Islamic Law

The first and most important thing to realize about Islamic law is that, seen in its own terms, it is the law of God not of man. No society, now or in the past, could enforce Shari’a, because no human had complete and correct knowledge of its content. Strictly speaking, what traditional Islamic courts enforced was not Shari’a, God’s law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what the law ought to be. That fact helps explain how Sunni Islam was able to maintain four different but mutually orthodox schools of law. There could be only one correct answer to what God wanted humans to do, but there could be more than one reasonable guess. According to a widely accepted tradition, a Mujtahid, a legal scholar deducing the law from the Koran and the traditions of what Mohammed did and said, got one reward in heaven if he got it wrong, two if he got it right.

That also explains the nature of the five-fold division of acts in Islamic law. An obligatory act is one that God will reward you in the afterlife for taking, punish you for not taking. A recommended act is one which God will reward you for taking but will not punish you for not taking. A permissable act is one for which God will neither reward you nor punish you. An offensive act is one which you will be rewarded for not taking but will not be punished for taking. An unlawful act is one which you will be punished for taking, rewarded for not taking. From the standpoint of a believing Muslim, while no society’s legal system enforced Shari’a, Shari’a was in fact enforced in all societies at all times and places—by God not by man.

In many cases, taking an unlawful act or refraining from an obligatory act might result in legal punishment as well, but that is not what defines the act as unlawful or obligatory. To put the point differently, Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences of action. It is a system of law only from a standpoint that regards God, not the human legal system, as the ultimate judge and enforcer.

To make sense of the distinction between Shari’a and fiqh from the standpoint of modern law, consider the two different meanings of “constitutional” in our legal system. For a law professor teaching constitutional law to his students, what is constitutional is defined by what decisions the Supreme Court has made in the past or what decisions he expects it to make in the future. There is no inconsistency in holding that the New Deal farm program was unconstitutional in 1936, when the Supreme Court ruled against it, but constitutional after 1942, when the Supreme Court approved a revised version—a change due, arguably, not to changes in the legislation but in the position of the Court.

That is a natural view of what “constitutional” means from the standpoint of the law professor but not from the standpoint of a justice of the Supreme Court. The question for him is not how he and his colleagues will vote or have voted but how he should vote. In deciding whether something is constitutional, he has to go back to whatever he sees as the sources of constitutional law, his equivalent of Koran and hadith, to engage in what a Muslim scholar would describe as ijtihad. The law professor’s constitutional law corresponds to fiqh, the Justice’s to Shari’a.

How was fiqh deduced and applied? The scholar started with the sources of revealed knowledge—the Koran and the words and acts of Mohammed and his companions as reported in hadith, traditions. From that information a sufficiently learned religious scholar, a mujtahid, deduced legal rules. Over time, the scholars separated into four schools, each consisting of multiple generations building on the work of its predecessors, each identified with the name of a particularly distinguished scholar thought of as its founder. The schools were generally similar but differed in the details of their approaches to interpretation and the rules they deduced; each regarded the others as orthodox.

As scholarship accumulated, more and more questions could be answered by looking at the work of previous generations of scholars. Some modern historians argue that the result, sometime around the tenth century, was the end of the process by which law was deduced, the closing of the gates of ijtihad. In the view of others, while efforts may have gradually shifted away from ijtihad and into studying the work of previous generations of scholars, there was never a time when original research entirely disappeared, if only because new circumstances sometimes brought up new questions to be answered.[1]

Deducing law involved a number of different problems. To begin with, it was not always clear what the implications of the text of the Koran were. In some cases, most notably the attitude to wine, later verses appeared to contradict earlier verses. In others, a verse might be taken either as one example of a general principle or as itself the legal principle to be followed. To resolve such questions, the scholars developed elaborate rules of interpretation, varying somewhat across the schools.

Deducing legal rules from hadith presented another set of problems. The traditions were at first transmitted orally, only later written down. Each came with its isnad, its pedigree, a list of the chain of transmitters starting with the person who first saw or heard what was done or said. It was necessary to decide, for each hadith, how certain one could be that it was real, neither invented by someone at some point down the chain and attributed to an imaginary source nor the result of an error in transmission.

