Islamic Law and Society in the Sudan

Carolyn Fluehr-Lobban

• Publisher: Taylor & Francis
• Year: 2013
• Print ISBN: 9780415611916
• eBook ISBN: 9781134540426
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Islamic Theology

Few studies exist which deal with Islamic law in practice, and this is among the first such studies in the English language for Islamic Africa. It is significant that the present study was completed just prior to the extension of Islamic law as the sole governing law in the Sudan in 1983, for it captures many essentials of the Shari'a as it has been applied for decades prior to this important change. Numerous movements for reform and change are discussed in the book, which reflect the contemporary debate in the Sudan over the position of Shari'a in society.

CHAPTER ONE

INTRODUCTION TO ISLAMIC LAW

Islamic law is among the world’s oldest and most widely practiced systems of law. Its influence extends from the Middle East and Southwest Asia to North, West and East Africa and beyond these to Central Asia, Indonesia and Malaysia. The extent of that influence depends on the particular history of each country and current governmental form, whether tending toward the secular or religious. Despite its impact on nearly a quarter of the world’s population, Islam, the religion, its law and society are poorly understood and are subjected to incorrect and misleading stereotypes in the West. This is the result of many factors, not the least of which is the historical confrontation between Islam and Christianity and the colonization of large parts of the Arab Islamic world in modern times by Western imperial powers. With a long period of colonialism extending across the nineteenth and twentieth centuries, the scholarly study of Islam by Western Orientalists lacked a certain objectivity and has been criticized for its ethnocentrism and its anti-Islamic biases (Tibawi, 1963; Said, 1978).

During the past several decades, in the ensuing years after independence was achieved throughout the region, a new generation of indigenous scholars has emerged which has had the effect of balancing the shortcomings of the Western scholarship. After these have come a newer generation of Western scholars (a trend which is still emergent) who are less judgmental of Islamic society and who are adopting the role of cultural translator in an effort to correct the ethnocentric biases of the past. The treatment of Islam, its history and culture, is less subjective and more sympathetic to the internal developments within particular countries rather than viewing the West as primary inspiration for cultural innovation. It is among this group of scholars that I count myself.

ORIGINS OF THE SHARI‘A AND THE SCHOOLS OF LAW

The genesis of Islamic law lies with the origin of the religion of Islam itself, for in Islam religion and law are inseparable. The religion of Islam was revealed by God, Allah, to the Prophet Mohammed at Mecca and Medina from 607-632 A.D./13 B.H.-12 A.H. and is contained in the Holy Book of al-Islam, the Qur’an. Beside the revealed texts (each called Sura), the quotations attributed to the Prophet Mohammed and the sacred practice of the Prophet, hadith and sunna, form the basis of the religion of Islam. Hadith is also the form in which the holy sayings and custom of the Prophet are transmitted; it is both the documentation of sunna (practice) and its means of transmission from one generation to the next of Muslims. For Islamic scholars the study of the Qur’an, hadith and sunna is the key to the understanding of the way to lead a perfect life under Islam. Islam means ‘submission’ in Arabic and the Muslim is the one who ‘submits’ to the will of Allah and to correct practice as interpreted from the mentioned sources. The law, al-Shari‘a (literally ‘the way’ or in its original usage ‘the path to the watering place’), is derived from the eternal sources of Qur’an and hadith, a part of which is the practice or sunna of the Prophet and his followers, and therefore is in its essence a religious law. The two great branches of Islam are the Sunni Muslims, who are followers of the traditions associated with the Prophet, and Shi’a Muslims, who accept only the traditions of the family of the Prophet Mohammed.

While the Shari‘a is essentially religious, it is also profoundly secular in that it deals with the orderly and proper conduct of Islamic society, and from its beginnings it has dealt with practical problems. Many of the hadith of the Prophet, upon which aspects of the law have been constructed, were statements of correct practice in response to real difficulties which emerged in the society of Arabia during the early days of Islam. In its fullest expression the Shari‘a is all encompassing, as it is capable of regulating affairs from the level of families to that of the state and its relations with Muslim and non-Muslim outsiders. ‘The way’, al-Shari‘a, is meant to embody correct Muslim practice in all matters, be they spiritual or the practical concerns of daily life.

During the early period of Islam, the word al-fiqh (understanding) was used for the study of theology as well as of the law. In modern usage al-fiqh has become almost exclusively associated with a deeper study of the law, beyond its procedures and rules, to its sources, and the term corresponds approximately to the Western conception of ‘jurisprudence’. Much later the term Shari‘a came to be the accepted referent for the law of Islam and it is the term most widely used in the Muslim world today for both the study and practice of Islamic law. In the Sudan the term for the study of the personal law (al-ahwal ashaksia) is also an accepted popular term for the Shari‘a as a whole.

