Friday, March 23, 2012

Islamic Law,History of Islamic Law


There are four selections for this week's readings. They are dense and full of technical terms, but they are not impossible. Read through them all and jot down any questions you might have. AFTER you have read them all through a few times, you are welcome to email me any questions you might have. I think you will find that simply by reading the material through a few times, many things will make sense as the larger picture emerges. Most of the technical terms are defined either explicity or implicitly within the texts. Here are a few that might cause difficulty:
Scale of five values
This is a reference to the five levels of arpproval of an act: fard, wajib, sunnah, mustahabb and mubah.
Nusus
"Texts." Singular is "Nass." In this context: ayahs of the Quran or reported hadiths.
mukallaf
An individual who is legally responsible for his actions (i.e. not a child, not insane etc). Derived from "taklif" which, in Arabic, means giving someone responsibility.

Contents

After the initial discussion of Islam and Iymaan, we looked at what knowledge is and then moved on to the Quran and hadith. The session on sunnah was an entry into the practical meanings of the text of the hadith in a general way. In this sesson we will look at these texts, the Quran and the hadith (along with some other things) as "sources for Islamic law."
The Arabic word "fiqh" is translated as "Islamic Law" or "Islamic Jurisprudence." Often there is something in the experience of a community which does not exist in the experience of another community. In this case translation is not just a matter of finding the right word. Rather, it is a matter of finding a parrallel in the experience of the second community. This parrallel can serve as a metaphor for the actual thing experienced in the first community and hence, must be approached with the care appropriate in approaching metaphors.
The experience of "law" and "jurisprudence" of the West shares some things in common with the Islamic experience of fiqh, so people use these words. At the same time, be prepared to throw these words overboard when they start dictating your understanding of that experience. As you read these selections, I want you to be alert to this potential problem in seeing fiqh as "law". Try to tap in to your experience of the types of things that are considered "fiqh" as you read these articles and make sure the use of the word "law" matches the domain of things you associate with fiqh.
Nyazee's article is a quick tour of the history of the development of this field over thirteen centuries or so. Read it carefully keeping in front of you the questions I have put in the end. Don't worry about trying to memorize details, try to understand the broad picture he is painting. His expertise is fiqh and the principles of fiqh, so his comments about material that we have covered in the history of hadith is less reliable than what we have covered in our classes on hadith.
The selections from Kamali's book "Introduction to Islamic Law" begin with his definition of Islamic law and discussion of its scope. Then he considers the subject of "proofs of shariah." This is an awkward translation for the word "daliyl" of the shariah: in other words: "the things that can serve as evidence to support or refute a position a person might take regarding an issue in the shariah." After this general consideration Kamali speaks of the Quran, the hadith and ijma, (I have omitted this discussion) then he goes on to consider "qiyas" and then turns to the activity that a scholar performs using these types of evidence--this activity being the struggle to find God's command, and which is known as "ijtihad." Finally he considers the "value" of the results that are obtained from this activity. That is, the "dos and don'ts" that one discovers from ijtihad using Quran, hadith, ijma and qiyas, are not all of the same level. Some are certain, some are likely and some are guesses. As a result they cannot be all given the same importance: the same "value."
I would like you to understand the first sections as background and then really focus carefully on the sections on qiyas, ijtihad and the value of ijtihad. They are difficult, but they are the purpose of this session.

History of Islamic Law

(from Imran Ahsan Khan Nyazee Islamic Jurisprudence)
The history of Islamic law is divided into seven periods. The state of the society in the pre-Islamic period may be examined before studying these periods.

2.1 Nature of Pre-Islamic Law

1. Arab society, before Islam, was based upon tribal loyalties, and these in turn arose from blood kinship, adoption and affiliation. Violence, tribal wars, raids and plunder were the norm. The family structure was weak and women were treated as chattel. Women were also denied inheritance and were often subjected to concubinage in a permissive society. Despite this type of existence, the law was not totally rudimentary.
2. The customary law regulated relations between the members of the society. Makkah and Madinah were trading centres and market transactions were governed by the customary law of property, contract and obligations. The existence of this law is evident from the terminology used in the Qur'an. The enforcement of the commercial law was carried on by the traders themselves through their law merchant. In Madinah, there were elementary forms of land tenure.
3. Criminal law had advanced from the stage of strict liability to that of a system of reparations (diyat). An elementary form of legal administration was also in existence. It was administered mostly through arbiters called hakam.
4. It was at this juncture that the law of Islam was revealed. Revelation engulfed the Arab Peninsula and made far-reaching modifications in the existing law, modifications that not only changed the life of the Arabs, but also the future course of history. Over time, the primitive law of the Arabs was gradually converted into a mature legal system that served many nations and peoples.

