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Law

Law is central to the practice of Islam, and following the law is the ultimate expression of faith and submission to God. Islamic law is comprehensive, instructing Muslims in the performance of their religious obligations and providing guidelines for daily living. Legal manuals typically devote their first chapters to Islamic rituals, such as prayers and fasting, then address such topics as marriage, divorce, and financial transactions. Aside from establishing laws, Islamic tradition also classifies certain acts as praiseworthy or blameworthy, establishing a code of ethics not enforceable by law, but encouraged among believers.

All Muslim regulations are based on shari'ah, Islamic law as established in the Qur'an and the sunnah. Shari'ah, which means “the path leading to the watering place,” determines how Muslims should behave, both publicly and privately. Muslims view shari'ah as unchanging, revealed to Muhammad by God, and not subject to alteration. Interpreting or understanding the divine will and expressing it in legal codes is referred to as fiqh, a term that includes all attempts to form concrete rules and to make correct legal decisions. Scholars practice fiqh in their attempts to adapt divine law to contemporary situations.

In cases where the Qur'an and sunnah, which is based on the hadith, do not provide specific answers to a legal question, scholars rely on other methods. Sunni Muslims sometimes use qiyas (reasoning through analogy) and ijma (consensus among scholars) to form laws. To decide whether Muslims may consume alcoholic beverages, for example, scholars looked to the Qur'an. The text prohibits wine on the grounds that it alters an individual's mental state. Because other alcoholic drinks have the same effect, scholars extended this ban to them, as well. Scholars practicing ijma gather to discuss a certain issue and take a formal position on it. This tradition derives from Muhammad's remark that his community would never agree on an error. Like Sunni Muslims, members of the Shi'i branch use the Qur'an and hadith as the basis of law. They also rely on the traditions of imams, passed down in hadith collections. Shi'is place less emphasis on qiyas and ijma, sometimes rejecting them entirely.

Development of Legal Theories

Muhammad served as the first judge, using the Qur'an to resolve legal problems. After his death, the caliphs of Medina continued the tradition. The expansion of the Muslim community led to the creation of various legal systems by the early 700s. In all parts of the Muslim world, local traditions influenced the ways in which scholars interpreted the Qur'an and hadith. Jurists differed primarily on how much emphasis they gave to reason over traditional sources. Some jurists viewed independent thought as an impure substitute for the guidance of Muhammad. Others believed that many of the hadith had come from figures other than Muhammad and that reason could serve as a valuable tool for applying shari'ah to a variety of circumstances.

Sunni Schools of Law.

Sunni Muslims have four major schools of law: Hanafi, Maliki, Shafi'i, and Hanbali. These emerged in the 700s and 800s. The Hanafi school originated in the city of Kufa in Iraq, where Muhammad's companion Abd Allah ibn Masud served as a jurist and teacher of Abu Hanifah ( 699 – 767 ), who established the basis for the Hanafi School. Abu Hanifah encouraged the use of reason as well as tradition in making legal decisions. His reliance on the judgment of scholars resulted in the labeling of his followers as the People of Opinion. Abu Hanifah became the first jurist to formulate rules concerning contracts, and allowed both parties significant leeway. He also ruled that a woman past the age of puberty could marry without the approval of her guardian. He advised against punishing spendthrifts, concluding that adults should be able to do as they pleased.

Abu Hanifah attracted many students, several of whom became prominent jurists. By the 900s, scholars had compiled an impressive body of literature on Hanafi traditions. The Hanafi was the dominant school of law during the Abbasid caliphate ( 750 – 1258 ) and the Ottoman Empire ( 1300 – 1922 ). Modern jurists consult Hanafi law when ruling on personal status matters and when issuing fatwas. Hanafi is the most widespread school of law in Islamic countries, practiced by Muslims in Jordan, Iraq, Lebanon, Egypt, India, and several other nations.

