See Von Kremer, Culturgeschichte des Orients, based largely on Māwardī’s Aḥkām, trans. in part by Ostrorog; McG. de Slane’s trans. of Ibn Khaldūn, Prolégomènes; Lane, Manners and Customs of the Modern Egyptians; R. F. Burton, Pilgrimage to Mekka; Snouck Hurgronje, Mekka; Hughes, Dictionary of Islam; Juynboll, De Mohammedaansche Wet; Macdonald, Development of Muslim Theology, &c. For women in Islam, see [Harem].
(D. B. Ma.)
MAHOMMEDAN LAW. The legal situation in the Moslem world is of the highest complexity, and can be made intelligible only by tracing its historical development. First came the system (fiqh, sharī‘a) which takes the place in Islam of canon law in Roman Christendom. It begins with Mahomet sitting as judge over the primitive Moslem community at Medina. He was the Prophet of God, and judged, as he ruled, absolutely; any decision of his was valid. But he found it, in general, advisable and fitting to follow the local law or usage of Medina when the new faith did not require a change. It thus came about that his decisions followed, at one time, the usage of the Arab tribes of Medina; at another, the law respected by the Jewish tribes there—a rabbinic development of the law of Moses, deeply affected by Roman law; at another, the more developed commercial law of Mecca, known to his followers who had fled thence with him; or, finally, his own personal judgment, stated it might be as his own sense of right or as the decision of Allah and even incorporated in the Koran. In his use of these he was an eclectic opportunist, and evidently, except as regards such frequently recurring subjects as inheritance, marriage, &c., had no thought of building up a system or code. At his death he left behind only a few specific prescriptions in the Koran and a mass of recorded decisions of cases that had come before him. He had used himself, in our terms, common law, equity, legislation; to guide his followers he left his legislative enactments and the record of his use of common law. Since his death there has been no new legislation in orthodox Islam.
With the death of Mahomet began the development and codification of Moslem law. It was at first entirely practical. Cases had to be decided, and to decide them there was, first, the Koran; secondly, if nothing ad rem was found in the Koran, there were the decisions of the Prophet; thirdly, if these failed, there was the common law of Medina; and, fourthly, if it, in turn, failed, the common sense of the judge, or equity. A knowledge of the decisions of Mahomet came thus to be of great importance, and records of such decisions were eagerly sought and preserved. But this was simply a part of a much wider movement and tendency. As among primitive peoples in general, custom and usage have always been potent among the Arabs. The ways of the fathers, the old paths, they love to tread. Very early there arose a special reverence for the path and usage (sunna) of Mahomet. Whatever he did or said, or left unsaid or undone, and how he did it, has become of the first importance to the pious Moslem, who would act in every way as did the Prophet. There is evidence that for this purpose the immediate companions of Mahomet took notes, either in memory or in writing, of his table talk and wise sayings, just as they took down or learned by heart for their private use the separate fragments of the Koran. His sayings and doings, manners and customs, his answers to questions on religious life and faith, above all his decisions in legal disputes, came to be recorded on odd sheets in private notebooks. This was the beginning of the enormous literature of traditions (ḥadīth) in Islam. The collecting and preserving of these, which was at first private, for personal guidance and edification, finally became one of the most powerful weapons of political and theological propaganda, and coloured the whole method and fabric of Moslem thought. All knowledge tended to be expressed in that form, and each element of it to be traced back to, and given in the words of, some master or other through a chain of transmitters. Above all there grew up an enormous mass of evidently forged sayings put into the mouth of Mahomet. At every important political or theological crisis each party would invent and put into circulation a tradition from him, supporting its view. By a study of these flatly opposed “sayings” it is possible to reconstruct the different controversies of Islam in the past, and to discover what each party regarded as the essence of its position.
