Law

[This entry contains seven subentries:

• LEGAL THOUGHT AND JURISPRUDENCE
• SUNNī SCHOOLS OF LAW
• SHīʿī SCHOOLS OF LAW
• MINORITY JURISPRUDENCE
• MODERN LEGAL REFORM
• CIVIL LAW
• COURTS]

Legal Thought and Jurisprudence

The idea of divine law in Islam is traditionally expressed by two words, fiqh and sharīʿah. Fiqh originally meant understanding in a broad sense. The specialist usage, meaning understanding of the law, emerged at about the same time as the first juristic literature, in the late eighth and early ninth centuries. All efforts to elaborate details of the law, to state specific norms, to justify them by reference to revelation, to debate them, or to write books or treatises on the law are examples of fiqh. The word connotes human and specifically scholarly activity. By contrast, sharīʿah refers to God 's law in its quality as divine. Loosely used, it can indicate Islam, God 's religion. It refers to God 's law as it is with him or with his Prophet, or as it is contained (potentially) within the corpus of revelation. Practitioners of fiqh (the fuqahāʿ; sing., faqīh) try to discover and give expression to the shariʿah. For Muslims, the sharīʿah evokes loyalty and is a focus of faith; fiqh evokes at best respect for juristic scholarship and for a literary tradition—and, among some modern thinkers, distaste for dry-as-dust legalism. The word sharīʿah is sometimes used in place of fiqh, in which case its positive connotations will be transferred to the scholarly tradition; it also has been applied to actual bureaucratic systems thought to conform adequately to the norms expressed in theoretical writings—always a matter of perception. Western designation of the Muslim juristic tradition as “Islamic law” has led to the emergence, perhaps in the late nineteenth century, of the calque (realized in Arabic as al-qānūn al-Islāmī), and now part of the vocabulary in all Muslim countries. This phrase, although applied to the tradition as a whole, carries many of the connotations of “legal system” in a Western sense, related to the bureaucratic structures of a nation-state. Such ideas have now permeated much Muslim thinking about the law.

Juristic Schools and Hermeneutical Traditions.

The traditional processes of juristic understanding depend on a theological construct that is presented as history. It states that the words and actions of the prophet Muhammad (his sunnah), being an embodiment of the divine command and an expression of God 's law (sharīʿah), were preserved by the companions of the Prophet and their followers in the form of discrete anecdotes (hadīth). These were transmitted from generation to generation, inspiring first discussion and then systematic juristic thinking (fiqh). Beginning in about the mid-eighth century, a number of masters made distinctive contributions to the discipline that stimulated the emergence of separate traditions or schools. The most important masters for the Sunnīs are Abū Hanīfah (d. about 767), Mālik ibn Anas (d. 795), Muhammad ibn Idrīs al-Shāfiʿī (d. 820), and Ahmad ibn Hanbal (d. 855), associated respectively with the Hanaf ī, Mālikī, Shāfiʿī, and Hanbalī schools. The four Sunnī schools acknowledged one another and gave more or less qualified recognition to a number of other short-lived schools that emerged within Sunnism; the most important was probably the Zāhirī (Literalist) school, whose major exponent was ʿAlī ibn Hazm (d. 1064).

Of sectarian groups, only the Ithnā ʿAsharī (or Imāmī) Shīʿī generated a continuous and creative juristic tradition that matched the Sunnī traditions. They looked back to the sixth imam, Jaʿfar al-Sādiq (d. 765), as a founding figure. The Zaydīs, Khārijīs, and Ismāʿīlīs all produced minor traditions.

Development of the law within the schools can be seen to depend on two major hermeneutical principles. The first, the synchronic principle, required that any formulation of the law, at any time, must be justifiable by reference to revelation. The second, the diachronic principle, was equally important, although frequently overlooked by observers and possibly underestimated by some practitioners. It required that participants in a school tradition, whether Sunnī or Shīʿī, preserve loyalty to the tradition by taking into account the interpretative achievement of older masters; the law had to be justifiable by reference to the continuity and established identity of the school. Muslim jurists were not, as individuals, in solitary and direct confrontation with revelation: they found their way back to the meaning of revelation through tradition. This principle was a source of strength and flexibility, for the tradition held the accumulated experience of the community and gave it a sophisticated literary form. It was, nonetheless, sometimes attacked. Within Sunnism, the Zāhirīs objected to precisely this feature of juristic thought and advocated instead a return to a literal reading of the sources. The same mood, if not the same extreme, is expressed in the Salafī (Primitivist—the world salaf refers to the earliest generations of Islam) orientation associated with Ibn Taymīyah (d. 1328), and perhaps in the Akhbārī movement within Imāmī Shiism. All these movements evince distrust of the complexity and indeterminacy expressed in the ongoing dominant traditions.

Revelation in the classical period meant the canonical collections of hadīth (the Shīʿah and the Sunnīs had different collections) and the Qurʿān. These two were equal qua authority, although the Qurʿān was superior in its nature and origins (word of God, miracle). The hadīth collections, by virtue of their size alone, dominated the hermeneutical process, but the relationship between Qurʿān and hadīth was difficult to express. Some jurists accepted that the sunnah might “abrogate” the Qurʿān; others preferred to say that the sunnah “passed judgment” on the Qurʿān, or that it “clarified” and “explained.” There were variant views within schools. Whatever the preferred wording, none would disagree with the statement attributed to the Syrian jurist Awzāʿī (d. 774) that the Book is in greater need of the sunnah than the sunnah is of the Book. The vitality, complexity, and exuberance of fiqh literature—and many of the fundamental norms of the law—are unthinkable except in relation to the large body of revelation constituted by hadīth.

Western Scholarship on Islamic Law.

Modern historians have not generally accepted the traditional account of the origins of Islamic law. They have produced an important alternative account, associated with the names of the three scholars Ignácz Goldziher (1850–1921), Joseph Schacht (1902–1969), and John Wansbrough (1928–2002). Goldziher demonstrated that historical and theological hadīth could not be accepted as reflecting the lifetime of the Prophet, but must be the product of dispute within the community throughout the first and second centuries after the Hijrah. Schacht extended this insight to include juristic hadīth, perceived by him as not a cause but a product of juristic debate in Muslim communities. Wansbrough has argued that the Qurʿān, too, is not a product of the Prophet 's lifetime but a liturgical reflection of two hundred years of community worship and sectarian debate. For this tradition of scholarship, revelation is not an event but a process; its creative agent is not the Prophet but the community (or communities); and its geographical locus is not the Hijaz but the Muslim cities of North Africa, Syria, and Iraq.

With specific regard to the juristic traditions, Schacht argued that these began as local traditions in Medina, Basra, Kufa, and other cities, reflecting local practice at a greater or lesser distance. Even if the local traditions were claimed to be prophetic in origin (which is likely), the idea that legal norms must be related directly to prohetic ḥadīth emerged only gradually, as a result of polemical debate among different communities or segments of community. The real architect of the classical hermeneutical system, according to Schacht, was Shāfiʿī. In works attributed to him are found the first systematic arguments that defend norms by reference to ḥadīth or derive norms directly from them. His Risālah contains the first general account of the methodology of relating law to revealed texts. Many Western scholars and Muslims have reacted to Schacht's theories with dismay and have tried to reassert the core of truth that (it is claimed) must lie behind the traditional accounts of the origins of Islam and of Islamic law.

Modern scholarship has made little progress in describing the characteristics of Islamic law in the classical period or in providing a sensible and justified periodization. From the tenth century to the nineteenth, the formal structures of juristic literature, and many specific statements, imply that the sharīʿah is a set of static and unchanging norms. This is an illusion deliberately contrived to stress diachronic continuity and synchronic harmony with revelation. The literature in fact admits (to a degree) the reality of development, for example, in ubiquitous reference to the moderns and the ancients (al-mutaʿakhkhirun, al-mutaqaddimun). Western scholars have not found it easy to describe or assess this development. Failing to find a terminology that will uncover the purpose or acknowledge the degrees of openness and creativity that characterize hermeneutical traditions of this kind, they have perpetrated a number of errors. At the most general level, they have described nearly all of the tradition in terms such as decline, decay, failure, or ankylosis. More specifically, Schacht, in an uncharacteristically muddled set of arguments, asserted that the “closing of the door of ijtihād,” meaning an end to independent reasoning in the law, began about 900. He may have intended something sensible, but the pernicious results of these comments have haunted academic descriptions of Islamic law ever since; recent studies suggest improvement.

Juristic Literature.

The literature of fiqh is of two kinds, furūʿ al-fiqh (branches) and usūl al-fiqh (roots). It is sometimes said that works of the latter type explore the four sources (or roots) of the law, namely, Qurʿān, sunnah, consensus (ijmāʿ), and analogical reason (qiyās). This is an indigenous but inadequate description. Such works do contain a definition of revelation, which may be extended to include the words and actions of the companions, but their main purpose is to describe the intellectual structures that can be brought to bear on revelation for the purposes of interpretation. These begin with linguistic and rhetorical sciences, usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. With regard to hadīth alone, the epistemological categories of multiple and single transmission (tawātur and āhād, with only the former giving certain knowledge) are discussed. The workings of abrogation (naskh), the application, ramifications, and limitations of analogical argument, and the value and limits of consensus, are all discussed, along with a variable body of other materials. The whole set of interpretative structures is brought together in the idea of ijtihād. As a juristic term, this means the exertion of the utmost possible effort to discover, on the basis of revelation interpreted in the light of all the rules, the ruling on a particular juristic question. The theory of ijtihād in its several forms concedes that there will be variant views on all but the fundamental structures of the law. By acknowledging dispute, it preempts its capacity to divide. It justifies the authority of the fuqahāʿ, who alone have the right to give rulings, which must be obeyed by the masses. Finally, it controls and justifies intellectual play and so permits the remarkable florescence of juristic literature that characterizes all Islamic societies down to the nineteenth century (and in some areas beyond it).

In spite of many differences of detail, the broad structures and all the major topics of usūl works are the same for Sunnīs and Shīʿah. Initially resistant to the idea of ijtihād, the Shīʿah tradition embraced it in the works of ʿAllāmah al-Hillī (d. 1325), and, in spite of internal disputes, they have made it a central part of their juristic thinking. The Shīʿah also lay considerable theoretical stress on the independent capacity of the intellect to make moral and ethical judgments, but this scarcely affected the overall structure of their works.

The literature of furūʿ consists fundamentally of norms that regulate (or appear to regulate) all areas of community ritual and public social life. They are usually divided into ʿibādāt (rituals) and muʿāmalāt (social relations). More sophisticated divisions have been attempted, but the preferred approach of the fuqahāʿ was atomistic, topic by topic. Only the superior significance of ritual was consistently marked by placing it at the beginning of a work. The topics of ritual are purity, prayer, alms (zakāt), pilgrimage, fasting, and sometimes jihād. The remaining topics occurred in no stable order and included at least the following: marriage, divorce, and inheritance; rules of buying, selling, lending, hire, gift, testamentary bequest, agency, deposit, and so on; crimes, torts, penalties, and compensations for injury; judicial practice and procedure; rules relating to slaves, land ownership and holding, contractual partnerships, slaughter of animals for food, oaths and their effects, and more. The list was capable of considerable conceptual refinement, but it was finite and more or less closed. Its major technical terminology was static. Real developments in social life following the formation of the tradition might be caught in the network of the law through exploration and refinement of concepts, but much was not; moreover, little was lost from the tradition, even when it became irrelevant to real life. Thus the terminology and the reality of governmental administration scarcely entered works of fiqh, even when it was more or less recognized by the fuqahāʿ as a realization of sharīʿah (as under the Ottomans). Conversely, the fossilized terminology for the assessment of zakāt on camels was a part of fiqh, even if camels were not a part of social life.

It is usual to state that works of furūʿ classify acts according to five headings: mandatory, recommended, permitted, abhorred, and prohibited. In fact, classificatory terminology goes considerably beyond this, and the full message of the fuqahāʿ is more complex than is implied by this classification. There are two major types of furūʿ literature, mukhtasars (concise epitomes of the law) and mabsuts (expansive compendia, characterized by proliferation of cases, intricate conceptual subdivision, recording of variant views from within the tradition or from other traditions, and generous provision of justificatory arguments for all recorded positions). The size of the great mabsuts marks the exploratory intentions of their authors—writers who, whether for strict practical ends or from mere intellectual exuberance, drew out endlessly the possibilities of a past that was never abandoned: there were no new beginnings in the tradition of fiqh. The point was reflected in literary form: commentary, gloss, supercommentary, multiple citation of authority—the signs not of a static tradition but of a hermeneutically engaged one.

The genre of mukhtasars was necessarily less exploratory. Works of this type were marked by organizational neatness, precise clarity of exposition, and sometimes by a conceptual and syntactic dexterity that charms and dazzles as well as teaches. The Mukhtasar of the Mālikī scholar Khalīl ibn Ishāq (d. 1374) was described admiringly as “woven on a magician 's loom.” Aesthetic skills and intellectual exuberance were both a part of the task of the fuqahāʿ, and clearly relevant to the expression as well as to the understanding of God 's law.

The Shīʿī tradition was not substantially different from the Sunnī in literary form or in presentational technique. The differences in detail among the four Sunnī schools are of roughly the same order as those between them and the Shīʿī tradition. There is, however, one systematic difference that warrants comment. Wherever the rules of the sharīʿah required a governor as executive agent, the Sunnī tradition recognized the actual ruler as having this right, at least potentially. The Shīʿī tradition initially perceived these functions as having lapsed during the absence of the Hidden Imam. Over time, however, they interpreted the acknowledged judicial authority of the fuqahāʿ as extending, again potentially, to all the executive functions otherwise reserved for the imam. One result was that the Shīʿī fuqahāʿ became the managers of sharʿī taxes (zakāt and khums) and so acquired financial independence; this, coupled with their potential claim to political authority, led (especially in the nineteenth and twentieth centuries) to a remarkable increase in their authority and power.

Social Influences and Legal Institutions.

The structures of the law of course had practical influence. Most broadly, they influenced education. From the tenth century onward, the dominant form of publicly accessible education in all Islamic lands began with training in the Qurʿān and sunnah and ended with training in fiqh. This discipline provided the basic conceptual structures through which Muslims thought about society and God 's relationship to society and demands of it. The basic rules were a part of their moral life, the constituent principles of all normative thought. The training in systematic thought and controlled argument served the purposes of the merchant classes and governing bureaucracies and ensured a homogeneous educated class across vast geographical areas.

The basic rules of the law both lived in the imaginations of Muslims and structured their activities. All Muslims knew, for example, that it was their duty to pray five times a day, that Muslims did not drink wine or take interest, that married persons who indulged in fornication were subject to death by stoning. In historical Muslim societies, of course, not all Muslims prayed five times a day; ways were found to secure access to wine and to interest; and fornication did not necessarily lead to the prescribed penalties. The interpreters of the law were both idealists and facilitators. Thus, the principle that fornication by married persons merited the death penalty was constantly restated (a sign of abhorrence), but the option of putting that penalty into effect was removed; the rules of evidence and procedure were carefully written so as to prevent the penalty from taking place. This is particularly noticeable in the Hanafī tradition, which has the longest history of practical experience and close alliance with government. (It is less obvious in the Shāfiʿī tradition, which for many centuries did not aspire to partnership in government.) The prohibition on interest perhaps signaled distaste for exploitation. In practice, however, some forms of interest were required for normal economic activity; this was acknowledged by the fuqahāʿ, who worked out legal devices (hillahs) to facilitate practice or simply affirmed that there were fair rates of interest (Ottoman Hanafī jurists in the sixteenth century usually cite 15 percent).

The point of contact, or the judgment of relevance, between theory and practice is not predictable. Different areas of the law generated different kinds of theory/practice relationships, few of which have been given serious consideration by modern scholars. Criminal law in the sharīʿah is limited to only a few specified crimes. Exploration of these within fiqh is extensive but almost never refers to the reality of practical administration, although the fuqahāʿ were not unaware of the governmental systems, often based on local practice, that actually existed. Some principles of international law are articulated under the topic jihād, but the fuqahāʿ explored the tradition and not the needs or the desires of contemporary governors. No Sunnī faqīh, for example, denied the right of every individual Muslim to issue a valid and binding contract of safe-conduct (amān) to individuals from non-Islamic territory, yet no governing institution could ever have tolerated such practice.