The history of Islamic law has been comprehensively treated by the Orientalists Joseph Schacht (1950; 1964) and N.J. Coulson (1964), writing in English, by Goldhizer (1910), writing in German, by Duclos (1919), writing in French, and by a host of Arabic and Islamic scholars in modern times including Ameer Ali (1894), Sh. Abdul Kadir Mekkawi (1899), Asaf Fyzee (1964), Mohammed Hidayatallah (1968) to mention only a few of the more prominent scholars whose works have been written in or translated into English. In recent years John L. Esposito has produced a useful survey of contemporary Muslim family law (1982). The list of Arabic writers on al-fiqh is too lengthy to compile, for the science of Islamic jurisprudence is one which extends over the past 14 centuries and encompasses many nationalities and separate traditions. Especially for the Sudan, writers who have been concerned with historical aspects of the introduction and development of Shari‘a are Anderson (1955; 1960), Farran (1963), Trimingham (1949: 1965) and Spaulding (1977). During 1979-801 have translated, with a Sudanese colleague, the Judicial Circulars of the Shari‘a courts in the Sudan in the twentieth century, which constitute essential features of the applied law in the country. Together with its historical introduction and treatment of various specialized topics in the law, the work constitutes a survey of the development of the Shari‘a in the Sudan during the colonial and post-independence period.

Of the two great Branches of Islam, the Shi’a and Sunni, the vast majority of Muslims in Africa, including the Sudan, adhere to the latter branch. In Sunni Islam four major schools of law (madhab, pi. madhahib) have developed, mainly during the early period of interpretation of theology and law in the first century after the introduction of Islam. The subject of the development of the schools of law has been treated extensively by J. Schacht in his Origins of Islamic Jurisprudence (1950), Margoliouth (1913) in The Early Development of Mohammedism and Coulson in A History of Islamic Law (1964). For a detailed presentation of this special topic I would refer the reader to these sources.

As Islam itself was built upon the existing society in Arabia, so Islamic law developed in the context of that society, reformed and reconstructed by the religion of Islam whereby new practice gradually became solidified into law and legal doctrine for the areas that had adopted Islam. Thus as Islam spread from the Arabian peninsula to Iraq and Iran, Syria and Palestine, Egypt and North Africa in the first and most expansive century of Islam the religion was imposed on many different nations, with different languages and customs. With the Arab conquests came not only Islam but the culture and values of the Arabian desert which form the initial period (from the 7th to the 10th century A.D.; lst–3rd century A.H.) of Arabization and Islamization in the regions later known as the Middle East and North Africa. The Maghreb (the direction of the west generally in Arabic) has been the referent for the regions of Morocco, Algeria and Tunisia since the early days of Islam.

During the crucial first centuries of Islam four schools of Islamic jurisprudence crystallized, the Maliki, Hanafi, Shafi‘i and Hanbali schools respectively. Although many schools (madhahib) have emerged during the long history of Islam, only these four are recognized today in Sunni Islam and every Muslim adheres to one of these for the correct practice of ibadat, governing man’s conduct toward God, or mu‘amalat, laws governing human relations. By far the greater number of injunctions and commands for the community of believers is concerned with ibadat which is much more fixed and immutable than relations among people. The schools have developed doctrinal and practical differences among them with regard to both of these. The schools developed from the ra’y (opinion) of individual scholars and with the gradual growth of agreement among scholars in a particular locale, consensus led to doctrine and many doctrines to a school. Sunna (literally ‘beaten path’) was originally customary practice, but in the developing jurisprudence of the first and second centuries of Islam, sunna became ideal doctrine established in the school and expounded by its followers (Coulson, 1964:39).

In greatly simplified form, the following is a brief description of each school or madhab. The founder of the Hanafi madhab, Abu Hanifa (d. A.H. 150/A.D. 767), was an Iraqi legist in Baghdad who closely counseled the Abbasid jurists and thus exerted a profound influence on them. His pupils, Abu Yusuf and al-Shaybani, are nearly as well known in the Arabic literature for their learned opinions. The Hanafi school has been said to be concerned with practical as well as theoretical questions, and as such has gained the reputation of allowing more liberal interpretations of law. This is especially thought to be the case because of the school’s use of and recognition of the ijma‘ the consensus of the community. While it originated in Iraq, in modern times the Hanafi school became the official school of the Ottoman empire and as such spread to the Turkish occupied lands, including Sudan and Egypt, and regions of North Africa. Currently the madhab is found chiefly in Turkey (where traditional practice still obtains), Syria, Central Asia, Afghanistan, India and Pakistan. Because of its subsequent importance to areas of the British Empire, a translation of aspects of the personal law according to the Hanafi madhab was issued for use by colonial administrators concerned with the applied Shari‘a (Mohammed Kadri Pasha, translated by Sterry and Abcarious, 1914).

