The Shī‘ite canon law is dealt with separately, but some mention of two outstanding sects is here in place. The Ibāḍites (see [Mahommedan Religion]: Sects) have a system of canon law which in essentials is of older codification than that of any of the orthodox schools, going back to Abdallah ibn Iḅād himself, of the first century of the Hijra (Hejira). Its basis is above all the Koran, then a sparing use of traditions, natural to their early origin, and finally the agreement of their own learned men, again natural to an extreme dissenting sect, and it still rules the Ibāḍite communities at Oman, Zanzibar and the Mzab in southern Algeria. At all these places they, the last descendants of the Khārijites, hold severely apart, while the other Moslems shrink from them as heretics of the worst. Not nearly so far from ordinary Islam, but still of an extreme self-conscious Puritanism are the Wahhābis. They are really Ḥanbalites, but apply the rules of that school with uncompromising, reforming energy. The doctrine of the agreement of the Church of Islam they reject; only that of the immediate companions of Mahomet is valid. The people of Mahomet can err and has erred; each man must, on his own responsibility, draw his doctrine from the Koran and the traditions. Here they follow the Ẓāhirites.
All these schools of law administer a scheme of duties, which, as has already been remarked, comes nearest to the canon law of the Roman Church, and which for centuries has had only a partial connexion with the real legal systems of the Moslem peoples. Among the Wahhābis and Ibāḍites alone is it the whole of law. Elsewhere, since the Omayyad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized at best with the coming of the millennium. The causes and methods of this change call now for detailed notice.
As Islam spread beyond the desert and the conditions in which the life of Mahomet and his companions had been cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. It was rather the Moslem leaders who were compelled to abandon their ideas and for the sake of the spread of Islam to accept and incorporate much that was diametrically opposed to the original legislation either of the Koran or of Mahomet’s recorded decisions. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there grew up a customary code (‘ādāt) for each country, differing from every other, which often completely obscured and annulled the prescriptions of the canon law. The one was an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts.
But besides the obstinate adherence of various peoples to their old paths, the will of individual rulers was a determining factor. When these ceased to be saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own objects and pleasures, no system could hold which set a limit to their authority. The Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an academic fixedness. There thus arose a new and specific statute law, emanating from the sovereign. At first he judged in the gate as seemed good in his eyes and as was his right and duty (cf. “court of oppressions”; see [Mahommedan Institutions]); later, his will was codified as in the Turkish statute law (qawānīn) derived from various European codes. Thus there has grown up in almost every Moslem country at least two systems of courts, the one administering this canon law, and taking cognisance of private and family affairs, such as marriage, divorce, inheritance, its officials also giving rulings on purely personal religious questions, such as details of the ritual law, the law of oaths and vows, &c.; the other, the true law courts of the land, administering codes based on local custom and the decrees of the local rulers.
A rift almost as important entered the legal life of the Moslem lands on another side. Non-Moslem communities, settled in Moslem territory, have been uniformly permitted to administer and judge themselves according to their own customs and laws. Save when they come into direct contact and conflict with Moslems, they are left to themselves with a contemptuous tolerance. The origin of this attitude in Islam appears to be threefold: (i) The Islam of theory cannot conceive of a mixed state; it takes account, only, of a state containing none but Moslems, and its ideal is that the whole world will, in the end, form such a state. In practice, then, Moslems try to shut their eyes to the existence of non-Moslems in their midst and make no provision for them until compelled. That a non-Moslem should have the same civil position as a Moslem is unthinkable. (ii) This, of course, produces an attitude of extreme contempt. The only citizens are Moslems and all others are to be looked down upon and left to themselves. What they do or think among themselves does not matter; they are outside the ring-fence of Islam. (iii) A different, but equally important, cause is the Moslem indolence. When the Arabs conquered, they knew that they must administer the conquered lands, and they, very wisely, sought help from the machinery which they found in operation. But besides the ordinary organization of the state, they found also various ecclesiastical organizations, Christian and Jewish, and to these they gave over the administration of the non-Moslem sections of the community, making their rabbis and bishops their responsible heads and the links of contact with the Moslem rulers. They, unquestionably, found the same method in use by the Byzantine government; but in Moslem hands it went so far as to make a number of little states (millet, milal) within the state and effectually to preclude the possibility of ever welding all the inhabitants of the land into one corporate life.
But this indolence, when applied to resident aliens, had consequences still more serious, because external as well as internal. Following the same method of leaving the unbeliever to settle his affairs for himself, the European merchant, living and trading in the East, was put first by usage and finally by treaty under the jurisdiction and control of his own consul. Thus there grew up the extra-territorial law of the capitulations and conventions, by which the sanctity of the person and household of an ambassador is extended to every European. And this in turn, has reacted on the status of the non-Moslem subject races, and has come to be the indirect but chief support on which they lean. Through it, an element has developed which makes it practically impossible for a Moslem state to introduce legal changes even remotely affecting its non-Moslem population, alien or subject, without the consent of the European embassies. Any change may be upset by their refusal to accept it as incompatible with the capitulations and conventions. The embassies have thus, as interpreters of a part, at least, of the constitution, come to hold a position remarkably, if absurdly, like that of the Supreme Court of the United States (see Young, Corps de droit Ottoman, passim).
There may be said, then, in short, to be three elements in the legal life of a Moslem state: the sacred and fixed canon law of Islam; the civil law, based on the usages of the different peoples, Moslem and non-Moslem, and on statutes going back to the will of rulers; the international law of the capitulations, with a contractual sanction of its own. The hope for the future in Islam, there can be little doubt, lies in the principle of the agreement of the Moslem people, with its conception of catholic unity, and its ability, through that unity, to make and abrogate laws. As the Moslem peoples advance, their law can, thus, advance with them, and the grasp of the dead hand of the canon law be gradually and legally released.
See I. Goldziher, Muhammedanische Studien, I. and II. (Halle a.S., 1889-1890); Zahiriten (Leipzig, 1884); E. Sachau, Zur ältesten Geschichte des muhammedanischen Rechts (Vienna Akad., 1870) and Muhammedanisches Recht (Stuttgart and Berlin, 1897); Snouck Hurgronje, review of preceding in Z.D.M.G. liii. 125 seq. and “Le droit musulman” (Rev. de l’hist. des religions, xxxvii. 1 seq. and 174 seq.); Juynboll, Handleiding tot de Kennis von de mohammedaansche Wet (Leiden, 1903); Von Kremer, Culturgeschichte des Orients unter den Chalifen, i. 470 seq. (Vienna, 1875-1877); Hughes, Dictionary of Islam, pp. 285 seq. (London, 1896); D. B. Macdonald, Development of Muslim Theology, &c., pp. 65 seq. (New York, 1903); Bukhari, Les Traditions islamiques traduites ... par O. Houdas et W. Marcel (Paris, 1906); N. B. E. Bailie, Digest of Moohummadan Law (2 vols., London, 1875-1887). A good bibliography appeared in the Bulletin of the New York Public Library for January 1907.
(D. B. Ma.)
