i (d. 820) insisted that they be. In the main centers of the early Islamic world, local scholars and private jurists developed their doctrines based on combinations of local practice, the Qur’an, and their knowledge of the traditions, using varying degrees of analogical reasoning in the interpretation and application of the holy texts. This geographical variation thus gave rise to varying doctrines. Shafi’i says, “Every capital of the Muslims is a seat of learning whose people follow the opinion of one of their countrymen in most of his teachings.” He goes on to mention the local authorities of the people of Mecca, Basra, Kufa, and Syria; elsewhere he speaks of the Iraqis and the Medinese. They all followed their own doctrines based on what Joseph Schacht calls their “living traditions” and the free exercise of personal opinion, in the absence of strict rules for deriving legal norms like those elaborated by Shafi’i At this stage the adage had not yet arisen that the true home of the sunnah (the model behavior of the Prophet) was Medina. Comparatively little is known about the doctrines of the Meccans, the Basrans, and the Syrians, although we possess some documentation of the famous representative of the latter, `Abd al-Rahman al-Awza`i (d. 773), particularly about the laws of warfare. Of the Medinese and the Kufan doctrines we know more, possibly because they later developed into the MOW and the Hanafi schools, respectively, which have continued to this day. Shafi’i, the founder of the school that carries his name, considered himself a member of the Medinese school, but he was uncompromising in taking the Medinese and other early law schools to task for not making the traditions of the Prophet supersede their customary practices. He insisted that nothing could override the practice of the Prophet even if that were attested by only a single tradition. His insistence was to have a lasting influence on the legal theory of all schools that accorded traditions a place second only to the Qur’an in formulating rules, and that identified sunnah, previously understood as the model practice of the community, with the traditions of the Prophet. The Medinese until that time appear to have authenticated only those traditions agreed upon by the people of Medina, and to have allowed sound reason and analogy to supersede traditions. The Iraqis, who were accused by their opponents of caring little for traditions, seem actually to have been more knowledgeable about the traditions than were the Medinese, whose attitude toward traditions they shared. Still, some Iraqis, particularly Muhammad ibn al-Hasan al-Shaybani (d. 8o4), seemed to anticipate Shafi`i in insisting on the decisive role of traditions.
This article will treat the development of the various Sunni schools, four of which are extant and three extinct. It will discuss their main doctrines, their major figures, their major books, and their provenance and present locations. Although the legal theories as developed by the various jurists may be regarded as more closely related to the topic of usul al filth (“roots of jurisprudence”; the bases through which practical legal rules are derived), some reference will be made to them here as well. [See Usul al-Filth.]
Hanafi School. One of the geographical centers of legal thought was Kufa in Iraq. The servant and companion of the Prophet, `Abd Allah ibn Mas`ud (d. 653), had been sent there by the caliph `Umar as a teacher and jurist. His students and theirs in turn achieved prominence as jurists; notable among them were `Alqa-mah al-Nakha’i, Masruq al-Hamadani, al-Qadi Shurayh, Ibrahim al-Nakha`i, `Amir al-Sha’bi, and Hammad ibn Abi Sulayman (d. 738), the teacher of AN Hanifah, the eponym of the school.
Abu Hanifah (699-767) is the agnomen of Nu’man ibn Thabit, of Persian extraction and a native of Kufa. He first studied scholastics and then concentrated on the jurisprudence of the Kufa school while gaining his living as a textile merchant. His training in scholastics coupled with his experience as a merchant imparted to him the unusual ability to use reason and logic in the application of rules to the practical questions of life, and to broaden those rules by the use of analogy (qiyas) and preference (istihsan). His liberal use of opinion in the formulation of analogy and preference caused his school to be dubbed the People of Opinion, as distinguished from the People of Traditions who depend on traditions in the formulation of rules-even though his school was not less knowledgeable about traditions. He was reported to have said, “This knowledge of ours is opinion; it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his opinion as we are entitled to our own.”
On the whole, the legal doctrines of Abu Hanifah evidence a liberality and a respect for personal freedom that are not that pronounced among other jurists. He was the first to formulate contract rules concerning contracts, which reflect his attachment to the principle of freedom of contract as exemplified in the contracts of salam and murabahah. The first allows the immediate payment of the price of goods for future delivery, although the contract of sale stipulates the immediate exchange of an object and its price; the second allows a merchant to sell to another what the former had bought at the original’ price plus a stipulated profit, provided that usury is not involved. In the field of personal law, he allows a free girl who had reached her majority to marry without the intercession of a marriage guardian, although later Hanafi doctrine restricted that right to a woman who had previously been married. Also contrary to all other jurists, including the dominant opinion in his own school, he would not interdict the spendthrift, contending that a person who has reached majority is independent and can do as he wishes with his property.