2.2 The First Period

5. The first period in the history of Islamic law commences with revelation and ends with it (610 A.D. to 632 A.D.). The first source of law during this period was the Qur'an, while the second was the Sunnah.
The Qur'an:The Qur'an was revealed over a period of about 23 years, of which over 12 years represent the Makkan period prior to the Hijrah and 10 years fall within the Madinan period. The laws laid down in the Qur'an covered: the position of women, children, orphans and the weak; restrictions on the laxity of literals and strengthening of the marriage tie and family life; the law of retaliation, theft, drinking, gambling, prohibition of usury and interest in all forms, and the performance of contracts. Most of these laws were revealed in a gradual manner in response to issues and cases faced by the Muslims.
The Sunnah: The Sunnah was the second source of law during this period. The Sunnah too was laid down in response to actual cases like the verses of the Qur'an. The Sunnah did not enjoy the status of a text in this period, but it did so for later periods, when it was relied upon for the derivation of the rules. In this period it was directly settling cases and providing legal guidance to the Muslims.
Fiqh: Fiqh was not developed as an independent subject in this period. Law was clothed in the general ethical and moral teachings of the shari'ah. Revelation began laying emphasis on general concepts of ihsan, qist, 'adl, afw and compassion for the weaker members of the society.
Once the community had fully absorbed the general objectives of the shari'ah detailed rules were laid down. The law of homicide prevailing in pre-Islamic times was based on a system of private justice, and was dominated by the notion of tribal vengeance. This was radically altered and replaced by qisas (retaliation). Sexual offences, penalties for which were non-existent, were subjected to severe punishment. The drinking of wine was gradually condemned and then made punishable.
6. Changes in society: The formation of the Muslim community destroyed the roots of tribalism and the tribal set-up was totally superseded by the family as a basic unit of society. As a result of which the position of women was totally transformed. The law of contract was regulated by injunctions of fairplay and honesty while usury (riba) was condemned and declared a war against Allah and his Prophet. All transactions involving gambling and deception were eliminated. In addition to all this, a large number of fundamental principles were laid down which guided the future generations to frame detailed rules.
Compilation: The Qur'an was recorded in this period by the scribes of the Prophet (p.b.u.h). The Sunnah and judicial decisions of this period were not recorded like the Qur'an, but were preserved in the memory of the Companions. These reached the later generations through narrations. Perhaps, the reason why the Sunnah was not recorded in this early period was the fear of its being mixed up with the Qur'an.

2.3 The Second Period: al-Khulafa' al-Rashidun

7. This period begins with the death of the Prophet (p.b.u.h.), in the year 11 A.H., and ends with the commencement of the reign of Mu'awiyah ibn Abl Sufyan, in the year 41 A.H. In this period, the Companions reached different parts of the globe performing the function of rulers, generals, judges and muftis. The rapid growth of the Islamic state and interaction with other races influenced the growth of fiqh.
Sources of law: To the sources of the first period, another source was added in this period. This was ijma' (consensus of opinion). This arose from the practice of the Orthodox Caliphs of consulting the Companions on important issues. It is obvious that some of the. Companions were using other methods too like qiyas, istihsan and maslahah mursalah, although they were not known by these names during this period. In this period, the Qur'an was collected and compiled and further some rules could be discerned in the practice of the Companions with respect to the acceptance of traditions, however, the Companions in this period were very strict in accepting traditions.
8. It was in this period that the foundations of Islamic legal system were refined and developed. A large number of legal principles were laid down and established through the decisions of the Companions. The period is characterized by freedom of expressing opinions. It was these opinions that became precedents for later periods.