The first collecting of traditions was for private purposes, and the first publication dealing with them was legal. This was the Muwaṭṭa’ of Malik ibn Anas (d. 795), a corpus juris based partly on traditions, and a protest in its methods against the too speculative character of the books of canon law which preceded it. Thereafter came collections of two different types. The earlier kind was arranged according to the companions of Mahomet, on whose authority the traditions were transmitted; after each companion came the traditions going back to him. The best known example of this kind is the Musnad of Aḥmad ibn Ḥanbal. The other kind, called Muşannaf (classified), contains traditions arranged in chapters according to their subject matter. That of Bukhārī is the most famous, and is arranged to give a traditional basis for a complete system of canon law; its rubrics are those of such a system. Another is that of Muslim ibn al-Ḥajjāj, who paid less attention to legal aspects and more to minute accuracy. There are many others of more or less acceptance and canonicity. Bukhārī’s book enjoys a reverence only second to that of the Koran. But in all these publications the primary object was to purify the mass of traditions of forged accretions and to give to the believer a sound basis for his knowledge of the usages of the Prophet, whether for his personal or for public use. These two kinds were a natural development. In the Moslem community there were from the first students of tradition proper whose interest lay in collecting, testing and transmitting, not in combining, systematizing and elucidating; whose preference was to take a single statement from the Prophet and apply it to a case, without reasonings or questionings. And there were students of canon law who were interested rather in the system and results, and who, while they used traditions, used them only to an end and insisted on the free application of speculative principles. The conflict of the future was to be between these traditionalists, on the one hand, and rationalists, on the other; and the result was to be a compromise.
With the wide sweep of Moslem conquest another element came into the development. This was Roman law, which the Moslem jurist found at work in the conquered Roman provinces and in the law courts of which they went to school. It is to be remembered that the Arab armies were not devastating hordes; they recognized the need of law and order wherever they went, and it was the policy of their leaders to take over the administrative systems of the countries which they seized. Even the Arabic legal nomenclature shows evident signs of literal translation from Latin, and many Moslem principles can be traced to the Roman codes. One important development was plainly influenced by the liberty involved in the Responsa prudentium of Roman lawyers, and by the broad conception of the law of nature in the Edict of the Praetor. In its earliest stages Moslem law recognized in the judge a liberty of opinion (ra’y) which went beyond even that of the Responsa and became plain equity, in the English sense, and one school (the Hanifite) established as a basis the right of preference (istiḥsān) even when the analogy of the code dictated otherwise; while another (the Malikite) used the term istiṣlāḥ, “a seeking of (general) benefit” to the community, in a similar situation. But these developments were bitterly contested, and the liberty of opinion was in the end narrowed down to a principle of analogy (qiyās), the nearest approach to which in Western law is legal fiction.
It is necessary now to return to the first successors of Mahomet. “For thirty years after my death,” he is said to have declared, “my people will tread in my path (sunna); thereafter will come kings and princes.” This tradition crystallizes the later feeling of Islam. The first thirty years were a golden age; the centre of the state was the Prophet’s own city of Medina; the conditions of the state continued in close conformity to those of his own time. The study of tradition, i.e. of his usage, went hand in hand with the study of law. They were vital functions of the state, and it encouraged both.
Then came the great débâcle. The ancien régime, a semi-monkish, theocratic empire, went down, and the Omayyad dynasty, kings and princes of the old Arab type, took its place (see [Caliphate], B). The public life of the state was no longer deeply religious; the pious said that it was godless. Under these conditions law was indeed still needed; but it had to be opportunist. Its development went on, but became speculative. The study of tradition was now private, and its students were more and more the personally pious. There were, thus, two results. On the one hand, the framers of systems of canon law—as it now was—no longer lived in contact with reality; hypothetical and ideal structures were reared which could never stand the touch of the practical law-court. And on another, traditions and law, even this hypothetical law, came to take separate roads. The interest of the students of tradition became the gathering of traditions for their own sake, going no farther than a striving to regulate each detail of life by some specific, concrete, prophetic dictum. They had no use for systems that went beyond the mere registering of these dicta. The feeling also became widespread that any system of government which did not simply reproduce the patriarchal form of Medina was of the world and the devil—a thing with which no religious man could have aught to do. At every turn he would have to peril his soul.
Here we must place the transition of this law with which we have hitherto dealt from being the law of the land to being in essence a variety of canon law. It was always broader than any western secular law. It regulated all the aspects of life—duty to God, to one’s neighbour, to one’s self. It was really a system of duties, ethical, legal, religious. It did not limit itself to defining the forbidden (ḥarām); but designated actions also as required (farḍ, wājib), recommended (mandūb, mustaḥabb), indifferent (jā‘iz, mubāḥ), disliked (makrūh). It played the part of, or rendered necessary, a religious director quite as much as a lawyer. And for a time at Medina it was really the law of the land. But from the Omayyad period on it has held the position of the canon law of the Roman Church in countries that will not recognize it and yet dare not utterly reject it. It governs, in one or other of its four schools, the private lives of all pious Moslems; it regulates some semi-public relationships—e.g. marriage, divorce, inheritance; it compels respect, if not acceptance, from the state; and by its ideal standard the world, filled with righteousness by the Mahdi, will be ruled in the Moslem millennium.