Islamic Law (RLE Politics of Islam)

Social and Historical Contexts

Aziz Al-Azmeh

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134610051
• Edition: 1
• Topic: Social Sciences
• Subtopic: Regional Studies
• Index: Social Sciences

This book underlines the mutability of Islamic law and attempts to relate its substantive and institutional varieties and transformations to social, political, economic and other historical circumstances. The studies in the book range from discussion of the received wisdom in Islamic law to studies of legal institutions and the theoretical means employed by Islamic law for the accommodation of changing historical circumstances.

First published in 1988.

THE FAMILY, INHERITANCE, AND ISLAM: A RE-EXAMINATION OF THE SOCIOLOGY OF FARĀ'IḌ LAW (1)

Mundy Martha

1. MODERN INTERPRETATIONS OF THE ISLAMIC LAWS OF INHERITANCE

1.1 Introduction

Intersecting economy and family, the laws governing the devolution of property have loomed large in comparative studies of law and of society (2). At times of social and economic upheaval the laws of succession have likewise formed the object of political debate in different societies (3). It is only recently, with the coming of an industrial order, be it capitalist or socialist, and the preponderance of large units of ownership, of management and of production, that the law of family succession has lost much of its social and political prominence. In pre-capitalist state systems, by contrast, where familial units organised a great part of production, the law of succession appeared central to economic process, to class formation and to political order (4). In such polities the administration of the laws of succession formed a prominent part of the practice of rule, whereby the state reached deep into all that lay in the sphere of kinship (5).

This is equally true of the islamic laws of succession. The writings of islamic tradition contain reflections on the genesis and meaning of the islamic laws of inheritance, which represent a social commentary of a kind (6). From the formation of islamic law differences emerge between legal schools in this domain, notably Sunni versus Imamī Shī'ī, the explanation of which continues to pose problems for historians but behind which presumably once lay differences in social practice and political conjuncture, as well as legal theory (7). In the modern period, Arab and European scholars have advanced sociological interpretations of the laws, while the legal corpus itself has been subject to debate and change. The manner of interpretation of the law and the character of legal change have long been intertwined. Both bear the marks of their time: a moment in economic and political history and an implicit philosophy of law (8).

This paper examines the character of such modern interpretations and the pattern of legal change in islamic laws of inheritance during the last one hundred and fifty years. As will be seen, the social interpretation given to the law has been closely tied to the process of change in the law; the two need to be examined together. The present analysis will begin with the standard modern sociological interpretation of the law, which itself rests upon a general philosophy of law of great renown. To this interpretation of the islamic law of succession there is a past and a future, the outlines of which can be discerned today. From the standard modern interpretation we shall first move backwards through the archaeology of this modern wisdom and then forwards to the readings of the law emerging — or re-emerging — at the present moment.

1.2 An Orthodox Reading

In two books published in the 1960s and 1970s, A History of Islamic Law and Succession in the Muslim Family, Noel Coulson has offered an interpretation of the sociological character of the islamic law of inheritance, an account of its genesis, and a review of its historical development (9). Coulson belongs to that august tradition of comparative law which sees the evolution of legal systems as reflecting man's social development from primitive societies, where the individual is wholly subordinate to a social group, to modern societies where the individual is the primary subject in law and free to contract with other individuals (10). With regard to laws of succession this corresponds to a transition from laws which allow little freedom or individual choice, and which subordinate individual interest to that of the group, to laws which allow an individual the power to dispose of his property as he wishes. The islamic law of succession would lie in the middle of this continuum. Rigid and uncompromising in its defence of the family group (defined in this context as a group of blood relatives), it prescribes fixed entitlements for heirs to an estate and severely limits rights of testation.

According to Coulson the intermediate solution enshrined in islamic law reflects the transitional nature of the society in which islamic law evolved. With the coming of Islam, Arab society was transformed from a tribal society to a society in which the basic unit was the family (defined in this context as man, wife and children) (11). Although the details of the law of inheritance were only to be worked out over the course of two or three centuries, the essence of the religious law remained faithful to the Quranic legislation and to the society of its genesis, that of the Prophet Muhammad and his social reforms (12).

In the domain of family law, Islam modified existing practice, agnatic in character, without entirely sweeping it away (13). This is evident both from the existence of different legal categories of heirs and from the large number of relatives who were empowered to inherit under islamic law. Female heirs were superimposed upon the original class of agnates designated to inherit, but no existing heir was excluded. These modifications generate tension in the application of the law even today. On the one hand, the law allows complete rights of possession and alienation of property to all heirs; on the other, the minute division of property allowed by the law is impractical, especially in the case of land. Thus families face a difficult choice. Short of contra-vening the law altogether, they face either extensive fragmentation of real property or extensive joint ownership. If they choose the latter, individual choice remains in fact highly circumscribed by the interest of the family group, in spite of the right to dispose of property seemingly granted by the law.

Lastly, in most Arab states today, although the greater part of islamic law has been replaced over the past century by codes of Western origin, the law of succession, together with other core provisions of family law, remains largely in force. This continuity of islamic family law and of the law of inheritance, in particular, is best explained by the centrality of the provisions for inheritance in the Quranic text and by the value attached by Islam to the family (14).