The only areas of the law that were, in premodern times, systematically transformed into administrative structures were those related to the office of judge (qādī). His competence traditionally covered many aspects of family law (marriage, divorce, inheritance, testamentary bequest), the administration of charitable endowments (waqf) and the property of orphans, declaratory judgments on the significance and validity of contracts, and civil disputes. In order to make this administrative system work, there had to be compromises with theory. In the Sunnī system, the governor (just or unjust) was accorded the absolute right to appoint judges and to define their spheres of competence; he also had the right in areas of juristic dispute to declare the rules that would be put into effect. Various types of judicial hierarchy emerged to ensure predictability and order in judicial decisions. Numerous subordinate officials and deputy judges derived their authority from appointment by the qādī. (In spite of the de jure illegitimacy of Shīʿī rulers, the practical situation was not very different under Shīʿī governments.)

Many aspects of civil and criminal law could not be dealt with under the norms of the sharīʿah, and some of the norms of the sharīʿah could not be rendered practically effective. (If the laws of evidence were preemptively stringent in the case of fornication, they were probably too easy in the case of wine-drinking; few qādīs could listen to unlimited complaints against neighbors who drank wine.) Careful definition of spheres of judicial competence was one way of dealing with these problems. But already by early ʿAbbāsid times, a system of courts was required in addition to the qādīs ’ courts, which would take a more expedient and flexible approach to sharʿī rules and might in some areas go beyond them. These were initially called mazālim (“injustices”) courts, though the nomenclature varied through time. They were administered directly by the governing bureaucracy, usually with the help and advice of trained jurists. They dealt with complaints against government officials and administered an extended criminal law that was only loosely related to sharīʿah. Petty crimes were often dealt with by local police and market inspectors in accordance with local customs, again loosely linked to sharīʿah.

Probably the most significant theoretical exploration of the law in relation to judicial practice, in the classical period, is contained in the Kitāb adāb al-qādī of the Shāfiʿī jurist al-Māwardī (d. 1058), one of a long tradition of monographs on judicial authority. The most effective and complex practical exploitation of the qādī 's office took place in the Ottoman Empire. Here the integration of the qādī 's office into a bureaucratic structure was accompanied by a considerable expansion of the practical and administrative duties of the judge, causing the separate mazālim-type structures to disappear.

The second major institutional office that emerged to serve the structures of fiqh was that of muftī. Originally, a muftī was any qualified mujtahid who was capable of providing reasoned responses (fatwās) to the questions of those not educated in the law. Informal muftīs never disappeared, but, in the Sunnī community, governmental structures often signaled official preference for some muftīs over others. In the Ottoman period, officially appointed muftīs became fully integrated into the structures of government. The rulings of a muftī could be issued on request to individuals, to qādīs, and to agents of government, and could have broadly legitimizing effect (e.g., in respect to government policies) or, if translated into government edicts, strict practical effect (e.g., in relation to judicial practice).

The great Ottoman jurist-administrator and grand muftī of Istanbul, Abū Saʿūd (d. 1574), may be taken as representative of those jurists whose achievement in the law was thoroughly practical. He brought the real tax-collecting activities of the empire (in practice varied and based on regional traditions) under the formal, technical terminology of fiqh. This was in part a control on arbitrary taxation, but it also provided a reasonable degree of legitimacy and authority to the working system of the day. For Abū Saʿūd, the Ottoman system was a broad realization of the sharīʿah, and his aim was to ensure that it was a practical, efficient, and more or less just system. This required the recognition of governmental decrees (kānūns), the promulgation of administrative rules that were not reflected in traditional fiqh (though they were felt not to contravene sharīʿah), and decisive rulings on matters of dispute. In a fatwā, Abū Saʿūd declared that there can be no decree of the sultan ordering something that is illegal according to the sharīʿah, thereby committing jurists to a considerable hermeneutical task or to formal, discursive opposition. He declared that marriage without a qādī    's knowledge was invalid, subsequent to the issue of a sultanic decree to that effect—thereby serving the interests of orderly administration, even though the sharīʿah does not require any form of registration for a valid marriage. He also gave rulings in favor of the cash-waqf (pious foundations in the form of cash). Governmental decrees confirmed the latter ruling, but in the tradition of Hanafī fiqh, the legitimacy of cash-waqfs remained a matter of dispute.

In the Shīʿī world, though low-ranking jurists might serve the government, the highest-ranking jurists preserved their independence. Consolidation of theory and improvements in communication led in the nineteenth century to a strengthening of their position and the emergence of a new titulature (notably marjaʿ al-taqlīd) reflecting their increasing status. They had great capacity for political gestures, usually marking their dissociation from government, but, significantly, no opportunity for the mundane, bureaucratic, participatory legitimizing activities of Sunnī fuqahāʿ.

Modern Developments.

The nineteenth century brought changes, and in many areas a gradual end, to the indigenous traditions of fiqh. New ideas from the West, a defensive analysis of Islam, and not least the emergence of secular educational systems that excluded traditional juristic studies, all helped to precipitate new approaches to the law. Muslim administrators and Muslim reformists alike began to feel that the sharīʿah ought to be practical and to resemble Western codes. The earliest sign of movement in this direction came with the enactment of the Mecelle in 1876 by the Ottoman authorities. This was a Hanafī codification of some parts of the sharīʿah, designed for practical purposes. It remains partially effective in some former Ottoman territories (e.g., Iraq and Israel). The Egyptian reformer Muhammad ʿAbduh (1849–1905) advocated a new, creative approach to ijtihād: a disregard of school traditions as such, and an eclectic approach to the tradition as a whole (an approach known as talfīq, “patchwork”). His aim was to define and embody in administrative and institutional forms specific rules that would serve the needs of independent Muslim communities. The Shīʿī tradition showed its ability to accommodate modern law-making techniques when a majority of high-ranking jurists rallied to the cause of the constitution in Iran in 1906.

With the withdrawal of imperialist and mandate authorities from the Middle East and elsewhere, modern Muslim nations have for the most part provided themselves with practical, eclectic law codes that draw on ideas from both the Muslim tradition and the West. It is in the traditional practical areas of marriage, divorce, and inheritance that the influence of the sharīʿah has been strongest. Some countries (e.g., Tunisia) have achieved notably progressive codes of personal status while still asserting a very creative interpretative link between the code and the tradition of fiqh. The greatest theoretician of the idea that the sharīʿah could be a source for practical and effective codification was probably the Egyptian jurist ʿAbd al-Razzāq al-Sanhūrī, who played a part in drafting new civil codes for more than one Arab country. The magnitude of the achievement of modern Muslim states in creating and implementing their new legal structures is rarely appreciated outside legal circles, but it is an achievement of immense importance and complexity, and not one that is unduly at odds with the practical history of the sharīʿah.

If codification is one aspect of the heritage of nineteenth-century reform, another, more complex, is Islamic fundamentalism. This term is used in many ways, not always carefully. In the history of religious doctrine it can describe those movements that deny the authority of tradition and overleap the accumulated historical and intellectual experience of the community to return to the sources, the early generations, the fundamentals. In this sense, it is possible to recognize in the history of Islam a recurring fundamentalist tendency, which can be associated with, for example, the Zāhirīs (Literalists) and the Salafīs (Primitivists). The word fundamentalist is also used to describe groups that espouse radical or activist political views. It is not accidental that many of these groups, from the Wahhābīs of the eighteenth century to the Muslim Brothers of the twentieth, have also been fundamentalist in a strictly doctrinal sense. They are explicitly Salafī, and they look back to the great Salafī theoretician Ibn Taymīyah as symbol and hero. Here, too, Muhammad ʿAbduh bears a measure of responsibility for initiating a tradition of distaste for the Muslim intellectual traditions (as well as for the mystical experience of the Sūfīs). Sayyid Qutb, the ideologue of the Muslim Brothers executed in Egypt in 1966, was in this respect an intellectual descendant of ʿAbduh. For him, in the end, all of Islamic history after the early generations was only a continuation of the Jāhilīyah, the Age of Ignorance, and the works of the fuqahāʿ were something like a betrayal of the existential task they should have executed. In his work of Qurʿānic exegesis, Fī Zilāl al-Qurʿān, he frequently made the point: “The sharīʿah has been revealed in order to be implemented, not to be known, to be studied, and to be changed into culture in books and treatises” (Beirut, 1971, vol. 1, p. 746). This reverses the priorities and denies the achievement of an ancient juristic tradition of thought and literature; and it promotes the word sharīʿah as if it designated a blueprint for the Islamic state. In this form, sharīʿah could be part of a call to political action, and it was subject to the usual constraints of political expediency. This has sometimes taken the form of promoting fragments of the law as symbols of islamization. For example, in Sudan in 1983, President Nimeiri enacted the Islamic canonical penalties for fornication, wine-drinking, and other offenses. Politically insensitive at best, these moves (reenacted and extended later by an Islamic government) were also a trivialization of the tradition of fiqh.

The Islamic Revolution in Iran (1978–1979) is sometimes described as a fundamentalist movement, but it is not so in the strictly doctrinal sense. The theory that underlay the Ayatollah Ruhollah Khomeini 's propaganda and provided him legitimacy in his own eyes and in those of his followers was central to the tradition of juristic thought in Shīʿī Islam. Khomeini built on the tradition; he did not abandon or cheapen it. And the tradition was not in the end incompatible with substantial continuity in the constitutional and legal structures of Iran, as well as in its political institutions.

Today, the application of Islamic jurisprudence in a Muslim country may be divided into three different categories. In the twentieth century, Islamic jurisprudence was increasingly subordinate to sharīʿah in Iran and Saudi Arabia, although in other countries it was influenced by sharīʿah. Several contemporary constitutions mentioned the sharīʿah even if this was not an indication of its influence. In Algeria, for example, the sharīʿah was not specifically mentioned as a source of jurisprudence, yet mixed marriages were prohibited, as in most other Muslim societies. Sharīʿah was quoted as one of the sources in Kuwait and Bahrain, but was considered the “main” source in Qatar and Syria, and even as the “only source” in Mauritania. Many modern Muslim constitutions did not mention the sharīʿah—Algeria, Burkina Faso, Cameroon, Chad, Djibouti, Gambia, Guinea, Guinea-Bissau, Iraq, Mali, Morocco, Niger, Senegal, Tunisia, and Turkey—and considered their jurisprudences to be independent from sharīʿah. In general, however, sharīʿah law tended to be at least partially in force, even if its application varied from country to country. In 2002, the sharīʿah was reintroduced in Afghanistan, and in parts of Nigeria, whereas efforts toward similar adoptions were underway in Malaysia and Indonesia.

After 2001, and especially after Islam was associated with terrorism, a fresh approach was necessary to refute vile accusations that sharīʿah law fostered violence. In July 2005, over 170 leading Muslim clerics from forty different countries gathered in Amman, Jordan, to attend the First International Islamic Conference. They endorsed religious edicts that banned the declaration of any Muslim an apostate and limited such credentials to qualified clerics from the eight schools of Islamic jurisprudence. All major religious authorities signed this petition, including the Shaykh Al Azhar Muhammad Sayyid Tantāwī; the Ayatollah Al Sayyid ʿAlī al-Sistānī of Iraq; the Muftī of Egypt ʿAlī Jumaʿa; the Muftī of the Sultanate of Oman, Ahmad bin Hamad al-Khalīli; the Muftī of the Hashemite Kingdom of Jordan, Shaykh ʿIzzeddine al-Khateeb al-Tamimi; the Shaykh Dr. Yūsuf al-Qaradāwī, of Egypt and Qatar, and many others affixed their approvals. Representatives from all four Sunnī schools (Hanaf ī, Mālikī, Shāfiʿī, and Hanbalī), the Jaʿfarī Shīʿī school, the Zaydī school, the ʿIbadhi school of Oman, and the Zāhirī school—that may be the root of current Salafī movements based on Muhammad ibn ʿAbdul Wahhāb—confirmed who was a Muslim. No believer could be declared an apostate if he believed in God, his messenger, and the pillars of the faith. In a significant departure from past renditions, these scholars announced that past disagreements between ʿulamāʿ were only with respect to the ancillary branches of religion (furūʿ) and not the principles and fundamentals (usūl). Moreover, they underscored that furūʿ disagreements required mercy, especially since variance in opinion among ʿulamāʿ was a good thing. The Amman message affirmed a renewed engagement to ensure moderation, mutual forgiveness, compassion, and dialogue with others. It mobilized learned as well as mundane opinion to foster genuine tolerance among Muslims and redefined the application of law in contemporary settings.

Islamic law has been throughout the history of Islamic culture the prime focus of intellectual effort. It is a correspondingly complex affair, a structure in which several traditions of juristic thought and many types of social reality have had to be discovered to be in some kind of justificatory harmony with one another and with the texts of revelation. Its rewards as an object of study are evident. For the Muslim community, the assimilation of its messages to the needs of the current generation is, now as in the past, both an intellectual and an imaginative challenge, as well as a generally acknowledged religious duty.See also CONSENSUS; DIPLOMATIC IMMUNITY; FAQīH; HADīTH; HILLī, ʿALLāMAH IBN AL-MUTAHHAR; IJTIHāD; MARJAʿ AL-TAQLīD; MECELLE; QāDī; SALAF  īYAH; USūL AL-FIQH; and WAQF.

Norman Calder

Updated by Joseph A. Kéchichian

Sunnī Schools of Law

The beginnings of the schools of law in Islam go back to the late Umayyad period, or about the beginning of the second Islamic century, when Islamic legal thought started to develop out of the administrative and popular practice as shaped by the religious and ethical precepts of the Qurʿān and the hadīth. The role of the Qurʿān at this very early stage can be taken for granted, but the role of hadīth, or traditions of the Prophet, has been subject to debate among scholars; some maintain that they became efficacious only after Muḥammad ibn Idrīs al-Shāfīʿī (d. 820) insisted that they be. In the main centers of the early Islamic world, local scholars and private jurists developed their legal doctrines based on combinations of local practice, the Qurʿān, and their knowledge of the traditions, using varying degrees of analogical reasoning in the interpretation and application of the holy texts. This geographical variation thus gave rise to varying doctrines. Shāfīʿī says, “Every capital of the Muslims is a seat of learning whose people follow the opinion of one of their countrymen in most of his teachings.” He goes on to mention the local authorities of the people of Mecca, Basra, Kufa, and Syria; elsewhere he speaks of the Iraqis and the Medinese. They all followed their own doctrines based on what Joseph Schacht calls their “living traditions” and the free exercise of personal opinion, in the absence of strict rules for deriving legal norms like those elaborated by Shāfīʿī. At this stage the adage had not yet arisen that the true home of the sunnah (the model behavior of the Prophet) was Medina.

Comparatively little is known about the doctrines of the Meccans, the Basrans, and the Syrians, although we possess some documentation of the famous representative of the latter, ʿAbd al-Raḥmān al-Awzāʿī (d. 773), particularly about the laws of warfare. Of the Medinese and the Kufan doctrines we know more, possibly because they later developed into the Mālikī and the Ḥanafī schools, respectively, which have continued to this day. Shāfiʿī, the founder of the school that carries his name, considered himself a member of the Medinese school, but he was uncompromising in taking the Medinese and other early law schools to task for not making the traditions of the Prophet supersede their customary practices. He insisted that nothing could override the practice of the Prophet even if that were attested by only a single tradition. His insistence was to have a lasting influence on the legal theory of all schools that accorded traditions a place second only to the Qurʿān in formulating rules, and that identified sunnah, previously understood as the model practice of the community, with the traditions of the Prophet. The Medinese until that time appear to have authenticated only those traditions agreed upon by the people of Medina, and to have allowed sound reason and analogy to supersede traditions. The Iraqis, who were accused by their opponents of caring little for traditions, seem actually to have been more knowledgeable about the traditions than were the Medinese, whose attitude toward traditions they shared. Still, some Iraqis, particularly Muḥammad ibn al- Ḥasan al-Shaybānī (d. 804), seemed to anticipate Shāfiʿī in insisting on the decisive role of traditions.

This article will treat the development of the various Sunnī schools, four of which are extant and three extinct. It will discuss their main doctrines, their major figures, their major books, and their provenance and present locations. Although the legal theories as developed by the various jurists may be regarded as more closely related to the topic of uṣūl al-fiqh (“roots of jurisprudence”; the bases through which practical legal rules are derived), some reference will be made to them here as well.

H.anafĪ School.

