Introduction to Islamic law

Islamic law is one of the major legal systems in the world. Nowadays, one may observe increased attention to Muslim law, not only among scholars, but also among media. Such an interest can be explicable by the empowering of Muslim world, which is observed during recent years. Moreover, events that take place in the Middle East attract the attention of the whole world. Western society attempts to gain a better understanding of Muslims, their law and religion. Such an understanding would be impossible without appropriate scholar literature. The book of Wael Hallaq “An introduction to Islamic law” represents a comprehensive scholar work on law elaborated by Muslims during many centuries. This paper is an attempt to provide a brief overview of chapters contained in this book.

The first chapter of the book entitled “Who is who in Shariah” makes the reader to know about the essential features of the Shariah. In particular, Hallaq points out that one of the distinctive features of the Shariah is its independence from the authority of the state.  The author marks that “pre – modern Muslim rule was limited in that it did not posses the pervasive power of a modern state.” Hallaq exemplifies that in pre – modern times, legal rules did not have a considerable impact on population of Muslim countries: there was no any birth register, citizenship status, passport control, immigration restrains and so on. Thus, one may see that there was a low – level bureaucracy. Hallaq expresses an opinion that such a situation occurred because of lack of state authority. In particular, he believes that there was no state in pre – modern Muslim society. Such an opinion is quite questionable, as formally there was a state, but the level of centralization compared to then European countries was much lower. Further, to explain the how Muslim society governed itself without a state authority, the author resorts to the hypothesis of a self – regulation. He marks that “communities, whether living in city quarters or villages, regulated their own affairs.” That is why the scholar concludes that the Shariah was not a product of Islamic government. Having found out that rulers did not create legal rules, Hallaq makes an attempt to explain who elaborated Islamic law. First, the author points out that “communities produced their own legal experts, persons, who were qualified to fulfill a variety of functions that, in totally, made up the Islamic legal system.” Therefore, one may see that legal personnel played a crucial role in elaborating of Islamic legal rules. Hallaq enumerates four types of key players in legal area: mufti, the author- jurist, the judge and the law professor.” The scholar emphasizes that it were they who made the Islamic legal system as unique as it is now. Further, Hallaq explains the role of each key player separately. Thus, he reveals that mufti had a central role in the development of Islamic law. The mufti “was a private legal specialist who was legally and morally responsible to the society in which he lived, not to the ruler or his interest.” One of the main mufti’s functions was to issue fatwa – legal opinion regarding certain addressed question.  The fatwa was considered as an authoritative statement of law and as a rule, this statement was upheld in court decisions. Indeed, Muslim judges in making decisions were governed by fatwa. Considering the impact of fatwa on Muslim law, Hallaq notes that “the central role of fatwa in the Muslim court explains why the decisions of judges were neither kept nor published in the manner practiced by modern courts.” Thus, one may see another distinctive feature of the Islamic legal system: unlike common law, it was not a precedent, which set a rule of law, but an opinion elaborated by mufti. At the same time, the author reveals that the majority of legal works in Muslim law were written not by mufti, but by the author – jurists. The main function of author – jurists was to “summing up the law” by drafting short treatises. Considering the role of these works, Hallaq marks that they “afforded the author – jurists the opportunity to articulate, each for his own generation, a modified body of law that reflected both evolving social conditions and the state of the art in the law as a technical discipline.” The Muslim judges, qadi, apart from adjudicating of disputes, supervised building of mosques, bridges, fountains, and streets. In addition, qadi inspected new buildings, and the operation of various public services. Qadi also were mediators in different types of disputes. As for law professors, it is important to note that in earliest times muftis played a role of educators. Hallaq describes that muftis gathered students interested in exploring of the Quran and the Prophet’s teachings and discussed with them some important issues.

