The sacred law of Islam, the Shari'a, occupies a central place in Muslim society, and
its history runs parallel with the history of Islamic civilization. It has often been said
that Islamic law represents the core and kernel of Islam itself and, certainly, religious
law is incomparably more important in the religion of Islam than theology. As recently as
1959, the then rector of al-Azhar University, Shaykh Mahmud Shaltut, published a book
entitled 'Islam, a faith and a law' (al-Islam, 'aqida wa-shari'a), and by far the greater
part of its pages is devoted to an expose of the religious law of Islam, down to some
technicalities, whereas the statement of the Islamic faith occupies less than one-tenth of
the whole. It seems that in the eyes of this high Islamic dignitary the essential bond
that unites the Muslims is not so much a common simple creed as a common way of life, a
common ideal of society. The development of all religious sciences, and therefore of a
considerable part of intellectual life in Islam, takes its rhythm from the development of
religious law. Even in modern times, the main intellectual effort of the Muslims as
Muslims is aimed not at proving the truth of Islamic dogma but at justifying the validity
of Islamic law as they understand it. It will therefore be indicated for us to survey the
development of Islamic law within the framework of Islamic society and civilization,
tentative as this survey is bound to be. Islamic law itself is one of our most important
sources for the investigation of Islamic society, and explaining Islamic law in terms of
Islamic society risks using a circular argument. Besides, the scarcity of expert
historical and sociological studies of Islamic law has more often been deplored than it
has inspired efforts to fill this gap.
Islamic law had its roots in pre-Islamic Arab society. This society and its law showed
both profane and magical features. The law was magical in so far as the rules of
investigation and evidence were dominated by sacral procedures, such as divination, oath,
and curse; and it was profane in so far as even penal law was reduced to questions of
compensation and payment. There are no indications that a sacred law existed among the
pagan Arabs; this was an innovation of Islam. The magical element left only faint traces,
but Islamic law preserved the profane character of a considerable portion of penal law. It
also preserved the essential features of the law of personal status, family, and
inheritance as it existed, no doubt with considerable variations of detail, both in the
cities and among the bedouin of Arabia. All these subjects were dominated by the ancient
Arabian tribal system, combined with a patriarchal structure of the family. Under this
system, the individual lacked legal protection outside his tribe, the concept of criminal
justice was absent and crimes were reduced to torts, and the tribal group was responsible
for the acts of its members. This led to blood feuds, but blood feuds were not an
institution of ancient Arab tribal law, they stood outside the law and came under the
purview of the law only when they were mitigated by the payment of blood-money, and at
this moment the profane character of ancient Arabian law asserted itself again. There was
no organized political authority in pre-Islamic Arab society, and also no organized
judicial system. However, if disputes arose concerning rights of property, succession, and
torts other than homicide, they were not normally decided by self-help but, if negotiation
between the parties was unsuccessful, by recourse to an arbitrator. Because one of the
essential qualifications of an arbitrator was that he should possess supernatural powers,
arbitrators were most frequently chosen from among soothsayers. The decision of the
arbitrator was obviously not an enforceable judgment, but a statement of what the
customary law was, or ought to be; the function of the arbitrator merged into that of a
lawmaker, an authoritative expounder of the normative legal custom or sunna. Transposed
into an Islamic context, this concept of sunna was to become one of the most important
agents, if not the most important, in the formation of Islamic law, and the 'ulama', the
authoritative expounders of the law, became not in theory but in fact the lawmakers of
Islam.
Muhammad began his public activity in Mecca as a religious reformer, and in Medina he
became the ruler and lawgiver of a new society on a religious basis, a society which was
meant, and at once began, to replace and supersede Arabian tribal society. Already in
Mecca, Muhammad had had occasion to protest against being regarded as merely another
soothsayer by his pagan countrymen, and this brought about, in the early period of Medina,
the rejection of arbitration as practised by the pagan Arabs. But when Muhammad was called
upon to decide disputes in his own community, he continued to act as an arbitrator, and
the Qur'an, in a roughly contemporaneous passage, prescribed the appointment of an
arbitrator each from the families of husband and wife in the case of marital disputes. In
a single verse only, which again is roughly contemporaneous with the preceding passage,
the ancient Arab term for arbitration appears side by side with, and is in fact superseded
by, a new Islamic one for a judicial decision: ' But no, by thy Lord, they will not
(really) believe until they make thee an arbitrator of what is in dispute between them and
and within themselves no dislike of that which thou decidest, and submit with (full)
submission' (Sura 4. 65). Here the first verb refers to the arbitrating aspect of
Muhammad's activity, and the second, ' to decide ', from which the Arabic term qadi is
derived, emphasizes the authoritative character of his decision. This is the first
indication of the emergence of a new, Islamic, concept of the administration of justice.
Numerous passages in the Qur'an show that this ideal demand was slow to be fulfilled, but
Muhammad's position as a prophet, backed in the later stages of his career in Medina by a
considerable political and military power, gave him a much greater authority than could be
claimed by an arbitrator; he became a 'Prophet-Lawgiver'. But he wielded his almost
absolute power not within but without the existing legal system; his authority was not
legal but, for the believers, religious, and, for the lukewarm, political. He was
essentially a townsman, and the bitterest tirades in the Qur'an are directed against the
bedouin.
Muhammad's legislation, too, was a complete innovation in the law of Arabia. Muh ammad,
as a prophet, had little reason to change the existing customary law. His aim was not to
establish a new legal order, but to teach men what to do in order to achieve their
salvation. This is why Islamic law is a system of duties, of ritual, legal, and moral
obligations, all of which are sanctioned by the authority of the same religious command.
Thus the Qur'an commands to arbitrate with justice, to give true evidence, to fulfil one's
contracts, and, especially, to return a trust or deposit to its owner. As regards the law
of family, which is fairly exhaustively treated in the Qur'an, the main emphasis is laid
on how one should act towards women and children, orphans and relatives, dependants and
slaves. In the field of penal law, it is easy to understand that the Qur'an laid down
sanctions for transgressions, but again they are essentially moral and only incidentally
penal, so much so that the Qur'an prohibited wine-drinking but did not enact any penalty,
and the penalty was determined only at a later stage of Ishmic law. The reasons for
Qur'anic legislation on all these matters were, in the firs tplace, the desire to improve
the position of women, of orphans and of the weak in general, to restrict the laxity of
sexual morals and to strengthen the marriage tie, to restrict private vengeance and
retaliation and to eliminate blood feuds altogether; the prohibition of gambling, of
drinking wine and of taking interest are directly aimed at ancient Arabian standards of
behaviour. The main political aim of the Prophet, the dissolution of the ancient bedouin
tribal organization and the creation of an essentially urban community of believers in its
stead, gave rise to new problems in family law, in the law of retaliation and in the law
of war, and these had to be dealt with. The encouragement of polygamy by the Qur'an is a
case in point. A similar need seems to have called for extensive modifications of the
ancient law of inheritance, the broad outlines of which were, however, preserved; here,
too, the underlying tendency of the Qur'anic legislation was to favour the
underprivileged; it started with enunciating ethical principles which the testators ought
to follow, and even in its final stage, when fixed shares in the inheritance were allotted
to persons previously excluded from succession, the element of moral exhortation had not
disappeared. This feature of Qur'anic legislation was preserved by Islamic law, and the
purely legal attitude, which attaches legal consequences to relevant acts, is often
superseded by the tendency to impose ethical standards on the believer.
