6. An Islamic Legal Tradition: The Law of a Later Revelation
6. An Islamic Legal Tradition: The Law of a Later Revelation
- H. Patrick GlennH. Patrick GlennPeter M Laing Professor of Law at McGill University, Montreal
This chapter examines the history of the Islamic legal tradition. The notion of written law was firmly implanted in the world by the time of Muhammad. However, written law had not entirely displaced chthonic law in Arabia, so the law to which many of the people of Muhammad had been loyal was a particular variant of that cosmos-loyal ethic that simply tells people of their way to live. Islamic law represents a highly developed and complex legal tradition. There is an ongoing necessity of justification of Muhammad's revelation as source of law, given the weight of social practice it must support.
By the time Muhammad, the later Prophet, began to hear the voice of God, or Allah,1 there were many kinds of law around him. He was born in the late sixth century CE (as it then was), about 35 years after the completion of Justinian’s Digest and around the time of the writing (not completion) of the Babylonian Talmud. The Jerusalem Talmud had been written a century or two before. Muhammad was born south of all of this, in Mecca, in what we know as Saudi Arabia, about 700 miles from Jerusalem down the Red Sea. This land had not been part of the Roman empire, but the law school in Beirut was functioning, until about this time, and its graduates would be around until into the next century.2 So roman law was known, as was talmudic law, since jewish people were here and there, abiding by their law.3 Some would later come to Muhammad for resolution of their disputes. These were all thought of as semitic, or middle eastern peoples (all are descendants of Sem, son of Noah)4 and the concept of land boundaries here was weak, if not absent entirely.5 So people moved around, with their law, and different laws were known.
The notion of written law was therefore firmly implanted in the world by the time of Muhammad. Written law had not entirely displaced chthonic law, however, in Arabia (from the Arabic ‘arab’, or nomad), so the law to which many of the people of Muhammad had been loyal was a particular variant of that cosmos-loyal ethic which simply tells people of their way to live.6 Because of all of this, islam has been described as a ‘successor civilization’,7 though it is probably more exact to think of all civilizations, other than the chthonic, as successor civilizations. Islam is more evidently a successor civilization, however, because so many others had been established, in close proximity, at the time of its emergence. To believe you are the Prophet of a new way of life, in these circumstances, might be seen as presumptuous, and it is reported that Muhammad asked the advice of his wife Khadijah (he only had one wife, until her death) as to whether he should make known that which had been revealed to him.8 She encouraged him, and so a third revelation, of great legal consequence, was made known to the world.
A Tradition Rooted in Later Revelation
Jews, christians and muslims worship the same God, whose teaching has been revealed through three Prophets—Moses, Jesus and, latest in time, Muhammad. Being latest in time did not mean that all which had preceded could be swept away, or abrogated,9 since the earlier revelations are also the word of God. The relations between the revelation to Muhammad and the earlier revelations are thus conditioned by the ongoing, looming presence of God and by the nature of the revelation to Muhammad. It was not a revelation like the others. That which had been made to Moses was relatively concise and limited in time, though rich in meaning. Jesus’ teaching of the word of God was through his own words, which the Gospels reported in diverse fashion. God revealed his teaching to Muhammad, however, word for word, over a period of some 23 years, from his time in Mecca to his later, triumphal, retreat to Medina.10 As it was revealed, word for word, it was written down, by others, on pieces of leather, bits of pottery, palm-leaf stems and even bones (including camel ribs).11 It was a written word from the beginning, in rich profusion (over 6, 000 verses) and it said itself, in the very beginning, that the Lord ‘teacheth by the pen’.12 So the sacred book, the Koran, is, literally, ‘the Reading’, and since Muhammad could not read, the revelation to him was a reading (of a ‘heavenly prototype’) by one who could not read. If you are not a muslim, you may not believe this, but there are more and more people who do believe it, and particularly after they have read ‘the Reading’. The Koran convinces those who read and study it because, it is said, it is an inimitable work, which no human hand could have written. So even if you are not born into the tradition you may become convinced by it, and of Muhammad’s role in revealing it, by reading.
Reading the Koran is a major undertaking, however, particularly if you are most interested in its law. There is not really much law in it, most say, involving some 500 of the 6, 000-odd verses, and they are just scattered around, in no particular, evident order. Nor is the rest of the Koran in any evident order, even though it was fixed on the instructions of Muhammad himself, who indicated to his scribes the place of all the different texts. So the Koran has some law, but not much, and it’s been hard to find (though web-based computer-searching is now improving general access to the text).13 It was, however, an inspiration, a source, of further law, and once completed the working-out of all its implications could begin.
The shari’a: sources
Islamic law also has its pyramid of sources, and it is probably best to think of this pyramid, like that of the Talmud, in inverted form.14 At the miraculous, all-sustaining point is the Koran itself, upon which all is built. The further sources then develop and spread beyond it, each dependent on its predecessor and each ultimately on the Koran. The process of developing the law and its further sources took centuries, and islam too, like judaism and christianity, counts time. Since we can’t really speak here of BC/AD, or BCE/CE, the accepted tradition is (as so often) a combination of traditions. The islamic era began in its first century, which was the seventh of the common era, so it is the first/seventh century.15 Thereafter you just add six (to go from islamic to common) or subtract six (to go from common to islamic). Thus the fourth/tenth century, the fourteenth/twentieth century, and so on. It’s both easy, once you get the hang of it, and important.