The legal thought of Abfl Hanifah was transmitted by his students, four of whom achieved fame-Abu Yusuf, Zufar ibn al-Hudhayl, Muhammad ibn al-Hasan alShaybani, and al-Hasan ibn Ziyad. In particular, Abu Yusuf and Muhammad were able to spread the influence of the school through their writings and their high positions in the `Abbasid state; they were often referred to as al-Sahiban (the Two Companions). Abu Yusuf, whose name was Ya’gflb ibn Ibrahim al-Ansari (731798), was appointed a judge in Baghdad and later became the first qadi al-qudat, or chief justice, with authority to appoint judges in the empire. On various occasions he differed with the opinions of his master, basing his decisions on traditions that may not have been available earlier. His book Kitab al-khardj is in the form of a treatise he prepared for Caliph Harun alRashid on taxation and the fiscal problems of the state.
To Muhammad ibn al-Hasan al-Shaybani (749-804) goes the credit for writing down the legal thought of the Hanafi school. He was trained in the jurisprudence of the Iraqi school as well as in that of Medina, for he traveled to Medina and studied under the scholar Malik ibn Anas, a version of whose book Al-muwatta’ was transmitted by him. Caliph al-Rashid appointed him qadi of Raqqah and later removed him, but he accompanied the caliph to Khurasan and died at Rayy. The books he compiled contain many of the detailed rules he extracted, particularly on the laws of inheritance, as well as the doctrine of his school. Often the dominant opinion of the school reflected his opinion on a disputed topic. His books have been classified into two categories: Zahir al-Riwayah, whose transmission from him has been authenticated, and al-Nawadir, books transmitted by less reliable authorities. The first category consists of the six books Al-mabsut, Al jami` al-kabir, Aljami` al-saghir, Al-siyar al-kabir, Al-siyar al-saghir, and Al-ziyadat. These books were collected in one volume known as Al-kafi by Abu al-Fadl Al-marwazi, better known as al-Hakim al-Shahid (d. 955). This collection was later annotated in a thirty-volume work, Al-mabsut, by the distinguished scholar Muhammad ibn Ahmad alSarakhsi (d. logo). This work was the basis of the Ottoman civil code of 1869, the Mecelle (Ar., Majallah), part of the legal reforms of the Tanzimat period. [See Mecelle.] The second category, al-Nawadir, consists of Amah Muhammad or Al-kaysaniyat reported by Shu’ayb al-Kaysani, Al-raqqiyat (cases submitted to al-Shaybani while he was a judge in Raqqah), Al-makharij ft al-hiyal on legal fictions and devices, and five other lesserknown collections.
Famous scholars of the next generation or two include Hilal al-Ra’y (d. 859); Ahmad ibn `Amr al-Khassaf (d. 874), author of Al-hiyal on legal fictions and devices, Al-waqf on religious foundations, and Adab al-qadi on procedure and evidence (commented on by Abfi Bakr
Ahmad ibn `All al-Jassas (d. 980), author of Ahkdm alQur’an; and Abfi Ja’far al-Tahawi (d. 933), author of Al jami` al-kabir ft al-shurut on legal formularies. Still later generations produced Abu al-Hasan al-Karkhi (d. 951); al-Sarakhsi, mentioned earlier; ‘Ali ibn Muhammad al-Bazdawi (d. 1089), author of Al-usul on jurisprudence; Abu Bakr al-Kasani (d. i191), author of Bada’i` al-sana’i` fi tartib al-shara’i`; and Burhan al-Din `All alMarghinani (d. 1196), author of the famous and authoritative Al-hiddyah, which has been the subject of many commentaries.