Islamic law as we know it today cannot be said to have existed as yet in the time of
Muhammad; it came gradually into existence during the first century of Islam. It was
during this period that nascent Islamic society created its own legal institutions. The
ancient Arab system of arbitration, and Arab customary law in general, continued under the
first successors of Muhammad, the caliphs of Medina. In their function as supreme rulers
and administrators, the early caliphs acted to a great extent as the lawgivers of the
Islamic community; during the whole of this first century the administrative and
legislative functions of the Islamic government cannot be separated. But the object of
this administrative legislation was not to modify the existing customary law beyond what
the Qur'an had done; it was to organize the newly conquered territories for the benefit of
the Arabs, and to assure the viability of the enormously expanded Islamic state. The first
caliphs did not, for instance, hesitate to repress severely any manifestation of
disloyalty, and even to punish with flogging the authors of satirical poems directed
against rival tribes, a recognized form of poetic expression which, however, might have
threatened the internal security of the state. This particular decision did not become
part of Islamic law, but other enactments of the caliphs of Medina gained official
recognition, not as decislons of the caliphs, but because they could be subsumed under
oneor the other of the official sources of Islamic law which later theory came to
recognize. The introduction of stoning to death as a punishment for unchastity under
certain conditions is one such enactment. In the theory of Islamic law, its authority
derives from alleged commands of the Prophet; there also exists an alleged verse of the
Qur'an to this effect which, however, does not form part of the official text and must be
considered spurious. Traditions reporting alleged acts and sayings of the Prophet came
into use as proof-texts in law not earlier than the end of the first century of Islam, and
the spurious verse of the Qur'an represents an earlier effort to establish the validity of
the penal enactment in question. That the need of this kind of validation was felt at all,
shows how exceptional a phenomenon the legislation of Muhammad had been in the eyes of his
contemporaries.
The political schisms which rent the Islamic community when it was still less than
forty years old, led to the secession of the two dissident, and later 'heterodox',
movements of the Kharijites and of the Shi'a, but they did not lead to significant new
developments in Islamic law; the essentials of a system of religious law did not as yet
exist and the political theory of the Shi'a, which more than anything else might have been
expected to lead to the elaboration of quite a different system of law, was developed only
later. In fact, those two groups took over Islamic law from the 'orthodox' or Sunni
community as it was being developed there, making only such essentially superficial
modifications as were required by their particular political and dogmatic tenets. In one
respect, however, the exclusive, and therefore ' sectarian ', character of the two
secessionist movements influenced not so much the positive contents as the emphasis and
presentation of their doctrines of religious law; the law of the Shi'a is dominated by the
concept of taqiyya, 'dissimulation' (a practice which, it is true, was forced upon them by
the persecutions which they had to suffer), and by the distinction between esoteric and
exoteric doctrines in some of their schools of thought; and that of the Kharijites is
dominated by the complementary concepts of walaya, 'solidarity', and bara'a, 'exclusion',
'excommunication'.
At an early period, the ancient Arab idea of sunna, precedent or normative custom,
reasserted itself in Islam. Whatever was customary was right and proper, whatever their
forefathers had done deserved to be imitated, and in the idea of precedent or sunna the
whole conservatism ofArabs found expression. This idea presented a formidable obstacle to
every innovation, including Islam itself. But once Islam had prevailed, the old
conservatism reasserted itself within the new community, and the idea of sunna became one
of the central concepts of Islamic law.
Sunna in its Islamic context originally had a political rather than a legal
connotation. The question whether the administrative acts of the First two caliphs, Abu
Bakr and 'Umar, should be regarded as binding precedents, arose probably when a successor
to 'Umar had to beappointed in 23/644, and the discontent with the policy of the third
caliph, 'Uthman, which led to his assassination in 35/655, took the form of a charge that
he, in his turn, had diverged from the policy of his predecessors and, implicitly, from
the Qur'an. In this connexion, there arose the concept of the 'sunna of the Prophet', not
yet identified with any set of positive rules, but providing a doctrinal link between the
sunna of Abu Bakr and 'Umar' and the Qur'an. The earliest evidence for this use of the
term 'sunna of the Prophet' dates from about 76/695, and we shall see later how it was
introduced into the theory of Islamic law.
The thirty years of the caliphs of Medina later appeared, in the picture that the
Muslims formed of their own history, as the golden age of Islam. This is far from having
been the case. On the contrary, the period of the caliphs of Medina was rather in the
nature of a turbulent interval between the first years of Islam under Muh ammad and the
Arab kingdom of the Umayyads. Not even the rulings of the Qur'an were applied without
restriction. It can be shown from the development of Islamic legal doctrines that any but
the most perfunctory attention given to the Qur'anic norms, and any but the most
elementary conclusions drawn from them, belong almost invariably to a secondary and
therefore later stage. In several cases the early doctrine of Islamic law is in direct
conflict with the clear and explicit wording of the Qur'an. Sura 5.6, for instance, says
clearly: ' O you who believe, when you rise up for worship, wash your faces and your hands
up to the elbows, and wipe over your heads and your feet up to the ankles'; the law
nevertheless insists on washing the feet, and this is harmonized with the text by various
means. Sura 2.282 endorsed the current practice of putting contracts, particularly those
which provided for performance in the future, into writing, and this practice did in fact
persist in Islam. Islamic law, however, emptied the Qur'anic command of all binding force,
denied validity to written documents, and insisted on the evidence of eye-witnesses,in the
Qur'anic passage play only a subsidiary part. It is, of course, true that many rules of
Islamic law, particularly in the law of family and in the law of inheritance, not to
mention worship and ritual, were, in the nature of things, based on the Qur'an and, we
must assume, on the example of Muhammad from the very beginning. But even here we notice
(as far as we are able to draw conclusions on this early period from the somewhat later
doctrines of Islamic law) a regression, in so far as pagan and tribal Arab ideas and
attitudes succeeded in overriding the intention, if not the wording, of the Qur'anic
legislation. This went parallel to, and was indeed caused by, the exacerbation of tribal
attitudes in the turbulence created by the Arab wars of conquest and their success. The
Qur'an, in a particular situation, had encouraged polygamy, and this, from being an
exception, now became one of the essential features of the Islamic law of marriage. It led
to a definite deterioration in the position of married women in society, compared with
that which they had enjoyed in pre-Islamic Arabia, and this was only emphasized by the
fact that many perfectly respectable sexual relationships of pre-Islamic Arabia had been
outlawed by Islam. As against tribal pride and exclusiveness, the Qur'an had emphasized
the fraternity rather than the equality of all Muslims, nevertheless, social
discrimination and Arab pride immediately reasserted themselves in Islam. Non-Arab
converts to Islam, whatever their previous social standing, were regarded as second-class
citizens (mawali) during the first hundred and fifty years of Islam, and all schools of
law had to recognize degrees of social rank which did not amount to impediments to
marriage but nevertheless, in certain cases, enabled the interested party to demand the
dissolution of the marriage by the qadi. The Qur'an had taken concubinage for granted, but
in the main passage concerning it (Sura 4.3) concubinage appears as a less expensive
alternative to polygamy, a concept far removed from the practice of unlimited concubinage
in addition to polygamy which prevailed as early as the first generation after Muhammad
and was sanctioned by all schools of law. Also, the Qur'anic rules concerning repudiation,
which had been aimed at safeguarding the interests of the wife, lost much of their value
by the way in which they were applied in practice. Early Islamic practice, influenced no
doubt by the insecurity which prevailed in the recently founded garrison-cities with their
mixed population, extended the seclusion and the veiling of women far beyond what had been
envisaged in the Qur'an, but in doing this it merely applied the clearly formulated
intention of the Qur'an to new conditions. Taking these modifications into account, the
pre-Islamic structure of the family survived into Islamic law.
During the greater part of the first/seventh century, Islamic law, in the technical
meaning of the term, did not as yet exist. As had been the case in the time of Muhammad,
law as such fell outside the sphere of religion; if no religious or moral objections were
involved, the technical aspects of law were a matter of indifference to the Muslims. This
accounts for the widespread adoption, or rather survival, of certain legal and
administrative institutions and practices of the conquered territories, such as the
treatment of the tolerated religions which was closely modelled on the treatment of the
Jews in the Byzantine empire, methods of taxation, the institution ofemphyteusis, and so
forth. The principle of the retention of pre-Islamic legal practices under Islam was
sometimes openly acknowledged, e.g. by the historian al-Baladhuri (d. 279/892), but
generally speaking fictitious Islamic precedents were later invented as a justification.
