A History of Islamic Law

N. Coulson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351535298
• Edition: 1
• Topic: Teología y religión
• Subtopic: Teología islámica

Lawyers, according to Edmund Burke, are bad historians. He was referring to an unwillingness, rather than an inaptitude, on the part of early nineteenth-century English lawyers to concern themselves with the past: for contemporary jurisprudence was a pure and isolated science wherein law appeared as a body of rules, based upon objective criteria, whose nature and very existence were independent of considerations of time and place. Despite the influence of the historical school of Western jurisprudence, Burke's observation is generally valid for Middle East studies. Muslim jurisprudence in its traditional form provides an extreme example of a legal science divorced from historical considerations. Law, in classical Islamic theory, is the revealed will of God, a divinely ordained system preceding, and not preceded by, the Muslim state controlling, but not controlled by, Muslim society. There can thus be no relativistic notion of the law itself evolving as an historical phenomenon closely tied with the progress of society. The increasing number of nations that are largely Muslim or have a Muslim head of state, emphasizes the growing political importance of the Islamic world, and, as a result, the desirability of extending and expanding the understanding and appreciation of their culture and belief systems. Since history counts for much among Muslims and what happened in 632 or 656 is still a live issue, a journalistic familiarity with present conditions is not enough; there must also be some awareness of how the past has molded the present. This book is designed to give the reader a clear picture. But where there are gaps, obscurities, and differences of opinion, these are also indicated.

Part One
THE GENESIS OF SHARĪ‛A LAW

CHAPTER 1
Qur’ānic Legislation

‘OBEY God and His Prophet.’ In this Qur’ānic command lies the supreme innovation introduced by Islam into the social structure of Arabia: the establishment of a novel political authority possessing legislative power.

Prior to the advent of Islam the unit of society was the tribe, the group of blood relatives who claimed descent from a common ancestor. It was to the tribe as a whole, not merely to its nominal leader, that the individual owed allegiance, and it was from the tribe as a whole that he obtained the protection of his interests. The exile, or any person hapless enough to find himself outside the sphere of this collective responsibility and security, was an outlaw in the fullest sense of the term, his prospects of survival remote unless he succeeded in gaining admittance into a tribal group by a species of adoption or affiliation known as walā’.

To the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations. And this notion, of course, is the basis of the recognition of a customary law. The tribe was bound by the body of unwritten rules which had evolved along with the historical growth of the tribe itself as the manifestation of its spirit and character. Neither the tribal shaykh nor any representative assembly had legislative power to interfere with this system. Modifications of the law, which naturally occurred with the passage of time, may have been initiated by individuals, but their real source lay in the will of the whole community, for they could not form part of the tribal law unless and until they were generally accepted as such.

In the absence of any legislative authority it is not surprising that there did not exist any official organisation for the administration of the law. Enforcement of the law was generally the responsibility of the private individual who had suffered injury. Tribal pride usually demanded that inter-tribal disputes be settled by force of arms, while within the tribe recourse would usually be had to arbitration. But again this function was not exercised by appointed officials. A suitable ad hoc arbitrator (ḥakam) was chosen by the parties to the dispute, a popular choice being the kāhin, a priest of a pagan cult who claimed supernatural powers of divination.

This general picture of the primitive customary tribal law of Arabia in the sixth century requires some qualification as regards the settled communities of Mecca and Medina. Mecca, the birthplace of the Prophet Muḥammad and a flourishing centre of trade, possessed a commercial law of sorts, while Medina, an agricultural area, knew elementary forms of land tenure. In Mecca, moreover, there appear to have existed the rudiments of a system of legal administration. Public arbitrators were appointed and other officials were charged with the task of recovering compensation in cases of homicide or wounding. Yet in both these centres, just as among the Bedouin tribes, the sole basis of law lay in its recognition as established customary practice.

