Islamic Law in Practice

Volume III

Mashood A. Baderin, Mashood A. Baderin

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351925938
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Islamic Theology

Islamic law influences the lives of Muslims today as aspects of the law are applied as part of State law in different forms in many areas of the world. This volume provides a much needed collection of articles that explore the complexities involved in the application of Islamic law within the contemporary legal systems of different countries today, with particular reference to Saudi Arabia, Morocco, Indonesia, Nigeria, Turkey, Malaysia and Pakistan. The articles identify the relevant areas of difficulties and also propose possible ways of realising a more effective and equitable application of Islamic law in the contemporary world. The volume features an introductory overview of the subject as well as a comprehensive bibliography to aid further research.

Part I

Theoretical Perspectives on the Practical Application of Islamic Law

[1]

From Jurists’ Law to Statute Law or What Happens When the Shari’a is Codified

RUDOLPH PETERS

Introduction

Since the middle of the nineteenth century, the position of the shari’a in most Middle Eastern legal systems has changed drastically. In this essay, I want to explore this change and examine how the relationship between the state and the shari’a developed, focusing on the Ottoman Empire (including Egypt) and its successor states. Central to my analysis will be the question of who controls the production of shari’a norms, or, in other words, who has the authority to formulate the rules of the shari’a.

In the first part, I will discuss the position of the shari’a in the pre-modern period focusing on its religious character and its relationship with the state. Then I will move to the second half of the nineteenth century and go into the notion of codification and the changing role of the state. In the third part, I will analyse the present-day role of the shari’a. I will argue that the subject matter of the shari’a, codified or uncodified, has been politicized and has become very much a prominent issue in the public debate.

The Nature of the Shari’a and Fiqh in the Pre-Modern Time

The Shari’a as Religious Law

Unlike modern Western law, the shari’a is not regarded as an expression of the will of the state, but of God’s will. The classical texts define the shari’a as: ‘The rules given by God to His servants as set forth by one of the prophets (may God bless them and grant them salvation).’¹ A swift glance at the table of contents of the average legal textbook shows that they begin with purely religious topics like ritual prayer and fasting, before embarking on the discussion of the issues that are legal in the Western sense of the word, such as the contract of sale, legal capacity, succession and criminal law. The shari’a is, therefore, religious law, but this does not tell us very much. There are many different types of religious law. We want to say something meaningful about the shari’a as religious law, and we must be more specific and define its religious character. This, I would argue, consists in two features: the fact that the basis of its validity is God’s will and the fact that the shari’a also contains rules of a purely religious character.

In order to inform Mankind of his commands, God, according to Muslim belief, has sent down revelations to successive prophets, the last of whom was Muhammad. To him the Qur’an was revealed. After his death, the contents of the Qur’an were supplemented by his exemplary behaviour, the Sunna, as transmitted by later generations of Muslims and compiled in the hadith collections. These are the divine sources of the shari’ a and, therefore, the foundation of its validity. This divine basis of the law may be compared with Kelsen’s Grundnorm, the extra-legal norm explaining why laws are binding.²

A large part of the shari’a is law as understood in the West. The rules of this domain of the shari’a deal with the legal effects of certain acts or events and discuss the creation and extinction of rights and obligations between individuāls and between the individual and the community. Here we find, for instance, the law of sale, of marriage, of tort, of procedure, laws that can be enforced by the qadi if the relevant facts can be established in court. However, the shari’a is also envisioned as a set of norms constituting the code of behaviour of a good Muslim, a guide to attain eternal bliss in Paradise. This representation of the shari’a emphasizes its religious character and focuses on the Hereafter, that is, on whether, after one’s death, one can expect to be rewarded or punished for certain acts. This is done by classifying them into five categories (obligatory, commendable, indifferent, reprehensible and forbidden) indicating their effects as far as reward and punishment are concerned. For instance, performing an obligatory act results in reward, whereas neglecting it will be punished. This applies not only to purely religious obligations, but also to legal ones, such as the obligation to pay one’s debts. This part of the law falls outside the qadi’s competence. It is the exclusive domain of the mufti, the legal expert whose guidance is sought by individual Muslims in matters of the shari’a, but whose opinions are not binding, unlike the sentences pronounced by qadis.