The totality of islamic law is known as the shari’a and shari’a, like halakhah, means the way or path to follow.16 The notion of a way of life was also vital in chthonic thought, so we find in all of these traditions an effort to explain their importance, through their name or concept, in the daily life of people. The great part of the shari’a is found in the corpus of fiqh or fikh, sometimes referred to in western writing as the ‘science’ of islamic law or jurisprudence, though its literal meaning is simply that of ‘understanding’.17
What is it you have to learn and understand in islamic law, beyond the Koran? That which flows immediately from it can be seen as comment, or explanation, and the comment or explanation which naturally enjoys the greatest authority is that of the Prophet himself. In this, islamic law parallels talmudic law, since both have known formal written revelations, and less formal, or oral, development of the Prophet’s revelation.18 Jesus, on the other hand, just talked, and christianity has been described as a religion of ‘feeble juridical intensity’ (though it is certainly not feeble in juridical consequences).19 So in talmudic law there is the Pentateuch, the written revelation of
Moses, and the oral tradition, or Mishnah, derived originally from Moses himself. In the same way, in islam, there is the Koran, and then the explanations and conduct of the Prophet in living and explaining the Koran. These constitute the Sunna, literally the path taken or trodden, by the Prophet himself, and the content of the Sunna is found in hadith, or traditions,20 statements which have been passed on or transmitted in a continuous and reliable chain of communication, from the Prophet himself, to present adherents. A hadith necessarily contains two parts: the normative statement itself, and then, as proof of legitimacy, the detail or chain (isnad) of the traditio which it has followed.21 A hadith could thus be judged, not in terms of its wisdom22 but in terms of its reliability (sound, fair, weak), and eventually much learning accumulated on how to judge and classify the tens of thousands, if not hundreds of thousands, of hadith reported.23 Choosing amongst reported hadith became an essential dimension of fiqh. There had been controversy over whether it was permissible to write down hadith received directly from the Prophet24 and many were not written down in spite of their legitimacy; others, and the tradition admits this, were simply invented. The necessity and process of choosing amongst them are profoundly important in islamic law (for reasons we’ll get to).25
Just as talmudic law could not be supported solely on the written Torah and the Mishnah, and went on to the Talmud, so islamic law went on to a still more explicit source, more evidently human in origin, in the form of doctrinal consensus, or ijma.26There are therefore real parallels in the development of islamic and talmudic law, in spite of differences in content and further development. Ijma is thus the third level of the pyramid, as is the Talmud. In the notion of ijma, however, we find something different, at least on first impression and perhaps ultimately, from the ongoing conversation, or argument, of the Talmud.
Ijma is constituted by a common religious conviction,27 but commonality, or consensus, is difficult to establish and, once established, may resist its own dissolution. Consensus can be established only through debate and discussion, and there appears to be widespread agreement that for at least a century after the Prophet the process of debate and individual reasoning (ra’y) was intense, leading to long-standing divisions within the islamic world.28 As the western experience was also later to illustrate, however, rational debate does not yield a general consensus but, at most, pools of consensus, each relying on prior legitimating authority and present explication and refinement. In the islamic experience this occurred through the emergence of different schools of law, and even different movements in islam, such that in implementing the notion of ijma it becomes necessary to think of consensus in plural form. There is more to be said about this, but it is driven in large part by the enormous effect of a particular hadith, a particular statement of the Prophet, which states that ‘My people will never agree to error’.29 Agreement, once reached within some level of the islamic community, is sanctioned by the highest of authority, and its legitimacy as a source of law can be surpassed only by the Koran itself and by the Sunna. So ijma is recognized as the third source of islamic law, in general form, though its manifestation has been plural. In this we see something like the schools and movements of talmudic law, which crystallized in spite of the fluidity and tolerance (commonality not being required) of the Talmud itself. In the notion of religiously sanctioned consensus, however, there are still further consequences, which have to do with the notion of change in islamic law.30
The leading or primary statement of sources in islamic law lists a fourth (after the Koran, the Sunna and ijma), which is that of qiyas, or analogical reasoning (from the verb gaya, to compare).31 This will appear surprising to western lawyers, who are not used to seeing forms of reasoning or logic categorized as sources of law. They may inspire or facilitate the functioning of forms of law, but cannot themselves be seen as sources. Western sources are now often known, however, as positive or formal ones (which automatically excludes individual reasoning) while islamic sources are not positive or formal, though they are mainly written. It is therefore necessary to state the type of reasoning which can be used to complement existing sources, recognizing that they may well require complementing. Talmudic law makes no such broad, permissive statement as to types of reasoning, and many types have been used. The importance of the islamic position is not simply to authorize individual reason, in the form of analogy, but to exclude more affirmative forms of reasoning. Admission of qiyas as a source therefore represented a form of compromise between strict adherence to the hadith and admission of more affirmative forms of thinking.32 So in the definition of islamic sources we are beginning to see not only the shape of the sources themselves, but the necessary preclusion of other sources, or potential means of change. Consensus, once established, is religiously sanctioned, reducing the prospect of a varied consensus; individual reasoning is a source of law, but only in analogical form. Those islamic sources which are authorized, however, provide a great deal of written law, which calls for some form of institutional implementation.
Qadi justice and mufti learning
The qadi, or judge, is the most internationally known figure of islamic law, due largely to disparaging remarks made by common law judges on the discretionary character of the qadi’s function.33 These remarks were made at a time of greater confidence in a process of judicial law-making and judicial law-applying than is presently the case in the common law world, and few would today deny the existence of substantial powers of individual appreciation and disposition on the part of trial court judges.34 The function of the qadi is to resolve disputes in accordance with islamic law, and the process is characterized by a high degree of integrity and impartiality.35 The place of the qadi in the islamic tradition is not the same, however, as the place of the judge in the common law tradition, so there are different perspectives on the judicial process and the judicial decision. The common law appears to have moved somewhat closer to the islamic perspective in recent years, and in this may be returning to an earlier perspective of the common law itself.