The year 622 saw the establishment of the Muslim community in Medina. The Arab tribes or sub-tribes (with some temporary exceptions) accepted Muḥammad as the Prophet or spokesman of God, and regarded themselves and his Meccan followers as constituting a group of a new kind wherein the bond of a common religious faith transcended tribal ties. While Muḥammad’s position gradually developed into one of political and legal sovereignty, the will of God as transmitted to the community by him in the Qur’ānic revelations came to supersede tribal custom in various respects. To assess the nature and scope of the legislation which the Qur’ān contains and its impact upon the form and substance of the existing customary law is the purpose of the remainder of this chapter.

In the evolution of a society the technical process of legislation is a secondary stage. Reducing into terms of rights and obligations an accepted standard of conduct and providing remedies in the event of its infringement, it presupposes the existence of this accepted standard. Naturally enough, therefore, the religious message of the founder-Prophet of Islam, the purpose of which included the establishing of certain basic standards of behaviour for the Muslim community, precedes, both in point of time and emphasis, his role as a political legislator. Accordingly, the so-called legal matter of the Qur’ān consists mainly of broad and general propositions as to what the aims and aspirations of Muslim society should be. It is essentially the bare formulation of the Islamic religious ethic.

Most of the basic notions underlying civilised society find such a mode of expression in the Qur’ān. Compassion for the weaker members of society, fairness and good faith in commercial dealings, incorruptibility in the administration of justice are all enjoined as desirable norms of behaviour without being translated into any legal structure of rights and duties. The same applies to many precepts which are more particular, and more peculiarly Islamic, in their terms. Drinking of wine and usury (ribā) are both simply declared to be forbidden (ḥarām) in practically the same terms. But no indication of the legal incidents of the practices is contained in the Qur’ān. In fact wine-drinking later became a criminal offence punishable by flogging while usury was a purely civil matter, the transaction being a type of invalid or unenforceable contract. This clearly demonstrates the distinct attitudes of the religious prophet and the political legislator. Both are obviously concerned with the consequences of an act or omission; but, while the legislator sees those consequences in terms of practical sanctions enforceable by human agencies, the prophet sees them as the attainment of merit or fault in the sight of God. The ultimate sanction visualised for the infringement of the Qur’ānic provisions is always the blessing or wrath of God. For example, those who wrongfully exploit the property of orphans, says the Qur’ān, “only swallow down the fires of hell into their stomachs and shall burn in the flame”. While political legislation considers social problems in terms of the effects of an individual’s behaviour upon his neighbour or upon the community as a whole, a religious law looks beyond this to the effect that actions may have upon the conscience and eternal soul of the one who performs them. In short, the primary purpose of the Qur’ān is to regulate not the relationship of man with his fellows but his relationship with his Creator.

While the Qur’ānic legislation, then, is predominantly ethical in quality, the quantity is not great by any standards. It amounts in all to some six hundred verses, and the vast majority of these are concerned with the religious duties and ritual practices of prayer, fasting, and pilgrimage. No more than approximately eighty verses deal with legal topics in the strict sense of the term. The first laws of a society are naturally couched in brief and simple terms—as was the case with the Twelve Tables of Roman law. But unlike the Twelve Tables the Qur’ān does not attempt to cover, in however rudimentary a form, all the basic elements of a given legal relationship. Although the regulations which are of a more specifically legal tone cover a great variety of subjects, ranging from women’s dress to the division of the spoils of war, and from the prohibition of the flesh of swine to the penalty of flogging for fornication, they often have the appearance of ad hoc solutions for particular problems rather than attempts to deal with any general topic comprehensively.

This piecemeal nature of the legislation follows naturally perhaps from the circumstances in which the Qur’ān was revealed; for the official compilation of the Qur’ān, which did not appear until some years after the death of the Prophet, represents an arbitrary arrangement of short passages which had been uttered by the Prophet at various times and in various places throughout his lifetime—or at least, as far as the legal verses are concerned, during the ten years of his residence at Medina. An example of this type of regulation which catered for the exigencies of the moment is provided by the verse (xxxiii. 37) which abolishes the pre-Islamic custom of adoption, under which an adopted child had the legal status of the adopter’s own child; for this was designed to settle the controversy which arose from the marriage of the Prophet to the divorced wife of his adopted son Zayd. Similarly the Qur’ānic verses which lay down the penalty of eighty lashes for the offence of a false accusation of unchastity (qadhf) were revealed following imputations of adultery against the Prophet’s wife, ‛Ā’isha.