The acceptance of foreign legal concepts and maxims, extending to methods of reasoning
and even to fundamental ideas of legal science, however, demands a more specific
explanation. Here the intermediaries were the cultured converts to Islam. During the first
two centuries of the Hijra, these converts belonged mainly to the higher social classes,
they were the only ones to whom admission to Islamic society, even as second-class
citizens, promised considerable advantages, and they were the people who (or whose
fathers) had enjoyed a liberal education, that is to say, an education in Hellenistic
rhetoric, which was the normal one in the countries of the Near East which the Arabs had
conquered. This education invariably led to some acquaintance with the rudiments of law.
The educated converts brought their familiar ideas with them into their new religion. In
fact, the concepts and maxims in question were of that general kind which would be
familiar not only to lawyers but to all educated persons. In this way, elements
originating from Roman and Byzantine law, from the canon law of the Eastern Churches, from
Talmudic and rabbinic law, and from Sasanian law, infiltrated into the nascent religious
law of Islam during its period of incubation, to appear in the doctrines of the
second/eighth century.
The rule of the caliphs of Medina was supplanted by that of the Umayyads in 4I/66I. The
Umayyads and their governors were responsible for developing a number of the essential
features of Islamic worship and ritual. Their main concern, it is true, was not with
religion and religious law, but with political administration, and here they represented
the centralizing and increasingly bureaucratic tendency of an orderly adrninistration as
against bedouin individualism and the anarchy of the Arab way of life. Both Islamic
religious ideals and Umayyad administration co-operated in creating a new framework for
Arab Muslim society. In many respects Umayyad rule represents the consummation, after the
turbulent interval of the caliphate of Medina, of tendencies which were inherent in the
nature of the community of Muslims under Muhammad. It was the period of incubation of
Islamic civilization and, within it, of the religious law of Islam.
The administration of the Umayyads concentrated on waging war against the Byzantines
and other external enemies, on assuring the internal security of the state, and on
collecting revenue from the subject populations and paying subventions in money or in kind
to the Arab beneficiaries. We therefore find evidence of Umayyad regulations or
administrative law mainly in the helds of the law of war and of fiscal law. All this
covered essentially the same ground as the administrative legislation of the caliphs of
Medina, but the social background was sensibly different. The Umayyads did not interfere
with the working of retaliation as it had been regulated by the Qur'an, but they tried to
prevent the recurrence of Arab tribal feuds and assumed the accountancy for payments of
blood-money, which were effected in connexion with the payment of subventions. On the
other hand, they supervised the application of the purely Islamic penalties, not always in
strict conformity with the rules laid down in the Qur'an.
The Umayyads, or rather their governors, also took the important step of appointing
Islamic judges or qadis. The offlce of qadi was created in and for the new Islamic society
which came into being, under the new conditions resulting from the Arab conquest, in the
urban centres of the Arab kingdom. For this new society, the arbitration of pre-Islamic
Arabia and of the earliest period of Islam was no longer adequate, and the Arab arbitrator
was superseded by the Islamic qadi. It was only natural for the qadi to take over the seat
and wand of the arbitrator, but, in contrast with the latter, the qadi was a delegate of
the governor. The governor, within the limits set for him by the caliph, had full
authority over his province, administrative, legislative, and judicial, without any
conscious distinction of functions; and he could, and in fact regularly did, delegate his
judicial authority to his 'legal secretary', the qadi. The governor retained, however, the
power of reserving for his own decision any lawsuit he wished, and, of course, of
dismissing his qadi at will. The contemporary Christian author, John of Damascus, refers
to these governors and their delegates, the qadis, as the lawgivers of Islam. By their
decisions, the earliest Islamic qadis, did indeed lay the basic foundations of what was to
become Islamic law. They gave judgment according to their own discretion or ' sound
opinion' (ra'y), basing themselves on customary practice which in the nature of things
incorporated administrative regulations, and taking the letter and the spirit of the
Qur'anic regulations and other recognized Islamic religious norms into account as much as
they thought fit. Whereas the legal subject-matter had not as yet been islamized to any
great extent beyond the stage reached in the Qur'an, the office of qadi itself was an
Islamic institution typical of the Umayyad period, in which care for elementary
administrative efficiency and the tendency to islamize went hand in hand. The subsequent
development of Islamic law, however, brought it about that the part played by the earliest
qadi in creating it did not achieve recognition in the legal theory which finally
prevailed.
A typical example of the way in which the activity of the early qadis influenced
Islamic law is provided by the law of procedure. The Qur'an had not only endorsed the use
of written documents as evidence; it had also provided for putting the witnesses on oath
in certain circumstances (Sura 5.I06-8). Islamic law rejected the first, and neglected the
second provision, and had it not been for the early qadis, the hard and fast rule that
evidence by witnesses, who are not put on oath, has to be produced by the plaintiff, and
if no such evidence is produced, the oath in denial has to be taken by the defendant,
would have been applied to the letter. The early qadis, however, constantly tried to
impose safeguards on the exclusive use of the testimony of witnesses as evidence, and this
tendency has left more or less extensive traces in several schools of Islamic law.
The jurisdiction of the qadi extended to Muslims only; the non-Muslim subject
populations retained their own traditional legal institutions, including the
ecclesiastical and rabbinical tribunals, which in the last few centuries before the Arab
conquest had to a great extent duplicated the judicial organization of the Byzantine
state. This is the basis of the factual legal autonomy of the non-Muslims which was
extensive in the Middle Ages, and has survived in part down to the present generation. The
Byzantine magistrates themselves had left the lost provinces at the time of the conquest,
but an office of local administration, the functions of which were partly judicial, was
adopted by the Muslims: the office of the 'inspector of the market' or agoranome, of which
the Arabic designation 'amil al-suq or sahib al-suq is a literal translation. In the last
few centuries before the Muslim conquest this office had lost its originally high status,
but had remained a popular institution among the settled populations of the Near East.
Later, under the early 'Abbasids, it developed into the Islamic office of the mutasib.
Similarly, the Muslims took over the office of the ' clerk of the court' from the Sasanian
administration.
The work of the qadis became inevitably more and more specialized, and we may take it
for granted that from the turn of the first/seventh century onwards appointments as a rule
went to specialists, to persons sufficiently interested in the subject to have given it
serious thought in their spare time. Their main concern, in the intellectual climate of
the late Umayyad period, was naturally to know whether the customary law which they
administered conformed to the Qur'anic and generally Islamic norms; in other words, the
specialists would be found normally within that group of pious persons who were at the
same time working out an Islamic way of life. Once more, the care for efficient
administration of justice and the tendency to islamize went hand in hand. Their interest
in religion caused them to survey, either individually or in discussion with like-minded
friends, all fields of contemporary activities, including the field of law, from an
Islamic angle, and to impregnate the sphere of law with religious and ethical ideas. Their
reasoning, which in the nature of things expressed their own individual opinion (ra'y),
represents the beginnings of Islamic jurisprudence. In doing this, they achieved on a much
wider scale and in a vastly more detailed manner what Muhammad had tried to do for the
early Islamic community of Medina. As a result, the popular and administrative practice of
the late Umayyad period was transformed into the religious law of Islam. But the close
personal connexion between the groups of pious persons andthe qadis notwithstanding,
Islamic law did not grow out of the practice, it came into being as the expression of a
religious ideal in opposition to it.