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The following chapter “The Law: how it is found?” explains how muftis and author – jurists elaborated the law from its sources. In particular, this chapter addresses issues of legal reasoning and interpretation. According to Hallaq, the central concept of development of Islamic law was the concept of rational thinking. The author marks that the majority of Muslim jurists and theologians believed that “rational thinking is a gift from God and that we should fully utilize it”. In addition, the scholar notes that it was a position of Islamic legal tradition that “the content of rational thinking must be predetermined, transcendental and above and beyond what we can infer through our mental faculties.” In simply terms, it was believed that human beings can not understand the secrets of the world and thus, it would be an inappropriate to control it. Hence, Muslim adopted a view that only all – knowing God can determine the content of rational thinking. This view determined further development of Islamic legal tradition. Hallaq points out that the theory of Muslim law derives from the belief that the Quran is “the most sacred source of law.” The Quran is regarded as a God’s word, which directs human conduct. The second important source of law is revelations of Muhammad. The Prophet’s conduct is considered to be exemplary. That is why Muhammad’s biography, which is known as Sunna, became one of the major sources of Islamic law. Hallaq reveals that “the concrete details of the Sunna – that is what the Prophet had done or said, or even tacitly approved – took the form of specific narratives that became known as Hadith.” There were certain criteria that determined reliability of hadith. The need of such criteria was dictated by the constant alteration of the hadith, which was performed in order to meet current realities. The author explains how legal rules were elaborated from them. In particular, he points out that theory of consensus had played an important role in development of law. According to this theory, the credibility of texts should be tested through requirement of multiple transmissions – recurrence. To reach a recurrence the text should: “must be conveyed from one generation to the next through channels sufficiently numerous as to preclude any possibility of error or collaboration on a forgery”; the first class transmitters must perceive the Prophet’s sayings; two mentioned conditions should be met at the each stage of transmission. The existence of numerous hadiths often led to occurrence of contradictions. To deal with such situations, Muslim jurists resorted to abrogation – a procedure, which foresees repealing of hadith and subsequent cancellation of its effect. Thus, we can see that consensus was the third source of Islamic law. As for legal reasoning, Hallaq reveals that Muslim jurist recognized several types of it among which public interest (istislah) and juristic preference (istihsan). The general term for legal reasoning is qiyas. Qyias is considered to be the forth source of Islamic law. Qyias is composed of four major elements: issue requiring a legal solution; original case, which can be find in sacred texts or revelations; a common base for new and original case; legal norms derived from the original case and transmitted to a new case. The current chapter also introduces the sources of legal learning: the kitab (the book); works based on the “four quarters”: rituals, sales, marriages and injuries.

The third chapter “The legal schools” provides the reader with comprehensive overview of the development of scholar approach in resolving legal issues. The author explores the elaboration of legal schools in Islamic law and explains different senses of madhabb – school: “ a principle, defining the conceptual juristic boundaries of a set of cases,” “a jurist’s individual opinion when this enjoys the highest authority in the school”, and “a group of jurists who are loyal to an integral, and most importantly, collective legal doctrine attributed to a master – jurist from whom the school is known to have acquired particular, distinctive characteristics”.  Hallaq reveals that there are four major schools in Islamic law: Hanafi, Shafi, Maliki and Hanbali Schools. In addition, the author points out that Maliki School has its roots in Hejaz and spread into Egypt, Muslim Spain and North Africa. Shafi mainly originates from Egypt and spread to Syria, some parts of Yemen, Malaysia and Indonesia. Hanafi started in Iraq and extended to Iran, Central Asia and Indian Sub Continent.

The fourth chapter “Jurists, legal education and politics” reveals what relationships existed between jurists and public authority. The chapter also addresses the issues of legal education. Hallaq explores the role of caliph in elaboration of Islamic legal system. The author points that caliph’s intervention in legislation had an occasional character and occurred when there was a special need. The scholar marks that caliph’s legislative function was limited to exercising of a role of religious and political leader. Early caliphs regarded themselves as subject to laws similarly to other people. However, the emergence after 700 AD of highly educated legal scholars changed the situation. After 700 AD there was a significant institutionalization of ruling elite. Hallaq describes that caliphs began to live in large palaces and become more and more distant from the people they ruled. Such a situation led to the equating of government and political power to vice and corruption. The period in question was also characterized by the increasing dependence of judges from government as they obtained remuneration from caliphs. Despite such dependence, judges remained a product of their social environment and were often “called upon to express the will and aspirations of those belonging to non- elite classes.” The role of judges and legal scholars was tremendous. Hallaq reveals that they were regarded as guardians of religion, “ideal of piety, rectitude, and fine education.” The caliphs recognized the power of jurists and they surrounded themselves by prominent legal scholars. Thus, lawyers obtained an easy access to royal courts and political elite and it made them very influential figures in politics. In addition, Hallaq points out that caliph’s rarely intervened judiciary process and “acted with remarkable fairness and justice when arbitrating disputes and conflicts to which they were not parties.” From this chapter, one can come to know about the organization of legal education. The legal colleges, madrasa became a place of concentration of legal elite and study process was conducted in study circles. The law professors were often ranked by their students. Many students later became teachers in madrasa. In this chapter, the author also addresses issues of professionalization of the legists which increased after the eleventh century. He describes that “the accrual of income from judgeships and professorships… allowed a class of legists to make service in the law full – time, long life career.”