One of the geographical centers of legal thought was Kufa in Iraq. The servant and companion of the Prophet, ʿAbd Allāh ibn Masʿūd (d. 653), had been sent there by the caliph ʿUmar as a teacher and jurist. His students and theirs in turn achieved prominence as jurists; notable among them were ʿAlqamah al-Nakhaʿī, Masrūq al-Hamadānī, al-Qāḍī al-Shurayḥ, Ibrāhīm al-Nakhaʿī, ʿĀmir al-Shaʿbī, and Ḥammād ibn Abī Sulaymān (d. 738), who was the teacher of Abū Ḥanīfah, the eponym of the school.

Abū Ḥanīfah (699–767) is the agnomen of Nuʿmān ibn Thābit, of Persian extraction and Kufa. He first studied scholastics and then concentrated on the jurisprudence of the Kufa school while earning his living as a textile merchant. His training in scholastics coupled with his experience as a merchant imparted to him the unusual ability to use reason and logic in the application of rules to the practical questions of life, and to broaden those rules by the use of analogy (qiyās) and preference (istiḥsān). His liberal use of opinion in the formulation of analogy and preference caused his school to be dubbed the People of Opinion, as distinguished from the People of Traditions who depend on traditions in the formulation of rules—even though his school was not less knowledgeable about traditions. He was reported to have said, “This knowledge of ours is opinion; it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his opinion as we are entitled to our own.”

On the whole, the legal doctrines of Abū Ḥanīfah evidence a liberality and a respect for personal freedom that are not that pronounced among other jurists. He was the first to formulate rules concerning contracts, which reflect his attachment to the principle of freedom of contract as exemplified in the contracts of salam and murābaḥah. The former allows the immediate payment of the price of goods for future delivery, although the contract of sale stipulates the immediate exchange of an object and its price; the latter allows a merchant to sell what he had bought at the original price plus a stipulated profit, provided that usury is not involved. In the field of personal law, Abū Ḥanīfah allows a free girl who had reached her majority to marry without the intercession of a marriage guardian, although later Ḥanafī doctrine restricted that right to a woman who had previously been married. Also contrary to all other jurists, including the dominant opinion in his own school, he would not interdict the spendthrift, contending that a person who has reached majority is independent and can do as he wishes with his property.

The legal thought of Abū Ḥanīfah was transmitted by his students, four of whom achieved fame—Abū Yūsuf, Zufar ibn al-Hudhayl, Muḥammad ibn al-Ḥasan al-Shaybānī, and al-Ḥasan ibn Ziyād. In particular, Abū Yūsuf and Muḥammad were able to spread the influence of the school through their writings and their high positions in the ʿAbbāsid state; they were often referred to as al-Ṣāḥibān (the Two Companions). Abū Yūsuf, whose name was Yaʿqūb ibn Ibrāhīm al-Anṣārī (731–798), was appointed a judge in Baghdad and later became the first qāḍī al-quḍāt, or chief justice, with authority to appoint judges in the empire. On various occasions he differed with the opinions of his teacher, basing his decisions on traditions that may not have been available earlier. His book Kitāb al-kharāj is in the form of a treatise he prepared for Caliph Hārūn al-Rashīd on taxation and the fiscal problems of the state.

To Muḥammad ibn al-Ḥasan al-Shaybānī (749–804) goes the credit for writing down the legal thought of the Ḥanafī school. He was trained in the jurisprudence of the Iraqi school as well as in that of Medina, for he traveled to Medina and studied under the scholar Mālik ibn Anas, a version of whose book al-Muwaṭṭaʿ was transmitted by him. Caliph al-Rashīd appointed him qāḍī (judge) of Raqqah and later removed him, but he accompanied the caliph to Khurasan and died at Rayy. The books he compiled contain many of the detailed rules he extracted, particularly on the laws of inheritance, as well as the doctrine of his school. Often the dominant opinion of the school reflected his opinion on a disputed topic. His books have been classified into two categories: Ẓāhir al-Riwāyah, whose transmission from him has been authenticated, and al-Nawādir, books transmitted by less reliable authorities. The first category consists of the six books al-Mabsūt, al-Jāmiʿ al-kabīr, al-Jāmiʿ al-ṣaghīr, al-Siyar al-kabīr, al-Siyar al-ṣaghīr, and al-Ziyādāt. These books were collected in one volume known as al-Kāfī by Abū al-Fadl al-Marwazī, better known as al-Ḥākim al-Shahīd (d. 955). This collection was later annotated in a thirty-volume work, al-Mabsūt, by the distinguished scholar Muḥammad ibn Aḥmad al-Sarakhsī (d. 1090). This work was the basis of the Ottoman civil code of 1869, the Mecelle (Ar., Majallah), part of the legal reforms of the Tanzimat period. The second category, al-Nawādir, consists of Amālī Muḥammad or al-Kaysānīyāt reported by Shuʿayb al-Kaysānī, al-Raqqīyāt (cases submitted to al-Shaybānī while he was a judge in Raqqah), al-Makhārij fī al-hiyal on legal fictions and devices, and five other lesser-known collections.

Famous scholars of the next two generations include Hilāl al-Raʿy (d. 859); Aḥmad ibn ʿAmr al-Khaṣṣāf (d. 874), author of al-Ḥiyal on legal fictions and devices, al-Waqf on religious foundations, and Adab al-qāḍī on procedure and evidence (commented on by Abū Bakr Aḥmad ibn ʿAlī al-Jaṣṣāṣ (d. 980), author of Aḥkām al-Qurʿān; and Abū Jaʿfar al-Ṭaḥāwī (d. 933), author of al-Jāmiʿ al-kabīr fī al-shurūṭ on legal formularies. Still later generations produced Abū al-Ḥasan al-Karkhī (d. 951); al-Sarakhsī, mentioned earlier; ʿAlī ibn Muḥammad al-Bazdawī (d. 1089), author of al-Uṣūl on jurisprudence; Abū Bakr al-Kāsānī (d. 1191), author of Badāʿiʿ al-ṣanāʿiʿ fī tartīb al-sharāʿiʿ; and Burhān al-Dīn ʿAlī al-Marghīnānī (d. 1196), author of the famous and authoritative al-Hidāyah, which has been the subject of many commentaries.

There followed a period of stagnation and imitation of earlier jurists in which existing works were abridged and annotated. An abridgement that received wide recognition was al-Mukhtaṣar by Aḥmad ibn Muḥammad al-Qudūrī (d. 1036). Also compiled were some fatwās, collections presenting actual or theoretical questions and answers. Chief among these were al-Fatāwā al-khānīyah by Qāḍīkhān Ḥasan ibn Manṣūr (d. 1195), al-Fatāwā al-khayrīyah by Khayr al-Dīn al-Ramlī (d. 1670), al-fatāwā al-Hindīyah—compiled in India by order of the Mughal emperor Awrangzīb ʿĀlamgīr(d. 1707) and consisting of extracts from the authoritative works of the school—and al-Fatāwā al-mahdīyah by the Egyptian muftīMuḥammad al-ʿAbbāsī al-Mahdī (d. 1897). In addition, Ḥanafī works achieved prominence in the Ottoman Empire, chief among which were Multaqā al-abḥur by Ibrāhīm al-Ḥalabī (d. 1549) and Radd al-muḥtār by Muḥammad Amīn ibn ʿĀbidīn (d. 1836).

The Ḥanafī school is the most widespread of the existing schools in Islamic countries. The fact that it was the dominant school during the ʿAbbāsid Caliphate, owing to the efforts of Abū Yūsuf and other early Ḥanafīs, gave it an advantage over the others. Moreover, it was the official school of the Ottoman Empire, with its far-flung dominions, and in 1869 its doctrines were enshrined in the Mecelle, or civil code, to be applied in the newly created secular (niẓāmīyah) courts. Ḥanafī law, therefore, continued to be applied to Muslim personal-status matters. It is still the official school for issuing fatwās and for application to the personal-status matters of Sunnī Muslims in the successor states of the Ottoman Empire, including Egypt, Syria, Lebanon, Iraq, Jordan, and Israel-Palestine. In Turkey, which is officially secular, Ḥanafī law governs religious observances. It continues to be the dominant school for application to personal-status matters and/or for religious observances among the Muslims of the Balkans, the Caucasus, Afghanistan, Pakistan, India, Bangladesh, the Central Asian republics, and China. It is estimated that its adherents constitute more than one-third of the world 's Muslims.

Mālikī School.

This sc hool developed in the Arabian peninsula, the original home of Islam. It was originally referred to as the School of Hejaz or the School of Medina, and its doctrines are often attributed to such early Muslims as ʿUmar ibn al-Khaṭṭāb, ʿAbd Allāh ibn ʿUmar, Zayd ibn Thābit, ʿAbbās (the Prophet 's uncle), and ʿĀ ’ishah (the Prophet 's wife). Of the early jurists of the school who achieved fame, mention may be made of Saʿīd ibn al-Musayyab, ʿUrwah ibn al-Zubayr, and Abū Bakr ibn ʿAbd al-Raḥmān. A later generation of jurists and traditionists were the teachers of Mālik, the eponym of the school. These included Rabīʿah ibn ʿAbd al-Raḥmān (d. c.748–753), known as Rabīʿah al-Raʿy or Rabīʿah of Opinion (or of Good Judgment, as suggested by Amīn al-Khawlī); Nāfiʿ (d. 735 or 737), the freedman of Ibn ʿUmar; Ibn Shihāb al-Zuhrī (d. c.740–742); Ibn Hurmuz (d. 765); and Jaʿfar al-Ṣādiq (d. 765), the revered Shīʿī imam and eponym of the Jaʿfarī Shīʿī school of law.

Mālik ibn Anas al-Aṣbaḥī, of Yemenite descent, was born in Medina in 713 and lived there until his death in 795, having left it only to perform the pilgrimage at Mecca. He thus epitomized the learning of the people of Medina. In his book al-Muwaṭṭaʿ, a collection of traditions from the Prophet, companions, and followers arranged according to the subjects of jurisprudence, he often would confirm a legal point by saying, “And this is the rule with us,” or “And this the rule agreed upon by consensus here.” It was said that al-Muwaṭṭaʿ was transmitted in several versions, but only two have reached us: the version transmitted by the Ḥanafī al-Shaybānī, mentioned earlier, and the version transmitted by Yaḥyā al-Laythī (d. 848) and commented upon by al-Zarqānī, al-Suyūṭī, and others. Fragments of a third version transmitted by the Tunisian ʿAlī ibn Ziyād (d. c.800) have also survived.

Mālik was undoubtedly tradition-bound in his legal doctrines. He would often emphasize that he would not deviate from what he had received from his teachers or from the consensus of the scholars of Medina. Sometimes, however, he utilized a form of thinking similar to analogy, which has prompted Abū Zahrah to assert that Mālik used raʿy (personal opinion) as well as qiyās (analogy) in arriving at a rule. Actually, he himself said, “As for those matters that I did not receive from [my predecessors] I exercised my reasoning and reflection (ijtahadtu wa-nazartu) according to the course of those I have met … so that I would not deviate from the course of the people of Medina and their opinions (ārāʿihim). If I did not hear anything specifically about a matter I attributed the opinion (raʿy) to me.” Amīn al-Khūlī explains that the word raʿy at that time did not bear its later technical meaning of opinion vis-à-vis analogy, but meant rather “understanding” and “good judgment.” He also considers the attribution by some authors of the technical concepts of preference (istiḥsān) and public interest (maṣāliḥ mursalah) to Mālik as rather anachronistic, because the science of uṣūl al-fiqh was still in its infancy at that time.

In the field of law proper, the Mālikī school, compared to the Ḥanafī school, evidences some conservative attitudes, particularly with regard to women. Perhaps this reflects the conservative milieu of Medina at the time of Mālik compared to that in Abū Ḥanīfah 's time. The Mālikī ruling states that no woman can be married without the consent and participation of her marriage guardian; whereas in Ḥanafī law, a guardian is necessary only for a virgin below the age of puberty, and she can repudiate the marriage upon attaining puberty. Also in Mālikī law, the father or paternal grandfather has the right to give in marriage his virgin daughter or granddaughter without her consent and even, within some limits, against her wishes; in Ḥanafī law such susceptibility to compulsion (jabr) terminates at puberty.

Mālik 's students included Muḥammad ibn al-Ḥasan al-Shaybānī, mentioned above, and Muḥammad ibn Idrīs al-Shāfiʿī, the founder of the school that carries his name. His followers included Yaḥyā al-Laythī, mentioned earlier as a transmitter of Mālik 's al-Muwaṭṭa; the Tunisian Asad ibn al-Furāt (d. 828); and ʿAbd al-Salām al-Tanūkhī, known as Saḥnūn from Kairouan (d. 854). Andalusian jurists who gained fame included Abū al-Walīd al-Bājī (d. 1081), Ibn Rushd (d. 1126), Ibn Rushd the grandson (d. 1198), and Muḥammad ibn ʿAbd Allāh ibn al-ʿArabī (d. 1148). Later generations of jurists included Abū al-Qāsim ibn Juzayy (d. 1340), author of al-Qawānīn al-fiqhīyah fī talkhīṣ madhhab al-Mālikīyah; Sīdī Khalīl (d. 1365), author of the authoritative al-Mukhtaṣar; and Muḥammad ibn ʿAbd Allāh al-Khirshī (d. 1690), a rector of al-Azhar and author of a commentary on Khalīl 's work. Al-Mudawwanah, compiled by Asad ibn al-Furāt and later edited and arranged by Saḥnūn under the title of al-Mudawwanah al-kubrā, has become the major reference book for the school. A concise work on law that has received some attention from Orientalists is al-Risālah by Ibn Abī Zayd al-Qayrawānī (d. 996). Mālikī jurists who attained fame in specific fields include the Egyptian Shihāb al-Dīn al-Qarāfī (d. 1285) and the Andalusian Abū Isḥāq al-Shāṭibī (d. 1388) in questions of jurisprudence, Ibn Farḥūn (d. 1396) in legal procedure, and Aḥmad al-Wansharīsī (d. 1508) and Muḥammad Aḥmad ʿUlaysh (d. 1882) in fatāwā works.

Since the birthplace of the Mālikī school was Medina, it was natural that the school should spread in the Hejaz. Because of the contacts that the scholars of North Africa and Andalusia established with the scholars of Medina during the yearly pilgrimage, the Mālikī school spread to those parts and displaced the Ẓāhirī school in Andalusia where the latter, now extinct, had held sway. It continues to be the predominant school among the people of Morocco, Algeria, Tunisia, and Libya. It has also spread to upper Egypt and Sudan as well as to Bahrain, the Emirates, and Kuwait. A number of other countries also have some Mālikī adherents.

Shāfiʿī School.

This school was not so much the product of a geographical area as it was the result of a synthesis conducted by a single jurist who was thoroughly familiar with the doctrines of the two other schools. That jurist was Muḥammad ibn Idrīs ibn al-ʿAbbās ibn ʿUthmān ibn Shāfiʾ (hence the nisbah or attribution Shāfiʿī), whose great-grandfather Shāfiʿ was a companion of the Prophet and a descendant of al-Muṭṭalib, brother of the Prophet 's ancestor Hāshim. Thus he was closely enough related to the Prophet to qualify for a stipend from the fifth of the spoils of war assigned to kinsmen, among others. Shāfiʿī was born in Gaza, Palestine, in 767 and died in Egypt in 820. When he was two years old, his father died, so his mother took him to Mecca to be among his kin and to preserve his noble heritage. After memorizing the Qurʿān and studying ḥadīth, he was sent to the desert where he accompanied the Hudhayl tribe, which was famous for its eloquent speech and poetic tradition. Later he traveled to Medina to study fiqh under Mālik, whose reputation had by then spread far and wide. When Mālik died, Shāfiʿī worked with the governor of Yemen and later was taken to Iraq on the orders of Caliph al-Rashīd to answer charges that he was an ʿAlīd sympathizer. His eloquent defense, added to a word in his favor from Qāḍī Muḥammad ibn al-Ḥasan al-Shaybānī, saved his life. He then applied himself to the study of Iraqi fiqh under al-Shaybānī and read the latter 's books. This opportunity to combine the knowledge of Iraqi fiqh with that of the Hejaz, added to the experience gained in his extensive travels, placed Shāfiʿī in a good position to formulate the theoretical bases for law in his famous al-Risālah. Al-Risālah was written in Baghdad during a second visit to that city and refined when the author moved to Egypt in 814–815.