The pious specialists on the sacred law were heId in respect both by the public and the
rulers, and they owed their authority to their singleminded concern with the ideal of a
life according to the tenets of Islam. They stood outside the political structure of the
Arab kingdom of the Umayyads, and their main function was to give cautelary advice on the
correct way of acting to those of their co-religionists who asked for it; in other words,
they were the first muftis in Islam. Islamic law has preserved much of this cautelary
character over the centuries; it is dominant in the teaching of Malik in Medina in the
second/eighth century, and it recurs in strength in the medieval hiyal, or 'legal
devices'. The pious specialists often had occasion to criticize the acts and regulations
of the government, just as they had to declare undesirable many popular practices, but
they were not in political opposition to the Umayyads and to the established Islamic
state; on the contrary, the whole of the Umayyad period was, at a certain distance, viewed
as part of the ' good old time'; this idealizing of things past was the first
manifestation in Islam of a tendency which, a few decades later, was to lead to one of the
most thorough and most successful of literary fictions. The attitude of the pious
specialists to the Umayyad government anticipates the attitude of the religious scholars
of Islam to any Islamic government.
As the groups of pious specialists grew in numbers and in cohesion, they developed, in
the first decades of the second/eighth century, into what may be called the ancient
schools of law, a term which implies neither any dehnite organization, nor a strict
uniformity of doctrine within each school, nor any formal teaching, nor even the existence
of a body of law in the usual meaning of the term. Their members continued to be private
individuals, singled out from the great mass of the Muslims by their special interest, the
resultant reverence of the people, and the recognition as kindred spirits which they
themselves accorded to one another. It can be said that the division of the Muslims into
two classes, the elite and the vulgar, dates from the emergence of the ancient schools of
law. The more important ancient schools of which we have knowledge are those of Kufa and
of Basra in 'Iraq, of Medina and of Mecca in the Hijaz, and of Syria. The differences
between them were caused, in the first place, by geographical factors, such as local
variations in social conditions, customary law, and practice, but they were not based on
any noticeable disagreement on principles and methods. On principle, the ancient schools
were inclined to disturb the practice as little as possible; because of the nature of our
documentation, this can be particularly clearly observed in the case of the Medinese and
of the Syrians.
The doctrines of the several schools enable us to discern the contrast between the
social realities in that ancient Arab land that was the Hijaz and the newly conquered
territory of old civilization that was 'Iraq, as well as the various reactions of the
ancient lawyers of Islam to them. The legal integration of the wife into the family of the
husband had begun with the Qur'an, when the wife was guaranteed a share in the
inheritance, and the ancient lawyers followed the same tendency by giving the right to
inherit to certain female relatives who did not possess it originally. But the school of
Kufa alone went so far as to extend the right to inherit, after the agnates, to a group
roughly corresponding to the cognates. The school of Medina rejected this absolutely. On
the other hand, the tendency expressed by the school of Kufa found its consummation only
in the doctrine of the Twelver Shi'is who unite the agnates and the cognates in one single
group. The Twelver Shi'is lay emphasis also on the narrowly defined family, consisting of
father, mother and their children and grandchildren, against the broader concept of
family, merging into the old Arabian tribal system, which forms the background of the
Sunni law of inheritance. 'Iraq was indeed the intellectual centre of early Shi'ism, and
Shi'i law (and, for that matter, Kharijite law) has occasionally preserved early 'Iraqi
doctrines which were later abandoned by the orthodox. The legal position of the unmarried
girl and of the wife within the family, and their legal capacity,were decidedly more
favourable in 'Iraq than in the Hijaz. On the other hand, the marriage bond was more rigid
there, in so far as in 'Iraq the wife was inadequately protected even against grave
derelictions of duty by the husband, such as failure to provide maintenance, or grave
maltreatment; the school of Medina gave her the possibility of suing for divorce in these
two cases, a rule which continued, it seems, a practice of Arab customary law which
allowed the abandoned or maltreated wife to recover her freedom. As regards the status of
the slave, the doctrines of the school of Medina show a certain paternalism which seems to
derive from the social conditions in the cities of the Hijaz not less than from the
civilizing influence of Islam. The Muslim slave, within the patriarchal family, enjoys a
status similar to that of a free man; he may conclude a valid marriage by himself, without
having secured the previous approval of his master (although the master may subsequently
dissolve it); he may marry four wives just as a free man may (in contrast with the general
rule which reduces all numbers given in the Qur'an by half for the slave); he has
(notwithstanding certain restrictions) a real right of ownership; if he is authorized to
trade, his transactions engage only his stock in-trade and not his person so that he
cannot be sold to pay off a debt; and if he is gravely maltreated he can demand his
freedom. None of this is accepted by the school of Kufa; in addition, according to the
latter, he cannot act as leader of the ritual prayer if it is performed in common, he is
not entitled to the Qur'anic procedure of li'an if he suspects his wife of adultery, his
blood-money must always be less than that of a free man, and the master is in no case
obliged to acknowledge the paternity of children which his female slave has borne. (The
rule that children born by a concubine to her master and acknowledged by him as his own
are free and in all respects equal to his children by a marriage with a free wife, goes
beyond pre-Islamic practice, and is not explicitly laid down in the Qur'an; it must have
asserted itself early in the first century, and it became of great importance in the
development of Islamic society.) This hardening shows, no doubt, a more rigid and more
differentiated society in which the social classes were more firmly separated, the result,
in short, of a certain evolution. On the other hand, the school of Kufa was more ready to
set free certain categories of slaves, to reduce the rigours of penal law for the slave,
and to protect his life by making a free man who had murdered him, liable to retaliation.
The 'adqila, the group of persons called upon to pay the blood-money in a case of
unintentional killing or wounding, consisted originally, and still consists according to
the doctrine of the school of Medina, of the agnates. According to the doctrine of the
school of Kufa, however, it consists of those whose names, as members of the Muslim army,
are inscribed in the same army list or payroll, alternatively of the members of the same
tribe, or alternatively of the fellow-workers in the same craft. This shows most clearly
the result of profound social changes. The qasama, the collective oath in criminal
procedure when the person of the murderer is unknown, is, in the doctrine of the school of
Medina, an affirmative oath by the members of the tribe of the victim which is sufficient
to make the accused liable to retaliation. The Umayyad caliphs tried to mitigate its
effect. The doctrine of the Kufans, however, recognized only a contradictory oath, not by
the members of a tribe but by the inhabitants of the locality in question. Concerning
pre-emption, the school of Medina was satisfied with laying down the rule that the
co-owner was entitled to it; this was normally sufficient to ensure that strangers did not
infiltrate the property owned by members of the same family or clan. In 'Iraq, however,
this formula was not found sufficient, and in order to preclude the intrusion of
strangers, it was found necessary to extend the right of pre-emption to neighbours, that
is to say, owners of adjoining plots even if they were not technically co-owners of the
property in question, provided their respective plots were entered by a common gate from a
lane or thoroughfare, a kind of settlement common in the new cities of Islam which
nevertheless preserved the identity of tribal associations. This provides a vivid picture
of the lay-out of building plots in 'Iraq in the second/eighth century. It was only later
that the Hijazi and the 'Iraqi doctrines were crystallized into the propositions that the
right of pre-emption belonged to any co-owner or to any neighbour, whoever he might be. It
is also not by accident that the degrees of social rank which aimed at perpetuating the
social superiority of the Arabs over the mawali were elaborated outside Arabia, in 'Iraq,
and that the procedure of becoming a maula by contract was recognized by the school of
'Iraq, where it was of great practical importance, but ignored by that of Medina. The law
of property and of obligations, too, as formulated by the schools of Kufa and of Medina
respectively, shows society in 'Iraq more differentiated and more closely controlled by
the state than in Medina.
Whereas the ancient schools of law reflected different social realities, their general
attitude to popular practice and administrative regulations was essentially the same, and
it was certainly not the case, as has often, and recently too, been asserted, that the
school of Medina was more traditional in its outlook and the school of 'Iraq more given to
individual reasoning. It is true that, apart from diflferences in social development which
are reflected in the doctrine, the doctrines of the school of Medina represent, generally
speaking, an earlier stage of development of legal thought. But this means merely that the
doctrinal development of the school of Medina often lagged behind that of the school of
Kufa. 'Iraq was the intellectual centre of the flrst theorizing and systematizing efforts
which were to transform Umayyad popular and administrative practice into Islamic law, and
the ascendancy of 'Iraq in the development of religious law and jurisprudence continued
during the whole of the secondleighth century. This is in keeping with intellectual
development generally during the period.