Certain topics, it is true, are dealt with at considerable length. But even here there is no single comprehensive exposition of the topic. It was simply that certain problems of a recurring nature gave rise to a series of regulations, disjointed in point both of time and substance, on the same general subject, and these, when gathered together from their various positions in the Qur’ān, afford some semblance of a detailed treatment. Without doubt it is the general subject of the position of women, married women in particular, which occupies pride of place in the Qur’ānic laws. Rules on marriage and divorce are numerous and varied, and, with their general objective of the improvement of woman’s status, represent some of the most radical reforms of the Arabian customary law effected in the Qur’ān. The import of two outstanding rules in this context may be briefly noticed.

As regards marriage the Qur’ān commands that the wife alone shall receive the dower (mahr) payable by the husband. While payments to the wife herself were sometimes made in pre-Islamic times, the basic concept of marriage under some forms of the customary law was that of a sale of the woman by her father, or other near male relative, who received, qua vendor, the purchase price paid by the husband. The effect of this simple Qur’ānic rule, then, is to transfer the wife from the position of a sale-object to that of a contracting party who, in return for her granting the right of sexual union with herself, is entitled to receive the due consideration of the dower. She is now endowed with a legal competence she did not possess before. In the laws of divorce the supreme innovation of the Qur’ān lies in the introduction of the “waiting period” (‛idda). Prior to Islam a husband could discard his wife at a moment’s notice. His repudiation (ṭalāq) of his wife, a right naturally stemming from his position as a purchaser of her, operated as an immediate and final severance of the marital relationship. The Qur’ān now virtually suspended the effect of the repudiation until the expiry of the “waiting period”, which was to last until the wife had completed three menstrual cycles or, if she proved pregnant, until delivery of the child. This period is primarily designed, according to the express terms of the Qur’ān itself, to provide an opportunity for reconciliation, and during it the wife is entitled to financial support from the husband.

Reforms such as these obviously go a long way towards ameliorating the position of the wife. But they are designed to remedy only particular aspects of the marital relationship: they do not attempt to create an entirely novel structure of family law or to eradicate the basic concepts of existing customary practices. Marriage remains a contract in which the husband, as a quasi-purchaser, occupies the dominant position. He also retains his basic right (which, as has been pointed out, is a natural corollary of that concept) unilaterally to terminate the marriage. “The men are overseers over the women”, says the Qur’ān, “by reason of … the property which they have contributed” (i.e. the dower and maintenance). But this patriarchal scheme of society is now subjected to the tempering influence of the ethical standard of fair treatment for women. The oft-repeated injunction to “retain wives honourably or release them with kindness” finds its practical implementation in legal rules which mitigate for women the rigours of that society and remove its harshest features. In short, the Qur’ānic regulations modify in certain particulars rather than supplant entirely the existing customary law.

Perhaps the best illustration of the various aspects of the Qur’ānic laws to which we have referred is provided by the regulations concerning inheritance. In pre-Islamic times the rules of inheritance were designed to consolidate the strength of the individual tribe as an effective participant in the popular sport of tribal warfare. Patrilineal in structure, the tribe was formed of those who traced their descent from the common ancestor exclusively through male links.¹ Accordingly, in order to keep property within the tribe, rights of inheritance belonged solely to the male agnate relatives (‛aṣaba) of the deceased. Furthermore, it was the “nearest” such relative alone who inherited, the order of priority being the descendants of the deceased, followed by his father, his brothers and their issue, his paternal grandfather, and finally his uncles and their descendants. Although there is some evidence that property was occasionally bequeathed, outside this scheme, to close relatives such as parents and daughters, the general rule was that females had no rights of succession; nor had minor children—on the ground, presumably, of their inability to participate in military activities.

