Part 2: the Modernising Muftis in Ottoman Turkey and its Empire (and Successor States)

Just a reminder: Mufti is the name given to a person considered legally qualified within Islamic legal traditions to issue legal opinions (note: a fatwa (legal opinion) is simply the Arabic name given to a legal opinion so not all fatwas (the plural is actually fatawa in Arabic) are death warrants). This and the next few posts as well as the last two describe a variety of current and recent Islamic legal and political models used by Muslims in some sort of position to have political influence. My use of different categories is somewhat arbitrary; it just helps shorten the posts somewhat. So there will be some overlap. Later I will also discuss the recent and current ideas of secular and non-Muslim Arabs, Iranians, Turks and others and then how both of these types of ideas (Muslim and other) have played out in more recent Middle Eastern history.

For now though, I'll return to the modernising Islamic thinkers. Periodically, thinkers in the Arab and Islamic world have considered that the law required reform, contrary to an often expressed view in the West that 'true' Muslims are all atavistic legal traditionists seeking a return to some immutable Sharia. Naturally, when the basis of the law is an understanding of religion, the law is expected to be morally sound and as mentioned in earlier posts circumstances may change the way laws affect people. Hence logically laws must occasionally be revised. Also, the law that Islamic societies and scholars created from the start weren’t necessarily good Islamic law. Fatima Mernissi, the Moroccan scholar, has forcefully argued that, from the start, there was legal backsliding by the patriarchal tribal society.

The Islamic State has usually codified very little, as a tradition. It has rather published collections of fatawa. Some Islamic scholars as a result do question the right of the State to make revisions to the law in Islamic majority countries (at least without the approval of Islamic scholars). But they would say that, wouldn’t they, as the writers of the fatawa? Suleiman the Magnificent (or Qanuni – the law giver – in Arabic) compiled collections of the fatawa of some muftis and this was seen as legislating legitimately within the Islamic tradition in which genuine scholarship had apparently declined. The Turkish legal reforms have subsequently been adopted by successor states such as Syria, Lebanon and Iraq. Religious courts were basically relegated to resolving questions of family law with the advent of secular courts dealing with all other matters from the 19^th Century. The law thus made is now largely codified in Arab and Muslim countries as a result of the modernising fatawa of muftis. The call for Sharia Law from those Muslims who call for it may be seen as a reaction to this modern style of codified law-making and the limitation of the power of religious courts (all approved by the modernising Muftis). Under the influence of the West, many scholars at Islamic universities such as al-Azhar also graduate in law from Western-based universities these days.

The role of scholars qualified to pronounce fatawa (muftis) continued into the modern reforming world, however, and, as we know, in Iran, the grand Muftis, often called Ayatollahs, now reign supreme. At the other end of a long spectrum, the Turkish government of the 20^th Century has typically been positively anti-Islamic-rule. Muftis have typically been government agents in the Islamic world subordinate to the local ruler. ‘Abd al-Razzaq al-Sanhuri (1895 – 1971) from Egypt and Mustafa al-Zarqa (1904 – 1999) from Syria are two notable reformist muftis from the recent modern period who made reform on behalf of their governments.

The Development of the Major Legal "Schools"

Regional differences developed early on in even the central parts of the first Caliphate (even in the period of the first four Rashidun Caliphs) in relation to marriage, international affairs (such as questions of war and peace) and even in relation to the formation of subordinate governments within the Caliphate.

From around the mid 8^th century, scholars discussed the variations and what if anything was required to be done about them. The 2^nd Abbasid Caliph, al-Mansur, considered some codification in order to promote more uniformity in the law but was persuaded to accept the status quo on the basis that Islam importantly accepts and promotes diversity and independence of thought and ideas. This same principle led to the acceptance of differing mutually respectful schools of jurisprudence. Various schools were formed under the influence of respected scholars and later ceased. By the end of the 10^th century there had been around 10 major schools.