The basic rule accepted by all schools was that if there were a sufficient number of independent chains supporting the same hadith, it could be accepted as genuine with certainty. Short of that, the reliability of each depended on the number of independent chains and how reliable the individual transmitters in each chain were believed to be. Part of what was necessary to be an ijtihad was extensive knowledge not only of hadith but of the information needed to evaluate them, including the pedigree of each and the reputation for reliability of the transmitters.

In addition to the Koran and hadith, there was one more source of information on divine law—consensus. According to multiple traditions, the Prophet had at some point said something to the effect that his people would never be all agreed upon an error. While there were not a sufficient number of identical traditions to that effect, it was agreed by scholars of all four schools that there were enough different traditions with the same implication to meet the requirement, hence that it could be taken as certain that the Prophet had made some such statement. It followed that if, at any one time, all of the scholars were agreed upon a question, that question was permanently settled. Exactly what it meant for all the scholars to be agreed, whether it must be all qualified scholars of all schools or of one, whether it was necessary that all expressed positive agreement with a proposition or only that none expressed disagreement, were questions on which different scholars held different opinions. But all were agreed that once consensus had been established, it provided an additional source of authority.

An important feature of the system I have described was the separation of law and state. Law, at least in theory, was not made by the ruler but deduced by legal scholars. In the view of at least some modern scholars, that was largely true in practice as well. After the first few centuries, rulers in the Middle East were frequently foreigners to the populations they ruled, often Turkish princes who had made the transition from mercenaries in service to Arab dynasties into de facto rulers. What they wanted from the legal scholars was support for their legitimacy; while they might occasionally meddle in some legal question of immediate relevance to themselves, they were willing for the most part to leave the legal system itself in the hands of the scholars. They were even willing to subsidize the scholars by endowing mosques and madrissahs, colleges, which provided employment for legal scholars. Think of the system as what Anglo-American common law would be if law professors ran the world, defined not by the precedents set by judges but by the medieval equivalent of law review articles.

Between the scholars who deduced the law and the courts that applied it there was an additional layer—the muftis. A mufti was a legal expert who offered advice on legal questions to any who wanted it. At least initially, it appears to have been an unpaid position defined by reputation rather than appointed by the ruler, rather like the Roman jurisconsult. Someone who wanted an opinion on a legal issue could put the question to a local mufti and be given a fatwa, an advisory legal opinion.

The fatwa might amount to moral advice, an opinion as to what action it was right to take. It might be legal advice in our sense, a statement of the legal implications of the situation described. The mufti was not a judge. It was not his job to find out what had actually happened, only to report what would be the legal implications of the facts as described to him.

The final actor in the progress from divine revelation to a functioning court system was the qadi, the judge. Unlike everyone above him in the chain, he was appointed and paid by the ruler. While it was desirable that he be an expert in the law, it was not essential, since he could rely for the law on fatwas presented to him by the litigants or provided to him by a mufti in response to questions about the relevant law.

From the perspective of modern American law, the final two stages of the process look like our system turned upside down. In ours, the court of first impression applies the law to the facts and produces a verdict. If the case is appealed, the appeals court takes the facts as already decided and gives a second and authoritative opinion on the law. In their system, the opinion on the law comes first, provided by the mufti, followed by the qadi’s application of the law to the facts as he sees them.

An Alternative View

What I have so far described is the traditional account of how Islamic law, fiqh, was derived. A number of modern scholars, of whom the most influential was Joseph Schact,[2] have argued that that account is in large part fictional. He pointed out a large number of cases in which companions of the Prophet, who would surely have been familiar with the legal rules he followed, made decisions inconsistent with the rules later deduced from hadith. His conclusion was that all or almost all of the hadith, including the supposedly authenticated ones, were bogus, invented in the early centuries in the course of conflicts over the law. In his view Muslim law was actually an amalgam of pre-existing Arabic legal rules, administrative regulations created by the first Muslim dynasty, and legal rules taken over from the rules of the conquered provinces. Once disputes arose among different schools of law, the authority of the Prophet provided the most decisive evidence available, so both sides to such disputes invented traditions to support their positions. Scholars who argued for derivations of the law not based on divine revelation, whether via Koran or hadith, eventually lost out to those with the opposite position. More recent scholars have criticized parts of Schacht’s argument but most, at least among non-Muslim western scholars, appear to accept much of his thesis.[3]

The Schools of Law

The schools of law into which Sunni legal scholars divided themselves were each associated with the work of a single scholar from whom they took their name: Maliki, Hanbali, Shafi’i, and Hanafi. They agreed on the broad outline of the law, disagreed on the details. Thus, for example, the punishment for drinking wine was eighty lashes according to three of the schools, forty according to the fourth (Shafi'i). Three schools interpret the rule as forbidding the consumption of any intoxicant, one (Hanafi) as forbidding only wine drinking and intoxication.