The Maliki school originated in Medina. Malik ibn Anas ( 713 – 795 ) is viewed as the founder of the school, based on the traditions transmitted in the community in Medina. He placed more emphasis on tradition than reason, often concluding a legal point with the words, “And this is the rule with us.” He stated firmly that he would not deviate from the teachings of his masters or from the ijma of the scholars of Medina. Malik did, however, use reason to form opinions in cases that had no precedent.

The Maliki school is more conservative than the Hanafi school, especially regarding women. Maliki law prohibits a woman of any age from marrying without the consent of her marriage guardian. A young girl's father or paternal grandfather has the right to give her away in marriage without her consent, and, in some cases, even against her wishes. Muslims from North Africa studied Malik's teachings in Mecca and spread them throughout their own regions. Maliki serves as the predominant school of law in Morocco, Algeria, Tunisia, and Libya. It also has followers in Egypt, Sudan, Kuwait, and West Africa.

Muhammad ibn Idris al-Shafi'i ( 767 – 820 ) founded the third Sunni school. After he had memorized the Qur'an and traveled with a desert tribe famed for its poetic traditions, al-Shafi'i studied under Malik and became an expert on the first two Sunni schools of law. He believed that Maliki and Hanafi jurists placed too little emphasis on traditional sources in their rulings. He stated that custom had obscured the original intent of Islamic law. Al-Shafi'i wrote a seven-volume work describing his doctrines, discussing such topics as personal status, financial transactions, religious observations, and punishment. He attacked those who failed to accept the authority of the Qur'an and hadith and denounced the use of personal preference as a tool of law. The Shafi'i school gained prominence in Egypt and became the official school of the Ayyubid dynasty ( 1169 – 1252 ). Its influence remains strong in Palestine and Jordan, and it continues to have followers in Egypt, Pakistan, Indonesia, and other Muslim countries.

Founder of the Hanbali school, Ahmad ibn Hanbal ( 780 – 855 ), also emphasized tradition, valuing the Qur'an and the sunnah over the work of later Muslim scholars. Ibn Hanbal acknowledged five sources of law, each to be used only in the absence of advice from the preceding one: the Qur'an and sunnah; fatwas issued by Muhammad's companions that agree with the Qur'an and sunnah; the sayings of companions that correspond with the Qur'an and sunnah; traditions with a weak chain of transmission or no name attached to them; and reasoning by analogy. The Hanbali tradition is the official school of law in Saudi Arabia and Qatar. It also has followers in Iraq, Syria, and Palestine.

Other legal schools also emerged among Sunni Muslims, but attracted smaller followings and have disappeared. Sunni Muslims believe in the authenticity of all four of their schools of law. A Sunni may follow any one of them or use different traditions for different cases. Some scholars combine principles from various schools to form new legal doctrines.

Shi'i Legal Schools.

Shi'i scholars differ from Sunnis in their faith in the imams and their rejection of non-Shi'i rulings. They use the same sources as Sunni Muslims but also rely on traditions passed down from the imams. The dominant Twelver branch places special emphasis on the authority of the twelfth and Hidden Imam, Muhammad al-Mahdi . According to legend, the Mahdi went into hiding when he was seven years old and lost contact with his followers at the age of 75. Protected by God, he continues to live in seclusion, waiting to return to the world and bring order to Muslim society. Twelver Shi'is view the Mahdi as infallible and place as much value on his teachings as on the Qur'an and the sunnah.

The Twelvers and other Shi'i groups advocate the use of reason only when it is needed to interpret traditional sources. Jurists practicing qiyas must try to reach conclusions that best correspond with shari'ah until the Mahdi returns to provide divine guidance on the issue. Many Shi'i sects believe that a fully qualified mujtahid (legal scholar) can serve as a representative of the imam and has the right to exercise judgment on cases not covered in traditional sources. Mujtahids may not decide a case by consensus, however, unless they include opinions issued by the twelfth imam or his associates.