The first Qur’ānic reference to this subject is a typically ethical injunction which urges a person who is on the point of death to “bequeath equitably to his parents and kindred”. This provision obviously qualifies, in general, the system of exclusive inheritance by the male agnate relatives and in particular recognises the capacity of women relatives to succeed. As such it reflects the transition effected by Islam from a society based on blood relationship to one based on a common religious faith; and in this new society the individual family has replaced the tribe as the basic unit.²

Later circumstances, however, necessitated the translation of this general injunction into more positive and practical rules. Following the death of many Muslims in the battles fought against the unbelievers, a series of Qur’ānic revelations allotted specific fractions of the deceased’s estate to individual relatives. Of the nine relatives so entitled six are women—the wife, the mother, the daughter, the germane, consanguine and uterine sisters—and the remaining three are male relatives who would either never have inherited at all under the old system (i.e. the husband and the uterine brother) or would have been excluded by a nearer agnate (i.e. the father, who would not have inherited in competition with a son of the deceased). Although the Qur’ān does not expressly recognise the claims of the male agnate relatives as such, it enacts that where the deceased is survived by sons and daughters the share of the son shall be double that of the daughter; and a similar principle applies when the heirs are the deceased’s brothers and sisters. The obvious intention, then, of the Qur’ānic rules is not to sweep away the agnatic system entirely but merely to modify it, with the particular objective of improving the position of female relatives, by superimposing upon the male agnates an additional class of new heirs. Once again the legislation is by way of a supplement to, not a substitute for, the existing customary law.

For those who were pledged to conduct their lives in accordance with the will of God the Qur’ān itself did not provide a simple and straightforward code of law. As a legislative document, the Qur’ān raises many problems; but we are not for the moment concerned with the manifold and complex questions of the interpretation of the Qur’ān and its precise implications which were to occupy the minds of later and more sophisticated generations. There were, however, two basic problems which must have been of immediate concern to the contemporaries of the Prophet themselves.

In the first place there was the question of the effect, in terms of practical measures, of the essentially ethical standards established by the Qur’ān. Usury had been simply prohibited. But it is hardly too cynical to suggest that the potential lender or borrower might be at least as interested in the effect of his dealings on his pocket or his person as he would be in the prospect of eternal damnation.³

In some cases the legal implications of an ethical norm were self-evident. On the subject of homicide and physical assaults, for example, the Qur’ān lays down the standard of just retribution in the maxim “an eye for an eye and a life for a life”. Under the pre-Islamic customary law a rough system of private justice, dominated by the notion of vengeance, had prevailed in these matters. The loss of a tribal member was to be avenged by the infliction of a corresponding loss upon the culprit’s tribe who were collectively responsible for the action of one of their members. Until satisfactory vengeance had been wreaked, the soul of the victim could not rest in peace; and, since the natural tendency was for a tribe to set an exaggerated value on the member it had lost, two or more lives might be claimed in revenge for a single victim. The Qur’ānic maxim thus radically altered the legal incidents of homicide. Henceforth only one life—the life of the killer himself—was due for the life of the victim, and the distinction is marked by a change of terminology, the term tha’r (blood revenge) being replaced by that of qiṣāṣ (just retaliation). It is once again noteworthy, however, that the basic structure of the existing law is left unchanged. Homicide remains an offence which falls into the category of civil injuries rather than that of public offences or crimes, for it is the relatives of the victim who have the right to demand retaliation, accept compensation or pardon the offence altogether. It is still a matter for private justice, but that justice is now to be meted out in accordance with the moral standard of just and exact reparation for loss suffered, the maxim of a life for a life itself stemming from the broader religious principle that all Muslims are equal in the sight of God.

But the legal implications of the Qur’ānic precepts were by no means always as self-evident as in the case of homicide. Polygamy, restricted to a maximum of four wives concurrently, is expressly permitted, but at the same time husbands are enjoined to treat co-wives equally and not to marry more than one wife if they fear they will be unable to do so. Does this represent a legal condition attaching to polygamous unions, and if so what is the remedy for its breach? Or is the duty of imp...