2.4 The Third Period: Tabi'un (Followers)

9. This period begins in the year 41 A.H. and extends upto early 2nd century of Hijrah (132 A.H). The entire period, then, falls within the rule of Banu Ummayyah.
10. Sources of fiqh: The sources of Islamic law in this era were the same as those in the one preceding it; namely, the Qur'an, the Sunnah, and ijma'. The use of analogy and istihsan became much more systematic toward the end of this period through the methods of the founders of the early schools. The occurrence of ijma' with the participation of all the jurists of the ummah became more difficult. It was now confined to regions and hence the schools of each region. This is how we find it recorded in most books of fiqh. In other words, a claim of ijma in the later periods usually means consensus on a principle of law within a school of law.
11. Narration of Traditions: The narration of traditions became widespread. The need for knowing traditions had also increased due to new cases coming up for decision. The areas in which knowledgeable Companions lived became centres of learning of traditions and fiqh. The growing need for traditions as precedents also led to falsehood in the narration of traditions. False traditions compelled some of the jurists to evolve very strict rules for checking the authenticity. This obviously affected the development of Islamic law.
12. The Rise of the Early Schools: This period saw the birth of some of the greatest jurists of Islam. Abu Hanifah was born in 80 A.H. and he was 52 years of age at the close of this period. His student Abu Yusuf (b. 113 A.H.) must have been close to finishing his education. Muhammad al-Shaybanl was born in 132 A.H. and must have studied under his teacher for a few years, because Abu Hanlfah died in 150 A.H. Malik ibn Anas was born in 95 A.H. and was almost 40 years old at the close of the period. Besides these jurists, there were many other jurists like Ibrahim al-Nakha'I, al-Awza'i, Ibn Abi Layla and a host of other who lived during this period. Many of these jurists were appointed qadts and their decisions were later recorded by Muhammad al-Shaybanl in his well known books.
13. Collectively, these early schools decided such a large number of cases that the foundations of Islamic law as a legal system were firmly laid. It is perhaps for this reason that Joseph Schacht maintained that the law as we know it today was more or less settled in this period. This law was then recorded by al-Shaybani, in the next period, not only for his own school, but also for those like Ibn Abi Layla and al-Awza'i.