There followed a period of stagnation and imitation of earlier jurists in which existing works were abridged and annotated. An abridgement that received wide recognition was Al-mukhtasar by Ahmad ibn Muhammad alQudfiri (d. 1036). Also compiled were some fatwas, works presenting actual or theoretical questions and answers. Chief among these were Al fatdwd al-khdniyah by Qadikhan Hasan ibn Mansur (d. 1195), Al fatdwd al-khayriyah by Khayr al-Din al-Ramli (d. 1670), Alfatdwd al-Hindiyah-compiled in India by order of the Mughal emperor Awrangzib `Alamgir (d. 1707) and consisting of extracts from the authoritative works of the school-and Al -fatawa al-mahdiyah by the Egyptian mufti Muhammad al-`Abbasi al-Mahdi (d. 1897). In addition, a number of later Hanafi works achieved prominence in the Ottoman Empire, chief among which were Multaqd al-abhur by Ibrahim al-Halabi (d. 1549) and Radd al-muhtar by Muhammad Amin ibn `Abidin (d. 1836).
The Hanafi is the most widespread school in Islamic countries. The fact that it was the dominant school during the `Abbasid Caliphate, owing to the efforts of Abfi Yfisuf and other early Hanafis, gave it an advantage over the others. Moreover, it was the official school of the Ottoman Empire with its farflung dominions, and in 1869 its doctrines were enshrined in the Mecelle, or civil code, to be applied in the newly created secular (nizamiyah) courts, Hanafi law continued to be applied to Muslim personal-status matters. It is still the official school for issuing fatwds and for application to the personal-status matters of Sunni Muslims in the successor states of the Ottoman Empire, including Egypt, Syria, Lebanon, Iraq, Jordan, and Israel-Palestine. In Turkey, which is officially secular, Hanafi law governs religious observances. It continues to be the dominant school for application to personal-status matters and/or for religious observances among the Muslims of the Balkans, the Caucasus, Afghanistan, Pakistan, India, the Central Asian republics, and China. It is estimated that its adherents constitute more than one-third of the world’s Muslims.
Maliki School. This school developed in the Arabian peninsula, the original abode of Islam. It was originally referred to as the School of Hejaz or the School of Medina, and its doctrines are often attributed to such early Muslims as `Umar ibn al-Khattab, `Abd Allah ibn `Umar, Zayd ibn Thabit, `Abbas (the Prophet’s uncle), and `A’ishah (the Prophet’s wife). Of the early jurists of the school who achieved fame, mention may be made of Said ibn al-Musayyab, `Urwah ibn al-Zubayr, and Abu Bakr ibn `Abd al-Rahman. A later generation of jurists and traditionists were the teachers of Malik, the eponym of the school. These included Rabi`ah ibn `Abd alRahman (d. c.748-753), known as Rabi`ah al-Ra’y or Rabi`ah of Opinion (or of Good judgment, as suggested by Amin al-Khawli); Nafi` (d. 735 or 737), the freedman of Ibn `Umar; Ibn Shihab al-Zuhri (d. c.740-742); Ibn Hurmuz (d. 765); and Ja’far al-Sadiq (d. 765), the revered Shi’i imam and eponym of the Ja’fari Shi`i school of law.
Malik ibn Anas al-Asbahi, of Yemenite descent, was born in Medina in 713 and lived there until his death in 795, having left it only to perform the pilgrimage at Mecca. He thus epitomized the learning of the people of Medina. In his book Al-muwatta’, a collection of traditions from the Prophet, companions, and followers arranged according to the subjects of jurisprudence, he often would confirm a legal point by saying, “And this is the rule with us”, or “And this the rule agreed upon by consensus here.” It was said that Al-muwatta’ was transmitted in several versions, but only two have reached us: the version transmitted by the Hanafi alShaybani, mentioned earlier, and the version transmitted by Yahya al-Layth! (d. 848) and commented upon by al-Zarqani, al-Suyuti, and others. Fragments of a third version transmitted by the Tunisian ‘Ali ibn Ziyad (d. c.8oo) have also survived.
Malik was undoubtedly tradition-bound in his legal doctrines. He would often emphasize that he would not deviate from what he had received from his teachers or from the consensus of the scholars of Medina. Sometimes, however, he utilized a form of thinking similar to analogy, which has prompted Abu Zahrah to assert that Malik used ray (personal opinion) as well as giyas (analogy) in arriving at a rule. Actually, he himself said, “As for those matters that I did not receive from [my predecessors] I exercised my reasoning and reflection (ijtahadtu wa-nazartu) according to the course of those I have met . . . so that I would not deviate from the course of the people of Medina and their opinions (drd’ihim). If I did not hear anything specifically about a matter I attributed the opinion (ray) to me.” Amin alKhuli explains that the word ray at that time did not bear its later technical meaning of opinion vis-a-vis analogy, but meant rather “understanding” and “good judgment.” He also considers the attribution by some authors of the technical concepts of preference (istihsan) and public interest (masdlih mursalah) to Malik as rather anachronistic, because the science of usul al-fiqh was still in its infancy at that time.