Qadi dispute resolution takes place in what has been described in the west as a ‘law-finding trial’ (Rechtsfindungsverfahren),36 so the notion of simple application of pre-existing norms, or simple subsumption of facts under norms, is notably absent from the overall understanding of the judicial process. It is understood as a dynamic process, one in which all cases may be seen as different and particular, and for each of which the precisely appropriate law must be carefully sought out. The law of each case is thus different from the law of every other case, and all parties, and the qadi, are under an obligation of service to God to bring together the objectively determined circumstances of the case and the appropriate principles of the shari’a. Since the parties are so obliged, they are not free to obstruct in any way the judicial process, and are rightly seen as partners of the qadi in the law-finding process. The process is not adversarial, in common law language, but neither is it investigative in the formal manner of civil law procedure. There is even relatively little procedural law,37 so it has been said that ‘legal decision-making...has emphasized compromise and the concrete facts of the particular case over adherence to broad principle or application of universal abstract norms’.38 This sounds a lot like earlier views of the common law process; there is also something reminiscent of modern case-management, pre-trial conferences, and even obligatory mediation. Legal representation was not an inevitable part of this process, but recent practice has apparently not found it incompatible with any fundamental principle.39 Since it is the parties themselves who are under an obligation to bring about an understanding of the case compatible with the knowledge of God, there is great emphasis on oral testimony, and written proof is in principle excluded, though may be admitted in exceptional cases or to support oral testimony.40
Once reached, the decision of the qadi is simply given, with no written reasons and often with no explicit reasons of any kind. By this point the parties, partners in the process, are expected to understand what is going on, and why. Absent reasons, there is no system of case-reporting.41 Absent case reports, there is no operative notion of precedent, still less of any stricter concept of stare decisis. As in talmudic law, the notion of res judicata is also, necessarily, weak.42 Islamic law (like talmudic law and the common law) knew no courts of appeal; the remedy of a losing party was to return to the deciding qadi.43 Where there has been no relief from the initial judgment, execution is however possible, though a judgment contrary to islamic law (according to extra-judicial criteria) cannot change the status of the parties in the eyes of God.44 You can win, but still lose, eventually. If you adhere to the tradition, this is to be taken into account. It is something like having to act ‘inside the law’.45
As an adjudicator the qadi neither contributes to the development of the law nor stands among those most learned in it. So, as in the civil law, there is a large place for expertise outside of the courts. Here the mufti, or jurisconsult, appears to play a role remarkably similar to that of the roman jurist or contemporary European law professor (in providing Gutachten or opinions to courts). Free of formal responsibility, yet possessed of useful knowledge and analytical ability, the mufti comes to be the most effective means of bringing vast amounts of law to bear on highly particular cases. The opinion of the mufti, the fatwa, is often filed in court as a means of assisting deliberation. Thereafter, as recent work has shown,46 fatwas were not simply discarded or buried in archives; they were the object of collections and even systematic incorporation into the large doctrinal works, or furu. So there is a major question as to whether islamic law is simply, as often affirmed, an ideal statement as to how people should live and what courts should do, without any real contact with actual practice. The contact is not evident in any ascertainable end product of court practice, yet exists in the actual working-process of the lawyers. There is feedback between holy law and the real world.
In the life of islamic law, however, there is a remarkable lack of institutional support. In this, islamic law remains closest to its immediate predecessor, arabic chthonic law. It is true that the qadi occupies a formal, institutional position, but beyond this islamic law is simply sustained by the islamic community. There is no islamic legislator (though there are now state legislators in islamic jurisdictions), no appeal or supreme courts (they too come with the state), nothing equivalent to a Grand Sanhedrin, and no institutionalized, hierarchical church.47 The imam is a prayer leader, the muezzin the caller to prayers in each community. Those learned in islamic law are not authorized or licensed in any way; they simply become learned and become known as such.48 So legal authority is in a very real sense vested in the private, or religious, community and not in any political ruler. In the second/eighth century there was some movement to unify islamic law through legislation.49 It failed, and there have been conceptual problems with the idea of an islamic state forever after.50 Islam is meant to provide a personal relationship with God. There are relatively few possibilities of institutional corruption.51 This is part of the attraction of islam.
Everybody outside of islam has heard bits and pieces of islamic law. They are usually rather spectacular bits and pieces, viewed from another tradition. The bulk of islamic law does not appear as spectacular, however, and the spectacular parts are subject to all kinds of exceptions and restrictions. This is not to say that western newspaper reports on islamic law are necessarily inaccurate, but there is a great deal of law which is not reported, and it’s not the spectacular parts that are bringing in the conversions. Those are based on other arguments.
The law of the family and the law of succession in islam are profoundly marked by the arabic chthonic law which Muhammad encountered, and by his reaction to it.52 In general, it’s private, consensual law, since there has been no organized church, or state, to stipulate conditions and administer them. Marriage is by mutual consent, though ceremonies may be added,53 and there is a formal type of temporary marriage in the shi’ite tradition.54 In some parts of the islamic world the parties may be very young, under 13.55 There are obvious economic motives for this, but in the past they were more evident, since chthonic arabic law knew the bride sale. Muhammad changed this, providing that the wife alone was to receive any payment by the husband or his family.56 As in earlier talmudic law, marriage is potentially polygamous, up to four wives being permitted.57 There is controversy about this in islamic debate,58 and Muhammad’s monogamous first marriage was cited by Benazir Bhutto, a Prime Minister of Pakistan, whose husband was conspicuously monogamous during her lifetime. Polygamy has been abolished by legislation in Tunisia; elsewhere this has not been accepted as possible.59 A wife may be allowed to stipulate by contract for a monogamous marriage, however, and the abusively polygamous husband (one unable to provide support) may be sanctioned.60 Divorce has historically been by the husband’s pronouncement in the form of the talaq, well known in western jurisdictions with islamic populations.61 Here again Muhammad improved things, creating a delay or waiting period (idda) prior to the divorce becoming fully effective, to promote reconciliation.62 The consensual character of the marriage also provides relief, permitting agreement on the possibility of divorce by mutual consent. Judicial divorce is also possible in many jurisdictions.63 Adoption does not exist in islamic law. This has been explained in terms of the obligation of all muslims to care for children and, in western scholarship, because of the Prophet’s later marriage to the divorced wife of his adopted son.64 The general obligation of care and support of children is a serious argument in islamic law, which is profoundly supportive of people in need, but adoption has been given legislative authority in some jurisdictions.65 Islamic law limits disposition by will to one-third of property; the law relating to the remaining fixed shares, and intestacy in general, is complex, supportive of the extended family (remember the multiple wives). Women do not share equally with men and generally receive only half the succession of a male heir in the same degree. This is defended (defence implying criticism) in terms of the male obligation of support.66