While the schools differed in detail, they regarded each other as mutually orthodox. In this respect as in others, the history of Islamic law both resembles and differs from that of Jewish law. The schools of Hillel and Shamai tolerated each other for several generations, but eventually the toleration broke down, with the majority school suppressing the minority. In the parallel Islamic case, the four schools have continued their mutual toleration up to the present day.

The two major branches of Islam are Sunni and Shia, a division that goes back to a dispute over the succession to the caliphate after the death of the Prophet. The Sunni accept the succession that actually occurred, with Abu Bakr, one of Mohammed's closest companions, chosen to be his successor, followed by Umar, Othman, and finally Ali. The Shia believe that Ali, the Prophet's cousin and son-in-law, ought to have been the first successor and that the succession should properly have run through his descendants. The split became permanent when Muawiya, nephew of the third caliph and governor of Syria, refused to accept Ali's succession to the caliphate, setting off the first Muslim civil war and eventually establishing the first Islamic dynasty.

The four schools of law are all Sunni; the Shia have their own legal rules, in most respects similar. A medieval Muslim city would have had separate courts for the four Sunni schools, the Shia, and the other tolerated religions.[4] It was a polylegal system; disputes within each community would go to that community's courts. In at least some times and places, parties creating a contract, a partnership, a marriage, could choose which legal system they wished to create it under and would be bound to the rules of the legal system in any future dispute. What happened in a dispute between parties adhering to different legal systems is not entirely clear, and probably varied across time and space. One possibility was for the plaintiff to choose the court, another for the defendant to. There may sometimes have been an option for a party unhappy with the result produced by his opponent’s court to appeal it to a court of his preferred school (try to check this).

While law was in theory independent of the state, in practice, in most historical Islamic societies, state created rules played a significant role. It was up to the ruler to appoint the qadi and to enforce his judgments and the ruler could, by his control over jurisdiction, determine what court a case went to. Under the Abbasids, the second Islamic dynasty, the police (shurta) began to investigate, try and punish offenders outside of the fiqh courts. The inspector of the marketplace (muhtasib) created and enforced commercial regulations. The mazalim courts initially existed to investigate misconduct by officials, including qadis, but over time expanded to take jurisdiction over additional areas. Finally, the ruler was entitled to create administrative regulations to implement fiqh or fill in gaps in the law through the mechanism of siyasa, creating rules additional to and even to some degree contradictory to the rules of fiqh.[5]

One reason for the development of a parallel state legal system may have been the desire of the ruler to maintain control. A second was that fiqh had serious limits as a legal system. It provided explicit rules for only a limited set of offenses and its evidentiary standards were in some contexts too hard to meet and in some, perhaps, too easy. For most controversy, proof required the eyewitness testimony of two adult, competent, male Muslims; once their good character was established the testimony could not be impugned by cross examination or other means.

One further feature of fiqh echoes a pattern we earlier saw in Jewish law. For many cases (but not Koranic offenses), if the plaintiff did not have sufficient witnesses he had the option of asking the qadi to demand an oath of the defendant. If the defendant took the oath the case failed. If he refused it, the qadi might ask the plaintiff to take the oath; if he did so, the defendant was convicted.

What Happened to Islamic Law?

The Islamic legal system, in the view of Wael Hallaq, one of the most prominent of the modern scholars, functioned better than most modern systems, providing legal services for free to all, defending the poor and powerless against the rich and powerful. While rulers played some role, biasing the system in their own favor or filling in its gaps, its rules were primarily the creation of scholars making an honest and well informed attempt to learn and implement the divine will. The scholars maintained their independence in part through the existence of waqfs,[6] the medieval equivalent of foundations or trust funds, providing mosques and madrassahs with a permanent income some of which could be used to pay legal scholars. While the original funds frequently originated with a ruler or a ruler’s close kin, those being the people most likely to have large sums available for the purpose, past donations were out of the control of the current ruler. And the rulers, being for the most part more interested in the support of the legists, the legal scholars, than in the content of the law, were willing to leave the latter mostly in the hands of the scholars.

