Welcome back to Legal Systems Very Different from Ours. Today we’ll be discussing Islamic law; with any luck, someone who actually knows something on the subject will drop by and weigh in.
Strictly speaking, what traditional Islamic courts enforced was not Shari’a, God’s Law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what human law ought to be. That fact helps explain how Sunni Islam was able to maintain four different but mutually orthodox schools of law. There could be only one correct answer to what God wanted humans to do but there could be more than one reasonable guess.
This sounds like a bit of technicality that I am skeptical of people observing in practice, so I went over to Pew.
According to the survey findings, most Muslims believe sharia is the revealed word of God rather than a body of law developed by men based on the word of God. Muslims also tend to believe sharia has only one, true understanding, but this opinion is far from universal; in some countries, substantial minorities of Muslims believe sharia should be open to multiple interpretations. …
Although many Muslims around the world say sharia should be the law of the land in their country, the survey reveals divergent opinions about the precise application of Islamic law.
Pew doesn’t distinguish between “sharia” and “fiqh”
In 17 of the 23 countries where the question was asked, at least half of Muslims say sharia is the revealed word of God. (For more information on sharia see text box.) In no country are Muslims significantly more likely to say sharia was developed by men than to say it is the revealed word of God. …
In 17 out of 21 countries, “there is only one interpretation of sharia” beat “there are multiple interpretations.”
Support for making sharia the official law of the land varies significantly across the six major regions included in the study. In countries across South Asia, Southeast Asia, sub-Saharan Africa and the Middle East-North Africa region most favor making sharia their country’s official legal code. By contrast, only a minority of Muslims across Central Asia as well as Southern and Eastern Europe want sharia to be the official law of the land.
In South Asia, high percentages in all the countries surveyed support making sharia the official law, including nearly universal support among Muslims in Afghanistan (99%). More than eight-in-ten Muslims in Pakistan (84%) and Bangladesh (82%) also hold this view. The percentage of Muslims who say they favor making Islamic law the official law in their country is nearly as high across the Southeast Asian countries surveyed (86% in Malaysia, 77% in Thailand and 72% in Indonesia).
In sub-Saharan Africa, at least half of Muslims in most countries surveyed say they favor making sharia the official law of the land, including more than seven-in-ten in Niger (86%), Djibouti (82%), the Democratic Republic of the Congo (74%) and Nigeria (71%).
Support for sharia as the official law of the land also is widespread among Muslims in the Middle East-North Africa region – especially in Iraq (91%) and the Palestinian territories (89%). Only in Lebanon does opinion lean in the opposite direction: 29% of Lebanese Muslims favor making sharia the law of the land, while 66% oppose it.
So I have a little skepticism of the authors’ claim that Muslims normally distinguish between Sharia and Fiqh and that they’re totally okay with multiple, co-existing interpretations of the law.
More likely, the average Muslim believes multiple, vaguely contradictory things about Sharia that are basically piety signals, because most Muslims are just trying to live their lives and feed their families, not legal scholars.
“Should we run the country according to God’s laws?” the pollster asks, and the faithful reasonably respond that “Yes, of course we should run things according to God’s laws.”
“Does God’s law come from God or from man?” the pollster asks, and the faithful responds, “From God, obviously. It’s in the name.”
With those caveats, let’s get back to Legal Systems Very Different from Ours. The authors then explain the five-fold division of acts in Islamic law, which I have converted to a rough table:
Obligatory act: God rewards for performing, Punishes for not performing
Recommended act: God rewards for performing, No punishment for not performing
Permissible act: No reward for performing, No punishment for not performing
Offensive act: No punishment for performing, Reward for abstaining
Unlawful act: Punishment for performing, Reward for avoiding
… Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences of action. …
How was fiqh deduced and applied? The scholar started with the sources of revealed knowledge–the Koran itself and the words and acts of Mohammad and his companions as reported in hadith, traditions. From that information a sufficiently learned religious scholar, a mujtahid, deduced legal rules. Over time, the scholars separated into four schools… The schools were generally similar but differed in the details of their approaches to interpretation and the rules they deduced; each regarded the others as orthodox.
Any Muslim readers want to weigh in on how accurate this is?
Anyway, Islamic law then developed over the years the same problems of any legal system: bloat, excessive writing, technological and cultural change, and multiple conflicting interpretations, all of which could make it difficult to determine what the “original” idea of the law had been.