 In the fifth chapter “Shariah’s society” Hallaq describes mediation practices, judiciary system and status of women. As for the mediation procedure in pre – industrial era Muslim world, the author points that the consideration of moral and ethical issues prevailed in the process of dispute resolution. Hallaq also outlines the role of extended family in the dispute settlement: “many private disputes… were often mediated by the head of household or an authoritative figure in the clan or neighborhood.” The scholar notes that one of the important features of Islamic legal system was a long tradition of amicable dispute resolution. Considering the judiciary system, Hallaq notes that the court process had strongly ties with social world. Muslim courts drew a lot of attention to the issues of social equity. Court process and mediation practices had one important common feature: the application of legal rules seemed to be a secondary matter compared to the application of ethical norms. In addition, the author reveals that Muslim court could be characterized by a great level of informality. Hallaq argues that “the highly formalized processes of the modern court and its structure of legal representation… were unknown to Islam.” Further, the scholar explores the status of women within the context of legal proceeding. In particular, he finds that Muslim women possessed a full legal personality as they “enjoyed as much access to the Muslim Court as did their male counterparts.” Women could be defendant as well as plaintiff. Hallaq exemplifies in which cases women participated in court proceedings: civil damages, dissolution of marriage, child custody additional expenses, alimony, remedies against defamation. The author resorts to the highly disputed doctrine of female testimony. According to this doctrine, woman’s testimony “carried half the weight of that of the man.” However, Hallaq points out that there is no data “on the actual effects that such juristic had on the actual lives and experiences of women.” It is also stated in this chapter that women’s participation in the legal proceeding in most cases was caused by economic matters: property, divorce payments, inheritance settlements and so on.

The sixth chapter “Pre – modern governance: the Circle of Justice” addresses the issues of political power organization in Islamic states. Describing the organization of governance the author resorts to the historical background. Thus, he turns to the time of the beginning of Ottoman rule. The first Ottoman ruler Bayazid I was a strong supporter of religious elite and legists. Bayazid engaged legists in the administration of system of justice. Hallaq expresses an opinion that such an engagement “was a model of governance that answered the political exigencies that arose after the decline of the ‘Abbasid caliphate’. The author reveals that the notion of kingship in Islamic states had its own understanding. The language of Quran and Shariah rules “assign categorical possession exclusively to God who is recognized as … Owner of the Universe in both of its spheres.” Therefore any claim for possession could be considered as usurpation of the divine Kingdom.  That is why in Islamic states the ruler adopted the role of guardian and administrator of the Law, but not as possessor of God on the earth. However, there still was a perception of divine sovereignty, which constituted a base of relationship between rulers and civilian population. Hallaq outlines the role of sovereigns in the development of the Shariah: the sovereign enforced the legal rules of Shariah. In addition, Hallaq states that “without the sovereign’s juridico – political administration…, the Shariah would also become a hollow system.” At the same time, Muslim rulers also had their interest in the Shariah. For them, the Shariah became a tool that allowed strengthening their sovereignty and legitimacy. Further, the author explains the notion of Circle of Justice, revealing that it is based on the idea “that no political sovereignty can be attained without military” and “no military can be sustained without financial resources.” In order to find these financial resources, it is necessary to levy taxes. However, the levying of taxes is possible only if there is an economic prosperity. Here, the role of justice was believed to be crucial. In particular, the justice was to control excesses of provincial rulers. The understanding of justice by provincial rulers had a great meaning. Therefore, one can see that justice needed a public order. In a word, the essence of the Circle of Justice is that justice is enforced through the public order and sovereignty and the latter can not be obtained without military, which is supported by finances provided though implication of justice. In this chapter, the author describes the relationships between justice and sovereignty inside of the Circle of Justice.

