The Law that Developed

The first elements of the Islamic "law" are not supposed to be compelled at all. They are more religious requirements including prayers, fasting in the month of Ramadan, pilgrimage, belief and the giving of alms. Piety, mysticism and copying of the habits of Muhammad are a further layer of requirement (but voluntarily undertaken) for the most desirous of attaining complete submission to Allah. Nevertheless Islam had created a state and it was not seen as necessary initially to separate that state from religion. Therefore the actual laws of the first state were derived from the religious teachings of its leader. Muhammad’s death led to a succession of successors who attempted to continue the success of the new ummah (community). Naturally therefore they built their legal system on the structure so successfully begun by Muhammad. He had left the Qur’an and his example (or Sunna) embodied especially in the Hadith and generally in the versions of the Sira (biography) of Muhammad that people wrote soon after his death.

Nevertheless time did not stand still and it was necessary to apply thought to the above sources in order to arrive at the laws that should apply in this new community. New circumstances always arise with which lawyers must inevitably grapple in new ways (albeit according to established principles, one could argue). The Qur’an and Hadith are not, in themselves, law books. The Qur’an, in particular, is far too abstract but certainly contains principles such as those of justice, equality and mercy that may provide a basis for a legal philosophy and ultimately "new" laws. Occasionally, however, both the Qur’an and the Hadith do contain direct pronouncements on matters that may be regarded as binding laws to be followed (importantly at least as long as circumstances remain unaltered). Circumstances always change, however. That is why laws are required to change and why the idea of an unchanging Shariah is palpably ridiculous to many Muslims today as it should be.

The Islamic law thus developed from the two sources of law, the Qur’an and the example of the prophet (and for the Shi'a, the rulings of the Imams which I may discuss further in another post).

The Islamic law came to be seen as one body of law that covered everything from the exceptional moral behaviour I mentioned at the beginning of the post (and even good grooming) and prayer as well as punishable immoral behaviour, the establishment of the clergy, commercial rules and family and intestacy law. However, as different governments came, they all freely interpreted the law and codified law when further clarification appeared to be necessary so there was almost never one single Islamic law. Some of it was codified by ‘Islamic’ governments (I will consider "Islamic" political theory in later posts) and some was judge-made as is the case today in the Western Common Law nations (and indeed in Civil Law nations, too). It also includes dietary rules (basically a pork, blood, meat not properly slaughtered and wine/alcohol prohibition).

The Qur’an itself does set down some rules that came to be accepted as the law as I've said but it tends to discourage and encourage behaviours (it also regards contrition as a mitigating factor to be considered in punishment decisions) much more than it sets down firm punishments for crimes. Some especially esteemed books of law by scholars based on the generally accepted sources (Qur'an and Hadith) came to have the status of persuasive secondary sources of the law. Judges were also appointed by the earliest Caliphs who had to solve the actual problem of interpretation of the law and they and the government were always the ultimate sources of the law in Islamic countries.

The Qur’an has been accepted as legislating concerning intestate estate inheritance, a requirement for a written record of contracts of debt (but not credit purchases), witnessing requirements for debt contracts, dietary rules, a law against usury, the law of peace and war between nations (this is quite an area of contention, naturally) and some penal law and rules concerning witnesses. Today some argue that the witness and inheritance rules that may appear to disadvantage some women may have been reasonable in the circumstances of 7^th Century Arabia when women both traditonally received a dowry and were expected to attend more to their domestic affairs than legal affairs but may not reasonably apply in a modern context. The usury rule has led to somewhat complicated arrangements to take into account the time value of money and yet be lawful. Considering that the rules of evidence in large parts of England apparently permitted guilt to be decided by battle and/or ordeal for centuries after the 7^th Century, these rules seem to have been eminently modern for their times.

The Hadith have been held to elucidate various legal/religious matters referred to in the Qur’an and to therefore constitute an ultimate legal source in Islam subordinate only to the Qur’an.

Legal decisions and rules were written down from the earliest period for reference (to be regarded as a kind of rule of law and a form of precedent in interpretation). A rule also developed that the burden of proof generally fell on the bringer of an action in a court.

The law was understood to leave much punishment and praise to be meted out by Allah himself and so behaviour was classified by legal theorists more in terms of its usefulness in society (whether it was Ma’ruf (good) or Munkar (unacceptable)) rather than associated with human penalties. With that as a proviso, the early jurisprudents defined around five legal attitudes to behaviour. Behaviour could thus be viewed as compulsory (Fard/Wajib) including generosity, certain basic prayers and truthfulness (default is only punishable by Allah), highly recommended (Sunna/Mandub) such as extra prayers, permitted (Halal – note this word also encompasses the first two kinds of behaviour and Mubah, meaning neither approved nor specifically disapproved), disliked (Makruh) and forbidden (Haram) such as murder, stealing, some dietary items and self-harming. The relatively short Haram list occasionally came with human penalties in Islamic law (as in other legal schemes, Islamic societies punish behaviour thought to be especially "bad").

The law was first administered directly by Caliphs in consultations with knowledgeable companions of Muhammad and later also by governors and chiefs of police in regions in criminal matters as the Caliphate expanded. The advice of experts often continued to be sought in the tradition of consultation with the companions after the companions were no longer available; the consultation now was with people learned in the law. Judges were appointed mainly to decide questions of family law, property and commercial practice.

Firstly the collections of Hadith and then the collections of fatawa (singular fatwa), the rulings of distinguished jurists, came to be regarded as important to deciding how to live one’s life according to the "School" to which one’s family adhered. I'll discuss the different "Schools" in the next post. The fatawa of individual scholars are mere opinions, though, and not law in themselves (although based on legal learning) rather like the opinions of legal academics in Western universities but followed more popularly. Nevertheless, the variety of opinions that were accorded some authority in this system that developed in a large Caliphate is partly due to the collection of a vast number of potentially contradictory Hadith in the time of ‘Umar II and the decision of the Caliph al-Mansur in the 8^th Century not to fully codify and unify the law of the Caliphate when that was under consideration. I will consider the later influence of modernity and the West on the law later. In Egypt and widely, the al-Azhar is today recognised as the foremost scholarly Sunni institution.

The laws that are today applied in Saudi Arabia and some other Gulf countries are merely conservative versions of Islamic law. They are not the only real Islamic law possible any more than the law of Australia is the only law possible in a "Christian" country.