In the field of law, Shāfiʿī continued to regard himself as a member of the school of Medina even though he had adopted the essential thesis of the traditionists that the traditions were superior in the formulation of laws to the customary doctrines of the earlier schools. Through vigorous polemics he tried to convert the adherents of the other schools to his doctrine, but they were not willing to abandon their own doctrines. However, they did accept the validity of his legal theory, which is traditionist by inspiration. Those legal specialists of both schools who accepted Shāfiʿī 's thesis completely became his followers, and thus a new school arose with a doctrine formulated by an individual founder. The doctrine was first formulated in Iraq, but when Shāfiʿī moved to Egypt he retracted some of his earlier pronouncements; the resulting doctrine has come to be known as the Egyptian, or new, version of the school.

Shāfiʿī authored or dictated to his pupil al-Rabī ibn Sulaymān (d. 884) the book known as al-Umm, a truly seminal work that defines not only the doctrine of Shāfiʿī but also many of the differences among the other schools. The seven-volume work deals with the various topics of law including transactions, religious observances, penal matters, and matters of personal status. It also includes such topics as the differences between ʿAlī and Ibn Masʿūd, the disagreement between Shāfiʿī and Mālik, the refutation by al-Shaybānī of some doctrines of Medina, the dispute between Abū Yūsuf and Ibn Abī Laylā, and the reply of Abū Yūsuf to the work on siyar, or the law of war and peace, by al-Awzāʿī. Al-Umm above all treats Shāfiʿī 's favorite topic, an attack on those who do not accept the entire body of traditions in the formulation of rules, and the invalidation of preference (istiḥsān) as a source of law. On the page margins of volume seven of al-Umm as printed in Cairo (1968) is another work by Shāfiʿī entitled Ikhtilāf al-ḥadīth, also reported by al-Rabī.

Certain students of Shāfiʿī in Iraq founded their own schools; these were Aḥmad ibn Ḥanbal, Dāwūd al-Ẓāhirī, Abū Thawr al-Baghdādī, and Abū Jaʿfar ibn Jarīr al-Ṭabarī. All but the school of Ibn Ḥanbal have become extinct. In Egypt Shāfiʿī 's students included Abū Yaʿqūb al-Buwayṭī (d. 845), Ismāʿīl al-Muzanī (d. 877), the author of al-Mukhtaṣar on Shāfiʿī jurisprudence, and al-Rabī.

Some famous jurists who later propagated the Shāfiʿī school included Abū Isḥāq Ibrāhīm ibn ʿAlī al-Shīrāzī (d. 1083), the author of al-Muhadhdhab and the scholar for whom the vizier Nizām al-Mulk built the Nizāmīyah school in Baghdad; the philosopher and jurist Abū Ḥāmid al-Ghazālī (d. 1111), who authored al-Mustasfā and al-Wajīz in jurisprudence and law; ʿIzz al-Dīn ibn ʿAbd al-Salām (d. 1261), the author of Qawāʿid al-aḥkām fī maṣāliḥ al-anām, a magnificent treatment of detailed principles and maxims of jurisprudence; Muḥyī al-Dīn al-Nawawī (d. 1277), the author of the famous Minhāj al-ṭālibīn; Taqī al-Dīn al-Subkī (d. 1355), the author of Fatāwā al-Subkī; and the encyclopedic author Jalāl al-Dīn al-Suyūṭī (d. 1505), who wrote al-Ashbāh wa-al-nazāʿir on Shāfiʿī law.

The new school of Shāfiʿī struck deep roots in its birthplace, Egypt. It was the official school during the Ayyūbid dynasty (1169–1252) and occupied a prime position during the Mamlūk regime that followed. Only when the Ottomans occupied Egypt in 1517 did the Ḥanafī school displace it. Today, although the Ḥanafī school is officially enforced by the courts in matters of personal status, many Egyptians, particularly in the rural areas, follow the Shāfiʿī school in their religious observances. So do the great majority of Muslims in Palestine and Jordan, many adherents in Syria, Lebanon, Iraq, the Hejaz, Pakistan, India, and Indonesia, and the Sunnī inhabitants of Iran and Yemen.H.anbalī School. This is also a personal school in that it represented in the main the legal opinions, sayings, and fatwās of a single person, Aḥmad ibn Ḥanbal. Ibn Ḥanbal was born in Baghdad in 780 and died there in 855. He traveled widely to Syria, the Hejaz, and Yemen as well as to Kufa and Basra in Iraq in pursuit of the traditions later collected in his monumental six-volume work Musnad al-Imām Aḥmad, which contains more than forty thousand items. This, added to the fact that he never authored a work on fiqh at a time when many others were writing on the subject, made many Muslim biographers consider him a traditionist rather than a jurist. His students, however, collected his legal opinions and fatwās, and the result was a body of juristic principles and laws worthy of being designated a school.

The attachment of this school to traditions is reflected in its departure from the other schools concerning the sources of law. According to Ibn Qayyim al-Jawzīyah (d. 1350), a late Ḥanbalī jurist, the sources are five: the texts of the Qurʿān and sunnah; the fatwās of the companions when not contradicted by the former sources; the sayings of single companions when in conformity with the Qurʿān and sunnah; traditions that have a weak chain of transmission or lack a name of a transmitter in the chain; and finally, reasoning by analogy when absolutely necessary.

Ibn Ḥanbal became famous in Islamic history for his rigorous attachment to his faith and his principled stand against the doctrine of the createdness of the Qurʿān during the Inquisition in Baghdad, even though he was beaten and imprisoned. This tenacious attachment to principle was later reflected in two followers who rejuvenated his school—Ibn Qayyim, mentioned above, and his teacher Taqī al-Dīn ibn Taymīyah (d. 1327), both of whom were imprisoned in the citadel of Damascus. It was also apparent in the career of Muḥammad ibn ʿAbd al-Wahhāb (d. 1792), the famous Ḥanbalī reformer of Nejd.

Followers of this school include Muwaffaq al-Dīn ibn Qudāmah (d. 1223), the author of the colossal twelve-volume al-Mughnī as well as al-ʿUmdah; Taqī al-Dīn ibn Taymīyah, author of the famous Fatāwā and al-Siyāsah al-sharʿīyah; and Ibn Qayyim al-Jawzīyah, author of Iʿlām al-muwaqqiʿīn and other works. The rejuvenated school, which had not enjoyed many followers before Ibn Taymīyah, was further strengthened in the eighteenth century by Ibn ʿAbd al-Wahhāb and his reform movement in Arabia, which aimed at taking Islam back to its simple and pristine beginnings, depending on the Qurʿān and the sunnah instead of later scholars. The success of the Wahhābīyah and the return of the Saudi family to power early this century established the Ḥanbalī school as the official school of Saudi Arabia. It is also the official school of Qatar and has many adherents in Palestine, Syria, Iraq, and elsewhere.

Extinct Sunnī Schools.

The most important of these were the schools of al-Awzāʿī, al-Ẓāhirī, and al-Ṭabarī. ʿAbd al-Raḥmān al-Awzāʿī was born in Lebanon and died there in 773, his tomb being just south of Beirut. His school flourished in Syria and Spain for some time but was overwhelmed by the Shāfiʿī and the Mālikī schools in those two regions, respectively. What is known about it is derived from the writings of the other schools, particularly on the laws of war and peace, since we possess no independent works on its jurisprudence. Apparently it depended on traditions for its doctrines.

Abū Sulaymān Dāʿūd al-Ẓāhirī (d. 883), a student of Shāfiʿī, founded his own school on the apparent and literal (zāhir) meanings of the Qurʿān and the sunnah, rejecting many of the other sources accepted by the other schools. The school flourished in Spain but died out by the fourteenth century. One of its most celebrated adherents was Ibn Ḥazm (d. 1064), author of al-Iḥkām fī uṣūl al-aḥkām on jurisprudence and al-Muḥallā on fiqh.

The historian and exegete Abū Jaʿfar Muḥammad ibn Jarīr al-Tabarī (d. 922) was also a jurist who developed his own school, which lasted until the twelfth century. Among his books on jurisprudence was Ikhtilāf al-fuqahāʿ, a comparative study of the various schools of law.

Two developments in the twentieth century have the potential to affect the structure of law schools in the Islamic world. One was the call for a new ijtihād that would disregard, or at least not follow completely, the established schools. The motivating spirit for this call has been the progressive teachings of prominent Islamic leaders such as Shaykh Muḥammad ʿAbduh (d. 1905) in Egypt and Sir Sayyid Aḥmad Khān (d. 1898) and the Aligarh movement in India. Although the call was strong, the end results were very modest. A proponent of this course of reform, the prominent Egyptian judge Muḥammad Saʿīd al-ʿAshmāwī, has recently been the target for attacks by conservative elements. In Syria this call for a new ijtihād has been vehemently attacked in several articles by prominent rectors of mosques and muftīs in a book edited by Aḥmad al-Bayānūnī of Abū Dharr Mosque in Aleppo. The prospects for this call especially in the present era of fundamentalist thinking are, therefore, not very promising, although the exercise of new ijtihād has resulted in the decree of monogamy in Tunisia.

The other development, which has proven to be more successful, is crossing the boundaries of the various schools in an effort to find juristic opinions that support reform in many aspects of the law of personal status as it is applied in most Islamic countries. This process is called takhayyur, or choosing a juristic opinion, and was applied successfully in several reforms of the law. For instance, the Ottoman Law of Family Rights of 1917 derived several of its provisions from the dominant doctrines of Sunnī schools other than the Ḥanafī, which was the official school. Later reforms in Egypt and Sudan went even further by accepting any opinion of a jurist from one of the Sunnī schools, or even a Shīʿī opinion, without announcing its provenance. An example of the latter is the Egyptian Law of Testamentary Dispositions of 1946, which allowed a bequest to an heir within the “bequeathable third” without the consent of the other heirs, although the Sunnī position has always been that there can be no bequest to an heir. Reformers even resorted to talfīq, or combining parts of the doctrines of different schools or jurists, into a new doctrine. Because the four orthodox Sunnī schools are considered authentic and acceptable by all Sunnī provided one is adhered to consistently by an individual, a sentiment has arisen among modern Muslims that it is perfectly acceptable to effect reform by drawing on the provisions of all four when necessary.

See also AḥMAD KHāN, SAYYID; ALIGARH; Ibn ʿAbd al-Wahhāb, Muhammad;IBN TAYMīYAH, TAQī AL-DīN AḥMAD; ME-CELLE; SAUDI ARABIA; UṣūL AL-FIQH; and WAHHāBīYAH.

Farhat J. Ziadeh

Shīʿī Schools of Law

Shiism maintained a strong eschatological and legalist tradition through its central doctrine regarding continued divine guidance available through the living imam, whether manifest or concealed. Muslim eschatology taught that among the descendants of the Prophet, the Mahdī would come as the ultimate ideal ruler to establish the ideal public order. The Shīʿah identified the Mahdī as their imam, and he also served as the authoritative precedent in extrapolating the terms of the Islamic revelation in order to formulate fresh legal decisions. Since the Shīʿah also believed that the imam, like the Prophet, was infallible, the imam 's guidance was treated as the living tradition, enjoying the same unequivocal status as that reserved by the Sunnī for the Qurʿān and the sunnah (received custom).

Besides the Qurʿān and the sunnah as sources for deriving religious praxis, Shīʿī legal theorists regarded human reason as an equally decisive basis for determining the scope of divine purposes for humanity.

Reason in Judicial Decisions.

Shīʿī legal thought was closely related to its rational theology in which reason, as a discoverer of a legal injunction, was prior to both sources of Islamic revelation, the Qurʿān and the sunnah. Reason guides a person to ethical knowledge and asserts that good and evil are rational categories. Reason, however, needs a more categorical verdict on the religious injunctions, which can be derived only from the absolute religious authority of the Prophet and his legitimate successors, the imams. In practice, the role of reason is confined to establishing the correlation between the requirements of al-sharʿ (the revelation) by extracting the general rules from the Qurʿān and the sunnah and inferring the ruling in particular cases through al-ʿaql (reason). Consequently, besides the Qurʿān and the sunnah, the Shīʿah included reason as a valid source for the judicial decision that was essentially deduced from the revelation. As for the ijmāʿ (consensus), which in Sunnī jurisprudence occupies a decisive status as a a source of legal prescriptions, the Shīʿī jurists admitted it as evident only if it included the infallible imam 's opinion, sometimes transmitted by his associates who had participated with him in reaching a consensus. Otherwise consensus lacked authoritativeness for deducing law. The authority of the imam 's utterances was so central to the decision-making process in jurisprudence that even when ijtihād (independent reasoning) was admitted as a valid intellectual process in deducing judicial decisions, it was reasoning based on revelation and not on the intellect that was regarded as valid.

Schools of Jurisprudence.

The major Shīʿī legal school with an uninterrupted tradition of jurisprudence is the Jaʿfarī madhhab. The school derives its name from Abū Jaʿfar Muḥammad al-Bāqir and Jaʿfar al-Ṣādiq (eighth century), the fifth and sixth imams, whose disciples are among the earliest fuqahāʿ (jurists) of the Shīʿah. Members of the Jaʿfarī school (also known as the followers of al-madhhab al-khāmis [“fifth school”], after its accreditation by Maḥmūd Shaltūt, the rector of al-Azhar University in Cairo, along with the four Sunnī schools in 1959) are Twelver Shīʿah—believers in the line of twelve imams, of whom the last one is in occultation and is awaited as the messianic imam, or Mahdī. The other minor Shīʿī schools of law, such as the Zaydī and the Mustaʿlī Fāṭimid Ismāʿīlīyah, although sharing the centrality of the Shīʿī belief in the imam 's position as the absolute legal precedent, have maintained close affinity with the Sunnī in matters of law. A number of Zaydī jurists, including Muḥammad ibn Ibrāhīm ibn al-Wazīr (d. 1436), Muḥammad ibn Ismāʿīl al-Ṣanʿānī (d. 1768), and Muḥammad ibn ʿAlī al-Shawkānī (d. 1839), have argued that their form of jurisprudence, which shares features with Twelver fiqh, constitutes a fifth school of jurisprudence alongside the four Sunnī schools. The Mustaʿlī school, whose praxis resembles in many respects that of the Twelvers, is closer to Sunnism and has retained its symbiotic relation with the Mālikī school as formulated by the Fāṭimid judge Nuʿmān ibn Muḥammad al-Tamīmī (d. 974), himself originally a Mālikī.

Legal Compilations.

Medina and Kufa were the centers of Shīʿī learning under the early Shīʿi imams. Rulings of the imams were circulating in the form of ḥadīth reports among the close associates of the imams and were systematically compiled in the tenth century under appropriate juridical rubrics which were established by such Sunnī compilers as Muḥammad ibn Ismāʿīl al-Bukhārī and Muslim ibn al-Ḥajjāj. The four major compilations of the transmitted material needed to guide the social-political and religious life of the Shīʿah are: Muḥammad ibn Yaʿqūb al-Kulaynī 's Kitāb al-kāfī (The Sufficient Book); Muḥammad ibn Bābūyah al Qummī 's Man lā yaḥḍuruhu al-faqīh; and Muḥammad ibn al-Ḥasan al-Ṭūsī 's Tahdhīb al-aḥkām and al-Istibṣār.

These four books are held in the same esteem among Shīʿīs as are the six famous Sunnī compilations among the Sunnīs. The most widely used work in the Shīʿī tradition, however, is Wasāʿil al-Shīʿah by al-Ḥurr al-ʿĀmilī (d. 1699), which compiles traditions dealing with all legal topics from the above four books and other Shīʿī sources. After the transmitted traditions were epitomized and systematized, they were subjected to the strict discipline of the uṣūl al-fiqh (principles of jurisprudence), which lays down the rules for deriving legal norms. This period of testing was the most productive period of Shīʿī jurisprudence, headed by leading Shīʿah in eleventh-century Baghdad. The element of the Shīʿī jurisprudence that favored reasoning based on the textual evidence provided by the Qurʿān and the Shīʿī traditions was firmly incorporated into legal theory. Both the method of deducing legal norms and the procedure of reasoning were laid down in the uṣūl works. The profound training of Shīʿī jurists in Muʿtazilī rational theology, and their own exposition of Shīʿī theology on the basis of those rational principles, inseparably joined Shīʿī jurisprudence to the two fundamental doctrines of Shiism: Justice of God and the imamate.

Modern Theological Differences.