2.5 The Fourth Period: Growth

14. This period begins in early 2nd century Hijrah (132 A.H.) and continues upto 350 A.H. thus spreading over a period of more than 200 years. It stands out, as compared to the Periods which preceded it and those which followed it, because of three main distinctions:
  1. Fiqh flourished in this period and achieved maturity.
  2. Compilation of all kinds of knowledge took place, the most remarkable being that of fiqh.
  3. The remaining schools of fiqh were formed in this period and established.
15. Growth and compilation of fiqh: There were many factors which had an impact on the growth of fiqh, the most important of these were: the concern of the Abbasides for fiqh and the fuqaha', most of whom were appointed qadis; freedom of expressing juristic opinions; the knowledge movement made unrivalled progress in every field leading to compilation and translation of innumerable works. The Muslim scholars in general and the fuqaha' in particular, benefited immensely from these developments.
16. The compilation of fiqh began toward the end of the period of Banu Umayyah. An outstanding example is Malik's Muwatta' in which he has recorded the decisions from 'A'ishah, Ibn 'Umar, Ibn 'Abbas and others. Ibrahim al-Nakha'i collected the opinions of his teachers. This was followed by Abu Yusuf 's Kitab al-Kharaj. The first true works of fiqh, however, that determined the shape of all future works on Islamic law were Imam Muhammad al-Shaybani's books called the Zahir al-Riwayah. As these works are huge, it appears that the work must have commenced shortly after the death of Abu Hanifah in 150 A.H. Al-Shaybani died in 189 A.H. Fifty years later, al-Shafi'i wrote his book al-Risalah, which is the first book on Usul al-fiqh . He also wrote his books called al-Umm and Ikhtilaf al-Hadith. The first major work of the Maliki school, called al-Mudawwanah al-Kubra, was compiled during the early part of the third century by Sahnun. This was a compilation of the opinions given by Ibn al-Qasim on the issues settled in al-Shaybani's books. Ahmad ibn Hanbal was born in 164 A.H. and died in 241 A.H. He was primarily a traditionist and collected around 40,000 traditions in the six volumes of his Musnad. His school was developed later by his students.
17. During this period, fiqh became an independent science in which great thinkers specialized. Islamic History and history in general is witness to the achievements of these scholars. Usul al fiqh as a science was also laid down systematically. These principles were now available for use to those who were to follow. The work of these centuries stood within reach of every scholar aspiring to be a jurist.
18. Compilation of the Sunnah: The compilation of the Sunnah passed through three phases:
  1. The first phase. The first phase commences in early 2nd century Hijrah when 'Umar ibn Abdul 'Aziz, one year prior to his death, asked his representative in Madinah, Abu Bakr Muhammad ibn 'Amr ibn Hazm, to record the traditions of the Prophet (p.b.u.h.). Ibn Hazm recorded traditions in the form of a book, which unfortunately the Khalifah was not able to read himself as death had overtaken him. Thus began the movement for the recording of traditions. All areas of the Muslim world participated in this noble task. Traditions were collected in Makkah by Ibn Jurayj, in Madinah by Muhammad ibn Ishaq and Malik ibn Anas, in Basrah by al-RabT' ibn Sablh and Hammad ibn Salamah, in Kufah by Sufyan al-Thawri, in Syria by al-Awza'i, in Yemen by Ma'mar, in Khurasan by ibn al-Mubarak, and in Egypt by al-Layth ibn Sa'id. The method adopted by these 'ulama' was to collect and arrange traditions according to subjects in separate chapters like traditions pertaining to salat, sales (buyu').
  2. The second phase The second phase begins with the end of the 2nd century Hijrah. During this period the 'ulama' were occupied with collecting the traditions in accordance with the methods of masanid. The content of this method was to collect traditions, which a particular Companion had narrated, like Abu Hurayrah for example, in one chapter. This would be called musnad of Abu Hurayrah and the traditions in it dealt with different subjects. The basis of such compilation was the unity of the narrator not the unity of the subject matter as against the previous method. The foremost of these masanid were of 'Abd Allah ibn Musa al-Kufi, of Hammad al-KhaziT, of Ishaq ibn Rahwih, of 'Uthman ibn Shaybah. Though there were many of theses masanid they have not reached us except that of Imam Ahmad ibn Hanbal, through which is known the method adopted in the masanid.
  3. The third phase. The third phase begins in the middle of the 3rd Century Hijrah and continues till its end. In this age the 'ulama' distinguished the sahih from the ghayr sahih and each Imam of the traditions laid down conditions for judging the traditions which are sometimes similar to those laid down by others and sometimes different. These Imams compiled their books in accordance with the chapter of fiqh recording under each head traditions related to a single subject alone. It was the same method that was adopted for the compilation of the Sunnah in the first phase.
    The followers of this method are the six Imams who have the privilege of preserving the Sunnah from all intruders. They are: Muhammad ibn Isma'il al-Bukhari (d. 265 A.H.), Muslim ibn Hajjaj al-Nisapuri (d. 261 A.H.), Abu Dawud Sulayman ibn al-Ash'at al-Sijjistani (d. 275), Abu 'Isa, Muhammad ibn 'Isa al-Salmi al-Tirmidhi (d. 279 A.H.), Abu 'Abd Allah Muhammad ibn Yazid al-Quzwayni better known as Ibn Majah (d. 273 A.H.) and Abu 'Abd al-Rahman Ahmad ibn Shu'ayb al-Nasai (d. 303 A.H.). The books enjoy a great status in Islamic literature and for the later jurists they are the second source of fiqh after the Qur'an.
19. Compilation of Tafsir: During the time of the Tabi'un the need for tafsir had increased manifold, especially the tafsir of the verses relating to the ahkam. These interpretations were narrated mostly mixed up with the Sunnah and the ahkam of fiqh. Towards the end of the period of the Tabi'un, the scholars began collecting the meanings of the Qur'an and started compiling these in the form of a separate field of knowledge called Ilm al-tafsir. The scholars of each area concentrated on collecting what had been passed on through their teachers from the Companions or the Prophet.
20. During the period of the Abbasides, scholars undertook the compilation of these tafasir and arranged them in accordance with verses and surahs of the Qur'an. Most of these works are not available, though al-Tabari has quoted some of them.