The following passage, taken from a seventeenth-century legal handbook that was popular in the Ottoman Empire may help elucidate the double-sided character of the shari’a:

It is not reprehensible to lease out a house in the countryside (that is, in a village) if it will subsequently be used as a Zoroastrian temple, a church or a monk’s cell, or if wine will be sold in it … (at least according to the Imam [Abu Hanifa (d.767)], because the lease confers the right to use the house and there is no sin in that. The sin is related to acts committed by the lessee of his own accord. That means that the relationship [between the landlord and the sin] is interrupted, just like in the case of the sale of a slave girl … to a person who wants to have anal intercourse with her, or the sale of a young slave to a homosexual …. According to his companions [al-Shaybani (d.805) and Abu Yusuf (d.798)] it is indeed reprehensible (to lease a house for such a use, because it promotes sin. The other three imams are of the same opinion. …. There is agreement [among the imams] that such a lease is reprehensible in a village or a region inhabited mainly by Muslims.³

Here the authors discuss an aspect of the law of lease. However, their concern in this passage is not whether or not under the given conditions such a contract is valid and binding, but whether a Muslim who concludes such a contract will be punished in the Hereafter because it is religiously reprehensible.

The Shari’a as Jurists’ Law

A second feature of the shari’a is that it is a jurists’ law and that the jurists, and not the state, had the exclusive authority to formulate the rules of the shari’a. They did so in a scholarly, academic debate, in which confiicting and often contradictory views were opposed and discussed. Actually, we must use a more precise terminology and distinguish between the shari’a and the fiqh. If the shari’a is God’s law, the fiqh is the scholarly discipline aimed at formulating the prescriptions of the shari’a on the basis of the revealed texts and using various hermeneutic devices. What we find in the fiqh texts is the jurists’ approximation to the divine law. Because of differences in understanding the texts and in the use of the hermeneutical tools, the shari’a as laid down by the jurists is not uniform.

From the beginning, there were differences of opinion that resulted in the emergence of different schools of jurisprudence (madhhab, plur. madhhahib), that ascribed their doctrines to and derived their names from famous jurists from the eighth and ninth centuries. Controversies did not only exist between these schools, but also among the jurists of one single school, even on essential legal issues. The following passage, taken from the same Ottoman handbook, discusses the various opinions within the Hanafite school of jurisprudence on the question of whether a woman who is legally capable, may conclude her own marriage contract:

Marriage concluded by a free woman … of full legal capacity (irrespective of whether or not she is a virgin) is valid (even if such a marriage is concluded without the consent and presence of a matrimonial guardian. This is the authoritative opinion of Abu Hanifa (d.767) and Abu Yusuf [d.798]. This is so because she disposes of something to which she is exclusively entitled by being sound of mind and of age. For this reason she is entitled to dispose of her property and the principle here is that whoever may dispose of his property by his own right may conclude his own marriage and whoever may not [dispose of his property by his own right], may not [conclude his own marriage]. … According to the other madhhabs marriage cannot be concluded by a woman …. However, the marriage guardian (that is anyone of them as long as no one has given his consent) is entitled to object [to such a marriage] (that is he has the power to submit it to the judge for annulment. … The annulment is only effective by a judgement of the court since it is a matter of appreciation. Until such a judgement is pronounced the marriage is valid and the spouses inherit from one another if one of them should die before the judgement.) If the husband is not her coequal (kuf’) (This is to avert damage and disgrace. If one of the matrimonial guardians has approved of the marriage, those who stand in the same or in a more distant degree [to her] cannot object anymore. This right [of objection] continues until she gives birth…. This rule can be found in most authoritative works. However, according to a less authoritative opinion this right of objection continues even after she has given birth to several children. …) Hasan ibn Ziyad [d. 819] has reported from the Imam [Abu Hanifa] that it is not valid (that is that such a marriage is not valid if she marries herself without a matrimonial guardian to a man who is not her coequal. Many of our scholars have adopted this rule since many cases are not submitted to judges.) and Qadikhan [d. 1196] has issued fatwas according to this opinion. (This opinion is more correct and cautious and therefore preferable for fatwas in our days because not every matrimonial guardian is proficient in litigation and not every judge is just ….) According to Muhammad [al-Shaybani, d. 805] such a marriage is concluded conditionally (that is, subject to approval by the matrimonial guardian) even if the husband is her coequal. (If a marriage is contracted conditionally this means that before approval sexual intercourse is not allowed, that a repudiation is void and that they do not inherit from one another ….)⁴

Here we see that within the Hanafite school of jurisprudence there are three conflicting rules vvith regard to the marriages of a legally capable woman concluded on her own accord. According to one opinion, she is fully entitled to do so, except that in case of a misalliance, her agnatic male relatives may petition the qadi for an annulment. A second opinion holds that such a mis-alliance is per se invalid, whereas according to the third view, all marriages concluded by legally capable women need the ratification of their marriage guardians.