Ongoing theological debate on the priority of reason over revelation had far-reaching implications for Shīʿī law in view of the absence of the infallible imam during his prolonged concealment. In theory, only the Hidden Imam could ascertain that the interpretation of revelation was categorical. With the development of a legal theory that critically examined the documentation used as evidence for rulings, the authority of the akhbār (traditions) could not be maintained without question. Some Shīʿī jurists, however, were inclined to accept the authority of the traditions uncritically and tended to be rigid in their juridical rulings. Akhbārī jurists, who were staunchly opposed to the Uṣūlī methodology based on assigning human reason a substantive-normative role in deriving new decisions, emerged in the seventeenth century. Toward the end of that century the Akhbārī thesis was defeated, and Uṣūlī methodology, with ijtihād as its recognized intellectual process, became the benchmark of Shīʿi jurisprudence. Shaykh Murtaḍā Anṣārī (d. 1864) is regarded as the “seal” of the mujtahids for applying the principles of legal theory in deducing laws. Leading Shīʿī jurists—such as Ayatollah Ruhollah al-Musavi Khomeini (1902–1989)—who are also regarded as the marājiʿ al-taqlīd (supreme legal authorities) by their followers, were heirs to the Uṣūlī methodology of al-Anṣārī. Rapid sociopolitical development in the context of modern intellectual currents in the Islamic world, in the years following World War II, brought about significant change in the general education of Shīʿī jurists; they began to address some of the problems faced by modern Shīʿah in managing public life. Additionally, the creation of the Iranian Islamic Republic marks a new era in Shīʿī jurisprudence. The convergence of the moral-legal and political authority in a modern nation-state under a Shīʿī mujtahid has, for the first time, forced Shīʿī jurists to provide authoritative guidance to the Shīʿah in the modern world.

See also AKHBāRīYAH; ISMāʿīLīYAH; ITHNā ʿASHARīYAH; MARJAʿ AL-TAQLīD; SHīʿī ISLAM; and UṣūLīYAH.

Abdulaziz Sachedina

Minority Jurisprudence

Fiqh al-aqallīyāt, also known as “minority fiqh” or “the jurisprudence of Muslim minorities,” is an emerging field of Islamic law (fiqh) devoted to the concerns of Muslims living as religious minorities (aqallīyāt) in majority non-Muslim states. This term is believed to have been coined in 1994 by Dr. Ṭāhā Jābir al-ʿAlwānī, then Chairman of the Fiqh Council of North America (FCNA), in a formal legal opinion (fatwā) encouraging Muslim citizens to participate fully in American politics. That same year, the FCNA, founded in 1986, pledged to develop a methodology for adapting Islamic law to the needs of Muslim minorities. The first collection of fatwās for minorities is thought to be an Arabic work published in 1998. Fiqh al-aqallīyāt has been directed primarily, but not exclusively, toward Western Muslims.

The fiqh al-aqallīyāt movement can be attributed to several doctrinal and historical factors. During the formative period of Islamic law (roughly the seventh through the ninth centuries c.e.), the Islamic empire expanded rapidly. Most jurists assumed that Muslims lived within dār al-Islām (Islamic territory) and in fact obligated them to do so. Muslims in dār al-ḥarb (the land of war) were expected to emigrate to dār al-Islām, where Islamic order prevailed. Many jurists based this obligation on the Prophet Muḥammad 's hijrah (emigration) from Mecca, where he faced persecution, to Medina, where he was able to found the first Muslim polity.

In reality, Muslim groups have lived outside of Muslim territory since the second century of Islam, and significant Muslim populations have lived in Western countries for several generations. The theoretical dichotomy between dār al-Islām and dār al-ḥarb is now widely considered inapplicable. As Muslims can safely and openly practice and propagate Islam in most minority contexts, many contemporary jurists even consider the West to be part of dār al-Islām.

Despite this long-standing presence, Muslim communities in the West were until recently often considered temporary. Many immigrants had originally hoped to return to their countries of origin after a limited period of work, study, or refuge abroad. Many Muslims have also doubted the feasibility of leading fully Muslim lives without the Islamic environment, institutions, and expertise found in Muslim countries. Only in the past several decades have changing patterns of immigration and conversion led to an increased sense of permanency, and with it, more comprehensive efforts to apply Islamic legal principles to life in diaspora communities.

An estimated one-third of the world 's approximately one billion Muslims now live in majority non-Muslim countries. The variety of sociopolitical and legal environments that minority Muslims now inhabit has given rise to a number of new questions not addressed by traditional legal literature. Some questions result from conversion, such as the permissibility of attending relatives ’ church weddings. Others reflect Islam 's geographical expansion into new areas, such as determining prayer times in Scandinavia when there is no sunset. Many questions also arise from interactions with non-Muslim laws, institutions, and society; these address a range of topics including civil marriage and divorce, financial transactions involving interest, dietary laws, burial, dress, holidays, employment, and political participation. Muslims have sought authoritative answers to questions that are both practical, such as what foods to avoid, and of broad ethical significance, such as how to maintain Islamic values while fully participating in non-Muslim society.

Proponents of fiqh al-aqallīyāt argue that a specialized field of jurisprudence is required to provide these answers and to develop a normative framework for preserving Islamic values in minority contexts. Al-ʿAlwānī, who holds a doctorate in legal methodology, has called for legal experts to collaborate in adapting existing juridical opinions to new situations and in practicing “collective ijtihād,” the derivation of new legal rulings based on direct scholarly engagement of the Qurʿān and other sources of Islamic law.

The European Council for Fatwa and Research, founded in London in 1997, is the most prominent organization engaged in the theory and practice of fiqh al-aqallīyāt. The Council 's primary objective is to issue collective fatwās that meet the needs of European Muslims and serve to unify scholarly views and everyday practice. It also hopes to become a government-recognized Islamic authority. Shaykh Yūsuf al-Qaraḍāwī, a prominent Egyptian-born jurist based in Qatar, has been the ECFR 's chairman since its founding.

As of 2007, roughly one-third of the ECFR 's thirty-five members resided in Muslim countries and two-thirds in North America and Europe. This distribution is designed to increase the Council 's legitimacy worldwide. Members meet once or twice a year to debate pressing issues, present research papers, draft resolutions, and issue fatwās. The Council employs a methodology explicitly designed to produce lenient solutions to often difficult situations, including permitting normally prohibited actions in cases of ḍarūrah (necessity). In addition to the standard sources of Sunnī law, members draw upon existing opinions from the four Sunnī schools of law, the “objectives of the sharīʿah” or spirit of the law, and a range of methodological principles including concern for the public good, local custom, and the prevention of harm. The application of rulings takes place only through social acceptance. The Council publishes rulings and research papers in its journal, on its website, www.e-cfr.org, and in book form.

In addition to regional and national organizations such as the FCNA and ECFR, individual jurists have published collections of their fatwās, and numerous websites offer online fatwās directed toward minority Muslims. The most popular of these sites is Islam Online, www.islamonline.net, which hosts regular “live fatwā” and “live dialogue” sessions devoted to minority fiqh; past sessions are available in a searchable archive.

Many critics argue that the ECFR applies an overly eclectic methodology leading to illegitimate exceptions. A primary concern is that these rulings will begin to have a political and social impact on the majority-Muslim world. Other critics object to the use of the term “minority” as too insular, or to grouping all minority Muslims together. Fiqh al-aqallīyāt remains a subject of considerable debate even within the ECFR.

See also DāR AL-ḤARB; DāR AL-ISLāM; DIASPORA AND EXILE; EUROPEAN COUNCIL FOR FATWA AND RESEARCH; FATWā; FIQH; and MINORITIES, subentry onMUSLIM MINORITIES IN NON-MUSLIM SOCIETIES.

Jocelyn Hendrickson

Modern Legal Reform

Reforms affecting Islamic law in the nineteenth and twentieth centuries were more far-reaching than any undertaken previously. The impetus for reform came both from within the Islamic tradition, as specialists in Islamic law sought to reform laws in the face of changing attitudes and social needs, and from without, as political leaders imposed changes designed to eliminate archaic features that impeded governmental modernization programs. Although many reforms occurred during periods of European occupation or colonial rule, some of the earliest were undertaken under indigenous leadership, as in the Ottoman Empire and its semiautonomous province Egypt, before the British occupation of 1882. Reforms proceeded at the levels of both theory and positive law. At the level of theory, outmoded doctrines were challenged or discarded, and changes in methodologies were proposed. Reforms were made in positive law as states expanded the role of legislation to encompass areas formerly covered by juristic formulations of Islamic law. Legal reforms originating in the Middle East often radiated eastward and southward, whereas reforms originating elsewhere had few repercussions in the Middle East.

The course of legal reform was linked to the difficult relationship between the Muslim world and the West. The encounter with European legal models led to extensive borrowings of their substantive and systemic features and the reworking of Islamic doctrines. Although blends of Islamic and common-law traditions emerged in some areas (e.g., the Indian subcontinent), Islamic law was for the most part superseded or assimilated in modified form into the civil law tradition of continental Europe and codified, providing states with uniform, systematic statements of Islamic law on various topics. This process was especially pronounced in states that had been colonized by European powers. Insofar as Islamic law survived as positive law, it was in variants bounded by national frontiers and in formulations that reflected the interplay of local political forces. Once the backlash against westernization began in the 1970s, states began enacting laws that selectively revived elements of traditional Islamic law, including controversial prohibitions on blasphemy and apostasy, and and limitations of women's rights.

Early Modern Reform.

In the Ottoman Empire the process of creating new institutions began in the Tanzimat (reorganization) period with the Council of Judicial Ordinances in 1839, the 1847 establishment of mixed civil and criminal courts staffed by both European and Ottoman judges and utilizing elements of European procedure and evidence, and the promulgation in 1850 of a new commercial code. In the same era new European-style codes were enacted—a land code and a third version of a penal code in 1858, a new commercial code in 1861, and a maritime code in 1863. Codes of commercial and penal procedure were also enacted in this period. In 1868 a Council of State modeled after the French Conseil d ’État and a Divan of Judicial Ordinances were created, the latter headed by Ahmed Cevdet Paşa (1822–1895), who later became minister of justice. In that capacity he instituted new courses for judges and established the secular Nizamî courts. This pattern of enacting new codified laws and establishing Western-style courts, including special courts for Europeans, was emulated subsequently in other countries. The expertise of scholars trained exclusively in the traditional Islamic academies of higher learning became less relevant for the actual operation of legal systems as legal education was reconstituted along European lines and the jurisdiction of religious courts was restricted to family matters or eliminated. Tensions developed between the ʿulamāʿ (religious scholars) and legal professionals trained along Western lines as the latter gained ascendancy in the newly-established Western-style legal institutions. The cultural gulf separating the two classes of legal specialists grew and impeded communication; only rarely did individuals combine full competence in both Western and Islamic systems.

The pace and extent of nineteenth-century reform varied with the subject involved. European models of public law were widely emulated at an early stage. Islamic criminal law, which was weakly developed and contained principles sharply at variance with modern norms, tended to be replaced by Western penal codes. Reforms in Islamic procedural rules, which were archaic and cumbersome, were neglected, the preference being simply for abandoning the old rules and adopting European ones. Similarly, European commercial codes were commonly adopted in lieu of reforming Islamic law affecting commerce.

After the 1979 Islamic Revolution, Iran returned at least partially to traditional formulations of sharīʿah, whereas Saudi Arabia never accepted reforms in its criminal codes. Riyadh withstood denunciations of hudūd punishments, such as amputation of the hand for theft and stoning for adultery, arguing that such harsh laws deterred unlawful acts.

Elsewhere, the first major attempts to codify Islamic rules were undertaken in the late nineteenth century. The most influential Islamic code was the Ottoman Code of Obligations, the Mecelle (Majallah) compiled in 1869–1876. Its rules concerned contracts, property, torts, and some procedural rules; they were preceded by ninety-eight general maxims distilled from sharīʿah law. The Mecelle incorporated rules taken from a variety of Hanafi jurists; regardless of whether they were idiosyncratic or minority views, rules were selected that best furthered social welfare. The Mecelle stayed in force in some former Ottoman territories after the fall of the empire.

The 1917 Ottoman Law of Family Rights embodied an innovative eclecticism, selecting rules not only from the four main Sunnī schools but also from opinions of isolated jurists from minority and ancient schools of law, with the goal of making a code that was Islamic in derivation but also suited to the needs of contemporary society. Its impact was reduced by its abrogation in 1919 and the secularizing reforms adopted in Turkey in the 1920s, although it did remain in force in Jordan, Lebanon, Palestine, and Syria.

In 1923 the Treaty of Lausanne finally ended the regime of capitulations under which Ottoman Turkey had for centuries accorded subjects of Western powers exemptions from the jurisdiction of the local courts. The potential for further Islamic reforms in Republican Turkey was eliminated by the decision of its first president, Mustafa Kemal Atatürk (1881–1938) to adopt European codified laws across the board in 1926. A direct challenge to the popular notion that Islam had a political vocation came in Turkey with the 1924 abolition of the Ottoman caliphate, the 1928 elimination of the clause making Islam the state religion, and the 1937 declaration that Turkey was a secular state.

At the end of the twentieth century, Atatürk 's secularizing reforms remained the boldest undertaken in this area. In almost all other Muslim countries, the constitutions enacted after they achieved independence provided that Islam was the state religion—the idea of a state religion being borrowed from the West. Even Saudi Arabia, which only belatedly promulgated a basic law in 1992, adopted the concept of a state religion, providing in Article 1 that the kingdom was an Arab Islamic state and that its religion was Islam. Except for Lebanon, whose 1946 constitution—reconfirmed in the 1989 Taif Accord—designated a Maronite Catholic as the head of state, and the 1973 Syrian constitution, which was unusual in failing to provide that Islam was the religion of the state, all Muslim countries emphasized Islam as the favored established religion. Constitutions commonly required that the head of state should be Muslim and that Islamic law should be either a source or the sole source of legislation. Opinions differed as to whether it was permissible to provide for popular sovereignty, or whether a constitution of a Muslim country should provide for the sovereignty of God. Constitutional-rights provisions did not necessarily indicate the degree to which discriminatory features of Islamic law remained in force; constitutions might proclaim that all citizens were equal even though the rules of personal status relegated women to a subordinate status and non-Muslims encountered various forms of de jure discrimination.

The Indian Subcontinent.

The subcontinent was cut off from developments in the Middle East by being incorporated into the British Empire and thereby made part of the common-law world with its judge-made case law. Under British rule, the subcontinent adapted to a system of judicial precedent supplemented by statutes. The result was Anglo-Muhammadan law, in which English became the language of the law and the overall method and philosophy were of British inspiration. In this system, judges brought from Britain and British policies of justice, equity, and good conscience determined the scope and application of Islamic doctrine. The influence of Anglo-Muhammadan law extended to other British-ruled countries such as Burma, Singapore, and the Malay States. The hierarchy of courts established by the British enabled the appellate courts to exercise a unifying influence on Islamic law, and the impact was largely conservative, the British judges showing a reluctance to challenge doctrines established by great Islamic jurists. British legislative initiatives on the subcontinent included the Caste Disabilities Removal Act of 1850, abolishing the civil disabilities that Islamic law imposed for apostasy. The Muslim Personal Law (Shariat) Act of 1937 provided that the official version of Islamic law as embodied in statutes and case law should supersede conflicting custom.

The influence of the reformist thought of Shāh Walī Allāh (1703–1762) of Delhi was potent. A famous disciple of his, Sayyid Ahmad Khān (1817–1898), rejected the authority of any ijmāʿ (juristic consensus), advocating that legal rules be freely chosen from the doctrines of the four orthodox Sunnī schools of legal thought. As many Muslims of the subcontinent were inclined to do subsequently, he discounted the hadīths (Prophetic traditions) as a source of law, expressing doubts about their reliability and claiming that all those repugnant to reason or to the dignity of prophethood should be discarded. On various controversial issues, Sayyid Ahmad Khān took positions that tended to harmonize Islamic rules with contemporary norms, arguing for example that Islam condemned slavery, that jihād was meant to be defensive in nature, and that simple interest charges were allowable.

Another influential reformist thinker was Muhammad Iqbal (1875–1938), who downgraded the significance of the juristic treatises and maintained that contemporary Muslims must be free to undertake ijtihād (independent reasoning from the sources). Iqbal maintained that the Qurʿān had to be understood in the light of contemporary needs and that the hadīths should be used with caution. In a significant break with traditional conceptions of ijmāʿ, Iqbal maintained that it could be exercised by the legislative assemblies of Muslim states.

Modern Reforms.