In the field of law proper, the Maiki school, compared to the Hanafi school, evidences some conservative attitudes, particularly with regard to women. Perhaps this reflects the conservative milieu of Medina at the time of Malik. A woman can only be married with the consent and participation of her marriage guardian; in Hanafi law a guardian is necessary only for a virgin below the age of puberty, and she can repudiate the marriage upon attaining puberty. Also in Malik! law, the father or paternal grandfather has the right to give in marriage his virgin daughter or granddaughter without her consent and even, within some limits, against her wishes; in Hanafi law such susceptibility to compulsion (jabr) terminates at puberty.
Malik’s students included Muhammad ibn al-Hasan al-Shaybani, mentioned above, and Muhammad ibn Idris al-Shafi’i, the founder of the school that carries his name. His followers included Yahya al-Laythi, mentioned earlier as a transmitter of Malik’s Al-muwatta; the Tunisian Asad ibn al-Furat (d. 828); and `Abd alSalam al-Tanukhi, known as Sahnun from Kairouan (d. 854). Andalusian jurists who gained fame included Abu al-Walid al-Baji (d. 1081), Ibn Rushd (d. 1126), Ibn Rushd the grandson (d. 1198), and Muhammad ibn `Abd Allah ibn al-‘Arabi (d. 1148). Later generations of jurists included Abu al-Qasim ibn Juzayy (d. 1340), author of Al-qawanin al -fiqhiyah ft talkhis madhhab alMalikiyah; Sid! Khalil (d. 1365), author of the authoritative Al-mukhtasar; and Muhammad ibn `Abd Allah alKhirsh! (d. 1690), a rector of al-Azhar and author of a commentary on Khalil’s work. The major reference work for this school nowadays is Al-mudawwanah, compiled by Asad ibn al-Furat and later edited and arranged by Sahnun under the title of AZ-Mudawwanah al-kubrd. A concise work on law that has received some attention from Orientalists is Al-risdlah by Ibn Abi Zayd al-Qayrawani (d. 996). Maik jurists who attained fame in specific fields include the Egyptian Shihab al-Din alQarafi (d. 1285) and the Andalusian Abfi Ishaq alShatibi (d. 1388) in questions of jurisprudence, Ibn Farhun (d. 1396) in legal procedure, and Ahmad alWansharls! (d. 1508) and Muhammad Ahmad `Ulaysh (d. 1882) in fatawd works.
Since the birthplace of the Malik! school was Medina, it was natural that the school should spread in the Hejaz. Because of the contacts that the scholars of North Africa and Andalusia established with the scholars of Medina during the yearly pilgrimage, the Maliki school spread to those parts and displaced the Zahir! school in Andalusia where the latter, now extinct, had held sway. It continues to be the predominant school among the people of Morocco, Algeria, Tunisia, and Libya. It has also spread to upper Egypt and the Sudan as well as to Bahrain, the Emirates, and Kuwait. A number of other countries also have some Malik! adherents.
Shafi’i School. This school was not so much the product of a geographical area as it was the result of a synthesis conducted by a single jurist who was thoroughly familiar with the doctrines of the two other schools. That jurist was Muhammad ibn Idris ibn al’Abbas ibn `Uthman ibn Shafi` (hence the nisbah or attribution Shafi’i), a companion of the Prophet and a descendant of al-Muttalib, brother of the Prophet’s ancestor Hashim. Thus he was closely enough related to the Prophet’ to qualify for a stipend from the fifth of the spoils of war assigned to kinsmen, among others. Shafi`! was born in Gaza, Palestine, in 767 and died in Egypt in 820. When he was two years old his father died, so his mother took him to Mecca to be among his kin and to preserve his noble heritage. After memorizing the Qur’an and studying hadfth, he was sent to the desert where he accompanied the Hudhayl tribe, which was famous for its eloquent speech and poetic tradition. Later he traveled to Medina to study fiqh under Malik, whose reputation had spread far and wide. When Malik died, Shafi’i worked with the governor of Yemen and later was taken to Iraq on the orders of Caliph al-Rashid to answer charges that he was an `Alid sympathizer. His eloquent defense, added to a word in his favor from the Qadi Muhammad ibn al-Hasan al-Shaybanl, saved his life. He then applied himself to the study of Iraqi fiqh under al-Shaybanl and read the latter’s books. This opportunity to combine the knowledge of Iraqi fiqh with that of the Hejaz, added to the experience gained in his extensive travels, placed Shafi`! in a good position to formulate the theoretical bases for law in his famous Alrisalah. Al-risalah was written in Baghdad during a second visit to that city and refined when the author moved to Egypt in 814-815.
