An Introduction to Islamic Law (2 page)

This change in the structures and systems of Islamic law is indicative of the drastically different conditions that modernity came to impose on family life and matrimonial relationships, on legal institutions, and on society at large. Coupled with the emergence of oppressive modern states and a deep sense of moral loss, these changes have all combined (together with poverty and much else) to produce a social phenomenon that is predominantly political but also legal and cultural in orientation. This is the Islamist movement, which has been influencing much of what is happening in the Muslim world today.
Chapter 9
therefore addresses the complex relationship between the state, Islamists and the traditional religious establishment in a number of key countries – key, in that developments there have deeply affected most other regions in the Muslim world.

Finally, in
chapter 10
, I summarize some of the salient points of the book, especially those that show how the Shari
a was a living and lived system of norms and values, a way of life and a malleable practice. This in turn is contrasted with the manner in which the Shari
a has emerged in the modern world, namely, as a textual entity capable of offering little more than fixed punishments, stringent legal and ritual requirements, and oppressive rules under which women are required to live.

This book constitutes a select abridgment of my longer work
Theory, Practice, Transformations
, recently published by Cambridge University Press. Unlike that longer work, intended for advanced readers, this book is not for specialists but rather caters for those who seek a simplified account of Islam and its law. Thus, in abridging the work, I have taken care to eliminate all theoretical and technical discussions and, as much as possible, specialized vocabulary. Those technical terms that I was compelled to retain here are mostly rendered in English – instead of Arabic – and have been wholly CAPITALIZED on first occurrence to indicate that they are defined and explained in the “Glossary of key terms,” which the reader will find toward the end of the book. Because it frequently offers added information, and because it cross-references the entries, the Glossary perhaps deserves a reading on its own. In addition to
a fairly expansive Chronology, I have also provided a list of “Suggested further reading,” to be found at the end of the book as well.

Chapter 1
, however, is mostly new, as are several paragraphs in
chapter 2
and elsewhere. In the interest of economy of space, and partly because many of the sources I cited in the longer work were in Arabic, I have eliminated here all footnotes excepting those that support direct quotations from other authors. Readers who wish to examine my sources (or fuller arguments) will find them in the chapters of the longer work, corresponding to this book in the following manner:
chapter 2
here corresponds to
chapter 2
in the longer work;
chapter 3
to section 7 of
chapter 1
;
chapter 4
to
chapter 3
;
chapter 5
to
chapter 4
;
chapter 6
to
chapter 5
;
chapter 7
to chapters 14 and 15;
chapters 8
and
9
to chapter 16; and
chapter 10
to chapter 18.

 

In
modern legal systems, judges, lawyers and notaries are unquestionably products of the legal profession.
They are initially educated in elementary and secondary schools that are regulated by the state, and their education in the law schools from which they eventually graduate is no less subject to such regulation. They study the laws that the state legislates, although in some legal systems they also study the legal decisions of judges who are constrained in good part by the general policies of the state. The point is that the legal profession is heavily regulated by the state and its legal and public policies. It is difficult to think of any legal professional who can go on to practice law without having to pass some sort of exam that is directly or indirectly ordained by the state or its agencies. And when law students become lawyers, and lawyers become judges, their ultimate and almost exclusive reference is to law made by the
state.

This situation would have been inconceivable in Muslim lands before the dawn of modernity. The most striking fact about traditional Islamic legal personnel is that they were not subject to the authority of the state, simply because the state as we now know it did not exist (in fact it did not exist in Europe either, its beginnings there going back to no earlier than the sixteenth century). Thus, until the introduction to the Muslim world – during the nineteenth century – of the modern state and its ubiquitous institutions, Muslims lived under a different conception and practice of government. (This is why we must not use the term “state” to refer to that early form of rule under which Muslims lived prior to the nineteenth century. Instead, we will reserve for that kind of authority such terms as “ruler,” “rule” or “
government
.”)

Pre-modern Muslim rule was limited in that it did not possess the pervasive powers of the modern state.
Bureaucracy and state administration were thin, mostly limited to urban sites, and largely confined to matters such as the army of the ruler, his assistants, tax collection and often land tenure. People were not registered at birth, had no citizenship status, and could travel and move to other lands and regions freely – there being no borders, no passports, no nationalities, and no geographic fixity
to residential status. A Cairene family, for instance, could migrate to Baghdad without having to apply for immigration, and without having to show documentation at borders, because, as I said, there were neither borders (not fixed at any rate) nor passports in the first place. And the farther people lived from the center of rule, the less they were affected by the ruler, his armies and his will to impose a certain order or even taxes on them. And the reason for this was simple: in order for the ruler to have complete control over far-away regions, he had to send armies and government officials whose cost of maintenance may not always have been covered by the taxes they levied from the populations under their control.