The ancient schools shared not only a common attitude to Umayyad practice and, of
course, a considerable body of positive religious law but the essentials of a legal
theory, the central concept of which was the 'living tradition of the school'. This idea
dominated the development of Islamic law and jurisprudence during the whole of the
second/eighth century. Retrospectively it appears as the sunna or 'well-established
precedent', or 'practice' ('amal), or 'ancient practice' (amr qadim). This 'practice'
partly reflected the actual custom of the local community of Muslims, but it also
contained a theoretical or ideal element, so that it came to mean normative sunna, the
usage as it ought to be. Already at this early stage, a divergence between theory and
practice manifested itself. The ideal practice was found in the unanimous doctrine of the
representative religious scholars of each centre. This consensus of the scholars,
representing the common denominator of doctrine achieved in each generation, expresses the
synchronous aspect of the living tradition of each school. It is significant that the real
basis of the doctrine of each school is not the consensus of all Muslims (which also
exists) but of the scholars; the function of the class of 'ulama' in Islamic society was
firmly established in that early period.
The need of creating some kind of theoretical justification for what so far had been an
instinctive reliance on the opinions of the majority, led, from the first decades of the
second/eighth century onwards, to the living tradition being retrojected, and to its being
ascribed to some of the great hgures of the past. This process, too, began in Kufa, where
the stage of doctrine achieved in the time of Hammad b. Abi Sulayman (d. I20/738) was
attributed to Ibrahim al-Nakha'i (d. 95-6/7I3-I5). The Medinese followed suit and
retrojected their own teaching to a number of ancient authorities who had died about the
turn of the century, some of whom later became known as the 'seven jurists of Medina'. At
the same time as the doctrine of the school of Kufa was retrospectively attributed to
Ibrahim al-Nakha'i, a similar body of doctrine was directly connected with the very
beginnings of Islam in Kufa by being attributed to Ibn Mas'ud, a Companion of the Prophet
who had come to live in that city, and Ibrahim al-Nakha'i became the main transmitter of
that body of doctrine, too. In the same way, other Companions of the Prophet became the
eponyms of the schools of Medina and of Mecca. One further step in the search for a solid
theoretical foundation of the doctrine of the ancient schools was taken in 'Iraq, very
early in the second/eighth century, when the term ' Sunna of the Prophet ' was transferred
from its political and theological into a legal context, and identified with the sunna,
the ideal practice of the local community and the corresponding doctrine of its scholars.
This term, which was taken over by the school of Syria, expressed the axiom that the
practice of the Muslims derived from the practice of the Prophet, but it did not as yet
imply the existence of positive information in the form of ' Traditions ' (Hadith), that
the Prophet by his words or acts had in fact originated or approved any particular
practice. It was not long before these Traditions, too, came into existence, and the
persons who put them into circulation were the Traditionists.
The ancient schools of law themselves represented, in one aspect, an Islamic opposition
to popular andadministrativepracticeunderthe later Umayyads, and the opposition group
which developed into the Traditionist movement emphasized this tendency. As long as a
Companion of the Prophet had been the final authority for the doctrine of a school on a
particular point, it was sufficient for a divergent doctrine to be put under the aegis of
another Companion of equal or even higher authority, as happened in Kufa where all kinds
of minority opinions were attributed to the Caliph 'Ali, who had made Kufa his capital.
But after the general authority of the Prophet himself had been invoked by identifying the
established doctrine with his sunna, a more specific reference to him was needed, and
there appeared detailed statements or 'Traditions' which claimed to be the reports of ear-
or eye-witnesses on the words or acts of the Prophet, handed down orally by an
uninterrupted chain of trustworthy persons. Very soon the emphasis shifted from proposing
certain opinions in opposition to the ancient schools to disseminating Traditions from the
Prophet as such, and the movement of the Traditionists, which was to develop into a
separate branch of Islamic religious learning, came into being. It was the main thesis of
the Traditionists that formal Traditions from the Prophet superseded the living tradition
of the school. The Traditionists existed in all great centres of Islam, where they formed
groups in opposition to, but nevertheless in contact with, the local schools of law.
Initially the ancient schools offered strong resistance to the disturbing element
represented by the Traditions, but they had no real defence against their rising tide;
they had to express their own doctrines in Traditions which allegedly went back to the
Prophet, and to take increasing notice of the Traditions produced by their opponents.
Finally the outlines and many details of Islamic law were cast into the form of Traditions
from the Prophet. In this way, one of the greatest and most successful literary fictions
came into being.
When the Umayyads were overthrown by the 'Abbasids in I32/750, Islamic law, though
still in its formative stage, had acquired its essential features; the need of Arab Muslim
society for a new legal system had been filled. The early 'Abbasids continued and
reinforced the islamizing trend which had become more and more noticeable under the later
Umayyads. For reasons of dynastic policy, and in order to differentiate themselves from
their predecessors, the 'Abbasids posed as the protagonists of Islam, attracted
specialists in religious law to their court, consultet them on problems within their
competence, and set out to translate their doctrines into practice. But this effort was
shortlived. The early specialists who had formulated their doctrine not on the basis of,
but in a certain opposition to, Umayyad popular and administrative practice, had been
ahead of realities, and now the early 'Abbasids and their religious advisers were unable
to carry the whole of society with them. This double-sided effect of the 'Abbasid
revolution shows itself clearly in the development of the office of qadi. The qadi was not
any more the legal secretary of the governor; he was normally appointed by the caliph, and
until relieved of his office, he must apply nothing but the sacred law, without
interference from the government. But theoretically independent though they were, the
qddis had to rely on the political authorities for the execution of their judgments, and
being bound by the formal rules of the Islamic law of evidence, their inability to deal
with criminal cases became apparent. (Under the Umayyads, they or the governors themselves
had exercised whatever criminal justice came within their competence.) Therefore the
administration of the greater part of criminal justice was taken over by the police, and
it remained outside the sphere of practical application of Islamic law. The centralizing
tendency of the early 'Abbasids also led, perhaps under the influence of a feature of
Sasanian administration, to the creation of the office of chief qadi. It was originally an
honoriflc title given to the qadi of the capital, but the chief qadi soon became one of
the most important counsellors of the caliph, and the appointment and dismissal of the
other qadis, under the authority of the caliph, became the main function of his office.
An institution which the early 'Abbasids, and perhaps already the later Umayyads,
borrowed from the administrative tradition of the Sasanian kings was the 'investigation of
complaints' concerning miscarriage or denial of justice, or other allegedly unlawful acts
of the qadis, difficulties in securing the execution of judgments, wrongs committed by
government officials or by powerful individuals, and similar matters. Very soon, formal
courts of complaints were set up, and their jurisdiction became to a great extent
concurrent with that of the qadis' tribunals. The very existence of these tribunals, which
were established ostensibly in order to supplement the deficiencies of the jurisdiction of
the qadis, shows that their administration of justice had largely broken down at an early
period. since then, there has been a double administration of justice, one religious and
the other secular, in practically the whole of the Islamic world.
At the same time, the office of the 'inspector of the market' was islamized. Its
holder, in addition to his ancient functions, was now entrusted with discharging the
collective obligations of enforcing Islamic morals, and he was given the Islamic title of
muhtasib, it was now part of his duties to bring transgressors to justice and to impose
summary punishments, which on occasion came to include the flogging of the drunk and the
unchaste, and even the amputation of the hands of thieves caught in the act; but the
eagerness of the rulers to enforce these provisions commonly made them overlook the fact
that the procedure of the muhtasib did not always satisfy the strict demands of the law.