In recognizing both private property (in Arabic, milk) and state or communally-owned property, islamic property law broadly parallels that of the west.67 Moreover, in recognizing a type of charitable foundation, the waqf (used notably to establish educational institutions, including law schools), islamic law recognizes overlapping forms of entitlement to land, familiar to common law lawyers in the form of the trust, though largely driven out of the civil law in recent centuries by the notion of individual dominium over property.68 Yet the use of land, and property generally, is placed in a broader social context in islamic law than it is in western law. There are parallels with earlier western law,69 in that absolute ownership of property is seen as vested ultimately in God,70 such that individual ownership, while respected, is subject to the larger obligation ‘that in all wealth all sections of society have a right to share, ’ and more particularly, that ‘those in need have a right in the property of those who are better off’.71 These general obligations are the source of zakat, the islamic obligation to provide for the indigent (said to be an act of worship and not a tax, since prosperity is defined in terms of the pleasure of Allah), criticized, however, for generating relatively little revenue.72 Combined with the Koranic admonition against waste and prodigality,73 islamic law may be seen as environmentally friendly (green is the islamic colour), yet it is said that ‘we have failed to date in practising those general relevant guidelines’.74
The law of obligations and commercial law is also impressed with this broader ethic of the Koran, and the means of implementation are here more precise, and arguably more effective. The law of contract has thus been described as ‘consensual, [though] not promissory’,75 requiring exchange of grants, or words of past connotation, reflecting even the pre-islamic era in which sales consisted of unilateral conveyances. The underlying idea is one of ‘equivalence of performances’ or mutuality76 and this notion of shared and equivalent contributions underlies the general prohibition in commercial matters of riba (interest, or on occasion usury, depending on the interpretation). Any pre-determined return on investment, without sharing of risk, is seen as a form of unjust enrichment or appropriation of another’s property.77 For similar reasons, corporate personality, a means of limiting individual liability, has never been accepted in the tradition. Where it has been created by state legislation, courts in islamic countries have often refused to limit liability to corporate assets.78 Contracts of insurance are also of doubtful legality, depending on the school of law and type of insurance, since they would involve disproportionate return to the insured, and speculation (gharar).79
So the market of the islamic world is not an entirely free market, in spite of the volume of trade. It must live within the broader law of the Koran, which generally prohibits speculation and the unfair distribution of risk.80 Translated to the world of banking, this means that banks (in the many countries where islamic banking has been introduced since its appearance in Egypt in 1963) cannot simply charge interest on loans but must acquire goods or take equity in the financially-supported enterprise, sharing the risk of loss and the possibility of profit. There are highly developed commercial vehicles for doing so, and here the laws of sale and partnership (in the absence of corporations) assume crucial importance.81 Three forms of transaction or collaboration (often with banks) are most frequent, all with names perilously close to one another. For financing of sales, absent interest-bearing loans, there is murabaha, where the bank acquires the property first and then sells to the eventual purchaser, at a markup. For general partnership, with both partners pooling resources (e.g., a bank and an entrepreneur) and management stipulated for both, there is musharaka, and even ‘diminishing musharaka’, where the bank’s share is re-imbursed over time. Finally, for pure investment; there is mudaraba, resembling a musharak, but in which only one partner provides the funds and the other manages the investment (here the bank may play either role).82 The mudaraba would have been the model for the Italian commenda or collegantia, used for financing the trip of a merchant and said to be at the origin of the western ‘financial revolution’.83 Can islamic partnerships provide the economic benefits of corporations, while avoiding their temptations? Some say no, but the western corporation has recently lost some of its gloss (lending itself to various forms of corruption and overly speculative instruments) and islamic financing is increasingly present in the world. Islamic bonds (sukuks) are now being issued in western countries (though most in Malaysia); ‘islamic mortgages’ are being developed by western banks; and western law firms are developing appropriate expertise.84 There is a Dow Jones Islamic Index, facilitating the islamic form of ‘ethical investing’.85 Islamic finance would consequently be neither socialism (which eliminates markets) nor capitalism (which liberates them). It is another way of thinking. The Economist magazine, not known for its islamic tendencies, has said that it ‘may be better’.86
The islamic law of crime is known more for its sanctions than for its content, and this is particularly the case for any offence stated in the Koran or sunna (hadd, plural hudud, offences).87 The most well-known text is 5: 38 of the Koran: ‘As for the thief, both male and female, cut off their hands.’ Now, this is pretty straightforward, even if you are skilled in deconstruction, and has generated great debate, both within (of course) and without the tradition. Some hands have also been cut off, and in recent years. If you want to steal something in an islamic jurisdiction, you should think carefully about it. Yet there is no way of knowing, for certain, whether you would lose one, or both, of your hands, if found guilty of theft. How does the argument go? Those for cutting off argue the impossibility of overturning a part of the Koran without systemic effect; the interpretive principle that God means what God says; deterrence; the impossibility of concluding that deprivation of liberty is less cruel or less damaging; acceptance by islamic peoples; the failure of western criminology and methods of deterrence;88 and the appropriateness of the measure in an islamic society, ‘where all motives for crime have been abolished’.89 Those opposed to cutting have been both more casuistic, and more imaginative. Thus the measure should be used, and actually only is used, in ‘extreme and hardened cases’ where there are elements of aggravation, any measure of extenuation or uncertainty justifying relief;90 and, perhaps most interestingly, the notion of cutting off hands should be seen as capable of secondary meanings—cutting off is to limit or close down; hands are metaphors for power or capacity. The expression would be a type of model, in the same way that cutting out the tongue can be seen as simply requiring enforced silence, thus allowing both adherence to the Koran and measures other than mutilation.91 The ox-which-is-not-an-ox here casts its shadow.92
Shari’a and Revelation
Islamic law therefore represents a highly developed and complex legal tradition.93 Revelation doesn’t provide, explicitly, all the answers nor stop the discussion and argument. The talmudic example has already demonstrated this. The argument, moreover, doesn’t simply turn on particular points of substantive law, given revelation, or on the types of reasoning permissible in this process. It goes to the entire relationship between revelation and the derived corpus of law, over an extended period of time. So if you are muslim you can’t simply fall back on revelation and say nothing else; there is an ongoing necessity of justification of Muhammad’s revelation as source of law, given the weight of social practice it must support, and there are challenges both internal and external. The Koran itself, of course, is the first justification, and further justification is found in the teaching of the great jurists. The jurists of the classical period of islam,94 however, never had to address western arguments based on concepts of human rights, since western law was itself not then formulated in terms of human rights. Nor had western academic research been directed towards islam, as has now become the case. So the work of islamic lawyers is now directed not only towards the internal working out of the shari’a, but also towards ongoing justification of the entire islamic legal enterprise.