In Hallaq’s view it was the breakdown of this system in the 19^th and 20^th century due to the rise of the nation state, itself a result of western influence, that effectively destroyed the traditional system. In Islamic territories under colonial rule, such as India, Indonesia, and Algeria, the colonial rulers replaced the traditional system of decentralized law independent of the state with a system of statutory law incorporating elements of traditional law, in some cases elements interpreted in ways favorable to the ruling power. After the end of the colonial period, the newly independent states followed the same path. Thus, in his view, modern “islamists” who view themselves as wishing to reinstitute Shari’a are in fact proposing something quite different and less desirable, a centralized system of state made law with rules to some degree modeled on traditional fiqh.[7]

A major problem with Hallaq’s thesis that the destruction of the traditional system was due to western colonialism is the case of the Ottoman Empire.[8] It was never colonized, yet in it as well the traditional system of independent and decentralized law was replaced by centralized state law.

His explanation is that the changes were due to indirect western pressure, the response of the Ottomans to problems faced in the 19^th century due to the increasing power of the Christian states of Europe. That would be a plausible account if the shift had begun at the point when the states of western Europe had clearly pulled ahead of the Ottomans, giving the Ottoman authorities reason to try to imitate western practices and putting western states in a position to pressure the Ottomans for trade concessions that might have been inconsistent with the existing Ottoman legal system. But in fact, the shift began much earlier. The Ottomans supported the Hanafi school of law, giving it an effective monopoly of law within the core areas of the empire and a superior position in areas where other schools had been dominant prior to the Ottoman conquest. Qadis of the other schools were subordinate to the Hanafi qadi, who could reverse judgments that strayed too far from Hanafi doctrine. Over time, more and more of the legal scholars in those areas defected to the Hanafi school, that being where the money, jobs, and power were to be found.

The Ottoman Sultans took the position that if Hanafi teaching permitted several alternative interpretations of the law they had the authority to tell judges which interpretation they must follow, even if it was not the one dominant in the scholarship of the school. And the Sultans proclaimed their own legal rules, kanun, in theory in support of fiqh but in practice sometimes inconsistent with it. Thus fiqh, according to all four schools, forbade loans at interest. Kanun provided for a maximum interest rate.

Interference by the authorities was not limited to the final stage of courts. Under the Ottomans there was a Grand Mufti appointed by the Sultan with ultimate authority over the appointment of qadis and the running of mosques and madrassahs. While Hallaq may be correct in his view of the independence of the legists outside the Ottoman Empire, within it that independence had been eliminated long before the beginning of the 19^th century, at a time when the Ottoman Empire was a great power with neither reason nor inclination to take lessons from its western neighbors.

My conclusion is that Hallaq may well be correct in attributing the breakdown of the traditional legal system to the rise of the nation state, but the connection between that and western imperialism is accident, not essence. The causes that led to the increasing power of the nation state in the west,[9] as signaled by the replacement of feudal monarchy by absolute monarchy, operated in the Islamic world as well, most notably in the Ottoman Empire. The annexation of the waqfs by the Ottoman authorities on the theory that the money would be administered by them for the purposes for which it had been donated parallels the earlier confiscation of the lands of the monasteries by Henry VIII. The result, in both cases, was to eliminate institutions that to some degree competed with the state for power and resources.

The Content of Fiqh

The parts of Islamic law that deal with criminal offenses recognize three categories, defined by the nature of the punishment. Hadd offenses, in theory (but not always in fact) derived from Koranic rules, have fixed punishments. Ta'zir offenses have punishments set at the discretion of the judge. Jinayat offenses, homicide and bodily harm, have outcomes determined in part by law, in part by decisions made by the victim or his kin, and appear to be based on the rules of pre-islamic Arabic blood feud as modified by Mohammed.

Hadd

There are five hadd offenses: Unlawful intercourse (zina), false accusation of unlawful intercourse (kadhf), wine drinking (shurb), theft (sariqa), and highway robbery (qat’al-tariq), which includes armed robbery of a home. All are considered offenses against God, although in some cases against a human victim as well, and as such cannot be pardoned.