In the field of law Shafi’i continued to regard himself as a member of the school of Medina even though he had adopted the essential thesis of the traditionists that the traditions were superior in the formulation of laws to the customary doctrines of the earlier schools. Through vigorous polemics he tried to convert the adherents of the other schools to his doctrine, but they were not willing to abandon their own doctrines, although they accepted his legal theory, which is traditionist by inspiration. Those legal specialists of both schools who accepted Shafi’i’s thesis completely became his followers, and thus a new school arose with a doctrine formulated by an individual founder. The doctrine was first formulated in Iraq, but when Shafi`! moved to Egypt he retracted some of his earlier pronouncements; the resulting doctrine has come to be known as the Egyptian, or new, version of the school.
Shafi’i authored or dictated to his pupil al-Rabi ibn Sulayman (d. 884) the book known as Al-umm, a truly seminal work that defines not only the doctrine of Shafi’i but also many of the differences among the other schools. The seven-volume work deals with the various topics of law including transactions, religious observances, penal matters, and matters of personal status. It also includes such topics as the differences between `All and Ibn Mas’ud, the disagreement between Shafi`! and Malik, the refutation by al-Shaybani of some doctrines of Medina, the dispute between Abu Yfisuf and Ibn Ab! Layla, and the reply of Abfi Yfisuf to the work on siyar, or the law of war and peace, by al-Awza’i. Al-umm above all treats Shafi’i’s favorite topic, an attack on those who do not accept the entire body of traditions in the formulation of rules, and the invalidation of preference (istihsan) as a source of law. On the page margins of volume seven of Al-umm as printed in Cairo (1968) is another work by Shafi`! entitled Ikhtildf al-hadfth, also reported by al-Rabi.
Certain students of Shafi`! in Iraq founded their own schools; these were Ahmad ibn Hanbal, Dawud alZahiri, Abfi Thawr al-Baghdadi, and Abfi Ja’far ibn Jarlr al-Tabari. All but the school of Ibn Hanbal have become extinct. In Egypt Shafi’i’s students included Abfi Ya’qub al-Buwayti (d. 845), Isma’il al-Muzani (d. 877), the author of Al-mukhtasar on Shafi’i jurisprudence, and al-Rabi.
Some famous jurists who later propagated the Shafi`i school included Abu Ishaq Ibrahim ibn `All al-Shirazi (d. 1083), the author of Al-muhadhdhab and the scholar for whom the vizier Nizam al-hulk built the Nizamiyah school in Baghdad; the philosopher and jurist Abu Hamid al-Ghazali (d. 1111), who authored Al-mustasfd and Al-wajiz in jurisprudence and law; `Izz al-Din ibn `Abd al-Salam (d. 1261), the author of Qawacid alahkam fi masalih al-andm, a magnificent treatment of detailed principles and maxims of jurisprudence; Muhyi al-Din al-Nawawi (d. 1277), the author of the famous Minhaj al-tdlibin; Tag! al-Din al-Subki (d. 1355) the author of Fatdwa al-Subki; and the encyclopedic author Jalal al-Din al-Suyuti (d. 1505), who wrote Al-ashbah wa-al-nazd’ir on Shafi’i law.
Since Egypt was the home of the new school of Shafi`i, it was natural that it would strike deep roots there. It was the official school during the Ayyubid dynasty (1169-1252) and occupied a prime position during the Mamluk regime that followed. Only when the Ottomans occupied Egypt in 1517 did the Hanafi school displace it. Today, although the Hanafi school is officially enforced by the courts in matters of personal status, many Egyptians, particularly in the rural areas, follow the Shafi`i school in their religious observances. So do the great majority of Muslims in Palestine and Jordan, many adherents in Syria, Lebanon, Iraq, the Hejaz, Pakistan, India, and Indonesia, and the Sunni inhabitants of Iran and Yemen.