Shari’a and kalam
The shari’a shares with talmudic law an extraordinary reach into the daily lives of its adherents. Fiqh has thus been described as a ‘composite science of law and morality’, and this must be understood not as a joint administration of the two separate concepts but as a fusion, or composition, of (almost all of) both.95 So fiqh, like halakhah, extends not only to civil and criminal law as they are known in the west, but also to etiquette, food, hygiene and prayer.96 Is there then nothing outside of shari’a, nothing equivalent to the reduced field of aggadah in talmudic learning, no residual field of internal conscience? Of course there is, though it doesn’t have a neat, collective name. There are islamic variants of all fields of human activity, and that which perhaps comes closest to law, in terms of normativity, is the philosophical theology known as kalam.97
The shari’a owes its importance, however, to the preference it has received over kalam as a means of giving effect to God’s will. In the third/ninth century there was a great debate between the proponents of kalam and those of the shari’a, and, ‘[t]o put it in simple terms, law won out over philosophical speculation’.98 So there is life outside of law, but not much, and those parts of the Koran recognized as other than law do not have much to do with (legal or moral) notions of obligation. Of course, when law is so broad, it cannot be enforced in its totality by worldly means. So you can find equivalents of the civil law’s natural obligation, or talmudic law’s ‘living inside the law’, in the islamic world as well. As we’ve seen, a decision of a qadi may be enforced, though if it is contrary to divine law it will be ever so, and you may be inclined to act accordingly.99
Ijma, the hadith and revelation
As in talmudic law, revelation is explicated and given effect by human means, and in both traditions the product of human effort has been prodigious. If the legal content of the Koran consists of some 500 verses, the work of the jurists now fills libraries.100 So, as in talmudic law, it is an easy thing to say that the real law is that which has been produced by human jurists, which both provides the essential human regulation and legitimates, after the fact (as they say), the revelation. This view appears well represented in western scholarship on islam, and it is scholarship of the highest order. It provides information on islam which islam itself has not been very interested in providing, so we now benefit both from islamic statements of the eternal teaching of the Koran, and more particular studies of how an islamic legal tradition actually appears to have developed, given the necessity of legal development beyond the Koran. These various statements may not be contradictory, but they can certainly be taken as contradictory (divine law in principle but human law in practice).
Western scholarship on islam has concentrated on three crucial features of the development of islamic law: the historical process of establishing the hadith, as proof of the Sunna; the development of ijma; and the theoretical relation between ijma on the one hand and the Koran and the Sunna on the other.101 It is impossible to do justice to the extent of this western scholarship, but the general effect is to demonstrate the particularity and contingency of the entire process, which lasted some three or four centuries following Muhammad. Thus the real beginning of islamic law, as law, has been said to be some 100 years after the death of the Prophet, when non-formal and administrative practices began to be formally expressed by jurists in doctrinal form. Ijma is the product of schools of law, and the schools emerged with specific teaching only at this time.102 It was also during the ensuing century that the sacred character of the Sunna would have been articulated, notably by the great islamic jurist al-Shafi’i, such that both the importance of the Sunna, and the actual choice of particular hadith, is not entailed by the Koran but is the fruit of subsequent doctrinal development.103 Finally, given the result of the historical work, the divine character of both Sunna and ijma has been challenged. Ijma itself, ‘as a juristic principle...is none the less the self-asserted hypothesis of Muslim jurisprudence’ and it is this self-asserted hypothesis, or ijma, which ‘guarantees the validity of the Tradition [Sunna]’.104 Thus, the ‘precise identification’ of the bulk of islamic law ‘with the terms of the divine will was artificial’.105 So while some western historical scholarship may be compatible with islamic teaching, this cannot be said for all of it, and islamic law has been challenged by this research in a fundamental way. How can islamic lawyers respond to this careful examination of their own doctrinal past?
Two types of answer have been made by islam to the challenge of contemporary western scholarship: the first is based on the nature of revelation in general; the second is based more particularly on the circumstances of islam. The first answer is one which has already necessarily been given, and by talmudic lawyers. God has heard all this before, and now gives the same answer, since it is the same God. As a Perfect Author, all forms of human implementation of God’s word are already scripted, so historical scholarship can’t prove anything. If it is accurate, it simply illustrates God’s script; if it is not accurate, well, it’s just history, that can be argued with, as history. So saying ijma is everthing, legitimating all else, is ‘at best an oversimplification and, in the final analysis, an inversion of cause and effect...[since] such a consensus [of ijma] is automatically ensured in advance as a logical consequence of the...primary sources’.106 If you’ve read the Koran, and believe it, there is no threat in historical research. It is therefore said, with pride, ‘We are a people who follow, not invent.’107 So islamic law, like talmudic law, can hold its primary source subject to the interpretive power of a later source. The Torah is subject to talmudic interpretation; the Koran is subject to the explanation of the Sunna, as determined by ijma.108 There can also be contradiction in various forms of human understanding, so there is a need to reconcile different reports of Sunna, different hadith.109 None of this would challenge the basic script.
A second type of answer is more particularly related to islam. One variant of this is to challenge the claims of historical research, to show an underlying parallel between classical teaching and actual practice. This has been done recently in showing the importance of fatwas in legal development, and how their incorporation into doctrinal law was something which took place in the century following the Prophet’s death, such that legal consequences of the Koran were immediately appreciated and immediately put into practice. Islamic law was not, in reality, an afterthought.110 More generally, the particular history of islamic law, different from that of the Talmud, can be seen as flowing from the different nature of the Koranic revelation. It was a much fuller, textual revelation than those which preceded it, so there was correspondingly less room (though still much room) for human development. This could occur through consensus (‘My people will never agree to error’), but not through ongoing individual effort (according to the leading form of the tradition). So of course the good hadith had to be separated from the bad, since there were bound to be many. Absent consensus, how else could one get something into the law? Even if western history is accurate, the practice was part of islam, with its later revelation.