Named after the sixth imam, Jafar al-Sadiq , the Jafari madhhab is the major Shi'i school of law. It originated from hadith-like reports on the imams and emphasizes their teachings. Minor schools of law have also developed among Shi'is. The Akhbari school places a heavy emphasis on the hadith and allows jurists to enforce their own judgments only when they correspond with precedents set by the imams. The Usuli school, on the other hand, allows jurists to deliver reasoned rulings on most cases. The Shaykhi school also grants mujtahids a great deal of freedom, promoting a nonliteral interpretation of traditional sources.

The Islamic Revolution in Iran in 1979 had a strong influence on Shi'i legal thought. Revolutionary leader Ayatollah Ruhollah al-Musavi Khomeini established a government in which a Shi'i jurist serves as the spiritual leader of the country (faqih). This person represents the Mahdi and has the final say in all legislative, executive, and judicial decisions. Khomeini served in this position for 10 years until his death in 1989 . He earned the support of many Iranians and inspired Shi'i Muslims in other countries. However, some Shi'i jurists rejected his ideas and relied on earlier sources in their legal decisions.

Islamic Legal System

Muslims have developed a complex legal system, and their approach to law varies widely from region to region. Scholars in some states advocate harsh, traditional punishments, while others adopt a more moderate approach. Jurists in some countries rely heavily on the Qur'an and other traditional texts. Many, however, were influenced by Europeans in the 1800s and made alterations based on Western secular legal systems.

Study of Law.

Islamic jurists and scholars practice fiqh. Fiqh includes all attempts to understand shari'ah and to translate it into specific rules. Fiqh involves elaborating on details of the law, delineating specific standards, justifying them by reference to divine authority, debating them, and writing books and treatises on them. In contrast to shari'ah, which never changes, fiqh is imperfect and subject to revision.

Muslim scholars have developed two types of fiqh literature: furu al-fiqh and usul al-fiqh. Usul authors discuss the origins of law and assess the effectiveness of various reasoning techniques. They concern themselves with the roots of Islamic law. Furu literature covers the rules themselves, as well as various legal cases. Furu authors discuss regulations pertaining to religious matters such as prayer, charity, fasting, pilgrimage, and jihad, as well as social and economic matters such as inheritance, marriage, divorce, land ownership, and injury compensation. Works of furu typically classify actions as mandatory, recommended, permitted, abhorred (detested), or prohibited, although many other categories exist. Certain furu authors are noted for their clarity and skill. One scholar possessed a style so dazzling that an admirer described his treatise as “woven on a magician's loom.”

Fiqh literature emphasizes the importance of ijtihad, which refers to the struggle that a jurist undergoes to determine the correct ruling on a case. To perform ijtihad, a scholar must work to the best of his or her ability to interpret traditional texts. The scholar must consult the Qur'an and the sunnah, and, if no answer presents itself, must use analogy or another reasoning technique to find a solution. If leading scholars agree on the resulting decision, it becomes an accepted rule. Ijtihad allows for the possibility of disagreement among scholars. It grants jurists flexibility in reaching a decision and gains legitimacy from Muhammad's alleged statement that “difference of opinion among my community is a sign of the bounty of Allah.” Modern reformers often use ijtihad to rid the legal code of outdated laws and practices.

Court Systems.

The Qur'an uses the term hukm to describe the act of judgment. Hukm refers to both the power to pass laws and to render a legal decision. In early Islamic societies, a qadi (judge) typically fulfilled these tasks. In most communities, the governor appointed qadis and determined their realm of influence. The governor had the final say in any disputes arising in court. Judges appointed numerous deputy judges and subordinate officials to help them with their caseloads.