Hanbali School. This is also a personal school in that it represented in the main the legal opinions, sayings, and fatwas of a single person, Ahmad ibn Hanbal. Ibn Hanbal was born in Baghdad in 78o and died there in 855. He traveled widely to Syria, the Hejaz, and Yemen as well as to Kufa and Basra in Iraq in pursuit of the traditions collected in his monumental work Musnad alImam Ahmad in six volumes containing more than forty thousand items. This, added to the fact that he never authored a work on fiqh at a time when many others were writing on the subject, made many Muslim biographers consider him a traditionist rather than a jurist. His students, however, collected his legal opinions and fatwas, and the result was a body of juristic principles and laws worthy of being designated a school.
The attachment of this school to traditions is reflected in its departure from the other schools concerning the sources of law. According to Ibn Qayyim al-Jawziyah (d. 1350), a late Hanbali jurist, the sources are five: the texts of the Qur’an and sunnah; the fatwas of the com panions when not contradicted by the former sources; the sayings of single companions when in conformity with the Qur’an and sunnah; traditions that have a weak chain of transmission or lack a name of a transmitter in the chain; and finally, reasoning by analogy when absolutely necessary.
Ibn Hanbal became famous in Islamic history for his rigorous attachment to his faith and his principled stand against the doctrine of the createdness of the Qur’an during the Inquisition in Baghdad, even though he was beaten and imprisoned. This tenacious attachment to principle was later reflected in two followers who rejuvenated his school-Ibn Qayyim, mentioned above, and his teacher Tag! al-Din ibn Taymiyah (d. 1327), both of whom were imprisoned in the citadel of Damascus. It was also apparent in the career of Muhammad ibn `Abd al-Wahhab (d. 1792), the famous Hanbali reformer of Nejd.
Followers of this school include Muwaffaq al-Din ibn Qudamah (d. 1223), the author of the monumental twelve-volume Al-mughni as well as Al-`umdah; Taqi alDin ibn Taymiyah, author of the famous Fatawd and Al-siyasah al-shar’iyah; and Ibn Qayyim al-Jawzlyah, author of I’lam al-muwaqqi`in and other works. The rejuvenated school, which had not enjoyed many followers before Ibn Taymiyah, was further strengthened in the eighteenth century by Ibn `Abd al-Wahhab and his reform movement in Arabia, which aimed at taking Islam back to its simple and pristine beginnings, depending on the Qur’an and the sunnah instead of later scholars. The success of the Wahhabiyan and the return of the Saudi family to power early this century established the Hanbali school as the official school of Saudi Arabia. It is also the official school of Qatar and has many adherents in Palestine, Syria, Iraq, and elsewhere. [See Wahhabiyah; Saudi Arabia; and the biographies of Ibn Taymiyah and Ibn `Abd al-Wahhab.]
Extinct Sunni Schools. The most important of these were the schools of al-Awza’i, al-Zahiri, and al-Tabari. `Abd al-Rahman al-Awaza’i was born in Lebanon and died there in 773, his tomb being just south of Beirut. His school flourished in Syria and Spain for some time but was overwhelmed by the Shafi’i), and the Maliki schools in those two regions, respectively. What is known about it is derived from the writings of the other schools, particularly on the laws of war and peace, since we possess no independent works on its jurisprudence. Apparently it depended on traditions for its doctrines. Abu Sulayman Da’ud al-Zahiri (d. 883), a student of Shafi’i, founded his own school on the apparent and literal (zdhir) meanings of the Qur’an and the sunnah, rejecting many of the other sources accepted by the other schools. The school flourished in Spain but died out by the fourteenth century. One of its most celebrated adherents was Ibn Hazm (d. 1064), author of Al-ihkdm fi usul al-ahkam on jurisprudence and Al-muhalld on fiqh.
The historian and exegete Abu Ja’far Muhammad ibn Jarir al-Tabari (d. 922) was also a jurist who developed his own school, which lasted until the twelfth century. Among his books on jurisprudence was Ikhtildf alfuqahd’, a comparative study of the various schools of law.