Islamic texts and islamic reason: the role of ijtihad
All the law known at the time of Muhammad was casuistic in expression. Roman law dealt with specific cases; talmudic law reflected the instances of daily life; chthonic law slowly built its base of information from the experience of past and present lives. Islamic law did not depart from this pan-traditional tradition. Given the importance of islamic law in the daily life of individuals, the need for its immediate understanding by large numbers of people, it is doubtful if any other form of expression could have been chosen. The process of incorporation of fatwas into the great doctrinal works is entirely compatible with, and contributes to, this general form of expression. So reading islamic law is like reading any form of casuistically expressed law, and lawyers from many traditions will feel immediately at home when confronted with an islamic text. A classic piece of islamic reasoning on what is known as non-contractual rent is as follows:
The result is that if someone tills someone else’s land without his permission, even by way of unauthorized use, then [the following applies]: If the land was private property and the proprietor reserved it for agricultural use [on a sharecropping basis], the customary rate of sharing, if there is one, is taken into account; if there is no such custom and he [viz., the landowner] reserved it for the purpose of farming it out, the entire crop falls to the cultivating peasant, who becomes responsible for the fair rent to the proprietor; if not [that is, if the land was not prepared for the purpose of being farmed out] and the land diminishes in value [as a result of its cultivation], the cultivator owes the diminution of the value. If it did not diminish in value, he owes nothing; if it is a waqf and a custom [about rates of crop-sharing] exists and [this custom] proves to be more beneficial to the waqf [than the fair rent], then it is the custom that is legally relevant; otherwise the fair rent [applies]. This rule holds also if the land is the property of an orphan or belongs to the Sultan...111
Religiously-inspired law doesn’t read like religion; it reads like law, and the manner of expression is closely related to the type of reasoning profoundly anchored in islamic legal thought.
The nature of islamic legal rationality flows from the ascendancy of law over kalam (the more speculative, theological philosophy) in islamic society and the inclusion of analogical reasoning (qiyas) as an authorized source. More affirmative, western, deductive forms of reasoning are therefore in principle excluded. If law is distinct from kalam, more faithful to the primary texts, it cannot then transform itself into a new, legal form of kalam. It is possible, again, to see both divine inspiration and particular social circumstance in development of the tradition. Aristotelian logic was known, and severely criticized as incompatible with koranic learning.112 So, as the organization of the Koran itself is chaotic, so the structure of islamic law cannot be made systematic, in any western sense. The intellectual tools are not available, or at least not authorized by the leading statement of the tradition (shi’ite tradition is more affirmative). Still, it has been said that islamic lawyers have been ‘less successful than common lawyers in resisting the influence of logic on law’,113 and the sheer volume of islamic law suggests creation somewhere in the process. This was most evident in the century following the Prophet, when individual reason (ra’y) and intellectual effort (ijtihad) are widely recognized as having prevailed. In the two subsequent centuries the schools developed major doctrinal statements of law, and minor forms of deduction were used in this process (alcohol is forbidden, beer is alcohol...). With the completion of the great works, however, and the compilations of the hadith, further human invention appeared incompatible with the divine nature of law and the implementation which had already occurred (again, ‘My people will never agree to error’). So somewhere between the third/ninth and seventh/thirteenth centuries, something occurred which has dominated general discussion of islamic law ever since. It is referred to in sunni islam as the ‘closing of the door of endeavour’, more precisely the elimination of ijtihad (endeavour, or effort—it’s a very important word) and affirmative forms of rationality, in the ongoing life of islamic law.114 Constitutional lawyers will recognize here the difficulty of binding one’s successors, and the remarkable feature of the closing of the door appears to be its informal character. People, or at least a large number of people, simply came to agree that given the nature of the tradition, further effort had become incompatible with it. This never happened in talmudic legal history, but talmudic legal history is different. Precisely why it happened in islam has been the object of enormous speculation, since at approximately the same time the islamic sciences which had provided so much stimulation to the west (al-Djabr (algebra), al-Khwarizmi (algorithms), mathematics in general, medicine, astronomy) were also closing down.115
In the result, however, for centuries the dominant form of thought in islamic law has been taqlid, usually described, perhaps too pejoratively, as imitation. It has been compared to precedent.116 Taqlid is probably the most discreet form of interstitial rationality, that of deliberate and explicit self-effacement. It recalls, though not literally, the Byzantine florilegium, the deliberate copying of previous forms of text, originality detectable only in the ordering and manner of reproduction.117 Since law involves more than the copying of texts, however, the rationality of islamic law has never been effaced, only denied the luxury of any form of hubris. Innovation can be detected, on careful examination;118 the categories of casuistic thought may yield unexpected flexibility;119 even deliberate efforts of taqlid involve introspection and an exercise of conscience.120 Individuality is always present in some measure.
The individual in the shari’a
The limits on human reason in developing the law and the limits on market activity are, however, indications of the place of the individual in the totality of the islamic legal tradition. The purely subjective is proscribed; law does not contemplate an individual potestas; in the legal language there is no word corresponding to that of ‘right’, in the subjective sense.121 There is little doubt, however, of the general importance of the individual in the tradition. In language remarkably similar to that used in the development of the doctrine of rights in the civil law, human beings are described as ‘vice-regents’, ‘successors’, ‘deputies’ of God on earth.122 The entire structure of islamic law would be directed to ensuring justice for the individual person and mutual respect, and the treatment of the shari’a would make ‘the aristocracies of birth, race, wealth, language...all suspect as disrespectful of persons’.123 If rights had become necessary as a means of levering people out of arbitrary hierarchies in Europe, islam rejects hierarchy, even in religion, and rights are both unnecessary and potentially disruptive of mutual obligation.
In ‘giving priority to human welfare over human liberty’,124 however, islamic law does not purport to guarantee equality of treatment of all persons. Perhaps it should, and perhaps this is its ultimate objective. But perhaps full equality is impossible, and ultimately incomprehensible,125 and perhaps a notion of formal, legal equality should not be used to mask the substantive, material injustices which islam has set itself to eliminating. So we find efforts to justify formal inequalities (notably those of women and non-islamic peoples) by collective goals (the old story). There are indications, however, that islamic people, and even Muhammad, may not have convinced themselves entirely of this, and that the insistence of western arguments in favour of formal equality are having some effect. This, however, necessitates change of islamic law, a question which is larger than any particular legal question.