After the independence of India and Pakistan in 1948, case law and statutes reformed personal status law. In the Pakistani decision Balqis Fatima v. Najm-ul-Ikram Qureshi (1959PLD Lah [Pakistani Legal Decisions Lahore] 566) the wife was given an absolute right to divorce in return for making an appropriate payment to the husband, a ruling that involved reinterpreting the traditional institution of khulʿ and borrowing the rule of the Mālikī legal school that a judge might dissolve a marriage on the grounds of discord (shiqāq) between the spouses. In Pakistan the Family Laws Ordinance of 1961 undertook reforms to curb polygamy by requiring that the husband first obtain permission from his wife and an arbitration council before taking a second wife, and that to obtain a divorce the husband should notify his wife and an arbitration council, which was to try to effect a reconciliation. The wife 's right to a divorce was ensured by requiring that all marriages use a standard marriage contract, which delegated to the wife the husband 's right to divorce. The Indian case Itwari v. Asghari (1960AIR All [All-India Reporter Allahabad] 684) ruled that in the conditions of contemporary India, a husband 's taking a second wife constituted such an insult to the first that, barring unusual circumstances, it would be inequitable to oblige the first wife to continue to live with the polygamous husband. In 2005, the Pakistani government submitted legislation to parliament in Islamabad to amend the country 's rape laws, a litmus test for President Pervez Musharraf and his ability to bring actual reforms within his “enlightened moderation” program. This proposal intended to amend the 1979hudūd laws, passed by the government of General Muhammad Zia ul-Haq, which required a woman to produce four witnesses or be potentially subject to a charge of adultery. The 2005 law removed rape from the jurisdiction of sharīʿah law in Pakistan, eliminated the requirement for four male witnesses, and allowed convictions to be made on the basis of forensic and circumstantial evidence. Still, an amendment introduced at the insistence of Islamic scholars and backed by religious opposition parties made extramarital sex a criminal offense punishable by imprisonment and fines.

Algeria.

France made Algeria its colony in 1830, and the powerful French influence on Algerian law warrants a separate classification for “le droit musulman algérien,” which was shaped by French legal categories and concepts of equity and natural law. The establishment of a French-style hierarchy of courts exerted a unifying control on judicial decisions within Algeria. Over the course of French colonization, Islamic law on most subjects fell into desuetude, the area of personal status being an exception. Whether Islamic law should be codified along French lines was debated, and in 1916 the draft Code Morand presented a modernized version of Islamic principles selected on the basis of what would advance equity, morality, and economic interests, and conform to the state of social development. This draft code, which covered matters such as personal status, real property, and evidence, exerted considerable influence on Algerian jurisprudence even though it was never enacted into law. An Algerian High Islamic Court was created in 1976, composed of fifteen members, from which a President is selected with the approval of the Algerian president. Its competence extended to the promotion of the ijtihād, did not overlap or overrule secular regulations.

Egypt.

Among Arab countries, Egypt was the fulcrum of Islamic reform from the late nineteenth century onward. It was also one of the countries where Muslims were first exposed to French law and French legal education, Egyptian students having been sent to study law in France as early as 1828. Egyptians assumed a leading role in efforts to synthesize the French and Islamic traditions.

Muhammad Qadrī (1821–1888) became an expert in the comparative study of Islamic and French law, and during his tenure as minister of justice (1879–1892), oversaw the promulgation of a number of new codes. He also produced highly regarded codified versions of Hanaf ī law.

The most powerful influence on liberal reformist thought in Islam was the work of the Egyptian religious scholar Muhammad ʿAbduh (1849–1905), who was educated at al-Azhar and was associated with the Egyptian nationalist cause. His international eminence as an Islamic reformer was enhanced when he became grand mufti of Egypt in 1899, in which capacity he rendered many fatwās (authoritative but nonbinding legal opinions). ʿAbduh 's liberal ideas and his commentary on the Qurʿān, Tafsīr al-manār (The Beacon Exegesis), were disseminated by his disciple Muhammad Rashīd Ridā (1865–1935). Ibn Taymīyah (1263–1328) was one of his intellectual precursors, particularly insofar as ʿAbduh held that only the Islamic rules related to matters of worship were inflexible, whereas rules covering the everyday lives of Muslims could be adjusted as circumstances warranted in accordance with the criterion of social well-being. There were also precedents for his ideas in the work of Muhammad ibn ʿAbd al-Wahhāb (1703–1787), who advocated stripping Islam of its later accretions and restoring it to its original purity, an approach that justified disregarding solutions offered by medieval jurists and returning to the Qurʿān and sunnah (the normative precedent established by Prophet Muhammad) to make fresh interpretations. ʿAbduh also resorted to takhayyur, being prepared to devise legal solutions to problems based on a comparative evaluation and selection of rules taken from the doctrines of various schools of law. In his rationalism he also owed an intellectual debt to the long-suppressed Muʿtazilah.

In practice ʿAbduh favored interpretative techniques that would produce rules that promoted the welfare of society. An example of his approach could be seen in his critique of polygamy, which rested on reading the Qurʿānic verses 4:3 and 4:129 together. The permission of polygamy in 4:3 was accompanied by an injunction, traditionally understood as being addressed to men 's consciences, that those who feared being inequitable should marry only one woman. ʿAbduh treated this as a legal precondition for a valid second marriage, and—given the remark in 4:129, “You will not be able to treat your wives equitably”—he concluded that polygamy should be ruled out except in the case of the exceptional man who was able to treat his wives equitably. ʿAbduh took into account his own observations that husbands had in practice proved unable to treat their wives justly. Although ʿAbduh 's influence on reformist thought was far-reaching, his actual impact on the reform of Egyptian law was limited, for by his day the process of adopting French law was already far advanced in Egypt, and the jurisdiction of sharīʿah courts had been reduced.

ʿAbd al-Razzāq al-Sanhūrī (1895–1971), a scholar who combined expertise in both Western and Islamic law, was one of the most influential figures in modern Arab legal history. Possessing a doctorate in law and political science from Lyon and a doctorate from the Institut des Hautes Études Internationales, he later became dean of the faculty of law at Cairo University and president of the Egyptian Conseil d ’État. He wrote on a variety of legal topics, including the caliphate; he published a treatise on the latter in French in 1926, providing a program for reestablishing it and simultaneously converting it into a modern organization along the lines of the contemporary League of Nations. Other studies were published in 1936 and 1938 on the codification of civil law, as he proposed that the successful revival of the Islamic legal heritage would require that it be restudied in light of the principles of modern comparative law. Civil codes devised by al-Sanhūrī were adopted by Egypt in 1949 and subsequently by most Arab countries. They synthesized Islamic doctrines within a matrix of codified laws inspired by a variety of models, including European law and existing Arab and Turkish codes, and actual court jurisprudence. They permitted reference to Islamic law and custom in default of applicable code provisions. With the adoption of this code, Egypt was able to enact a law abandoning its separate system of mixed courts, which beginning in 1874 had assumed jurisdiction over civil and commercial cases between Egyptians and foreigners, between foreigners of different nationalities, or where a foreign interest was involved.

Egypt 's national courts, organized in 1884, functioned alongside the mixed courts. Personal-status matters remained relegated to sharīʿah courts. The government undertook the regulation of the organization of the sharīʿah courts and the qualifications of their judges, setting up a new school for their training in 1907. Meanwhile, various millah courts survived, serving the different non-Muslim religious communities as the forums for resolving their personal-status disputes; these were outside state regulation. Only in 1955 did Egypt unify its court system, placing all cases under the jurisdiction of the national courts. However, in personal-status cases, the applicable law remained indicated by the parties ’ religious affiliations.

Personal-status Reforms.

In the twentieth century, reform efforts focused on personal-status matters, which remained governed by Islamic law. Most governments enacted codified versions of Islamic family law, some of which dramatically deviated from the doctrines of the established schools of law. To minimize objections from conservatives, reforms were often made indirectly via procedural expedients. For example, new laws commonly imposed requirements that marriages, in order to be legally valid, had to be registered, and that the spouses had to be of certain minimum ages, thereby deterring child marriages and forced marriages. To discourage polygamy and the husband 's use of discretionary divorce, governments required that marriages and divorces comply with certain bureaucratic formalities and conditions.

The most radical reforms of Islamic family law were made by Tunisia in 1956, which abolished polygamy and gave men and women equal rights in divorce. This law, based in theory on Islamic principles, was applicable to all citizens of Tunisia. In 1958 adoption was legalized. In recognition of the financial hardships often faced by divorced women under Islamic law, an amendment was enacted in 1981 providing that a divorced wife could be given either a payment or an allowance to maintain her in the same standard she had enjoyed when married.

The Iranian Family Protection Act of 1967 was almost as far-reaching as its Tunisian counterpart. It placed strict conditions on polygamy, requiring that a husband persuade a court that he was able financially and otherwise to treat more than one wife justly. The husband and the wife were accorded the same ability to obtain a divorce from a court, which first had to seek to reconcile the two. Part of the law 's text was deemed to be inserted in all marriage contracts, with the result that the husband 's right of divorce would be in all cases delegated to the wife. Courts were also assigned a central role in deciding matters of child custody and post-divorce maintenance.

In Egypt, a reforming personal-status law was promulgated by decree by President Anwar Sadat in 1979. Among other things, it eliminated a husband 's right to compel his disobedient wife to return to the marital home, required that the husband register a divorce and inform the wife he was divorcing her, provided that a husband 's taking of a second wife constituted grounds for divorce by the first wife, and enhanced the wife 's rights in matters of maintenance, child custody, and post-divorce division of property. However, this provoked a strong reaction on the part of conservatives, and in 1985 Egypt 's High Constitutional Court ruled that the manner of its promulgation had been unconstitutional, to the great disappointment of Egypt 's growing feminist movement. After the nullification of the 1979 law, in an attempt to placate both sides, a compromise law that diluted the 1979 reforms was enacted by the People 's Assembly. In May 1985, the 1979 Law was struck down by the High Constitutional Court on technical grounds. Several changes, however, were subsequently reintroduced to the 1979 Personal Status (Amendment) Law, giving women more options for divorce.

The conservative reaction was also evident in Algeria 's decision in 1984, after long debates, to enact a family law that resurrected most institutions of Mālikī law, except for forced marriage. The law relegated women to the status of wards of male marriage guardians, accorded the husband the right to divorce at will while requiring the wife to establish grounds, and reaffirmed the husband 's right to have up to four wives.

The aspect of Islamic personal status least susceptible to reform was inheritance law. The boldest reform measure attempted by an Arab government came in Iraq, the population of which was divided between the Sunnī and Shīʿī sects, where a 1959 law adopted German inheritance law. A 1963 law canceled this change, adopting an original reform scheme, whereby elements of the dissimilar Sunnī and Shīʿī inheritance rules were combined. The order of priorities by class established under Shīʿī law was to be followed in all cases, but the schemes for distributing shares within a class could follow either Sunnī or Shīʿī law.

King Moḥammed VI of Morocco unveiled significant reforms on October 10, 2003, to reconcile universal human rights principles and the country 's Islamic heritage. Morocco 's Family Law—or Muduwana—was amended to place the family under the joint responsibility of both spouses. It raised the minimum age for marriage from fifteen to eighteen (for both genders) and restructured divorce proceedings to promote greater equality. Women and men were given the right to contract their own marriages without the legal approval of a tutor, a man 's right to unilateral divorce was greatly restricted, and verbal repudiation by the husband was invalidated. The new text greatly limited polygamy, and the woman was given the right to make her acceptance of marriage conditional upon a pledge by her intended spouse to refrain from taking other wives.

Developments in Asia.

In Indonesia, the Malay States, the Philippines, the Straits Settlements, and Singapore, local customary or adat law was a powerful force. Muslims disputed whether Islam should be understood in terms of the local culture or Middle Eastern versions of Islamic law should be treated as authoritative; similar disputes arose in Bangladesh after it separated from Pakistan in 1971. Singapore 's Administration of Muslim Law Act of 1966 allowed Malay custom to modify the application of Islamic law. In the colonial era Britain had tended to respect Malay adat law. After independence in 1957, the States of Peninsular Malaysia moved in the direction of Islamic legislation, setting up religious courts and agencies. Councils were established that could issue fatwās, following Shāfiʿī doctrine except where it was not in the public interest, in which case they could choose rules from other schools. However, the (secular) High Court remained the ultimate authority in legal disputes. Islamization measures carried out in the 1980s included placing Islamic judges and courts on a par with the civil judiciary, promoting the ideas of Islamic economics, and reinforcing the Malaysian version of Islamic morality with penal sanctions.

Despite the existence of a large Muslim minority, Islamic law had tended to be applied only erratically in the Philippines. In 1977 a Code of Muslim Personal Laws was enacted, which restated general principles of Shāfiʿī law and set up new sharīʿah courts to apply it. The code allowed liberal grounds of divorce for the wife, but it retained the Islamic rule that adoption could not confer legitimacy, a rule which went against the local adat law.

Notwithstanding their official allegiance to the Shāfiʿī school, Indonesian Muslims tended to follow adat law. In Indonesia under Dutch rule, Islamic law was subordinated to adat law, and the religious courts were accorded an inferior position. The Regulation on Mixed Marriages of 1898 abandoned a fundamental rule of Islamic law by allowing Muslim women to marry non-Muslim men. Generally, however, the Dutch showed little interest in changing Islamic substantive law, being more concerned with regulating the courts and the procedural or bureaucratic aspects of the legal system. After Indonesia achieved independence in 1949, rulings by religious courts generally depended on secular courts for their execution and enforcement; secular courts could review the rulings on procedural, evidentiary, and policy grounds. Subsequent legislation indicated that religious courts had jurisdiction over personal status cases only to the extent that local customary law indicated that they were to be resolved according to the sharīʿah. In their approach to cases, Indonesian courts tended more to focus on the practicalities of dispute resolution rather than strictly following Shāfiʿī doctrine. When liberal reforms of Islamic personal-status law were proposed in the early 1970s, they were strongly opposed by conservatives. The family-law enactment eventually passed as the Marriage Law of 1974 was stripped of the bolder reforms that had earlier been proposed; these had included the legalization of adoption, allowing free intermarriage between faiths, and requiring that a husband obtain permission from a secular court to marry more than one wife or to obtain a divorce. Because of the gap between Indonesian and Middle Eastern culture, some advocated establishing a separate Indonesian national madhhab (legal school).

Islamization Programs.

Beginning in the 1970s and continuing into the 1980s, initiatives were launched to reinstate Islamic law in Libya, Iran, Pakistan, and Sudan, and revivalist groups who had long called for the repeal of Western laws in other countries demanded similar Islamization measures. These programs resulted in selective retrieval of elements of traditional sharīʿah law that were then integrated in legal systems that remained profoundly influenced by the previous westernizing reforms.

The most important Islamization program was undertaken in Iran. There the victory of clerical forces in the 1979 Islamic Revolution heralded a halt to the process of liberal reform and the inauguration of policies of entrenching clerical power over political and legal matters, resulting in the dismantling of Iran 's westernized judiciary and legal profession. According to Article 4 of the constitution, all laws were based on Islamic principles, which were to prevail over not only the laws but even over the constitution. Laws were to be enacted by elected members of the parliament, and their conformity with Islam was to be ensured by having them vetted by six clerical members of the Council of Guardians. In this context, gains in women's legal rights were reversed. Important proposed legislation was blocked by rulings that violations of Islamic principles were involved. In 1989 several constitutional amendments were adopted, including one providing for a new council to try to mediate conflicts between the parliament and the Council of Guardians regarding the compatibility of legislation with Islamic criteria. The rights and freedoms of women and minorities were reduced by new policies and legislation, and Islamic criminal laws were enacted and enforced with zeal. With the adoption of the 1979 constitution, Iran became the first contemporary Muslim country where the structure of government itself was altered to conform to a theory that the state should be headed by an Islamic jurist, following the ideas of Ayatollah Ruhollah Khomeini about vilāyat-i faqīh (Arabic wilāyat al-faqīh), or government by the jurist. Article 167 of the Iranian Constitution called for courts to make decisions based on codified laws, only in default of which were they to consult Islamic sources or fatwās.

Pakistan struggled after its founding to resolve the role that Islam should play in its government and constitution. In the 1973 constitution, Article 227 provided that all laws should conform with the Qurʿān and sunnah and that no law should be enacted that was repugnant to their “injunctions.” The Islamic Ideology Council played a major role in the Islamization campaign that commenced in 1979 and led to the replacement of many existing laws by rules taken from Sunnī fiqh (jurisprudence). The most striking changes came with the revival of Islamic criminal law, the enactment of a law converting the zakāt (charitable tithe) into a tax payable to the state, laws designed to eliminate interest from many bank deposits and investments, and the replacement of judges with secular training by persons with Islamic legal education. In 1991 an Enforcement of Sharīʿah Act was announced that aimed to make Islamic law the supreme law in the country, overriding both previous laws and the constitution.