It was necessary to decide for each hadith how certain one could be that it was neither invented by someone at some point down the purported chain [of legal descent] nor inaccurate due to an error in transmission.
The basic rule accepted by all schools was that if there were a sufficient number of independent chains supporting the same hadith, it could be accepted as genuine with certainty.
Muslims inventing the blockchain.
It followed that if at any one time all of the scholars were agreed upon a question, that question was permanently settled.
Law and the State:
After first few centuries and until the rise of the Ottomans, political authority in the Islamic world was fragmented. The local rulers were frequently foreigners to the populations they ruled… What they wanted from the legal scholars was support for their legitimacy. … they were willing for the most part to leave the legal system in the hands of the scholars. … Think of the resulting system as what Anglo-American common law would be if law professors ran the world, law defined not by the precedents set by judges but by the medieval equivalent of law review articles.
So… does it work? How well does it work? In the chapter on Icelandic law, the authors are willing to actually interrogate why Icelandic law broke down (in the Middle Ages) and what made it initially effective and then ineffective. There’s a little discussion in the chapter on Chinese law on how people managed to conduct business effectively despite (or because) of the lack of relevant formal legal rules. But in general the authors shy away from asking how effective the legal systems actually are, which seems like a critical piece of information. If a system works well and the people in it are pleased with the results, then it seems reasonable to see if it is a system with parts that can be felicitously copied, borrowed, or implemented; if a system works badly, (as many do) then it is wise to examine what makes it dysfunctional and try to avoid those components in our own system.
Of course, the functioning of many legal systems probably does come down, as Confucian scholars might say, to the ethics/wisdom inherent in the people in them.
From the perspective of modern American law, the final two stages of the process look like our system turned upside down. In ours,t he court of first impression applies the law to the facts and produces a verdict. If the case is appealed, the appeals court takes the facts as already decided and gives a second and authoritative opinion on the law In their system, the opinion on the law came first, provided by the mufti, followed by the qadi’s application of the law to the facts as he saw them. Under most circumstances there was no way to appeal the qadi’s verdict.
The authors note that they have described the “traditional account” of how Islamic law developed; some modern scholars claim this is all kind of retconned from existing Arabic law and modified over time as new provinces were conquered. I’m sure this is also to some extent true, as whatever laws people were already using on matters like marriage and murder probably persisted post-conversion.
Anyway, so there are multiple “schools” of Islamic legal thought:
While the schools differed in detail they regarded each other as mutually orthodox. In this respect as in others, the history of Islamic law both resembles and differs from that of Jewish Law. The schools of Hillel and Shammai tolerated each other for several generations, but eventually the majority school suppressed the minority. In the parallel Islamic case, the four schools of Sunni law have continued their mutual toleration up to the present day. …
The four schools of law are all Sunni; the Shia have their own schools and legal rules… While different schools were dominant in different areas, a medieval Muslim city could have had separate courts for the four Sunni schols, the Shia, and the other tolerated religions. It was a polylegal system; disputes within each community would go to that community’s courts. Non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters. … What happened in a dispute between parties adhering to different legal systems is not entirely clear…
I wonder how this worked in practice.
While law was in theory independent of the of the state, in practice, in most historical Islamic societies, state-created rules played a significant role. … One reason for the development of parallel state curts may have been the desire of the ruler to maintain control A second was that fiqh had serious limits as a legal system. …
The authors then look at the “breakdown” of the Islamic legal system.
The breakdown of the traditional legal system may, as Hallaq argues, be due to the rise of the nation state, but the connection between that and western imperialism is accident not essence. The causes that led to the rise of the nation state in the west, the replacement of feudalism by absolute monarchy, operated in the Islamic world as well… The annexation of the waqfs by the Ottoman authorities parallels the earlier confiscation of the lands of the monasteries by Henry VIII. The result in both cases was to eliminate institutions that competed with the sate for power and resources.
This is the kind of theory I like.
Then there is a section with more details on the actual content of the legal code, eg:
The part of fiqh that applies to homicide or bodily injury is called jinyat and appears to be based on the pre-Islamic rules of Arab blood feud.
Blood feuds are interesting and I think there is a chapter later on that looks at feud systems in more detail. But I wonder how these systems translate over geography–that is, across the Islamic world, from Morocco to Indonesia. Did the spread of Islam result in these areas adopting laws that were originally Arabian, or did each region effectively retain its own existing legal system? And how is it all working out today?
Wikipedia has an interesting bit:
The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.