In qadi courts, most cases followed the same procedure. Muslims typically appeared before judges without lawyers or other representatives. The defendant and prosecutor both stated their case. If the defendant admitted no guilt, the judge assumed his or her innocence. The prosecutor would have to produce two witnesses to testify to the defendant's guilt. Adult males with good reputations typically filled these roles, but women could testify in certain cases, with two females serving in the place of one man. Qadis did not accept written or physical evidence, no matter how condemning. If the prosecutor failed to prove his case, the judge offered the defendant the oath of denial, which, if taken properly, resulted in a favorable verdict. If the defendant refused to take the oath, the prosecutor won the case.

Around the 800s, Islamic societies developed additional courts. Officials realized that one qadi could not hear the case of every Muslim who ignored, for example, the ban on wine. They set up mazalim, injustice courts that exercised more flexibility than the qadis in their application of the rules. Injustice courts handled complaints against government officials. They also dealt with issues of criminal law not directly related to shari'ah. Local police and market inspectors handled petty crimes, administering punishments according to local custom rather than the dictates of the Qur'an.

The justice system in the Islamic world relies on fatwas as well as courts of law. Issued by muftis (scholars), these written opinions can influence government and judicial policy. Abu Saud , the grand mufti of Istanbul, used fatwas to regularize tax-collecting activities and marriage practices and to limit the authority of the sultan. Other muftis have issued fatwas on such subjects as contracts and punishments. Jurists sometimes use fatwas to justify certain legal positions, and some qadis seek advice from muftis.

Issuing Punishment.

Islamic law has three broad categories of punishment for those convicted of a crime: tazir, qisas, and hudud. Tazir punishments include a wide range of offenses not covered in the Qur'an. Because qadis decide on tazir punishments, they vary widely. They can range from small fines to long prison sentences. Those who assault others, either in an act of homicide or another physical violation, receive qisas (retaliation). The laws of qisas dictate that the criminal suffers the same treatment as the victim. The victim or his or her family decides how to carry out the qisas, and whether to demand diyah (compensation) in the place of physical punishment.

The Qur'an specifically prescribes punishments for six types of crimes. Hudud (fixed) punishments are harsh. Desertion of Islam and highway robbery warrant death; married adulterers receive death by stoning and unmarried adulterers receive 100 lashes; thieves suffer the amputation of a hand; and those who accuse others of adultery without proof or consume alcohol receive 80 lashes. Many Muslim nations, such as Jordan, Egypt, Syria, and Lebanon, refuse to implement hudud. Others, such as Pakistan, Sudan, and parts of Nigeria, continue to impose hudud punishments for certain offenses. Many human rights activists oppose these practices. Those who support the use of hudud, however, argue that their societies need strict punishments to maintain social order. Some maintain that the punishments are mostly symbolic; they are rarely carried out, and they serve more to promote respect for the law than to actually harm offenders.

Modern Reforms

The invasion of European forces into Muslim countries in the late 1700s caused Muslim jurists to alter their legal systems. Muslims sensed that their society was in a state of decline and felt the need for reform. Some sought to update legal codes in accordance with Western models. Other Muslims resisted change, viewing reform as a compromise of God's will. These scholars worked to reinstate legal systems based on a strict interpretation of the Qur'an.

Western Influence.

The Ottoman Empire introduced European procedures into its court system in the 1830s and 1840s. Ottoman leaders later added European laws to the empire's commercial, penal, and maritime codes. In the 1860s, the Ottomans implemented the Ottoman Code of Obligations (also referred to as the Mecelle) This document covered rules covering property, contracts, and legal procedure. The Mecelle also contained nearly 100 principles derived from shari'ah. Other Muslim countries followed the Ottoman example, establishing Western-style codes and limiting the power of religious courts.

When the Ottoman Empire fell after World War I ( 1914 – 1918 ), the new Turkish government encouraged secular reform. President Mustafa Kemal Atatürk adopted a European legal system in 1926 , believing that the nation needed to embrace Western ideas in order to survive. Turkey established the most secular legal code in the Islamic world.