The caliph, too, was given a place in the religious law of Islam. He was endowed with
the attributes of a religious scholar and lawyer, bound to the sacred law in the same way
as qadis were bound to it, and given the same right to the exercise of personal opinion as
was admitted by the schools of law. The caliph retained full judicial power, the qadis
were merely his delegates, but he did not have the right to legislate; he could only make
administrative regulations within the limits laid down by the sacred law, and the qadis
were obliged to follow his instructions within those limits. This doctrine disregarded the
fact that what was actually legislation on the part of the caliphs of Medina, and
particularly of the Umayyads, had to a great extent entered the fabric of Islamic law. The
later caliphs and other secular rulers often enacted new rules; but although this was in
fact legislation, the rulers used to call it administration, and they maintained the
fiction that their regulations served only to apply, to supplement, and to enforce the
sacred law. This ambiguity pervaded the whole of Islamic administration during the Middle
Ages and beyond. In practice, the rulers were generally content with making regulations on
matters which had escaped the control of the qads~, such as police, taxation and criminal
justice. The most important examples of this kind of secular law are the siyasa of the
Mamluk sultans of Egypt which applied to the military ruling class, and, later, the
qanun-nama of the Ottoman sultans. Only in the present generation has a secular, modernist
legislation, directly aimed at modifying Islamic law in its traditional form, come into
being; this became possible only through the reception of Western political ideas. But the
postulate that law, as well as other human relationships, must be ruled by religion, has
become an essential part of the outlook of the Muslim Arabs, including the modernists
among them.
Notwithstanding all this, the office of qadt in the form which it essentialiy acquired
under the early 'Abbasids, proved to be one of the most vigorous institutions evolved by
Islamic society. Qadis were often made military commanders, and examples are particularly
numerous in Muslim Spain and in the Maghrib in general. They often played important
political parts, although it is not always possible to distinguish the purely personal
element from the prestige inherent in the office. Particularly in the Ayyubid and in the
Mamluk periods, they were appointed to various administrative offices. They even became
heads of principalities and founders of small dynasties from the fifth/eleventh century
onwards, when the central power had disintegrated; there are especially numerous examples
in Muslim Spain in the time of the Party Kings and others occur in Syria, Anatolia and
Central Asia. In the Ottoman system of provincial administration, the qadi was the main
authority in the area of his jurisdiction, and elsewhere, as in medieval Persia, he became
the main representative of what is called the religious institution. To some extent the
qadi (and the other religious scholars, too) were the spokesmen of the people; they played
an important part not only in preserving the balance of the state but also in maintaining
Islamic civilization, and in times of disorder they constituted an element of stability.
Nevertheless, as far as the essence of the qadi's office was concerned, a real
independence of the judiciary, though recognized in theory, was hardly ever achieved in
practice.
Very soon after the 'Abbasid revolution, Islamic Spain broke away and became, under a
surviving member of the Umayyad family and his descendants, an independent amirate and
later caliphate. It is therefore not surprising that Islamic law and justice as applied in
Spain should have diverged in some respects (not very essential ones, it is true) from
their counterparts in the East. Whereas the qadi was always in principle a single judge,
it was taken for granted in Spain that he should sit 'in council' (shura). The 'Abbasid
institution of the chief qadi took a long time to become acclimatized in Spain. Although
the adoption of the Sasanian 'investigation of complaints' by Islamic law probably dated
from the end of the Umayyad period in the East, it had no real parallel in Spain. The
'inspector of the market ' retained his ancient title in Spain for centuries, and the
theory of his functions was somewhat different there from what it was in the East.
The first half of the second/eighth century was a period of particularly rapid
development for Islamic law, and this is well shown by the memorandum which the secretary
of state, Ibn al-Muqaffa', presented to the 'Abbasid caliphj al-Mansur, at some time
during the last few years of his life (he was cruelly put to death in I39/756). Written by
an intelligent and observant outsider, a Persian convert to Islam, it shows us aspects of
the stage reached by Islamic law about I40/757-8 which we should not be able to deduce
from more conventional sources. Ibn alMuqaffa' deplored the wide divergencies in the
administration of justice which existed between the several great cities and even (a
completely unexpected piece of information) between their several quarters, and between
the main schools of law. He suggested therefore that the caliph should review the
different doctrines, codify and enact his own decisions in the interest of uniformity, and
make this code binding on the qadis. This code ought to be revised by successive caliphs.
The caliph alone had the right to decide at his discretion; he could give binding orders
on military and on civil administration, but he must be guided by Qur'an and sunna. This
sunna, Ibn al-Muqaffa' realized, was based to a great extent on administrative regulations
of the Umayyads. Therefore, he concluded the caliph was free to determine and codify the
sunna as he thought fit. The plea of Ibn al-Muqaffa' for state control over law (and,
incidentally, over religion, too) was in full accord with the tendencies prevailing at the
very beginning of the 'Abbasid era. But this was merely a passing phase, and orthodox
Islam refused to be drawn into too close a connexion with the state. The result was that
Islamic law grew away from practice, but in the long run gained more in power over the
minds than it lost in control over the bodies of the Muslims.
A little later, towards the end of the second/eighth century, al-Shaf'i made the
essential thesis of the Traditionists prevail in Islamic law. For him, sunna was not the
idealized practice as recognized by the representative scholars; it was identical with the
contents of formal 'Traditions' going back to the Prophet, even if such a Tradition was
transmitted by only one person in each generation (a fact which, of course, made it very
suspect to the ancient schools). This new concept of sunna, the sunna of the Prophet
embodied in formal Traditions from him, superseded the concept of the living tradition of
the ancient schools. According to al-Shaf'i, even the Qur'an had to be interpreted in the
light of these Traditions, and not vice versa. The consensus of the scholars, too, became
irrelevant for him; he fell back on the thesis that the community of Muslims at large
could never agree on an error, a thesis sufficiently vague for his purpose. All this left
no room for the discretionary exercise of personal opinion, and human reasoning was
restricted, in al-Shaf'i's thesis, to making correct inferences and drawing systematic
conclusions from Traditions. In accepting the thesis of the Traditionists, al-Shafi'i cut
himself off from the natural and continuous development of doctrine in the ancient
schools, and adopted a principle which, in the long run, could only lead to inflexibility.
Also, the positive solutions of problems which he proposed were often, sociologically
speaking, less advanced than those advocated by the contemporary 'Iraqis and Medinese; his
reasoning, dominated as it was by a retrospective point of view, could hardly be
productive of progressive solutions. Al-Shafi'i's was a personal achievement, and his
disciples and followers formed from the very beginning the 'personal' school (madhhab) of
the Shafi'is. The schools of Kufa and Medina, too, had seen the formation of groups or
circles within each school, and early in the third/ninth century the geographical
character of the ancient schools gradually disappeared, and personal allegiance to a
master and his doctrine became preponderant.
Whereas the Hanafis and the Malikis, who continued the ancient schools of Kufa and of
Medina (their names are derived from Abu Hanifa and from Malik, respectively), did not
change their positive legal doctrines appreciably from what they had been when al-Shafi'i
appeared, they finally adopted in the course of the third/ninth century, together with the
Shafi'is, a legal theory of Traditionist inspiration. This theory differed from
al-Shafi'i's own thesis in one essential respect, in that it returned to the concept of
the consensus of the scholars, which it considered infallible. It endorsed al-Shafi'i's
identification of the sunna with the contents of Traditions from the Prophet, but the
legal rules which were to be derived from the Traditions were to be determined by the
consensus of the scholars, which left the representatives of each school free to determine
them for themselves, by interpretation and so forth. The fact that the Shafi'i school
itself had to accept this modification of the doctrine of its founder shows the hold which
the idea of the consensus of the scholars, embodying the living tradition of the ancient
schools, had gained over Islamic law, and, by implication, how strong the position of the
class of specialists had become.