One example of schools arriving at their own diverse positions that dealt with new situations is the case of tobacco products. Tobacco was not widely known in Arabia until around the 16^th Century. There is still disagreement among scholars today (based to an extent on the schools to which the scholars adhere) as to whether consumption of tobacco products is acceptable but disapproved or actually forbidden (in an Islamic legal sense) . Incidentally coffee, which became popular at around the same time (well after the death of Muhammad), has generally been found to be an acceptable dietary item by all schools. These debates occurred well before modern times and bespeak some prescience particularly concerning tobacco's attributes vis a vis coffee's given the current state of scientific knowledge. The general Islamic concept appears to be that stimulants generally don't fall within prohibitions to the extent that items with narcotic properties similar to those of alcohol do (such as heroin or marijuana (by analogy with alcohol's prohibition)). Incidentally, music has also been considered by some especially puritan scholars (Ibn Hanbal was one (see below)) to have similar narcotic effects to alcohol thus making it potentially subject to regulation and certainly suspicion.

The idea arose that a consensus of the major scholars applying the original sources could raise the status of an opinion from an opinion to a law. There are four major Sunni schools today and one major Shi'a school but there have been several others that have contributed to Islamic law in the past, as I've mentioned. The Shi'a schools have required that Hadith be transmitted solely by members of Muhammad’s family in order to be considered valid as legal sources and have also included acts of senior members of his family as valid sources of law.

I will now briefly discuss the five major schools that exist today in the order in which they came to prominence. Note that today there are two other significant Shi'a schools and one significant Khawarij school active in a few regions. It has been common for serious scholars to learn the methods of all or several of these five major schools rather than merely a single school’s methods.

The Maliki School

Malik Ibn Anas (713 – 795) developed a system for 750s Medina of searching the sources for solutions to then-current issues. The school is now mainly prevalent in the western part of the Arab world (typically from Libya West). Malik gave particular weight to the consensus of the earliest jurists of Medina and the principle of the common good of the community as principles of legal decision-making. His major work is called al-Muwatta’ (also the earliest comprehensive book of Islamic jurisprudence) and was evidently written over around a 40 year period. It thus provides a model for later works and typically combines ideas concerning things such as grooming regulations and religious duties with everything from international laws of war and peace to division of estates upon divorce, penal law, contracts and the freeing of slaves. Malik was the only one of the five major school founders who produced such a major work himself. The other four appear to have left that role to one or more of their disciples.

The Hanafi School

Abu Hanifa al-Nu’man (c. 699 – 767) championed Greek logical methods in Islamic legal philosophy in Iraq. The 'Abbasid dynasty centred in Iraq first took on his philosophy when a disciple of Hanifa’s was appointed head judge and it remains prominent in Iraq and the North and East of the Arab world today. The Seljuk and Ottoman Turks and Indian Mughals thus came to prefer it and the Ottomans later popularised it in much of the rest of the Arab world with the exception of Egypt by means of their Ottoman Empire. It persists especially in the East of the Middle Eastern Islamic world.

The Ja’fari School (The Major Shi'a School)

The sixth Imam of the Twelver Shi’a (I will discuss the Twelver Shi’a further later) Ja’far al-Sadiq (c. 700 – 765) knew of and respected the above two scholars (i.e. the putative founders of the Maliki and Hanafi Schools). These first three scholars lived more or less contemporaneously and were in contact with and respected each other. The Ja'fari School is now prevalent especially in Iran (where Twelver Shi'ism is the major religion) and in southern Iraq and Lebanon (the areas that Condoleezza Rice used to menacingly refer to as the Shi'a Crescent that threatened peace when she wanted to scare Sunni Arab rulers into doing what she wanted).

The Shafi’i School

Muhammad Ibn Idris al-Shafi’i (767 – 820) was born in Gaza and was a disciple of Malik. He made use of the principle of precedent and thus a kind of judge-made law as a reaction against the kind of relatively arbitrary speculation promoted by the relatively logic-based Hanafi School. Shafi'i law is most commonly used today in Egypt and in South East Asia.

The Hanbali School

Ahmad Ibn Hanbal (780 – 855) was, in turn, a disciple of ash-Shafi’i. I will write more about Ibn Hanbal in later posts. For this post I will leave it that he was the least legally trained of the five scholars. His training was more in Hadith criticism - a quite different but of course related area. The Wahhabi clerics of Saudi Arabia constitute a quite puritanical sub-school of this already quite conservative School. The School mainly remains popular in Arabia and Syria today.