Egypt was also at the forefront of Islamic legal reform. The French introduced their legal tradition to the country in the early 1800s, and Muhammad Abduh ( 1849 – 1905 ) emerged as Egypt's most important legal reformer in the late 1800s. He believed that the legal system should combine Islamic traditions and modern ideas. He stated that rules governing worship should remain unchanged, but that regulations for everyday life should be adjusted to reflect modern realities. Abduh opposed polygyny, for example, on the grounds that it lead to unjust treatment of women.

Egypt's Abd al-Razzaq al-Sanhuri ( 1895 – 1971 ) served as one of the most influential Muslim legal reformers of the 1900s. An expert in Islamic and Western law, al-Sanhuri wrote civil codes that combined Islamic, Arab, Turkish, and European law. Egypt, Iraq, and several other Arab nations adopted these codes.

Other Muslim countries adapted their legal practices to those imposed on them by colonial powers. The reforms adopted in India, for example, reflect both Islamic and British traditions. The law that applied to Muslims, Anglo-Muhamaddan law, had its roots in Islamic doctrine but relied on the English language and British judicial methods. British and British-trained judges determined the scope and application of Islamic law. They typically respected Islamic civil codes but enforced their own criminal code. British judges rarely overturned the decisions of the great Islamic jurists. After the British left the region in 1947 , the Muslims maintained a separate civil code.

India produced many legal reformers. Indian writer and activist Sayyid Ahmad Khan ( 1817 – 1898 ) was influential in the Indian Islamic world. He questioned the reliability of hadith as a source of law and sought to update Islamic rules to conform to modern social norms. For example, he believed that Islamic banks should charge moderate interest, claiming that the Qur'an prohibited exorbitant interest rates. Poet and philosopher Muhammad Iqbal ( 1877 – 1938 ) also took up the call for legal reform in India. He believed that the legal system was bogged down with the outdated writings of medieval jurists. He called for ijtihad, urging Muslim jurists to use their own reasoning to interpret early authoritative sources. Iqbal encouraged scholars to exercise caution when applying the hadith and stated that Islamic law should meet the needs of modern society.

Recent Developments.

In the 1900s, legal reform in the Islamic world mainly centered around family codes. To minimize objections from conservatives, legislators often implemented reforms indirectly. To prevent child and forced marriages, for example, new laws required spouses to register their marriages and to be certain minimum ages. Tunisia adopted the most radical family law reforms. In 1956 its government abolished polygyny and gave women and men equal rights in divorce. Both India and Pakistan passed similar legislation, although Pakistan's reforms were later reversed. The 1926 Turkish Civil Code gave marriage partners equal rights in divorce and child custody. Egypt and Syria also reformed their divorce laws and expanded women's rights in family matters.

Reforms provoked strong opposition in the Islamic world. Muslim legal experts had a lower status than Western-trained professionals. Conservative Muslims protested the replacement of Islamic doctrines with European-based codes. In the 1970s and 1980s, a religious revival movement spread through much of the Islamic world. Revivalist groups demanded the repeal of Western laws, stating that shari'ah as traditionally codified should serve as the foundation of the state's legal system. Pakistan, Iran, the Sudan, Afghanistan, and Saudi Arabia restored hudud punishments to their legal codes. Other countries resisted the influence of revivalists. Egypt, for example, passed a law in 1976 prohibiting alcohol, but provided exceptions that limited its impact. As a concession to conservatives, the government amended the second article in the constitution to describe shari'ah as “the principal source,” rather than “a principal source,” of legislation.

The law still inspires debate across the Islamic world. Moderates and conservatives continue to oppose one another on reform measures. Followers of Sunni and Shi'i schools of law, however, have shown an interest in overlooking their differences. Internationally, diplomatic leaders and legal scholars have opened discussions to bring more uniformity to the legal codes of modern Muslim nations. See also Abduh, Muhammad; Ahmad Khan, Sayyid; Capital Punishment; Fatwa; Ijtihad; Iqbal, Muhammad; Islamic State; Jafar al-Sadiq ; Justice; Women and Reform.

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