Zina is defined as voluntary sexual intercourse with anyone who is not your lawful spouse or concubine. The punishment is either execution by stoning or a hundred lashes (fifty for a slave―half the number of lashes for a slave is a common pattern and I will not bother to note it hereafter); the former punishment can only be imposed on an offender who has previously had lawful intercourse. Proof of the offense requires either four eyewitnesses to the same act of intercourse, all four of whom must be competent adult male Muslims, or confession; the pregnancy of an unmarried woman can also be taken as sufficient proof. The confession is retractable; according to some authorities, an attempt to escape qualifies as a retraction and so voids conviction and punishment. The witnesses must be present at the trial and execution; in the case of stoning, if they do not throw the first stones the punishment is not carried out.[10]

Such severe requirements of proof suggest that fornication and adultery would in practice be almost impossible to prove, but this applies only to the hadd offense. Unlawful intercourse might also be prosecuted as a Ta'zir offense, with weaker standards of proof and less severe punishment.

Kadhf is defined as a false accusation of zina, where “false” is interpreted as “not proven,” making the role of witness to zina a hazardous one. If, for example, one of the four witnesses turns out to be a minor, the other three can be charged with kadhf. The charge must be brought by the person falsely accused. The penalty is eighty lashes. A false accusation of illegitimacy also counts as kadhf.

The case of a husband accusing his wife of adultery, directly or by challenging his paternity of her child, falls under a special set of rules. The husband who cannot prove the charge can protect himself from being himself charged with kadhf by swearing four times by Allah that he is speaking the truth and once calling down a curse upon himself if he is lying. The wife can defend herself against the accusation by the same series of oaths. If she is unwilling to do so that is taken as a tacit confession of guilt, subjecting her to the penalty for zina.

Shurb is narrowly defined as wine drinking or intoxication, more broadly as the drinking of any intoxicant, with the detailed definition varying among the different schools of law. The punishment is eighty lashes (forty in one school). Proof is by retractable confession or the testimony of two adult male Muslim witnesses.

The hadd offense of sariqa is defined as theft, but theft that meets a variety of requirements. The thief must be a competent adult. The theft must be intentional, accomplished by stealth, of an item of more than a specified minimum value. The item must be one protected by its owner, so stealing an animal grazing at a distance from its barn does not qualify, nor does stealing from a house where you are an invited guest. Stealing perishable food does not count, because it is presumed that the theft is out of hunger and so permitted. The victim of the theft must attend both trial and execution.[11]

Arguably the list of requirements is so extensive because legal scholars, like many non-Muslim commentators, regarded the punishment―amputation of the right hand―as excessive. Since the punishment was Koranic it could not be changed, but it could be hedged around with enough qualifications so that it was unlikely to be applied―the same approach that Jewish legal scholars applied to the rule about stoning a disobedient son. A theft that did not meet the requirements for the hadd offense could still be prosecuted and punished under ta’zir.[12]

Qat'al-tariq is defined as either robbery of travelers far from aid or armed entry into a private home with the intent to rob it. The punishment is amputation of the right hand and left foot. If combined with murder, the punishment was death by the sword; if the theft was not only attempted but accomplished and combined with murder, the punishment was crucifixion. Unlike the case of a homicide prosecuted under jinayat, punishment was mandatory; the victim or victim's kin did not have the option of cancelling it or of accepting blood money instead.

Ta'zir

For ta’zir offenses, the punishment was up to the judge, with options ranging from a private admonishment to death―but limited, in the view of most of the schools, to less than the punishment that would be imposed (according to some on a slave, to some on a free man) for the corresponding hadd offense. Proof is by the testimony of two witnesses, one of whom can be a woman, or by a non-retractable confession; some legal scholars hold that the judge can act on the basis of his own knowledge even without such proof.

The bulk of criminal offenses in fiqh are treated as ta’zir offenses, including both non-hadd offenses and hadd offenses that for one reason or another do not meet the strict hadd standards. Kadhf is only a hadd offense if committed against a Muslim, but ta’zir can be used to protect non-Muslims against unproven accusations of unlawful intercourse.

