THE CANON AND CIVIL CODES
These three principles, then, of catholic unity and its ability to make and abrogate laws, of the liberty of diversity in that unity, and of blind subjection to the past within that diversity, these three principles must be our hope and fear for the Muslim peoples. What that future will be none can tell. The grasp of the dead hand of Islam is close, but its grip at many points has been forced to relax. Very early, as has already been pointed out, the canon law had to give way to the will of the sovereign, and ground once lost it has never regained. Now, in every Muslim country, except perhaps the Wahhabite state in central Arabia, there are two codes of law administered by two separate courts. The one judges by this canon law and has cognizance of what we may call private and family affairs, marriage, divorce, inheritance. Its judges, at whose head in Turkey stands the Shaykh al-Islam, a dignity first created by the Ottoman Sultan Muhammad II in 1453, after the capture of Constantinople, also give advice to those who consult them on such personal matters as details of the ritual law, the law of oaths and vows, etc. The other court knows no law except the custom of the country (urf, ada) and the will of the ruler, expressed often in what are called Qanuns, statutes. Thus, in Turkey at the present day, besides the codices of canon law, there is an accepted and authoritative corpus of such Qanuns. It is based on the Code Napoléon and administered by courts under the Minister of Justice. This is the nearest approach in Islam to the development by statute, which comes last in Sir Henry Maine’s analysis of the growth of law. The court guided by these Qanuns decides all matters of public and criminal law, all affairs between man and man. Such is the legal situation throughout the whole Muslim world, from Sulu to the Atlantic and from Africa to China. The canon lawyers, on their side, have never admitted this to be anything but flat usurpation. There have not failed some even who branded as heretics and unbelievers those who took any part in such courts of the world and the devil. They look back to the good old days of the rightly guided Khalifas, when there was but one law in Islam, and forward to the days of the Mahdi when that law will be restored. There, between a dead past and a hopeless future, we may leave them. The real future is not theirs. Law is greater than lawyers, and it works in the end for justice and life.
DISTRIBUTION OF SCHOOLS
Finally, it may be well to notice an important and necessary modification which holds as to the above statement that a Muslim may choose any one of the four schools and may then follow its rules. As might be expected, geographical influences weigh overwhelmingly in this choice. Certain countries are Hanifite or Shafi‘ite; in each, adherents of the other sects are rare. This geographical position may be given roughly as follows: central Asia, northern India, and the Turks everywhere are Hanifite. Lower Egypt, Syria, southern India and the Malay Archipelago are Shafi‘ite. Upper Egypt and North Africa west of Egypt are Malikite. Practically, only the Wahhabites in central Arabia are Hanbalites. Further, the position holds in Islam that the country, as a whole, follows the legal creed of its ruler, just as it follows his religion. It is not only cuius regio eius religio, but cuius religio eius lex. Again and again, a revolution in the state has driven one legal school from power and installed another. Yet the situation occurs sometimes that a sovereign finds his people divided into two parties, each following a different rite, and he then recognizes both by appointing Qadis belonging to both, and enforcing the decisions of these Qadis. Thus, at Zanzibar, at present, there are eight Ibadite judges and two Shafi‘ite, all appointed by the Sultan and backed by his authority. On the other hand, the Turkish government, ever since it felt itself strong enough, has thrown the full weight of its influence on the Hanifite side. In almost all countries under its rule it appoints Hanifite judges only; valid legal decisions can be pronounced only according to that rite. The private needs of non-Hanifites are met by the appointment of salaried Muftis—givers of fatwas, or legal opinions—of the other rites.
IBADITES
In the above sketch there have been of necessity two considerable omissions. The one is of Shi‘ite and the other of Ibadite law. Neither seems of sufficient importance to call for separate treatment. The legal system of the Shi‘ites is derived from that of the so-called Sunnites and differs in details only. We have seen already (p. 38) that the Shi‘ites still have Mujtahids who are not bound to the words of a master, but can give decisions on their own responsibility. These seem to have in their hands the teaching power which strictly belongs only to the Hidden Imam. They thus represent the principle of authority which is the governing conception of the Shi‘a. The Sunnites, on the other hand, have reached the point of recognizing that it is the People of Muhammad as a whole which rules through its agreement. In another point the Shi‘ite conception of authority affects their legal system. They utterly reject the idea of co-ordinate schools of law; to the doctrine of the varying (ikhtilaf) as it is called, and the liberty of diversity which lies in it, they oppose the authority of the Imam. There can be only one truth and there can be no trifling with it even in details. Among the Shi‘ites of the Zaydite sect this was affected also by their philosophical studies and a philosophical doctrine of the unity of truth; but to the Imamites it is an authoritative necessity and not one of thought. Thus on two important points the Shi‘ites lack the possibility of freedom and development which is to be found with the Sunnites. Of the jurisprudence of the Ibadites we know comparatively little. A full examination of Ibadite fiqh would be of the highest interest, as the separation of its line of descent goes far back behind the formation of any of the orthodox systems and it must have been codified to a greater or less extent by Abd Allah ibn Ibad himself. Its basis appears to be threefold, Qur’an, prophetic usage, agreement—naturally that of the Ibadite community. There is no mention of analogy, and traditions seem to have been used sparingly and critically. Qur’an bore the principal emphasis. See above, (p. 26) for the Ibadite position on the form of the state and on the nature of its headship.