So, if there was no
state
to regulate society and the problems that arose in it, then how did people manage their
affairs? The short answer is: self-rule
. Communities, whether living in city quarters or villages, regulated their own affairs. If the civil populations felt it necessary to have a ruler, it was because of the specific need for protection against external enemies, be they raiding tribes, organized highway robbers or foreign armies who might wreak violence on them and play havoc with their lives. But the civil populations did not need the ruler to regulate their own, internal affairs, since such regulations were afforded by a variety of internal mechanisms developed over centuries by their own local communities. Customary law was an obvious source of self-regulation, but the Shar
ia was equally as important.

This is to say that the Shar
ia was not the product of Islamic government (unlike modern law, which is significantly the product of the state). It is true that the Muslim ruler administered justice by appointing and dismissing
JUDGES, even defining the limits of their jurisdictions, but he could in no way influence how and what law should apply. So the question before us is: if the Muslim ruler did not create the law of the land, who did?

The answer is that society and its communities produced their own legal experts, persons who were qualified to fulfill a variety of functions that, in totality, made up the Islamic legal system. For now, we will speak – in a limited fashion and by way of an introduction – of four types of legal personnel who played fundamental roles in the construction, elaboration and continued operation of the Shari
a. These are the
MUFTI
, the
AUTHOR-JURIST
, the
judge and the
law professor. Of course there were other “players” in the legal system, including the notaries, the court witnesses and even the ruler himself (to be discussed in due course), but their role in the construction of the system and its continuing operation was not “structural” (by which I mean that the system would have remained much the same with or without their participation). But without the fundamental contributions of
mufti
, author-jurist, judge and law professor, the Shari
a would not have had its unique features and would not
have developed the way it did. These four players, each in his own way, made the Shari
a what it was.

We begin with the
mufti
because of his central role in the early evolution of Islamic law and his important contribution to its continued flourishing and adaptability throughout the centuries. The
mufti
, performing a central function, was a private legal specialist who was legally and morally responsible to the society in which he lived, not to the ruler and his interests. The
mufti
’s business was to issue a
FATWA
, namely, a legal answer to a question he was asked to address. As a rule, consulting him was free of charge, which means that legal counsel was easily accessible to all people, poor or rich. Questions addressed to the
mufti
were raised by members of the community as well as by judges who found some of the cases brought before their courts difficult to decide. The first legal elaborations that appeared in Islam were the product of this question/answer activity. With time, these answers were brought together, augmented, systematized and eventually transmitted in memory as well as in writing as “
law books.”

The
mufti
stated what the law was with regard to a particular factual situation. As he was – because of his erudition – considered to have supreme legal authority, his
OPINION
, though non-binding, nonetheless settled many disputes in the courts of law. Thus regarded as an authoritative statement of law, the
fatwa
was routinely upheld and applied in the courts. A disputant who failed to receive a
fatwa
in his or her favor was not likely to proceed to court, and would instead abandon his or her claim altogether or opt for informal
MEDIATION
.

Mufti
s did not always “sit” in court, but this did not change the fact that they were routinely consulted on difficult cases, even if they resided at several days’ distance from where the case was being decided. It was not unusual that a judge, say in Cairo, would send a letter containing a question to a
mufti
who lived, for instance, in Muslim Spain.

The authority of the
fatwa
was decisive. When on occasion a
fatwa
was disregarded, it was usually because another
fatwa
, often produced by an opponent, constituted a more convincing and better-reasoned opinion. In other words, and to put it conversely, it was rare for a judge to dismiss a
fatwa
in favor of his own opinion, unless he himself happened to be of a juristic caliber higher than that enjoyed by the
mufti
from whom the
fatwa
was solicited (in which case the judge himself would not seek a
fatwa
in the first place). All this is to say that the
fatwa
is the product of legal expertise and advanced legal knowledge, and the more learned the
mufti
, the more authoritative and acceptable his
fatwa
was to both the court and the public. (The level of a scholar’s legal knowledge was determined through practice, not degrees or diplomas. The measure of a leading jurist was,
among other things, the quality of his writings and
fatwa
s as well as his ability to win in scholarly debates with distinguished scholars.)