In the seventh chapter “Colonizing the Muslim World and its Shariah” Hallaq describes historical events that took place during colonization period and analyzes the impact of colonization on the Islamic legal system. Outlining colonization of India by Britain, the scholar marks that according to Hasting’s Plan, British administrators and British judges “who would consult with local qadi and muftis regarding issues governed by Islamic law” were brought in India. The author reveals that British regarded Muslim law as “unsystematic, inconsistent and mostly arbitrary.” In order to eliminate these characteristics, British turned to codification of Islamic law. At this stage Muslim law “was slowly transformed into a state law, where the legal and judicially independence of the socially grounded legal profession was displaced by the corporate and extra – social agency of modern state.” The translation of normative texts into English and application of legal norms by British judges caused the emerging of so called Anglo – Muhammadan Law. In addition, the author points out that “Islamic criminal law was gradually replaced by its British counterpart.” British also implicated in Anglo – Muhmmadan Law the doctrine of legal precedent. Hallaq observes what changes were brought by Dutch in Indonesia. Thus, he describes that in 1873 Dutch promulgated a penal code for natives. They also brought some change in judiciary system: Shariah and Adat (customary) courts “were allowed to handle only minor and non – monetary cases”. Criminal offences and important civil cases were considered at the Landraden court. In addition, Dutch established a collegial system in courts: the Shariah bench included three magistrates. Hallaq explores changes occurred in Ottoman Empire under European pressure. In particular, he describes changes that took place in the system of governance and judiciary. For example, he reveals that the Supreme Council of Judicial Ordinances was established. Hallaq marks that the creation of such a body signified “the removal of judiciary from the Shariah domain to that of a state.” In addition, new pieces of legislation were adopted: a modern style penal code, French – influenced commercial code, the Land Law etc.  Egypt was also among the countries, which experienced dramatic change in political and legal order. Thus, Hallaq describes that several administrative and judicial reforms were carried on. In Egypt, like in Ottoman Empire Westernized courts were given more authority than the Shariah ones, although the latter continued to exercise general jurisdiction. Some reforms were also conducted in Iran. For example, the Basic Law, confirming the supremacy of Shariah, was introduced.  It is remarkable that the Basic Law did not contain the idea of separation of powers. However, Hallaq notes that the plan of reforms in Iran, in general failed. Thus, the reform, suggesting the creation of Western style courts was not conducted. In Algeria local property law was replaced by the French one, which “was made to facilitate the commercial ambitions of the settlers. In a word, the chapter reveals dramatic changes brought into the Muslim world by European colonization.

The eighth chapter “The law in the age of nation states” brings knowledge about changes occurred in Islamic law during twentieth century. First, the author describes the state of Islamic law, which remained after dramatic changes implemented by Europeans or under their pressure. Hallaq marks that one of the areas of law which was preserved was the law of personal status. The scholar explains that personal status law did not present a large interest for Europeans that is why it was almost unchanged. However, the formation of nation state brought the necessity to severe family law “from its own indigenous jural system. Hallaq describes that such a severance was performed through various devices: the concept of justification of any and all changes in law; procedural devices, which enabled “to exclude particular claims from judicial enforcement” without altering Islamic substantial law and selection and amalgamation; neo – itihad; application of the old, but restricted principles of law. The author exemplifies what changes were made in personal status law through procedural devices: prohibition of registration any contract, parties of which did not reach the age of the majority; prohibition for courts to consider claims “lacking documentary and written evidence.”  In this chapter, the author also explores issues of family law and new patriarchy. In particular, the author makes an interesting statement that the nationalism is a masculine concept and that is why it subordinates feminine. In twentieth century, in many countries of Muslim world family law was codified. Hallaq marks that such a law did not originated from the Shariah, but codified its provisions. In general, one may observe that this chapter is mainly focused on family law issues.

The final chapter “State Ulama and Islamists” addresses very topical issues of Islamization and the role of state, Ulama and Islamists in it. Exploring the roots of Islamization the author finds them in a resistance to Western political and military hegemony. The second factor that contributes to Islamization is appearance of secularist – modernist camp. Hallaq marks that such a camp has a strong association with the state. Next, the author observes the role of Ulama. In particular, he points out that Ulama are marginally stronger than secularists. In some countries, such as Saudi Arabia, Ulama represent strong and influential class. However, the scholar emphasizes that the strongest actor in Islamization process is the Islamist camp which has two main distinctions from Ulama: unlike the latter, Islamists do not resort to the traditional ways of interpretation of legal rules, but adopt their understanding of Islam from the classical sources. Hallaq describes Islamist as the follow: “they are trained in a wide variety of modern disciplines” and “willing to employ any modern interpretive amalgam.” In addition, Hallaq marks that Islamist “do not feel bound by cultural and epistemic systems developed throughout Islamic intellectual and legal history.” In this chapter, the author also observes modernization processes which take place in Egypt, Pakistan, Iran, Indonesia and Indonesia.

As one may see, presented book addresses the most important issues arising out of the Islamic law. The author correctly determines distinctive features of Islamic law: a tremendous role played by legal scholars in elaborating of Muslim law and relative independence of such law from the authority of the state. In addition, this book gives the reader a clear understanding of specific relationships between Islamic religion and law, Islamic justice and Islamic public order. Moreover, this book helps the reader to learn modern Islamic law through observing the changes which took place throughout the long history of Islam and especially in colonization and post – colonization period. It is also remarkable that this book addresses the issue of current Islamization and provides reader by full and objective explanation of processes which Muslim community experiences nowadays. In a word, this book is a great source of knowledge of Islamic law and society.

Reference:

Hallaq, Wael. (2009). An Introduction to Islamic law. Cambridge Univ Pr.

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Introduction to Islamic law. (2016, Jun 13). Retrieved from https://graduateway.com/introduction-to-islamic-law/