In Sudan there was a brief experiment in 1983–1985 with an idiosyncratic Islamization campaign conducted by the military dictatorship, a campaign in which the implementation of hudūd penalties figured prominently. After a brief interlude of democracy, Islamization was pursued in a more sustained and systematic way under a new military dictatorship, the National Islamic Front, which seized power in 1989. Distracting the government from its goal of making Sudan into a model Islamic state was the conflict resulting from determined resistance of African Sudanese in the south—mostly animists or Christians—who opposed both Islamization and the Arabization policy that accompanied it, and violence in the war-torn Darfur region of western Sudan after 2003 resulting in continuing civil war marked by unspeakable atrocities.

In Egypt in the 1970s and 1980s, proposals for measures to Islamize laws were put forward that would, among other things, have reinstated Islamic criminal law, banned interest charges, and imposed a strict version of Islamic morality according to which women were to be segregated from men in public transport and university education and excluded from certain professions. Egypt 's Coptic community objected to some of the Islamization proposals—such as the one that would have made apostasy from Islam a capital offense—and confessional tensions rose in consequence. Although most proposals came to nothing, a law prohibiting alcohol was passed and came into force in 1976—but with exceptions that vitiated its impact. Meanwhile, drafts of various new codified versions of Islamic law were prepared under governmental auspices, but after their presentation to the People 's Assembly in 1982, none of the draft codes was ultimately enacted into law. As a concession to the sentiment favoring Islamization, the second article in Egypt 's constitution was altered in 1980 to make the sharīʿah “the principal source” of legislation, rather than “a principal source” as it had been in the previous wording. An attempt in 1985 to obtain a ruling from the High Constitutional Court that a civil code provision calling for interest to be charged when a loan repayment was delayed should be voided was rejected, the court ruling that the article had no retroactive effect on existing legislation. In Egypt, the calls for making the state and its laws more Islamic were countered by proponents of the idea that the unity of religion and state under modern conditions was deleterious to both, among them Muhammad Saʿīd al-ʿAshmāwī and Faraj Fawdah (d. 1992).

Powerful Islamist movements, appealing to popular sentiment and favoring the application of the sharīʿah and the reinstatement of Islamic law, were vigorously repressed in many countries, where governments with basically secular outlooks saw in them a threat to their hold on power. In Algeria in 1991 an Islamist party nearly came to power by democratic processes, but it was prevented from taking over the government by military intervention in early 1992. In Turkey, the Justice and Development Party (Adalet ve Kalkinma Partisi, AK), was outlawed in 1998, although a landslide victory in the general elections of 2002 ensured rulership. Recip Erdoğan, who was barred from entering parliament or serving in any government position, became prime minister, eager to introduce changes to the laws governing political parties. Various reforms were also introduced to make Turkey more democratic and pluralist, as he stressed the need for Ankara to seek foreign investment.

Recent Trends.

Especially from the 1960s onward, the implications of the Islamic sources were developed in areas where Islamic law had not previously been elaborated or where earlier doctrines were deemed inadequate, such as matters of public law. As Muslims produced theories that defied pigeonholing in traditional categories, the barriers formerly dividing the doctrines of schools of law and Shīʿah and Sunnī became more permeable. A new literature was produced by Muslims with a variety of educational backgrounds and outlooks, many of whom were oriented more toward ideology than jurisprudence. A major concern was the rethinking of the application of Islamic precepts to public-law issues such as government, penal law, and macroeconomic principles. In the area of macroeconomics, the traditional prohibition of ribā (interest, usury) was reinterpreted as a principle that required the elimination of interest charges. Among those writing on this subject were Sayyid Abū al-Aʿlā Mawdūdī (1903–1979), a Pakistani fundamentalist ideologue, and Muhammad Bāqir al-sadr (1931–1980), an Iraqi Shīʿī cleric.

Whereas proponents of Islamic economics concurred that Islamic banks needed to be established in which interest would be prohibited, they disagreed sharply on other economic issues, such as whether Islam allowed for a free market or required the adoption of socialist policies, as evinced by the controversies in Iran after the Islamic Revolution over issues like land reform and state control of trade. Proponents of Islamization advocated establishing “Islamic” states, that is, states constituted according to Islamic criteria, although there was no consensus as to what this model entailed. One of the influential writers on the role of Islam in the state was the Sudanese Hasan al-Turābī, a Western-educated law professor who went on to a career as an ideologue of Islamic revival and a leading force in Sudanese politics. In these circumstances, theoretical debates went on about the degree to which Islam was compatible with the post–World War II system of international law and the degree to which an Islamic system could incorporate democratic principles.

Meanwhile, international organizations like the Organization of the Islamic Conference sponsored initiatives that had the potential to encourage greater uniformity in approaches to Islamic law. For example, the OIC issued a statement of Islamic human rights principles in 1990. Controversies were engendered about women's rights in Islam, in which conservative Islamists and other supporters of traditional sharīʿah rules as they had stood in the past were pitted against increasingly outspoken Muslim feminists. Muslims ’ growing familiarity with feminist ideas and international human rights principles meant that laws affecting women, including those of Islamic provenance, were increasingly evaluated in terms of their conformity with the modern norm of male-female equality. Fatima Mernissi, a Moroccan, became one of the most vigorous advocates of the proposition that male attitudes rather than authentic Islamic teachings stood in the way of women's equality.See also ʿABDUH, MUḥAMMAD; ADAT; AHMAD KHāN, SAYYID; ANGLO-MUHAMMADAN LAW; FAMILY LAW; FEMINISM; ḤUDūD; HUMAN RIGHTS; IQBAL, MUHAMMAD; MARRIAGE AND DIVORCE; MECELLE; MERNISSI, FATIMA; NATION; ORGANIZATION OF THE ISLAMIC CONFERENCE; POLYGYNY; SANHūRī, ʿABD AL-RAZZāQ AL-; Sharīʿah; TANZIMAT; WALī ALLāH, SHāH; and WILāYAT AL-FAQīH.

Ann Elizabeth Mayer

Updated by Joseph A. Kéchichian

Civil Law

“Civil law” in the modern Islamic world has two meanings. In general, the term refers to the body of laws that deals with the rights and obligations of private citizens. This definition encompasses areas of law dealing with contracts and commerce, property, and personal status; it does not include criminal law. “Civil law” can also refer to a legal tradition that evolved in Continental Europe out of the Roman legal system. The European civil law tradition heavily influenced modern legal reforms in most Arab countries, all North African countries, some sub-Saharan nations such as Mali and Mauritania, and Indonesia in Southeast Asia. The civil-law tradition is characterized mainly by written legal codes as primary sources for authoritative law and a unique set of judicial procedures. This notion of civil-law is distinct from the common law tradition—the other major Western legal tradition—which heavily influenced modern legal reforms in countries such as Bangladesh and Pakistan in South Asia; Sudan and the Gambia in Northeastern and West Africa, respectively; and Brunei, Malaysia, and the Maldives in Southeast Asia. The common law tradition developed in England from the local body of court decisions, doctrines implicit in those decisions, and customary practices. There, the precedential decisions are sources for authoritative law alongside written legislation, and the judicial procedures differ markedly from those of civil-law systems. Some countries, such as Somalia, mix common-and civil-law traditions with Islamic and customary ones; other countries, such as Iran, purport to rule by Islamic law exclusively, though influenced by the civil-law tradition; still other countries, such as Turkey or the Muslim-majority republics of the former Soviet Union in Central Asia and Eastern Europe now apply thoroughly secular laws—the latter influenced by Soviet law (itself based in part on the European civil-law tradition). This article deals with both definitions of civil law as it relates to the codified noncriminal laws governing private persons in the current legal systems of Muslim-majority countries.

The civil law system in the modern Islamic world began with the Ottoman legal reforms of the period 1839–1876, the Tanzimat (reorganization). Reform-minded sultans of the early nineteenth century observed that the old legal, educational, and military institutions were insufficient to meet the changing demands of the empire or to handle the issues that accompanied increased trade with European countries. In 1839, Sultan Abdülmecid I (r. 1823–1861) inaugurated the legal reforms with an edict—the Hattı Şerif of Gülhane (Imperial Edict of the Rose Chamber)—announcing that, “with the help of the Most High and supported by the intercession of our Prophet, we deem it right to bring the benefits of a good administration to the provinces composing the Ottoman Empire through new institutions.” Among several other changes, the Tanzimat era saw the reorganization of the civil and criminal laws (kanuns) according to the French civil-law model, the Code Napoléon of 1804. In commercial and contract law, the legal reorganization culminated in the promulgation of the Mecelle (1869–1877), a legal code that drew from Islamic law in substance but took on the form of the French Civil Code. In addition, the Ottoman Empire had entered into a series of bilateral agreements with Western European nations (called capitulations or ahdnames), in part providing for extraterritorial jurisdiction of foreign laws over foreign merchants conducting business in lands under Ottoman rule. The Ottoman Empire dissolved following defeat in World War I, and soon thereafter, leaders of the new Turkish Republic changed the civil-law system. A set of decrees in 1924 abolished the caliphate, dissolved the Islamic law (sharīʿah) courts, and nationalized the educational system. In 1926, Turkey adopted the Swiss Civil Code as the law of what had become a fully secularized republican state under Mustafa Kemal Atatürk.

The Ottoman legal reforms and Turkey 's adoption of the Swiss code presaged the widespread adoption of European codes in the Muslim world—each country having different motives and means for doing so. In Turkey and the Arab world, reforms usually came by borrowing foreign legal codes in attempts to withstand geopolitical and economic challenges presented by Western European nations. In former French, British, and Dutch colonies in Africa, South and Southeast Asia, and elsewhere, the law was often imposed directly by the colonizers, facilitating its eventual adoption in modified form after independence. Iran (which was not an Ottoman province and was not colonized) followed a route similar to Turkey, secularizing and adopting a European civil code, which remained in effect until the Islamic Revolution of 1978/1979. Although the European model continues to provide the structure of the law and courts there, Iran 's post-Revolutionary constitution announced the adoption of Islamic law for all civil matters.

Each of the former Ottoman provinces followed a different path to reform. The Mecelle was formally in effect throughout the Empire until its collapse. Afterward, the colonial period, which spanned much of the first half of the twentieth century, saw an eclectic mix of laws from the occupying forces and the local rulers. With independence, most Arab countries amended their codes according to the French model, and incorporated classical Islamic law largely in personal status matters. Exceptions include Yemen and Saudi Arabia, where the Ottoman reforms were not widespread, which never came under European rule, and where the preexisting system of classical Islamic law therefore faced fewer obstacles to continuance.

In much of the region, Egypt was a leader in the process of legal reform, as many Arab countries looked to Egypt 's experience to guide their own. Formally an Ottoman province, Egypt was in the nineteenth century effectively autonomous. In the early part of that century, Muḥammad ʿAlī (r. 1805–1848) established a series of tribunals to operate alongside the sharīʿah courts. These new tribunals applied laws issued by the Egyptian government, which were influenced by Ottoman imperial kanuns as well as by classical Islamic law. In the 1870s, Mixed Courts were established, which governed foreigners and operated on a civil code drawn from the Code Napoléon. In the 1880s (following the start of the British occupation in 1882), National Courts were established, which governed Egyptians based on a code similarly drawn from the French model along with Islamic commercial rules adopted from the Mecelle. This tripartite system of Mixed, National, and sharīʿah courts (plus Millıˆ courts for non-Muslim personal status laws), continued until 1949. That year, Egyptians abolished the Mixed Courts and installed a civil code, written by ʿAbd al-Razzāq al-Sanhūrī, an Egyptian legal scholar who had studied in Egypt and France, and who had taught at the law school of Baghdad. This new code governed both natives and foreigners on most issues in the National Courts. Sharīʿah (and Millıˆ) courts continued to adjudicate personal-status disputes until these courts were abolished in 1956, their work folded into that of the National Courts as well.

Islamic law did not disappear with the inauguration of Egypt 's new civil code and the abolition of the sharīʿah courts. Article 1 of the Egyptian code identifies four main sources of law for judicial decision-making: the code itself, customary practice (ʿurf    ), the “principles of sharīʿah,” and the principles of natural law and equity. The Egyptian Constitution also seeks to ensure that Islamic law will continue to have a place in civil law. Article 2 of the Constitution (adopted in 1971) proclaims Islam the official religion and recognizes Islamic law as “the principal source of legislation” (as amended in 1980). This provision has been interpreted by Egypt 's Supreme Constitutional Court to grant broad discretion to the legislature to pass civil and other laws, so long as they do not contravene the “fixed principles” of Islamic law.

Civil codes like that of Egypt generally follow the European codes in both format and content, with the exception of family law, which generally is governed by a code seeking to implement rules of classical Islamic law. The civil codes are divided into two parts. The first is the preliminary or general part (as termed by the German code). It deals with general principles of civil law, such as the definition of legal persons, the classification of things and property, and conflict of laws. The second contains rules relating to specific legal issues concerning contracts and remedies for breach of contract, sale, torts, landlord-tenant relationships, labor and employment, hiring and leasing, and loans and deposits. For example, the Egyptian and other codes specify that contracts without a valid purpose or cause (sabab) are void, which is a principle common to both European civil law and Islamic law. The difference between the two systems on this point is that the European civil law tradition, unlike most classical Islamic legal rules, permits commitments about indefinite sums or objects that may exist at some future date with an unknown amount of risk.

Egyptian influence on the civil laws of other Arab countries is apparent in their own histories of codification. For instance, the Ottoman code governed transactions in Syria, Iraq, and Jordan until its replacement by new legal codes modeled on the Egyptian adaptation of the French-based system in the mid-twentieth century. Each country drew from the Egyptian code explicitly when adopting their new codes—Syria in 1949, Iraq in 1951, and Jordan in 1976. In fact, Sanhūrī himself was called upon to craft a code similar to the one he drafted for Egypt for Iraq; and the Egyptian code itself actually replaced the Jordanian code. The Egyptian code had an equally great impact on many Arab countries in the Gulf. Sanhūrī drafted the legal code that replaced the Mecelle in Kuwait in 1961, and that country adopted a civil code based on the Egyptian and Iraqi codes in 1980. Oman, Qatar, and the United Arab Emirates adopted civil codes in the 1980s and 1990s modeled on the Kuwaiti version of the Egyptian and Iraqi codes.

Relating to Islamic law, the codification wave in the modern Muslim world has been extremely controversial, eliciting myriad responses from politicians, jurists, legal reformers, and academic commentators. Some are of the view that Islamic law cannot, by definition, be codified. Islamic law is both a methodology and a substantive body of legal rules; thus any attempt to codify it crystallizes rigid rules more appropriate to premodern societies. Others argue that codification is positive, because it decreases the amount of judicial discretion, and therefore arbitrariness, in applying uncodified laws. Codification, they argue, works to bring clarity and fairness to the law.

Civil law plays a substantial role in people 's everyday lives, particularly the laws of personal status. There seems to be, for instance, a general awareness of the rights and obligations of marriage and divorce. This awareness helps to explain the significant use of courts in many Muslim countries to mediate family law disputes and is one reason that reform of Islamic family law codes is a central focus among activists who seek equality between women and men. Since the 1980s, women activists and human rights-organizations have proliferated rapidly. They proffer two main approaches for reform of family laws: eradicating Islamic legal elements in the law (viewed as inherently discriminatory) or revamping the codes through the inclusion of women's participation in more egalitarian interpretations of Islamic law.

Morocco is an example of a country where the calls for change were heeded by the government, which aimed to institute reforms with the latter approach in mind. Following massive protests between 1992 and 2000 against existing family laws, King Muhammad VI convened a reform commission composed of parliamentarians, women's rights activists, and Islamic law experts with a mandate to resolve the tensions between secularists and Islamists by producing mutually agreeable reforms of personal status laws. Following the commission 's recommendations, parliament enacted sweeping reforms in 2004 to its existing Family Code (Mudawwanat al-usrah), which drew mostly from an eclectic set of rules from the four schools of Sunnī law (madhhab)—(with emphasis on Africa 's dominant Sunnī school, the Mālikī legal school)—plus the Imāmī school of Shīʿī law. The new code draws on these same sources but purports to be the product of a process that self-consciously seeks to harmonize liberal democratic and human rights norms with traditional Islamic mores by “adopt[ing] the tolerant principles of Islam in advocating human dignity and enhancing justice, equality and good amicable social relations, and with the cohesiveness of the Mālikī school as well as ijtihād, which makes Islam valid for any time and place,” as announced by the King in the preamble to the Code. The Code 's substantive changes have been praised by local women's groups and international human rights NGOs as an example of “progressive” personal status laws from within an Islamic framework. Perhaps this represents a new chapter in civil law in modern countries that seek to give attention to principles of classical Islamic law in the modern world.