2.6 The Fifth Period: The Maturing of the Legal System

21. This period extends from 350 A.H to the 8th century of the Hijrah, and is characterized by most writers as one of stagnation and taqlid. Such labels attached to this period amount to gross injustice to the great minds of the Muslim world who lived in this period. Our entire method of studying Islamic law and more than 95% of the literature that we deem as the original sources of Islamic law is a product of this golden period. In fact, the entire literature of the Shafi'i and Hanbali schools is a product of this age.
22. This was the age of the great systematizers. It was through their efforts that the Islamic legal system reached full maturity. The greatest activity is witnessed during the 5th and the 6th centuries of the Hijrah. It produced the great minds who are household words, so to say. Jurists like al-Dabusi, al-Jassas, al-Mawardi, al-Shirazi, al-Sarakhsi, al-Bazdawi, al-Juwayni, al-Ghazali, Ibn Rushd, al-Kasani, al-Razi, al-Nawawi, al-Qarafi, al-Margaynani, Sadr al-Shari'ah, Ibn Qudamah al-Maqdisi and a host of others are the shining examples of this period. To term this period as one of stagnation is to display ignorance about, and a lack of appreciation of, the true history of Islamic law.
23. To estimate the contributions of this period would require volumes. It would be pertinent to say that all the disciplines, their classifications and expositions are a contribution of this period. Usul al-fiqh was truly developed as a discipline during this period. Most of the credit given to al-Shafi'i needs to be shared with the jurists of this period. A new field of Qawa'id fiqhiyah, as a discipline, owes its existence to the jurists of this period. The theory of the purposes of law or the maqasid al-shari'ah, which is more developed than the modern theories of interest and values, is a product of this age. The separate discipline of ahkam al-Qur'an as well as some of the greatest commentaries (tafsirs) are a contribution of this age.
24. It is also true that some of the doctrines and movements that may irritate some modern minds were also the product of this age. For example, taqlid as a doctrine was formulated during this period. The controversy between the Ahl al-Ra'y and the Ahl al-Hadith also came to full bloom in this period.

2.7 The Sixth Period: The Age of Qanun and Codification

25. This period may be said to extend from the 14th century CE to the 17th century CE before the advent of colonization. In this period some attempts were made to codify laws. Two outstanding examples are provided by the Ottoman state in Turkey and the Mughal empire in India, especially the rule of Awrangzeb Alamgir.
26. The administration of justice within the Islamic legal system was carried out from the start through two cooperating spheres. The state was responsible for military, fiscal matters and crimes in general, while the jurists dealt with matters of personal law, waqfs, commerce and the hudud penalties. The courts responsible for matters dealt with by the state were called mazalim courts. Besides these, there were institutions like the inspector of the markets (amil al-suq) and the institution of the muhtasib. The authority exercised by the state was called siyasah. This was a wide area and covered almost every area that the fuqaha' did not deal with. The qadis had there own courts and were more or less autonomous.
27. A code means a set of laws promulgated and enforced by the state. In this sense, there had never been any codification in Islamic law. An early suggestion by Ibn Muqaffah to Abu Ja'far al-Mansur could not be implemented as Malik is said to have advised against it in the year 148 A.H. when the Khallfah went there to perform hajj and again in 167 A.H. after he had written the Muwatta'. The obvious reason appears to be the desire of the rulers not to interfere with the part of the shari'ah that dealt with the personal matters of people, in which they followed the school of their choice. This situation continued till the Ottoman times.
28. The Ottoman Qanun: The first real attempts at codification were made by the Ottoman rulers. These dealt mainly with the criminal law and were called qanun namahs. The process reached its zenith during the period of Sulayman 'Alishan when Turkey dominated Europe including the sea routes. Joseph Schacht writing about this period said that these laws were the "swiftest laws in Europe." Uriel Heyd has made a detailed study of the Ottoman criminal laws of these times and has even translated a number of the firmans and qanun namahs.
The Mughal Empire: Awrangzeb 'Alamglr, 11th century A.H./17th century CE made some efforts at codification too. He issued firmans relating to ta'zir, but his major contribution was in the area of shari'ah law based on Zahir al-Riwayah. He appointed a commission headed by the Nizam of India. The result was the Fatawa 'Alamgiriyah. It is a comprehensive work based on the model of the Hidayah and comprises six volumes.
29. This, however, was not a code in the modern sense of the term, as it was not binding upon the subjects. Further, it covers the entire spectrum of Islamic law as expounded by the fuqaha', but it does not cover the law administered by the state.