Islamic law reached its full development in early 'Abbasid times, and its institutions
reflect the social and economic conditions of Islamicsociety in that period more than any
other. The various social backgrounds of the doctrines of the Medinese and of the 'Iraqis
have already been mentioned. A feature which may, perhaps, reflect conditions proper to
the early 'Abbasid period is the detailed treatment of 'usurpation' of the property of
another, neither theft nor robbery, but high-handed appropriation. The provisions of
Islamic law aim at protecting the rightful owner as much as possible, but at the same time
make the frequency of similar acts, and the inability of the qddi to deal with them,
painfully clear. The waqf or mortmain, too, found its final regulation at that time. The
roots of this institution are various. One, which left only faint traces in Islamic law,
and in the Maliki school more than in the Hanafi, can be traced to certain kinds of
annuity, to use a modern, roughly approximate term, in use among the ancient Arabs;
another, still very important at the beginning of the third/ninth century, though later
quite pushed into the background, consisted of contributions to the Holy War, the object
of innumerable exhortations in the Qur'an; a third, particular to Egypt during the first
few centuries of Islam, seems to derive from the example of the Byzantine piae causae; and
a fourth, which expanded enormously, particularly in 'Iraq, in the first half of the
third/ninth century, and which was, perhaps, most decisive in shaping the final doctrine
of Islamic law concerning waqf, arose from the desire of the Muslim middle classes to
exclude the daughters and, even more so, the descendants of daughters from the benefits of
the Qur'anic law of succession; in other words, to strengthen the old Arab patriarchal
family system, and also to provide for the ma,vdli in order to make them reliable
dependants of the family of the founder; both aims being in conflict with the purpose of
the Qur'anic legislation. The waqf, and this may be counted its fifth and last root, also
enjoyed a degree of security unknown to any other form of tenure, and its use became
popular as a guarantee against confiscation. So was another procedure known to Islamic
law, the fictitious sale or talji'a. Two things are significant here: confiscation with
its concomitant procedure of torture, which had become almost a fixed institution of the
Islamic state at the end of the Umayyad and particularly at the beginning of the 'Abbasid
period, was not taken into consideration at all by Islamic law; in other words, the pious
specialists averted their eyes from procedures which they knew were wrong but which they
felt they could not, without material damage to themselves, openly criticize. On the other
hand, even the early 'Abbasid caliphs and their highhanded and powerful dignitaries were
averse to interfering openly with transactions which on the face of it, were valid under
the religious law of Islam. Ibn Qutayba (d. 276/889), Traditionist and man of letters,
held that the injustice of rulers and the highhandedness of overweening persons, and even
the insistence of a creditor on being paid, justified lies and perjury. At a slightly
later period, the poet and philologist Ibn Durayd (d. 32I/933) composed a treatise on
equivocal expressions for the benefit of people who were forced to take an oath against
their will, so as to enable them 'to mean something different from what they appear to
say, and to save them from the injustice of the oppressor'.
Another omission of Islamic law is more difficult to explain, that of practically all
reference to wholesale trade. The activities of wholesale merchants covered the whole of
the Islamic world and extended beyond it, and they have left permanent traces in the
merchant law of the early Middle Ages. Islamic law treats in great detail of many
commercial transactions, but they are, as a rule, envisaged exclusively as transactions of
retail trade, and the background of wholesale trading can only be inferred from occasional
remarks and from isolated chapters such as those on the contract of muddraba or qirad
(commenda, which, incidentally, seems to have come to Western Europe from Islamic law). It
is true that IsIamic law is in the hrst place concerned with laying down ethical rules for
the behaviour of the individual in a society the composition of which is taken for
granted, but it is equally true that the wholesale trader, by the nature of his
activities, is exposed, from the point of view of Islamic law, to particular moral
hazards, which that law might have been expected to point out and safeguard against with
the same interest in details as it does with regard to those involved in a householder
sending out a minor to buy a loaf of bread. Generally speaking, Islamic law pays
particular attention to transactions involving the middle or the lower-middle class; for
instance, it appears clearly from legal terminology that the economic reality underlying
the contract of salam, the ordering of goods to be delivered later for a price paid in
advance, was the financing of the business of a small trader or artisan by his customers.
A saying attributed to the Caliph 'Umar is specificaily directed against the activities of
the rich speculators, who buy up supplies of food, anticipating a rise in prices, but
exempts the small importer, who carries merchandise 'on his back in summer and in winter'.
Merchants are also forbidden to meet caravans outside the town and to buy up what they
bring, and a sedentary ought not to act as a sales agent of a bedouin. On the other hand,
the Hamasa of al-Buhturi (d. z84/897) contains numerous extracts from the poetic effusions
of bedouin, who boasted of having cheated the merchants from whom they had bought.
We are particularly well-informed concerning relations between neighbours in Maliki
law. As interpreted by this school, Islamic law shows itself more humane than juridical.
It puts the interest of certain social groups first; but these groups are, as a rule,
neither state nor province nor city; in the last resort it is the family which matters,
and this concern is reinforced by an easy-going acceptance of the fait accompli. The
society envisaged by Islamic law is mainly urban, just as medieval Islam was essentially
an urban civilization, but Islamic law did not recognize the city as such, nor did it
admit corporate bodies. The doctrine of Islamic law does not attach great importance to
differences of social status between free, male Muslims except, to some extent, in the
requirement of the bridegroom's rank being equal to that of the bride, and, more
important, the disqualification of members of certain low trades as witnesses. The
doctrines of the several schools differ in details, and have undergone certain changes in
the course of time. In a society in which the most highly respected economic activity was
not that of the producer but of the merchant, the moralists tried to enhance the functions
of the farmer and of the artisan, without, however, quite succeeding. Trade in cloth is
generally regarded as the most honourable of professions, and sometimes trade in spices is
associated with it. The professions of money-changer and of grain merchant are generally
discredited, the hrst because it risks transgressing the complicated rules devised against
' usury ', and the second because it leads to speculation on rising prices of food. The
two 'low trades ' par excellence were those of cupper and of weaver, and the contempt in
which they were held seems to go back, in each case, to pre-Islamic times.
The early 'Abbasid period saw the end of the formative stage of Islamic law, and by the
beginning of the fourth/tenth century a point had been reached when the scholars of all
schools felt that all essential questions had been thoroughly discussed and finally
settled (albeit with a choice of answers provided by the several schools); hence a
consensus gradually established itself to the effect that from that time onwards no one
could be deemed to have the necessary qualifications for independent rasoning in religious
law, and that all future activity would have to be confined to the explanation,
application, and, at the most, interpretation of the doctrine as it had been laid down
once and for all. This is the 'closing of the gate of ijtihad', of independent reasoning
in Islamic law. It is only in the present century that the reopening of this gate has been
seriously envisaged by a number of 'ulama' and by Islamic society at large. The doctrine
of the 'closing of the gate of ijtihad' was not the cause but a symptom of a state of mind
which had been induced by the fear of doctrinal disintegration, a fear which was not
far-fetched at a time when orthodox Islam was threatened by the esoteric propaganda of the
Batiniyya. When this propaganda had brought the Fatimid caliphs to power, first in
Ifriqiya and then in Egypt, they too felt the need of a doctrine of religious law of their
own, and their great lawyer, the Qadi Nu 'man, provided it for them. It was a learned
production which drew largely on the doctrines of the existing orthodox schools of law,
rather than the result of organic growth, and it confirms the absence of a genuine Shi'i
(as opposed to the general Islamic) tradition of religious law. Whatever the theory might
say on the closing of the gate of ijtihad, the activity of the later scholars was no less
creative, within the limits set by the very nature of their work, than that of their
predecessors. New sets of facts constantly arose in life, and they had to be mastered and
moulded with the traditional tools provided by legal science. This activity was carried
out by the muftis, specialists on religious law who were qualified to give authoritative
opinions on points of doctrine. The earliest specialists on religious law had been
essentially religious advisers, muftis, and the later muftis only continued their advisory
and cautelary activity. Their function was essentially private, and although muftis could
be, and often were, appointed officially, it did not add to their authority. The most
important officially appointed mufti in later times was the Ottoman shaykh al-Islam. The
doctrinal development of Islamic law owes much to the activity of the muftis, and their
advices, or fatwas, show us the most urgent problems which arose from practice in certain
places and at certain times. Their decisions, if found acceptable, were generally
incorporated into the later handbooks, and, generally speaking, the accretion of new cases
and decisions in the interval between two comparable works of Islamic law represents the
outcome of the discussion in the meantime.