Two developments this century have the potential to affect the structure of law schools in the Islamic world. One was the call for a new ijtihdd that would disregard, or at least not follow completely, the established schools. The motivating spirit for this call has been the progressive teachings of prominent Islamic leaders such as Shaykh Muhammad `Abduh (d. 1905) in Egypt and Sir Sayyid Ahmad Khan (d. 1898) and the Aligarh movement in India. Although the call was strong, the end results were very modest. [See Aligarh and the biographies of `Abduh and Ahmad Khan.] A proponent of this course of reform, the prominent Egyptian judge Muhammad Said al-`Ashmawi, has recently been the target for attacks by conservative elements. In Syria this call for a new ijtihdd has been vehemently attacked in several articles by prominent rectors of mosques and muftis in a book edited by Ahmad al-Bayanuni of Abfi Dharr Mosque in Aleppo. The prospects for this call in the present era of fundamentalist thinking are, therefore, not very promising, although the exercise of new ijtihdd has resulted in the decree of monogamy in Tunisia.
The other development, which has proven to be more successful, is crossing the boundaries of the various schools in an effort to find juristic opinions that support reform in many aspects of the law of personal status as it is applied in most Islamic countries. This process is called takhayyur, or choosing a juristic opinion, and was applied successfully in several reforms of the law. For instance, the Ottoman Law of Family Rights of 1917 derived several of its provisions from the dominant doctrines of Sunni schools other than the Hanafi, which was the official school. Later reforms in Egypt and the Sudan went even further by accepting any opinion of a jurist from one of the Sunni schools, or even a Shi`i opinion, without announcing its provenance. An example of the latter is the Egyptian Law of Testamentary Dispositions of 1946, which allowed a bequest to an heir within the “bequeathable third” without the consent of the other heirs, although the Sunni position has always been that there can be no bequest to an heir. Reformers even resorted to talfiq, or combining parts of the doctrines of different schools or jurists, into a new doctrine. Because the four orthodox Sunni schools are considered authentic and acceptable by all Sunnis provided one is adhered to consistently by an individual, a sentiment has arisen among modern Muslims that it is perfectly acceptable to effect reform by drawing on the provisions of all four.
BIBLIOGRAPHY
Abu Zarah, Muhammad. Ibn Hanbal. Cairo, n.d. Account of the life and jurisprudence of the founder of the Hanbali school.
Abu Zarah, Muhammad. Muhadardt fi tarikh al-madhahib al -fiqhiyah. Cairo, n.d. Comprehensive history of law schools in Islam.
Abu Zarah, Muhammad. Al-Shafi’i. Cairo, n.d. Account of the life and jurisprudence of the founder of the Shafi’i school.
Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Comprehensive treatment of the philosophy and methods of reform, and the actual achievements of reform, in various fields of law. Bayanuni, Ahmad ‘Izz al-Din al-. Al-Ijtihad wa-al-Mujtahidun. Aleppo, 1968.
Coulson, Noel J. A History of Islamic Law. Edinburgh, 1964. Highly readable survey of the genesis of Islamic law, doctrine and practice in the medieval period, and Islamic law in the modern world.
Al fatawa al-`alamgiriyah. Translated by Neil B. E. Baillie as A Digest of Moohummudan Law (1865). Reprint, Lahore, 1957. This is the work ordered by Sultan Awrangzib and based on the most famous Hanafi texts. It is also called Al fatawa al-hindiyah.
Fyzee, Asaf A. A. Outlines of Muhammadan Law. Oxford, 1949. Comparatively modern treatment of the application of Islamic law in the Indian Subcontinent.
Khuli, Amin al-. Malik: Tarjamah Muharrarah. 3 vols. Cairo, n.d. Marghinani, `All ibn Abi Bakr al-. Al-Hiddyah. Translated by Charles Hamilton as The Hedaya (1791). Reprint, Lahore, 1957. Convenient source for Hanafi law.
Nu`man ibn Muhammad, Abu Hanifah. Da`a’im al-Islam. Edited by Asaf A. A. Fyzee. Bombay, 1974. Major Isma’ili work on jurisprudence and law.
Schacht, Joseph. The Origins of Muhammadan jurisprudence. Oxford, 1950. Pioneering work on the early development of schools of law and doctrine.
Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Concise treatment of the historical development of schools and doctrine, and a systematic presentation of legal topics.
Shak’ah, Mustafa al-. AI-a’immah al-arba’ah. Cairo, 1979. Account of the life, work, and jurisprudence of the founders of the four orthodox schools of law.
Vesey-FitzGerald, Seymour Gonne. Muhammadan Law: An Abridgement. Oxford and London, 1931. An old classic about the actual application of Islamic law in the Indian Subcontinent and East Africa. Outlines the doctrines of the various schools.
FARHAT J. ZIADEH

LAW

Batoota — Mon, 28 Jul 2014 06:46:18 +0000

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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