Jinayat

The part of Shari’a that applies to homicide or bodily injury is called jinayat and appears to be based on the pre-Islamic rules of Arab blood feud. The punishment is either retaliation or blood money (diya). Retaliation occurs only at the request of the victim if alive, his nearest kin if the victim is dead, and is to be inflicted by victim or kin. In the case of homicide, retaliation means death, in the case of injury it means imposing an identical injury. Where retaliation is one of the options, the victim or his closest kinsman may demand blood money instead or negotiate an out of court settlement. Jinayat, like modern tort law, is based on private action; there is no official responsible for initiating the case.[13]

The formula for blood money is based on either the heavy diya―a hundred female camels, evenly divided among one, two, three, and four year olds―or the lighter diya, eighty female camels again evenly divided in age plus twenty one year old male camels; it can also be 1000 dinar or 10,000 dirham.[14] Blood money for homicide consists of the full diya, heavy or light depending on the circumstances. For injury the payment is scaled by a simple, if somewhat arbitrary, formula―half a diya for the loss of something of which the victim has two, such as a hand, arm, foot, or leg, a tenth of a diya for the loss of a finger. This has the odd result that the payment for the loss of a nose, of which the victim has only one, is a full diya, twice the payment for the loss of an arm or leg. Where no such formula is applicable, the payment is that percentage of a full diya corresponding to the percentage by which a slave’s value would be reduced by the same injury.[15]

The law distinguishes among various degrees of homicide. In the case of willful homicide―no legal excuse, intentional and committed with a weapon that normally causes death―the victim's nearest kin is entitled to demand retaliation or the heavier diya. Most schools include as homicide false testimony at trial that results in death.[16] Where the homicide was accidental or the killer believed he was acting legally, retaliation is not an option and the penalty is the lighter diya. In all cases, conviction is by confession or the testimony of two adult male witnesses.

In most cases, the payment of blood money is in theory the responsibility not of the offender alone but of his ‘Akila, corresponding to the dia-paying group of Somali law, as described in chapter VIII.[17]

Ridda

There is one crime which does not fit clearly into the categories I have listed―ridda, apostasy, the crime of converting away from Islam. Some view it as a hadd offense, others as an offense to be treated under siyasa, administrative regulations created by the state.

The usual view is that apostasy is a capital offense, a position based on the purported practice of Mohammed. Some authorities hold that it may be punished without trial, others that the apostate is entitled to a trial, and one school that the apostate must be given three days to repent and return to Islam. Women apostates are to be imprisoned and, according to some schools, beaten until they recant.

The Koran sentences the apostate to hell but proscribes no punishment. Some scholars argue that the death penalty was a punishment not for abandoning Islam but for the (historically closely connected) offense of rebelling against it, and that belief alone was not to be punished. On the other hand, one school holds that not only is apostasy from Islam forbidden, so is apostasy from any of the other religions of the book.

Appendix: Two Stories

A Convenient Tradition

Ten Traditionists, Ghiyath ibn Ibrahim among the rest, were summoned to an audience. Now Mahdi was very fond of pigeon-racing; and when Ghiyath was presented, and somebody said: Pray recite some tradition to the Prince of the True Believers, Ghiyath recited: So-and-so told us that he had it of So-and-so on the authority of Abu Hurayra that the Apostle of God (God’s Prayer and Peace be on him!) said: There must be no betting save on a hoof or an arrow or a lance-head; and then Ghiyath added: or on a wing.

Mahdi at once ordered him a bounty of ten thousand dirhams; but as Ghiyath rose bowing to thank him, he exclaimed: By God, the nape of your neck looks like the nape of a liar’s neck—I’ll swear you interpolated those last words! And he gave order immediately that all his racing pigeons should be killed.[18]

Working Around God’s Law

The poet ibn Harma performed for the Prince of the Muslims, and so delighted was the Caliph with his performance that he said “name your reward.”

The poet replied, “the reward I wish from the Prince of the Muslims is that he should send instructions to his officials in the city of Medina, commanding that when I am found dead drunk upon the pavement and brought in by the city guard, I be let off from the punishment prescribed for that offense.”

“That is God’s law, not mine; I cannot change it. Name another reward.”

“There is nothing else I desire from the Prince of the Muslims.”

Al-Mansur thought a little, and then sent instructions to his officials in Medina commanding that if anyone found the poet ibn Harma dead drunk upon the pavement and brought him in for punishment, he should receive forty strokes of the lash as the law commands. But whoever brought him should receive eighty.

And ever after, when someone saw the poet lying drunk upon the pavement, he would turn to his companion and say “eighty for forty is a bad bargain.”[19]

References

Al-Misri, Ahmad ibn Naqib, Reliance of the Traveller and Tools for the Worshipper, Keller tr.

al-Qayrawani, 'Abdullah ibn Abi Zayd, The Risala: A Treatise on Maliki Fiqh, Daura tr.