2.8 The Seventh Period: Colonization and After

30. During the age of colonization most Islamic laws were slowly replaced by Western laws. Only the areas of personal law were left intact. In Turkey, European laws were adopted by choice. This process was started in 1850. The shar'i penalties were dropped and taking of interest was made permissible.
31. A civil code based on the shari'ah was also prepared. This was the famous Majallat al-Ahkam al-'Adliyah (The Corpus of Juridical Rules) a result of the. efforts a committee headed by Ahmad Jawdat Pasha. The Majallah remained in force in Turkey and most of the territories formerly under the Ottoman regime. Turkey abrogated it entirely after World War I, while in the Lebanon and Syria it was eliminated in stages.
32. In India, the British rulers permitted the application of personal laws and a law was passed in 1772 that provided that the shari'ah should be applied to all cases relating to inheritance, marriage, and other matters of personal law. Al-Hidayah, Sirajiyah and small parts of some manuals were translated. In the middle of the 19th century, a legislative movement was launched and resulted in the abolition of slavery in 1843, Penal Code and Criminal Procedure Code (1862), Indian Evidence Act (1872), Companies Act (1913), Shariat Act (1937) and a host of other laws.
33. In the application of the Islamic laws the judges did not always stay within the confines of the manuals of Islamic law and this resulted in what is called Anglo-Muhammadan law.
34. In Egypt, the Shafi'i law had been the official law, with some interruptions, till the Ottoman rulers made Hanafi law the official law of the country. In 1874, after independence from Turkey the National Civil Code was enacted and Islamic law was relegated to personal matters. A code was also made for the shari'ah courts embodying 647 articles. In 1920 the Maliki and Shafi'i laws were reintroduced for certain matters. In 1936, 'Abd al-Razzaq Sanhuri Pasha headed a committee to prepare a new code incorporating some Islamic provisions as well. The code consists of 1149 articles. The first article of the code provided that a judge should have recourse to the principles of the Islamic shari'ah in the absence of legislative provision in any particular case. The code was enforced in 1949. The Egyptian constitution, however, places a limitation on this by admitting only those rules that are definitive, i.e., those about which there can be only one opinion.

Questions

  1. Make a list of the periods that Nyazee has made and note the amount of space he has given each period along with the length of each period in years. Consider, for example, he has called the second period (13-41) the period of the Rashiduwn. He characterizes these thirty years in two paragraphs. He notes: spread of Sahabah in various official capacities, growth of state, interaction with other races. In principles of jurisprudence he notes addition of ijma', presence of practices that got technical names later (istislah, istihsan etc), of rules in accepting hadith (that got formulated in technical rules later), of decisions of the Companions that became legal principles later, freedom of expression that led to opinions that later became legal precedents. Now look at all of these things ina the broad perspective of the story Nyazee is telling about the history of Islamic law. What function does this period serve in that story? Think about all seven (rather, all eight) periods in this manner. Write a brief sentence summarizing each period in this way in the list of the periods you made.
  2. Study paragraph 4 carefully and state the claim it makes precisely and try to see how one could evaluate this claim.
  3. Nyazee speaks of the "family structure" being weak and the family replacing the tribe as the primary social unit. What exactly might he mean by family structure being weak or strong? What phenomena is he trying to explain as a function of growing strength in family structure and diminshing strength of tribe?
  4. According to Nyazee what was the essential change in pre-Islamic to Islamic law?
  5. Nyazee evaluates "the sunna" as "a source of law". Try to imagine the days of the Prophet. What would the sunna (and the Quran and fiqh) be in those days? What would law be? What would a "source of law" be?

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