1.3 The Archaeology of the Standard Interpretation

Coulson's argument here rests upon three super-imposed premises, each of which at one time formed the overarching construction in the field. The first and earliest proposition is that through islamic law one can understand the society of Muslims, or in other words, that law may serve as a guide to practice; the second is that islamic law, being of religious inspiration, adherence to its provisions — regardless of practicality — springs from Muslim religiosity; and the third is that islamic law represents the law of a people — the Arabs — at a time of major moral and social transformation: from a tribal form of organisation to one based upon the extended patriarchal family.

At a very broad level each of these propositions can be said to have dominated European understanding of the civil law of Islam at successive periods — late eighteenth century, mid-nineteenth century, late nineteenth century. Reflecting the shifts in European debates on civil law over this long century, these statements appear at points incompatible. In Coulson's argument, summarised above, they are not so much revisions as accretions obtained by a textual process that invites a kind of stratigraphic analysis. Behind each of these propositions lies the meeting of three lines of force: European conceptions of the nature of civil law; conceptions held by Muslim jurists concerning the nature of their law; and the economic and political forces governing the mutual perception of the two sides. Very briefly, let us consider the three propositions and their contexts.

1.3.1 1750–1810: Through Islamic Law one can understand the Society of Muslims

This proposition reflects an elegant eighteenth century confidence that laws, well ordered and well classified statements, best describe the relations of men in society. Laws are here understood in a far wider sense than the subsequent utilitarian legalism of Bentham or Austin; the rationality of jurisprudence joins an awareness of the propensity of Nature to classifiable, law-like order. If at times the writers of the late eighteenth century anticipate the historicism of political economy, where society produces laws and customs and determines the shape of all subsidiary units, they more often look backwards to a juridical idealism where Law and Custom constitute society and where Law is experienced primarily as the regulation of the domestic (15).

This vision of Law would have been intelligible to a Muslim scholar of the time, educated by definition in jurisprudence, and for whom the sharī'a could indeed not improperly be termed a Code Universel. Exemplary of this meeting of minds is the work of K. Mouradja D'Ohsson, who was for many years the Swedish Chargé d'Affaires at the Ottoman Court. D'Ohsson's is an eminently classical history where the order presented is the tableau of categories found in fiqh manuals (16). The problem to arise in the nineteenth century Ȕ and to be so casuistically exploited by European jurists in the colonies — of the distance between law (the word) and practice (the act) has no place here; for D'Ohsson the rules of the game lead effortlessly to a description of the manner of play: ‘observations’(17).

By the late eighteenth century Oriental islamic polities stood in much closer relation to Europe. It was time to shake off the fabulous nightmare of Oriental Despotism, an unnatural creature valuable when nations met on the battlefield but less so when they met in commerce or administration. In a work composed a decade earlier than D'Ohsson's Tableau and devoted to attacking this unnatural creature, Anquetil Duperron notes that he changed the title of his work from Déspotisme Orientale to Legislation Orientale (18). Duperron makes clear the context of this late eighteenth century view: the gathering clouds of European domination in Asia (19). Like the Europeans who entered the service of native princes just before the storm, the scholars of the time — Duperron, D'Ohsson, Niebuhr and others — worked between two masters, to each of whom they owed a certain allegiance (20). Nor was this power of observation to cease with the mere arrival of the first European expeditionary forces — consider in this regard the pages of the Description de l'Egypte — but rather with the elaboration of European administration whereby the European scholar became perforce the man who upheld the law.

For the late eighteenth century the ultimate rebuttal of the oppressiveness of Oriental Despotism lay in a demonstration of the rights of women to succession in the domestic economies of the East. Duperron wrote:

Inheritance is not a temporary grace when there are sons, it is a right; and a right that daughters have for goods acquired and not simply given by the Prince; that is to say, goods which belong to the father without any relation to the Prince. Indeed one even finds Governments passing to the son-in-law through the right of the daughter. (21)

Duperron's Danish contemporary, C. Niebuhr, likewise asserted the basic familiarity of domestic law among Muslims:

The Europeans are mistaken in thinking the state of marriage so different among the Mussulmans from what it is with Christian Nations. I could not discern any such difference in Arabia. (22)

D'Ohsson went beyond the mere assertion of legal form and female entitlement to discuss the modes of transmission of property among families in the Ottoman capital in considerable detail. D'Ohsson considered farā' iḍ succession, the various forms of waqf provisions, donations, and testamentary dispositions (23). Taken together, these forms revealed flexibility in the transmission of property between kin. The State at times weighed upon the family affairs of the rich; ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Table of Contents
• Preface
• Abbreviations
• 1. The Family, Inheritance, and Islam: A Re-Examination of the Sociology of Farā'iḍ Law
• 2. Qānūn and Sharī'a in the Ottoman Context
• 3. Islamic Law as a Source for the Development of a Comparative Jurisprudence: Theory and Practice in the Life and Work of Sanhūrī
• 4. Institutions of Justice in Fatimid Egypt
• 5. The Transformation of the Muslim Court System in Colonial Algeria
• 6. Islamic Laws in the Sudan
• 7. Islamic LegaL Theory and the Appropriation of Reality
• Index of Arabic and Turkish Terms
• General Index