This passage, which could be replaced by many other ones, is typical of the books on Islamic jurisprudence. They juxtapose different opinions on the same issue and it would appear that the legitimacy of dissent is one of the essential characteristics of the fiqh. There are several classical works of comparative fiqh in which the controversies are discussed and explained in terms of different interpretations of Qur’anic texts of Prophetic sayings, or the application of different hermeneutical tools.

As illustrated by this passage, fiqh texts do not resemble law codes. They contain scholarly discussions, and are, therefore, open, discursive, and contradictory. This discussion is the monopoly of the religious scholars, the ulema. Because of their religious training they have the prerogative of formulating the law on the basis of the revealed texts. Although in the early history of Islam, this prerogative was contested by the rulers and state officials, the ulema ultimately emerged victorious.

The most important ideological device that they used to keep the state authorities at bay, was the idea of the closing of the gates of ijtihâd. With the institutionalization of the schools of jurisprudence, the freedom of the jurists adhering to them was restricted. They regarded themselves as being under the obligation of following the views of the founders of the schools. Gradually, over the centuries, this idea developed into the notion that jurists had to abide by the madhhab doctrine in all its details and were not allowed to formulate new opinions. This is called the obligation of taqlîd, the acceptance of a doctrine without questioning its bases. In the nineteenth century, both Muslim and Western scholars criticised this notion and blamed it for the stagnation and weakness of the Islamic world. However, recent research has shown that behind that façade of taqlîd, the law did change under the impact of social and political developments.⁵ Moreover, they failed to see its political and legal functionality. For one, the obligation of taqlîd could be used by the scholars to prevent state interference with the shari’a: if the jurists, who had been trained in jurisprudence and the related religious discipline were not allowed to interpret the sources of the law and formulate new views, this was a fortiori the case for state officials. Thus, the religious scholars could preserve their monopoly of formulating the shari’a. The obligation of taqlîd also had practical advantages: it provided a certain amount of legal certainty and predictability, which would not exist if all judges and practical lawyers were entitled to formulate and apply their own interpretations of the revealed texts.

Sharia and the State: Law Enforcement

The shari’a, like Western legal systems, leaves the enforcement of the law to the state. But how could the legal doctrine, or the normative repertoire of the fiqh, in which on one topic often contradictory opinions were juxtaposed, function as positive law? This would require a transformation from legal doctrine to law of the land. In this transformation, both the head of the state and the judiciary played a role, but these roles could vary from time to time and place to place. On the one hand, the head of state may content himself with creating a judiciary and leave the details of the application to the qadis. This means that the qadi, in adjudicating cases, has a great deal of discretion in selecting rules and even can use ijtihâd. On the other hand, the head of state may limit the qadi’s discretion by codification, thus instructing him to follow specific opinions from the doctrine. I will return to that later. For now, it suffices to say that the Ottoman Empire followed some sort of middle course: the Ottoman qadis were obliged to follow the most authoritative opinion of the Hanafite school.

In order to determine the most authoritative opinion, the founding fathers of the Hanafite school of jurisprudence were assigned a ranking: An opinion of Abu Hanifa would have the highest score and be more authoritative than the opinion of any other prominent Hanafi jurist. Next came Muhammad al-Shaybani, then Abu Yusuf, etc. With regard to certain topics, the sultān, for practical reasons, would reverse the order and impose another, not so authoritative Hanafi provision. The sultān was entitled to do so because he could give instructions to the qadis when appointing them and thus limit their jurisdiction. If a qadi would act against these instructions, the sentence pronounced by him would be null and void and not enforceable. All this is strictly in agreement with the classical doctrine regard...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Further Reading
• PART I THEORETICAL PERSPECTIVES ON THE PRACTICAL APPLICATION OF ISLAMIC LAW
• PART II EMPIRICAL ANALYSES OF THE PRACTICAL APPLICATION OF ISLAMIC LAW
• PART III ISLAMIC FAMILY AND PERSONAL STATUS LAWS IN PRACTICE
• PART IV ISLAMIC CRIMINAL LAW IN PRACTICE
• PART V ISLAMIC LAW OF FINANCIAL TRANSACTIONS IN PRACTICE
• PART VI ISLAMIC JUDICIAL AND COURT PRACTICE
• Name Index