I will turn to Sufism in the next post.

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.

The "new religion" of Islam

Islam (arguably) began with a prophet, Muhammad, and has one major prophet (Muhammad). It holds that he (Muhammad) was favoured by the one true God (called Allah meaning simply 'the God'), who created the world and who was also preached about by and 'spoke to' Moses and Jesus (among others), with the words (and other signs such as 'mystical letters') that became known as the Qur’an (or Koran, especially in the old days). These words and signs are seen as the unaltered and unalterable works of God. As a result, while Islam respects other Holy Books, it sees the Qur’an as the most Holy Book. It also holds that Muhammad’s own words and actions (and omissions) are inspired by this God (as he was so honoured by the one true God as a sufficiently worthy and serious man) and therefore deserve to be taken especially seriously by Muslims. As a result, early Muslims collected examples from his life for the purpose of providing examples for good Muslims. The accepted versions are now called the true Hadith. The validity of many Hadith are widely and hotly disputed.

Islam was a reform of worship but also of social relations. It was a religion that taught a new respect for the rights of women and children as well as new concern for the poor. It taught that all Muslims were equal which also meant that clan allegiance was relatively subordinated to allegiance to the entire Muslim community.

And it taught that justice should no longer be a question of “might makes right” and random clan revenge and it provided a model state with powers of law enforcement directed personally against the actual perpetrator of crimes.

Islam now also has traditions of theological speculation and of mystical, spiritual exercises in order to in some way commune with Allah (Sufi traditions).

The Sufi emphasis on the relationship between one man (or woman) and God is clearly only part of the story of a religion. Islamic theological thinkers thus began to think about a man’s (or woman’s) relationship with the material world and other people. This is a political question. They started by developing two things: a new calendar (used in devotions) and a new legal philosophy (or jurisprudence).

Out of legal philosophy and theology sprung religious requirements, a legal system (or legal systems) of thought and ultimately legal requirements. These ideas about ways of behaving (and ways of requiring behaviour) came to solidify into a material culture or cultures that were therefore inspired by Islam.

Thus Islam has a reach that we can see today is religious, spiritual, intellectual, political, legal, social, environmental, economic, artistic and cultural but it is a religion.

Islamic daily practice from early on thus basically required three things: five prayers properly performed; some sex-based segregation and roles; and Islamic belief (all as determined by the thinkers of Islam).

The main beliefs were that there was one God only (called Allah), that he had sent prophets (including Moses and Jesus), that the Bible was also to be admired (as two Holy Books) and that He made humanity in order to have a relationship with it.

Islamic belief thus determined, required toleration of other ways of thinking and being. However, although quite democratic in spirit, Islam could also be used to justify things like toleration of dictatorship and despotism (provided it permitted Islam to be practiced).

Toleration of non-Muslims and adoption of scientific and technological thought-paradigms were perhaps naturally Islamic because early Islamic thinkers valued two things in particular: toleration and knowledge. This assessment of early Islam may surprise many in the West today and perhaps many modern Muslims. However, toleration was a specific feature of the early centuries of Islam actually not experienced as completely in the ‘Christian’ West at the time. This was not absolute, however.

There were also requirements to (if possible) complete one hajj (pilgrimage to Mecca), to give to the less advantaged according to one's earnings and to perform the Ramadan fast and abstention from sex during the day time for the entire (lunar) month of Ramadan.

Belief was thus the foundation stone for the community which would meet together in prayer, in providing for the poor and needy, strangers, debtors and travellers (by means of a kind of voluntary flat income tax of around 2.5%), in fasting together (and then eating together) and in congregating together on pilgrimage.

Many of these kinds of habits will be recognised by Christians to have Christian equivalents. For instance, for some Christians Lent may still represent a period of fasting similar to the Ramadan fast. The requirement to tithe is similar to the zakat ‘voluntary tax’. Prayer is, of course, a common Christian practice and pilgrimages have also been a significant part of Christian history. So I will consider in later posts where the differences lie but also the similarities.