Ijma and Change
As a later revelation of an ongoing God, the Koran confirmed both the importance of the human being (in the image of God, vice-regent on earth), life after death126 (as developed in christianity) and a notion of time flowing towards eventual salvation. So change, as a concept and as a reality, is clearly possible in this context, now far removed from the chthonic one. Islam is different from both judaism and christianity, however, in its attitude towards potential change and its control of it. While christianity eventually set people free in the world of Caesar to effect the changes they would make (at least after Gallileo), judaism wrapped the world in a blanket of obligation, such that science was essentially uninteresting and the notion of talmudic science is a kind of oxymoron.127 Islam can be seen as combining the two attitudes. The world is a sacred one. ‘Facts are normative: it is no more possible for them to diverge from the good than for God to lie.’128 Yet the human being must pursue knowledge, of all kinds, as a sacred mission. A hadith says that knowledge must be pursued even in far-off Cathay,129 and the flowering of islamic science was in part due to knowledge and use of both Greek and Indian texts. So at the time of the first Crusades, beginning in the fifth/eleventh century, islamic science stood far beyond anything existing in Europe, though admittedly there was little development of history as a major branch of knowledge.130 There was therefore a question of whether the islamic blanket of obligation could take the strain of ongoing, strenuous, scientific enquiry, and in the result the door of endeavour was softly closed, in law as well as in science. The knowledge required by the Prophet’s word had been accumulated. Change thereafter would have to be muted. There were, of course, people who did not agree with this, and the debate continues with great vigour today, within the tradition. So change can still occur. It can occur as a result of the diversity of opinion—reflected in the relations of schools of law and different concepts of islam; it can occur through subtle techniques of change, within the range of permissible endeavour; and it can occur (this is the great debate) through re-opening of the famous door.
Of schools and schism
Differences within the islamic community, and differences in the information its members adhere to, are so widespread and institutionalized that some now speak of islams.131 This may be the best way to recapture the dynamic of all traditions, recognizing the shared differences, the diverse forms of commonality which all traditions represent. In islam the differences are institutionalized in the form of doctrinal schools of law (madhahib, sing. madhhab), which have existed since the first century of islam. There were originally many of these doctrinal movements but by the fifth/eleventh century only four had survived.132 The oldest are those of the cities of Medina and Kufa (in southern Iraq), eventually known, after their greatest teachers, as the Maliki and Hanafi schools. They were firmly established by the end of the second/eighth centuries; both had known an initial period of ra’y or creativity, though the Medina/Maliki school, as that of the Prophet’s own city, was known as slightly more conservative than the Kufa/Hanafi school (known for its emphasis on freedom of contract).133 The teaching of the great jurist al-Shafi’i, who died in the early third/ninth century after formulating the divine character of the Sunna, gave rise to a third school, seen eventually as occupying a middle position. A literalist tradition (back to the sources again) grew out of the teaching of Imam Hanbal, who died in the middle of the third/ninth century.134 These were schools of law in a doctrinal sense, with their teaching institutionalized in particular law colleges or madrasas,135 and their teaching was and is the primary source of law in the tradition. They have even been referred to as ‘constitutional units’ (in the absence of a constitution), their coherence being assured by the doctrine of taqlid.136 Their teachers have a common enterprise and responsibility in the recognized corpus of law they profess.
So talking about islamic law is a bit like talking about U.S. law. They are both very general expressions and, to solve a problem, you have to know which school’s law is applicable, or which state law. In contrast to the U.S. model, however, the law of each school applies as a result of personal adherence and not territorial supremacy.137 So you may find people of different schools almost anywhere in the world, though there are areas in which some schools are more present than others. The oldest of the schools, the Kufa/Hanafi school, has the greatest number of adherents and has spread north and east into what we know as Israel, Syria, Lebanon, Jordan, Turkey, Iraq, Afghanistan, the muslim south-west of the former Soviet Union, and on into India, Pakistan and China (the Uighurs of Xinjiang). It is also present in Sudan and east Africa. Its long-standing historical companion, the Medina/Maliki school, went west, and is now prevalent in northern and western Africa, and northern Nigeria. The later Shafi’i school went further east (though it is present also in Egypt, where al-Shafi’i died) and prevails in the islamic communities throughout south-east Asia. The Hanbali (tending to the literalist) school has long held sway in Saudi Arabia, though had its origins in the thriving Baghdad of the second/eighth and third/ninth centuries (‘The Thousand and One Nights’, Sinbad, Aladdin, etc.). The schools differ both in terms of substantive law and in terms of sources of law. Grounds of divorce thus vary from school to school; there are important differences in the extent of the prohibition of riba, or interest/usury.138 The differences result from the different hadith adopted by them in the first centuries of the islamic era, and the particular forms of ijma which they had developed. The two oldest schools, the Hanafi and Maliki, which appear to have taught prior to the canonization of the Sunna, remain attached to a wider range of techniques of legal reasoning,139 though concur in the proscription of ijtihad.
How does islamic doctrine deal with the division within itself, and how is this question related to change within islam? God has again already given the answer, in recognizing the validity of multivalent forms of reasoning. ‘These and these’ in judaism brings openly conflicting schools into the range of reconcilable difference;140 the muslim equivalent, even more articulate, is the doctrine of ikhtilaf, or diversity of doctrine, expressed in endless metaphors of trees and branches, rivers and seas, threads and garments, and formally sanctioned in another of the great hadith: ‘Difference of opinion among my community is a sign of the bounty of God.’141 You may wonder how this relates to ‘My people will never agree to error’, but if you are thinking in this conflictual and contradictory manner it is essentially your problem, not God’s. If you read some more Koran, and think about it, you will eventually reconcile notions of difference and consensus.142
Since the two notions, of difference and consensus, are inherently reconcilable, within islam, it follows that adherence to one or another school is not necessarily a lifetime decision, and the differences which islam tolerates are ones which people may freely use, notably by changing schools when the need presents itself. Put in western language, there is no notion of conflict of laws or fraude à la loi or evasion of law, within islam; exit from a given school to another is always possible, even if it appears issue-driven.143 Moreover, since individual choice of school is possible, legislative re-statement of islamic law (not an uncontroversial idea) is not obliged to follow a system of personal law but may adopt the teaching of a single school for a given territory, or pick-and-choose amongst the rules of the school to achieve a preferred synthesis (the process of takhayyur).144 Since there’s lots of information in islam, you have a lot to choose from, though we are still speaking of information which can be broadly qualified as orthodox. There is other information in the entire bran-tub, both non-orthodox islamic and western.
