[This is an old draft
of the chapter--the current draft is here]
American legal scholars believe in the separation of church and state. Their Islamic opposite numbers believe in the separation of law and state. Islamic law, at least in theory, is not created by rulers1 or legislators but by God; its rules are deduced by legal scholars from the text of the Koran and the words and actions of the Prophet Mohammed and his companions. According to the traditional view, the process started some time after Mohammed's death and was continued for about three hundred years.
The Koran itself does not provide anything close to a complete legal system,2 so was supplemented by hadith, traditions of what the Prophet and his companions had done or said, hence evidence of the practice (sunna) of the Prophet, and analogical reasoning based on hadith and Koran.
The hadith were based on oral tradition, raising the risk that someone arguing one side of a legal dispute would invent a tradition to support it. To prevent this, the legal scholars developed an elaborate scholarship designed to distinguish true traditions from false ones, based mostly on a tradition's isnad, its chain of transmission. Several authors produced books of authenticated traditions, pruning down what may have been as many as several hundred thousand purported hadith to a few thousand that they were reasonably certain were real.
According to one of them, the Prophet said that his people would never be agreed upon an error. On the basis of that, scholars developed the principle of ijma, according to which any legal rule that at some point commanded consensus―whether of the entire Muslim community, the legal scholars, or some smaller group was a matter of dispute― could no longer be disputed. By the tenth century A.D., in the view of most of the authorities, the process was complete: The rules of law created by God and implemented by Mohammed had been established, the gates of interpretation (ijtihad) were closed. It remained only for rulers to appoint judges, qadis, who would base their rulings on the work that had already been done by the legal scholars.3
This traditional view of the development of Islamic law was challenged in the mid-20th century by western scholars, in particular Joseph Schacht, who argued that it was inconsistent with the available data on the early history of Islam.4 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.
The Schools of Law
In the early centuries, Sunni legal scholars divided themselves into four different schools, 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.5 Disputes within each community would go to that community's courts; it was a polylegal system. It is not clear how cases between members of different communities were decided. Presumably a Muslim could insist on a Muslim court; a dispute between Muslim adherents of different schools might have gone to the court of the school preferred by the ruler.(??I am not sure of this part??)
In Islamic legal theory, law is independent of the state. In practice, in most historical Islamic societies, state created rules played a large role. It was up to the ruler to appoint the qadi and to enforce his judgements, and it was the ruler who, by his control over jurisdiction, determined 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 Shari'a 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 Shari’a 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 Shari’a.6
One reason for the development of a parallel state legal system was presumably the desire of the ruler to maintain control. A second was that Shari’a had serious limits as a legal system. It provided explicit rules for only a limited set of offenses and its evidentiary standards were sometimes too hard to meet and sometimes, 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 Shari’a 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.
Under Shari’a, an act may be obligatory, required by law, or prohibited, banned by law. It may also be praiseworthy but not required, blameworthy but not forbidden, or neutral. Thus a Muslim who asks a legal expert for a fatwa, an advisory legal opinion, may be asking a question either about what he is legally permitted or forbidden to do or about what he should or should not do.
The parts of Shari’a 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.
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 marital 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.7
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 charge 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.8
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.9
Qat'al-tariq was defined as either robbery of travelers far from aid or armed entry into a private home with the intent to rob it. The punishment was 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.
For ta’zir offenses, the punishment is 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 Shari’a 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.
The part of Shari’a that applies to homicide or bodily injury is called jinayat and based on the pre-Islamic rules of Arab blood feud, as modified by Mohammed. The punishment is either retaliation or blood money (diya). Retaliation occurs only at the request of the victim, if alive, or 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.10
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.11 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.12
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.13 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.14
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.15
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
Forte, David F., Studies in Islamic Law, Austin and Winfield, Lanham, N.Y., Oxford, 1999.
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.
1 “The explicit theory of this was formulated only much later, but the essentials were expressed in two traditions dating from the end of the second century of the hijra, which retrospectively put the doctrine into the mouth of the Umayyad Caliph ‘Umar ibn ‘Abd al-‘Aziz in the following terms: ‘No one has the right to personal opinion (ra’y) on points settled in the Koran; the personal opinion of the caliphs concerns those points on which there is no revelation in the Koran and no valid sunna from the Prophet; no one has the right to personal opinion on points settled in a sunna enacted by the Prophet.’ And: ‘There is no Prophet after ours, and no holy book after ours; what Allah has allowed or forbidden through our Prophet remains so for ever I am not one who decides but only one who carries out, not an innovator but a follower.’”, Schacht p. 53.
2“In toto, there are around two hundred forty legal prescriptions in the Koran.” Forte p. 38 .
3 Schacht Chapter 10, pp. 69-75.
4 Schacht Chapters 4-11.
5The Koran established three tolerated religions in addition to Islam: Judaism, Christianity and a third usually held to be the Sabeans, a small Jewish offshoot.
6 In theory, Islamic law, like the 18th 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 19th century.
7 Schacht p. 176.
8 Schacht p. 176.
9 “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).
10 Schacht pp. 177-8.
11 Schacht p. 185.
12 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)
13Presumably also the Jewish rule, to judge by Maimonides' analysis of the problem of convicting a murderer who is suffering from a fatal disease.
14 “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)
15 Mohammed’s People, pp. 281-2.
Add additional material on
Qadi/Mufti relation, Mufti as analogous to our appeals
On ways of deducing rules
from the actual text of Koran and Hadith.
On Shariy'a as privately
prosecuted for all person vs person cases, division between
person v person and person v God, rather than person v
On approach to reforming
Shariy'a by deducing general rules from the entire Koran
instead of individual verses. Add book to references.
p. 162, the distinction
between statements of one answer to every question and
analysis of the reasons closely parallels the pattern in
Ottoman but semi-independent, Hanafi (ruler's) and Maliki
(local). Judges and mufti's of both schools. Looks as though
initially the higher level court tried to find a result both
schools were happy with. From mid-19th c. on, defendant
chose the court.
Same rule earlier for
military court vs civilian court.
Tunisia had separate
courts for Christian vs Muslim cases. 220.
p. 289: Intentional death
or bodily injury, if victim or heir chooses compensation
rather than retaliation, the offender pays. For accidental,
payment shared with his 'āquila, originally tribe, later
some other group associated with him (kin, military unit,
...). But no individual is asked to pay more than 4 dirham,
so if the sum is large either the number is large or the
offender himself ends up paying a lot of it. Or the state.
But "it is likely that such ... were more theoretical than
real both in the medieval period and later." If murder case
unsolved, compensation (qasāma) falls on the owner of the
property where the body was found. He and fifty others must
all swear they were not involved in the death, and they are
then jointly responsible for the compensation. But this does
not apply if the heirs have taken any of the group to court
and failed to get a conviction. So an incentive not to sue
if you are likely to lose.
p. 314: Hanafi rules do
not, Shafi'i rules do, make it practical for a judge to
divorce a woman from her husband if the husband is absent
and has not adequately provided for her support. Where
judges of both schools work together in the court, the
Hanafi judge, recognizing the difficulty produced by his
law, may yield the case to his Shafi'i colleague, and then
recognize the result on the principle of mutual recognition
of verdicts by the schools.
Suggests that the system
of multiple systems of law may have been established to let
a party choose the court most suitable to his requirements
(assumes only one party). Rapoport, "Legal Diversity in the
age of taqlīd," 216-17, Islamic
Law and Society, X,2,2003, 210-218.
Ignatz Goldziher as a
predecessor of Schacht.
IRS private letter ruling
as analogous to a fatwah.