Forte, David F., Studies in Islamic Law, Austin and Winfield, Lanham, N.Y., Oxford, 1999.

Gerber, Haim, State, Society and Law in Islam: Ottoman Law in Comparative Perspective. State University of New York Press, Albany, 1994.

Hallaq, Wael, Introduction to Islamic Law , Cambridge University Press, 2009.

Hallaq, Wael, Shari'a: Theory, Practice, Transformations, Cambridge University Press, 2009

Khawam, Rene R., tr., The Subtle Ruse: The Book of Arabic Wisdom and Guile., East-West Publications, London and the Hague, French translation from the Arabic 1976, English Translation from the French by Mrs. I.R. Logan 1980.

Schacht, Joseph, An Introduction to Islamic Law, Clarendon Press, Oxford, 1964

Schroeder, Eric, Muhammads People: A Tale by Anthology, TheBond Wheelwright Company, Portland, Maine, 1955.

Vikør, Knut S., Between God and Sultan: A History of Islamic Law, Oxford, 2005.

Vikør, Knut S. , "The Truth about Cats and Dogs: The Historicity of Early Islamic Law"

---

[1] Schacht Chapter 10, pp. 69-75, argues for the closing of the gates, but it was challenged by Waed Hallaq in Hallaq () and his view, that the closure never happened, seems now to be generally accepted.

[2] Schacht Chapters 4-11. The argument was earlier made by Ignatz Goldziher.

[3] Thus Wael Hallaq attacks Schacht fiercely while arguing for a position that appears, at least to this non-expert observer, to differ from his only in detail. [add cite]

[4]The Koran established three tolerated religions in addition to Islam: Judaism, Christianity and a third usually held to be the Sabeans, a small Jewish offshoot.

[5] In theory, Islamic law, like the 18^th c. English criminal law described in chapter IX, provides for no public prosecutor; every Muslim has the right to act as a private prosecutor and cases may be settled out of court without ever involving the qadi. In practice, both the qadi and the muhtasahib played a role in prosecution analogous to the role of police as prosecutors in England in the 19^th century.

[6] The waqfs I discuss here were trust funds dedicated to religious purposes. There were also wafs dedicated to purposes of secular welfare, such as the maintainance of public fountains, and others that were family foundations, money provided by one generation to be under the control and spent for the benefit of their descendants.

[7] Modern Saudi Arabia seems to be to some degree an exception to this pattern, with independent legists but a single school of law.

[8] My account of Ottoman institutions is based mostly on Gerber (1994).

[9] I am offering no answer to the interesting question of what those causes were.

[10] Schacht p. 176.

[11] Schacht p. 176.

[12] “There is a strong tendency to restrict the applicability of hadd punishments as much as possible, except the hadd for false accusation of unlawful intercourse, but this in turn serves to restrict the applicability of the hadd for unlawful intercourse itself. The most important means of restricting hadd punishments are narrow definitions. Important, too, is the part assigned to shubha, the ‘resemblance’ of the act which has been committed to another, lawful one, and therefore, subjectively speaking, the presumption of bona fides in the accused.” (Schacht p. 176).

[13] Schacht pp. 177-8.

[14] Schacht p. 185.

[15] Schact p. 186. A similar formula appears in Maimonides, although in that case it is the amount by which the victim’s value would be reduced if he were being sold as a slave. (The Book of Torts (Bk XI of the Mishnah Torah), Treatise IV Chapter 1)

[16] Presumably also the Jewish rule, to judge by Maimonides' analysis of the problem of convicting a murderer who is suffering from a fatal disease.

[17] “The ‘Akila consists of those who, as members of the Muslim army, have their name inscribed in the list … and receive pay, provided the culprit belongs to them; alternatively, of the male members of his tribe (if their numbers are not sufficient, the nearest related tribes are included); alternatively, of the fellow workers in his craft or his confederates; … . This institution had its roots in the pre-Islamic customary law of the Bedouins, where the culprit could be ransomed from retaliation by his tribe, … . … the whole institution fell into disuse at an early date.” (Schacht p. 186)

[18] Mohammed’s People, pp. 281-2.

[19] The Subtle Ruse, pp. 153-154, not verbatim. (Has it as 80 and 100 lashes—is there another version in Mohammed’s People?)