Intisar A. Rabb

Courts

Justice was not administered only in courts in the Islamic world. During the lifetime of Prophet Muḥammad, law was developing continuously, and courts as an institution did not yet exist. Instead, many disputes were resolved through direct appeal to the Prophet, a procedure that had a theological basis in the Qurʿān. The Qurʿān instructed the early community of Muslims to “follow God and his Messenger and those in authority over you” (e.g., 4:59). It also declared that the new Muslims did not believe “unless they appeal[ed] to [the Prophet] for judgment concerning all things about which they disagree[d] among themselves, and then found within themselves no bar to acceptance of [his] decision[s], but submitted [to them] in utter self-surrender” (Qurʿān 4:65; see also 4:105; 5:42, 48–49; 24:48–52). The ḥadīth literature contains anecdotes about people who accordingly came to the Prophet asking him to resolve marital disputes, presenting contractual disagreements, admitting crimes, etc.

After Muḥammad 's death, the first four caliphs took over the state administration of justice in Medina, and learned members of the early community, including certain companions and family members of the Prophet, performed judicial functions as well. Some members of this learned class were appointed formally by the caliphs as judges. As the Muslim community spread outside of Arabia in its first few decades, the caliphs also appointed judges for garrison towns and, gradually, for the conquered territories. This system continued throughout the reign of the first dynasty, that of the Umayyads (r. 661–750). Rather than a single physical location, homes, mosques, and the marketplace all served as venues for legal deliberations early on. Eventually, such courts convened mainly in mosques.

According to most Sunnī, judges derived their authority from Qurʿānic verses instructing the community to “obey those in authority over you,” and they operated with the assumption that the judges were representatives of the caliphs who were in turn successors to the Prophet. For the Shīʿah, however, “those in authority” properly referred to the Imams, who are believed to be the rightful successors to the Prophet. Although this perspectives would require courts to be convened under the authority of the Imām, Shīʿī doctrine permitted jurists, under certain circumstances, to assume judgeships in the courts convened by the reigning caliphs and sultans, even though these rulers were considered to be illegitimate.

Judicial Officers.

Under the ʿAbbāsids (r. 750–1258), Islamic law flowered into a complex legal system. The position of chief judge (qāḍī al-quḍāt) was established in the capital city, Baghdad. The first Chief Judge was Abū Yūsuf, appointed by Hārūn al-Rashīd (r. 786–809), the fifth ʿAbbāsid caliph. The institution continued, with one imperial Chief Judge in the Islamic world 's eastern lands until the rival Fāṭimid dynasty (r. 910–1171) established its own caliphate in Egypt and appointed its own Chief Judge in Cairo in the tenth century. A chief judgeship also emerged in the Islamic world 's western lands, including Spain and North Africa (where it was called qāḍī al-jamāʿah).

The Chief Judge had authority to supervise other judges (qāḍī or ḥākim al-sharʿ), who served as his delegates within a particular judicial district. Early on, these districts could be as large as Egypt or Yemen, but they gradually were reduced in size as the Muslim population increased in number and density. The Ottomans (r. 1299–1922), for example, convened multiple courts in modern Turkey in much smaller districts, divided by population. Istanbul accordingly formed a district encompassing five courts in the sixteenth century.

Judicial tenure varied. In theory, there was no formal limit to a Chief Judge 's tenure. Similarly, while other judges theoretically did not lose their positions by the death of the appointing authority, a new regime brought dismissals and reappointments to judicial posts. The mandate of delegate judges was, by contrast, said to have expired with the dismissal or death of the person who appointed them. The Ottoman sultans gradually reduced judges ’ tenure from an unlimited tenure to two or three years, and eventually to just one year. This created considerable instability and discontinuity in the system and is said to have contributed to the decline of the Ottoman judiciary.

Other judicial positions developed by the ninth century, including: a secretary or law clerk (kātib), who recorded the proceedings; a notary (ʿādil); a witness (shāhīd) who was proven to be upright (ʿādil), or a group of upright witnesses (shuhūd) who, as a class, became permanent members of the court as early as the end of the eighth century; a person charged with investigating the character of the permanently accredited witnesses (muzakkī); an interpreter (mutarjim), who was in charge of translating statements for the judge by litigants who did not know Arabic; a guard (bawwāb), whose duty was to maintain order among the litigants and the public, and who was sometimes assisted by the judge 's bodyguard (ḥājib), who allowed only interested parties access to the judge; a bailiff (ʿawn), who made known to the parties what the judge 's orders were and compelled them, with force if necessary, to appear before the judge; a person in charge of supervising the division and apportionment of goods requiring technical know-how (qāsim); and a guardian for court orders (amīn al-ḥukm), who entrusted to accredited witnesses assets belonging to legally incompetent people, such as orphans, minors, and the mentally impaired. With time, this last office and its function became obsolete, and such properties were entrusted to the litigant 's legal guardian.

Some witnesses (called shāhid al-ḥāl) specialized in specific matters and appeared frequently before the court to offer their expert opinions. To resolve complex legal issues, judges also appealed to a senior expert in Islamic law (muftī), who was more learned but typically had no state court appointment. In Muslim Spain, especially after the ninth century, judges called on more than one muftī-advisor, soliciting opinions from as many as three or four counselors. Under the Ottomans, judges referred to a consultative council of experts (majlis al-sharʿ, maḥkamat al-sharʿ, or shūrā), to assist them in reaching judgments in conformity with Islamic law.

Petitioners approached the court directly in the first few centuries. But with time, petitioners were represented by experts (e.g., a wakīl) or, in modern times, lawyers (muḥāmī).

Legal Schools in the Courts.

Rulers tended to appoint judges of their same juridical school of thought (madhhab), and judges typically applied the opinions of that school, though they made certain allowances for petitioners from different schools. The Ḥanafī school (one of the four Sunnī legal schools) enjoyed the most influence in the courts, because this school happened to be aligned most often with the largest and longest-lasting dynasties of Muslim rule. Ḥanafism was the first school of the ʿAbbāsids (who later patronized the Shāfiʿī legal school), and it was the main school of the Ottomans (although there were some Shāfiʿī-appointed judges as well). Courts in Islam 's western lands followed the Mālikī school. In Mamlūk Egypt (1250–1517), the population was so diverse that the rulers appointed multiple judges—one from each of the four Sunnī legal schools (the fourth being the Ḥanbalī, a conservative school prevailing in the Arabian peninsula)—who presided over their own courts and were subordinate to a Chief Judge in the capital.

Under Sunnī rule, Shīʿī Muslims followed the dictates of their schools privately, with petitioners appealing to learned Shīʿī jurists. Government support and patronage facilitated tremendous growth in the law, such as that of the Būyids (r. 932–1062) who took over the authority of the ʿAbbāsid caliph in Baghdad in 945. Shīʿī achievement of political power heralded an even greater path of development and increase in independent courts, as with the Safavids (r. 1502–1702) in the sixteenth century. In the modern period, Shīʿī law is applied in courts convened by nation-states under Shīʿī rule (e.g., Iran) or with significant Shīʿī populations (e.g., Bahrain).

Types of Courts and Jurisdictional Scope.

There are two main types of courts, each with its own jurisdiction. The ordinary courts (also called sharʿī or sharīʿah courts) are the first type, and they aim to apply Islamic legal precedents as developed by the jurists over the centuries. Even though judges derived their authority from the rulers under Sunnī doctrine, they formed an independent body from the eighth century onward, as they were not bound to obey the ruler unless his views conformed to Islamic law. The jurisdiction of these courts extended ostensibly to both civil and criminal matters, but their authority over matters of criminal law was soon circumscribed; it fell increasingly under the jurisdiction of the ruler, whose duty it was to preserve public order.

The second type is the court of equity (maẓālim). The word maẓālim (singular: maẓlamah) suggests oppressive actions, and maẓālim courts were used as a way for the caliph (or by the late ʿAbbāsid period onward, the sultan) to redress complaints about the administration of justice in the ordinary courts. As in the Sassanian and Byzantine systems that preceded Islam and were closest to the Islamic world geographically, these courts were staffed by the representatives of the sultan—his viziers, governors, military officials, and other deputies—and by the sultan himself, rather than by experts in Islamic law, who were largely independent from the state apparatus. Yet, these courts employed a judicial staff similar to that of the ordinary courts and also included Islamic law experts on their staffs. Judges in these courts reviewed judgments from the ordinary courts, resolved administrative matters, distributed or confiscated state land grants (singular form iqṭāʿ), and assumed control over matters of criminal law. Abū al-Ḥasan al-Māwardī (d. 1058) is credited with being the first to offer a detailed theoretical justification for the maẓālim courts under Islamic law. According to him, they are valid as an extension of the sultan, who is charged with upholding God 's law in the public sphere. Hence, although they are not bound by the same substantive and procedural strictures of Islamic law as the ordinary courts, they were “Islamic” in the sense that their aim was to implement justice in a Muslim society under the authority of the Muslim ruler.

Maẓālim courts generally convened in the presiding official 's regular place of business. In twelfth-century Damascus, Nūr al-Dīn Zankī (r. 1154–1174) established a house of justice (dār al-ʿadl, later known as dār al-saʿādah) designated exclusively to handle maẓālim matters. Other provincial capitals followed suit in the thirteenth century as did the Mamlūks (r. 1250–1517).

Procedure.

As in other medieval systems, including the early common-law system of Britain and the Roman law system of Continental Europe, witnesses and oral testimony were key forms of evidence in ordinary courts. Proof (bayyinah) therefore usually meant oral testimony; written documentation was disfavored, and its use required two witnesses to testify orally as to the authenticity of the documents. The objection to written testimony gradually changed, and written documents are now admissible as long as they are authenticated.

Courts afforded defendants a presumption of innocence, as expressed by the legal maxim expressing a presumption of “no liability” (al-aṣl barāʿat al-dhimmah). Thus the burden of proof was on the plaintiff, who had to argue his or her case from near-certain evidence or at least by a preponderance of the evidence. To rebut such evidence, the defendant could deny the accusation by taking an oath or by presenting evidence tending to disprove the allegations. Two male witnesses sufficed to establish legal proof for most civil claims, but criminal claims in ordinary courts were subject to heavier evidentiary burdens. For instance, four witnesses were required to establish legal proof of illicit sexual relations (fornication or adultery), which were punishable by severe penalties.

At the conclusion of a legal proceeding, the judge issued a ruling (ḥukm) that was binding on all parties involved. Ordinary courts developed a form of judicial review, particularly in Morocco, where judges reviewed the decisions of judges preceding them to determine whether a particular precedent or legal rule should still apply.

Legal procedures in maẓālim courts differed markedly from those of the ordinary courts, as maẓālim courts were not bound by ordinary rules of procedure. No hearing was required, and a maẓālim judge could, for example, use coercion to extract testimony, entertain evidence that failed to meet the high evidentiary burdens of the ordinary courts, subpoena witnesses, and postpone hearings to allow for judicial investigation. Maẓālim courts also functioned as appellate courts over decisions from ordinary courts.

Other Court-like Venues.

In addition to these two main types of courts, there were several other venues of law enforcement and judgment. For example, the police (shurṭah) worked to maintain public order, the military judge (qāḍī al-ʿaskar in eastern Muslim lands or qāḍī al-jund in western Muslim lands) handled disputes among soldiers, the muḥtasib investigated practices in the marketplace and monitored offenses against public morality, the ḥakam presided over arbitrations, and local courts applied customary law (ʿurf), especially in the western lands of the Islamic world.

Judicial Reform in the Ottoman Empire.

In the sixteenth-century Ottoman Empire, the role of courts in society expanded as city notables, representatives of craft-guilds, and local imams gathered to hear a judge explain a sultan 's new decrees and decide on the distribution of taxes. Around the same time, Süleyman I (r. 1520–1566), known as Süleyman Kanuni (the “lawgiver”), expanded the role of the Empire 's secular law (kānūn) by consolidating and codifying it into a single kānūn and then depositing a copy in each court. Courts applied the kānūn alongside sharīʿah—with the understanding that the latter ostensibly (if not in fact) superseded any contradictory secular laws. Centuries later, the Ottomans undertook another massive codification project as a part of the reform movement, the Tanzimat, which began in the 1830s. Affected significantly by their contact with Western European nations, the Ottomans worked to revise and codify both secular and religious laws throughout the nineteenth century—including civil laws, penal laws, judicial appointments, and appellate review. The most notable output of this process was the Mecelle, a code written from 1869 to 1877 under the leadership of Ahmed Cevdet Paşa, designed to codify and simplify the Islamic laws of transactions. In recognition of the fact that judges were no longer trained in requirements of Islamic law, the Mecelle famously begins with ninety-nine maxims of Islamic law (qawāʿid fiqhīyah) and set forth over 1,800 articles of commercial and evidentiary rules to guide judges on those matters in sharīʿah courts. The Mecelle 's overly detailed orientation and its focus on the substantive legal rules rather than the methodology of the Ḥanafī school restricted the discretion of judges and proved unworkable. With the end of the Ottoman Empire and birth of the Turkish State, the government abolished sharīʿah courts in 1924. In 1926, Turkey replaced the Mecelle with the Swiss code, thus removing the last remnant of Islamic law from the books in that region.

Law and Courts in the Modern Islamic World.

Under Ottoman rule, sharīʿah courts in other parts of the empire exercised broad jurisdiction over civil claims, issues of personal status, trusts and endowments, administrative matters, and even criminal complaints. But with the reforms and new codifications of the late nineteenth century, the jurisdiction of these courts shrank.

Attempts at codification commenced as early as the mid-nineteenth century, but they had no lasting success until 1948, when ʿAbd al-Razzāq al-Sanhūrī developed a hybrid code of civil law for Egypt, based on elements of both Islamic and French law. The sharīʿah courts there were abolished altogether in 1955 and their jurisdiction transferred to national courts. Yet, Islamic law continued to apply to some areas. Article 2 of the Egyptian Constitution of 1971 declares Islam to be the state religion and the principles of sharīʿah to be a chief source of legislation; a 1980 amendment declares sharīʿah to be the chief source of legislation. The Constitutional Court determines whether new laws conform to that requirement. Sanhūrī 's code served as a model for many of the Arab states emerging from colonial rule during that period, as many states followed the path of Egypt, though not all have abolished sharīʿah courts.

The constitutions of twenty-five member countries of the Organization of the Islamic Conference (OIC) incorporate some form of Islamic law (Afghanistan, Algeria, Bahrain, Bangladesh, Brunei, the Comoros Islands, Egypt, Iran, Iraq, Jordan, Kuwait, Libya, Malaysia, the Maldives, Morocco, Oman, Pakistan, Palestine [transitional law], Qatar, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen), issues of which are adjudicated in constitutional courts, sharīʿah courts, or both. Saudi Arabia may be counted as the twenty-sixth, except that it has no formal constitution; its functional equivalent is a basic law that designates the Qurʿān as its constitution and sharīʿah as its law. In addition, five OIC member states that do not incorporate Islamic law into their constitutions permit some courts to apply Islamic law in personal status cases (Gambia, Indonesia, Lebanon, northern Nigeria, and Senegal). Finally, several other states convene so-called sharīʿah courts or permit their secular courts to apply Islamic personal status laws for their Muslim minority populations (Ethiopia, Ghana, India, Israel, Kenya, the Philippines, Singapore, Sri Lanka, Tanzania, and in some cases, Western countries like the United States). Most sharī ʿah courts apply the laws of personal status, while some of them—such as Nigeria, Pakistan, or the Maldives—have invoked classical Islamic criminal law as well, and other courts—most notably in Iran and Saudi Arabia—purport to apply classical Islamic law to all spheres.

See also MAḥKAMAH; Qāḍī; and LAW, subentries on CIVIL LAW and CRIMINAL LAW.]

Intisar A. Rabb

© Oxford University Press 2007-2008. All Rights Reserved