Whereas Islamic law had been adaptable and growing until the early 'Abbasid period,
from then onwards it became increasingly rigid and set in its final mould. A doctrine
which had to be derived exclusively from the Qur'an and, even more important, from a
number of detailed Traditions from the Prophet, and became more and more hedged in by the
ever growing area of the consensus of the scholars, and by the closing of the gate of
ijtihad, was unable to keep pace with the changing demands of society and commerce. This
essential rigidity of Islamic law helped it to maintain its stability over the centuries
which saw the decay of the political institutions of Islam. From the early 'Abbasid period
onwards, we notice an increasing gap between theory and practice. This discordance and
mutual interference dominated the history of Islamic law during the whole of the period
here under review. This does not mean that Islamic law is entirely utopian. Apart from
worship, ritual, and other purely religious duties, where in the nature of things the
sacred law was the only possible norm, its hold was strongest on the law of family, of
inheritance, and of waqf; it was weakest, and in some respects even non-existent, on penal
law, taxation, constitutional law and the law of war; the law of contracts and obligations
stands in the middle. The law of family and inheritance has always been, in the conscience
of the Muslims, more closely connected with religion than other legal matters because the
greater part of Qur'anic legislation is concerned with it. But even here, practice has
been strong enough to prevail over the spirit, and in certain cases over the letter, of
strict religious law. The legal position of women with respect to marriage and inheritance
was occasionally improved in practice, but more often it deteriorated by comparison with
Islamic law. AIso, the institution of waqf was used to produce this last result, as has
been mentioned above. It is not the most important and essential rules of religious law
which are observed most faithfully but rather those which for some reason or other have
become part of popular practice, and practice sometimes insists on refinements unknown to
Islamic law. The institution of pre-emption inits extended, Hanafi form proved extremely
popular among the Muslims who followed that school of law, and in India it became part of
the matters sanctioned by religion, concerning which the continued validity of Islamic law
for Muslims was guaranteed at the beginning of British rule in 1777; but the Shari'a
itself does not attach great importance to it, and the more detailed handbooks describe
ways by which it can be avoided. The field of contracts and obligations was ruledby a
customary law which respected the main principles and institutions of the Shari'a but
showed a greater flexibility and adaptability and supplemented it in many ways, and the
same is true of the special rules concerning real estate, of which only a few rudiments
exist in the Shari'a. The customary commercial law was brought into agreement with the
theory of the Shar'ia by the hiyal of 'legal devices' which were often legal fictions,
transactions by which the parties might achieve, through legal means, ends which were made
desirable by the economic and social conditions of the time, but which could not be
achieved directly with the means provided by the Shari'a. The earliest devices were merely
simple evasions of irksome prohibitions by merchants and others, but very soon the
specialists in religious law themselves started creating little masterpieces of elaborate
juridical constructions and advising interested parties in their use.
Another important area of contact between theory and practice was provided by the
continued use of written documents which became the subject of a voluminous and highly
technical literature. Islamic jurisprudence ignores custom as an official source of law,
however much customs of varied provenance had contributed to forming it. But the Maliki
school in Morocco in the later Middle Ages, where it developed in relative isolation from
the rest of the Islamic world, took considerable notice of conditions prevailing in fact,
not by changing the ideal doctrine of the law in any respect, but by recognizing that
actual conditions did not allow the strict theory to be translated into practice, and that
it was better to control the practice as much as possible than to abandon it completely.
It therefore upheld the principle that 'judicial practice ('amal) prevails over the best
attested doctrine', and it allowed a number of institutions unknown to strict theory. This
Moroccan Maliki 'amal is not customary law; it is an alternative doctrine valid as long as
conditions make it necessary.
We must think of the relationship of theory and practice in Islamic law, not as a clear
division of spheres, but as one of intraction and mutual interference. The assimilation of
the non-Islamic elements by the Islamic core in the formative period, and the assimilation
of the practice by the theory in the Middle Ages, are really stages of one and the same
process. This process, seen from outside, appears as a modihcation of the positive
contents of Islamic law; whereas, seen from the inside, it appears as an expansion, a
conquest of new helds by the ever dominant influence of Islamic law and jurisprudence. The
ideal theory showed a great assimilating power, the power of imposing its spiritual
ascendancy, even when it could not control the material conditions. Thus an equilibrium
established itself between legal theory and legal practice, an equilibrium delicate in
fact but seemingly unshakable in a closed society. As long as the sacred law received
formal recognition as a reli~ious ideal, it did not insist on being fully applied in
practice. But it could not abandon its claim to exclusive theoretical validity, and
acknowledge the existence of an autonomous secular law; its representatives, the 'ulama',
were the only qualified interpreters of the religious conscience of the Muslims; and the
idea that law must be ruled by religion has remained an essential assumption even of
modern Muslims. The works of Islamic law, during the whole of the medieval period,
properly interpreted in relation to~ their place and time, are one of the most important
sources for the investigation of Islamic society. The hold which the religious law of
Islam had gained over the minds of the Muslims by the fifth/eleventh century can be gauged
from the writings of al-Ghazali (d. 505/IIII), who, whilst deploring the ascendancy of
legalism which threatened to extinguish religious life, and firmly restricting the
subject-matter of the law to matters of this world, nevertheless protested that this did
not imply reducing it to a secular subject of knowledge, and was unable to envisage
secular rules for what he had insisted were matters which had nothing to do with religion.
The general and normal conditions described in the preceding paragraphs were
occasionally disturbed by violent religious reform movements, such as that of the
Almoravids in north-west Africa and Spain in the fifth-sixth/eleventh-twelfth centuries,
that of the Fulbe in West Africa in the nineteenth century, and that of the Wahhabis in
Arabia in the nineteenth and again in the present century. All these movements made it
their aim, in the states which they set up, to enforce Islamic law exclusively, to abolish
the double system of administration of justice, and to outlaw administrative and customary
law. The effects of these religious reform movements as a rule tended to wear off
gradually, until a new equilibrium between theory and practice established itself. Of
essentially the same kind, though sensibly different in their effects, were the efforts of
established states (later than the early 'Abbasid period) to subject actual practice to
the rule of the sacred law. The two most remarkable of these efforts were made in the
Ottoman empire and in the Indian empire of the Mughals, whilst the Safavid empire in
Persia provides an instructive parallel.
The Ottoman empire in the tenth/sixteenth century is characterized by strenuous efforts
on the part of the sultans to translate Islamic law in its Hanafi form into actual
practice; this was accompanied by the enactment of qanun-name which, though professing
merely to supplement Islamic law, in fact superseded it. On the part of the
representatives of law we find, naturally enough, uncompromising rejection of everything
that went against the letter of religious law, but at the same time unquestioning
acceptance of the directives of the sultans concerning its administration, and, on the
part of the chief muftis, a distinctive eagerness to harmonize the rules of the Shari'a
with the administrative practice of the Ottoman state. A parallel effort in the Mughal
empire in the seventeenth century was part of the orthodox reaction against the emphemeral
religious experiment of the emperor Akbar. In the Persia of the Safavids, the religious
institution, including the scholars and qadis, was controlled by the sadr, who exercised
control over it on behalf of the political institution, thereby reducing the importance of
the qadis. The Safavids' supervision of the religious institution was more thorough than
had been that of the preceding Sunni rulers, and by the second half of the
eleventh/seventeenth century the subordination of the religious institution to the
political was officially recognized. This whole development had already begun under the
later Timurids.