The Maliki school of law became recognized through the teachings of Malik Ibn Anas (d. A.H. 179/A.D. 795) of Medina who was primarily a collector of hadith and so this madhab is especially characterized by its traditionalism and adherence to custom, which is acknowledged as Medinan practice at the time of the Prophet. The Muwatta, an early law book, is simply a great collection of hadith organized by Malik under certain topics such as marriage contracts, and Malik is credited as the transmitter of a great number of hadith. Malik is also credited with developing the legal principles of al-masalih al-mursalah (unrestricted public interest) and istislah (seeking the better solution). Both of these, in a sense, grew out of his reliance on customary practice as a legitimate source of law, reasoning that this was the life that the Prophet led (Mohammed Muslehuddin, 1973: 116). The Maliki school spread not so much by conquest as by the gradual and peaceful spread of Islam, especially in Africa, through trading networks and some mission activity. The Maliki school has been referred to as the African expression of Islam and indeed it exerts a dominant influence in North and West Africa, where it spread initially by conquest and later by trading contacts, in the Sudan and Upper Egypt. The majority of African Muslims adhere to the Maliki madhab which represents the legitimate source of Islamic custom and practice. In the Sudan there exists a certain disjuncture between the Maliki customs of the Muslim peoples and Hanafi law which was imposed first by the Turkish occupiers and carried on by the British colonizers. This creates in the Sudan a unique blend of Hanafi and Maliki law.

The Shafi‘i school traces its origins to Abu Abdallah Mohammed ibn Idris al-Shafi‘i (d. A.H. 204/A.D. 819, 820),¹ a Meccan from the Quraysh who taught in Fustat, Egypt, which grew into modern Cairo (ibid, p. 94). His major treatise on jurisprudence, Risala, is said to strike a balance between the unrestricted use of analogical reasoning in the public interest (istihsan) and the absolute character of the Divine Law. The school produced many distinguished jurists, among them the Syrian, al-Nawawi (d. A.H. 676), whose major work is Minhaj al-Talibin (Williams, 1963:98). The Shafi‘i madhab is the legal school in practice in Indonesia, Malaysia, Lower Egypt, parts of the Arabian peninsula, Central Asia and East Africa.

Of the four schools of Islamic jurisprudence, while there are no fundamental differences of view regarding theology and law, the Hanbali school is regarded as the most conservative relying on a literal interpretation of the Qur’an and sunna as the only sources of the law. Founded by Ahmed ibn Hanbal (d. A.H. 241/A.D. 855) of Baghdad it represented a sort of revivalism of fundamental Islam in that it revealed a developing rationalism in Islamic theology and accepted no statement or premise not explicitly found in the Qur’an and hadith. Today the school is found in the Arabian Peninsula where it is the official school of the kingdom of Saudia Arabia.

After the developments which shaped the Hanbali school in the twelfth and thirteenth centuries A.D., the bab al-ijtihad, the ‘door of interpretation’, is said to have closed and further developments along the lines of resolving questions of substantive law and theology ceased. The ‘door’ remained closed until it was ‘opened’ in the nineteenth and twentieth centuries in the context of the great social upheavals which attended colonialism and the birth of nation-states in the Islamic regions.

Any characterization of a school of legal interpretation as conservative or liberal can lead to facile and misleading conclusions as each madhab is applied in particular countries with individual histories of development; thus the terms ‘liberal’ and ‘conservative’ have relative meanings. For example, with reference to the question of al-hadana, the care and custody of children, all schools recognize the first right of custody as residing with the mother or her close female kin. However, the more ‘liberal’ Hanafi school provides that boys at age seven and girls at age nine shall be remanded to the custody of their father or his agnatic kin, while the more ‘traditional’ Maliki school allows a mother, where good cause is shown, to retain custody of her son until the age of puberty and her daughter until the consummation of her marriage. Similarly the more ‘conservative’ Hanbali school permits the writing into the marriage contract of a clause ...

Table of contents

• Cover
• Title page
• Copyright page
• Dedication page
• Contents
• Illustrations
• Acknowledgments
• Preface
• 1. Introduction to Islamic Law
• 2. History of Islamic Law in the Sudan
• 3. Structure and Procedures of the Islamic Courts
• 4. The Status of Women in Islamic Law
• 5. Islamic Marriage in the Sudan
• 6. The Law of Divorce in Practice
• 7. The Maintenance of Women, Custody and Support of Children
• 8. The Transference of Wealth and Property
• 9. Movements for Reform or Restoration of the Shari‘a in the Sudan
• Recent Developments
• Appendix I. The Scholarly Sources
• Appendix II. Judicial Circulars of the Sudan Shari‘a Courts
• Appendix III. Chronological List of Sudanese Grand Qadis
• Appendix IV. Glossary of Shari‘a Legal Terms
• Bibliography
• Notes
• Index