Thus far the discussion has turned, for purposes of roughing out the terrain, on the leading or primary version of an islamic tradition. The schools dealt with are orthodox, or sunni schools, so-called for their adherence to the hadith recognized by them as supporting the Sunna (hence by appellation the true or leading version of the tradition). There were, and are, still wider differences in the islamic community, and the difference which gave rise to schism and war in the first/seventh century concerned the manner of designation of the successor of the Prophet. It was a profound religious and political difference and in no way confined to particular legal questions. There were those who felt the successor could simply be chosen, in a quasi-democratic process; others, who have been called the ‘legitimists’ of islam, the shi’ites, were of the view that succession was by divine right. The choice was between the companions of the Prophet or his family.145 Those for family formed the party (shi’a) of Ali (son-in-law of the Prophet), but lost the struggle for immediate power. Thereafter they continued to adhere to Ali and his descendants (the imams of the shi’ite tradition), who were 12 in number. Hence the dominant tradition within the shi’ite tradition is that of the imamites or ‘twelvers’.146 Now when the last of the divine sources died, it might be thought that the forces of loyalty (some might say inertia) would take over, and that the door of endeavour would also softly swing shut in the shi’ite tradition. If you have been following the so-called Iranian revolution and its consequences, however, you will know that shi’ism represents perhaps the most vibrant and affirmative group within islams. This came about because of the divine character of leadership in the shi’ite view of the world. If there were no more immediate successors to the Prophet, there still had to be an imam, one best suited to the task and one authorized to do all in his power to represent the will of God. So divinity here authorizes ongoing endeavour, at least until a new Prophet arrives.147 Ijtihad is obligatory, though since it is in the name of God, it must be limited to the most learned and able of interpreters. Aristotelian deduction is here not only permitted but encouraged,148 and ‘orthodox’ sources of consensus and analogy have little or no place. It is the thought processes of the imam which matter, originally a single one but now expanded to six, given the burden of the office, and designated by the honorary title of ayatollah since the early twentieth century.149 Like the sixteenth to eighteenth century civilians, the shi’ites used comparative law as an adjunct source in this process, and the shi’ite legal tradition is perhaps best seen as a combination of sunni law (or, to be more precise, of law derived from some of the sunni schools) and more autonomously derived shi’ite principles.150 In all of this it is the imams (ayatollahs) who play an almost exclusive role as source of law and provider of opinions (fatwas). So there is an extremely dynamic tradition within islam, as well as a less dynamic tradition. And there is the possibility of changing from one to the other.151 People have to stay convinced for the relations between orthodox and unorthodox to remain stable.
Most sunni jurists remain adherents to the limits of change of sunni law, however, which means working with sources of law now seen as fixed (whether they are immutable is another and different question). In this, however, they are like lawyers of most traditions, who prefer to advance arguments rooted in authority rather than something they think up on their own (though there are exceptions). So the law which is practised is often assumed to be fixed, for a present case, whether it is or not, and those who practise law know there is a great deal of room for manoeuvre between any ‘norm’ and any set of ‘facts’ to which it might apply. If cases can go one way or another, then at the level of individual cases there is always the possibility of radical, 180 degree change, and many ways of bringing this about. In jurisdictions which have a notion of appeal, this happens with interesting regularity in about a third of all cases appealed. So while an islamic tradition is one in which the notion of stability is taken further than perhaps in any other, in its working it can no more guarantee stability, or precise and constant results, than any other legal tradition. What are the elements of instability, or subtle change, in the working of islamic law?
There appear to be two basic types of instability in islamic practice. One is in the working of the tradition itself, in the inevitable fluidity of its concepts, techniques and structures. The other is found in a process of renunciation of immediate application of these concepts and structures, in favour of some form of (freer) delegated authority. To take the latter process first, islam has always admitted some form of secular legal authority. Some would say it had to, since so little of it is in the form of public law. Variously described as state policy (siyasa), secular law (kanun, again from the Greek kanon, as in canon law), or the complaints jurisdiction (mazalim), secular rulers can therefore make law, as they see fit. The limit, of course, is that they must stay within the permissible limits of islamic tradition.152 So here we have one of the classic problems of law everywhere, deciding whether given rules are in conflict or whether there is a discernible element of compatibility. It’s much like deciding whether state or provincial laws are compatible with a paramount federal law, and nobody has ever called this a simple process. Prior to the twentieth century the secular power was not used that much; since then it has been used a great deal153 (there may be western influence here, but it may also be a process of the religion itself shifting to more secular concerns, entirely compatible with the reach of islamic legal tradition). So if you are rationally inclined, within a sunni tradition, you can legislate or help bring legislation about. God is the ultimate legislator, but much can be done in God’s name, and if there are already major differences in the articulation of God’s word, who is to decide, and by what criteria, that you have gone just a little too far? Even if you just re-state the teaching of a school, there is a process of masking the original law (as the French ‘decanted’ roman law).154 Taken to its extreme, legislation could be seen as repealing islamic law, and this has been said to have occurred in the Tunisian abolition of polygamy.155 On the other hand, if judicial authority cannot change the effect of divine law (and you had better realize this),156 then legislation may be inherently limited in the same way, so though it’s on the books, there is a supreme form of review. The legislative process was clearly in the ascendancy for most of the fourteenth/twentieth century. The outlook today is more obscure.
An islamic tradition may also tolerate local, informal tradition, where it is compatible with islamic teaching. This is not an independent source of islamic law, but islamic tolerance of other sources of law, and has been described as being of fundamental importance in the territorial expansion of islamic law.157 So what has been usually described as usage (urf) or custom (adat), that is, informal, local traditions,158 have retained great importance in Indonesia, India, central Asia (notably Afghanistan) and Africa.159 While islamic law may not be changed by this process, it may become inoperative or desuet as a result of changes in informal tradition amongst even adherents to islam. Islamic law says a great deal about slavery, but does not require it, so as the practice of slavery disappeared the islamic law of slavery became an inoperative part of islamic tradition.160
If you look back into the tradition itself, to its own working instruments, you will find ways of changing the result of your case from those of previous cases (not that the cases control in any way). Analogy can move in different directions;161 to the extent that ijma may still be alive (the door closed on ijtihad which could give rise to it, but it is a source), there is no formal statement of its requirements (consensus of whom, in what form, and so on);162 the inherent casuistry of islamic thought has been said to enlarge the judge’s margin of action;163 different schools authorize such ambiguous concepts as juristic preference (istihsan) and the public interest (istislah).164 A recent study of islamic legal scholars (collectively ulama) described their work as ‘an ongoing discursive tradition’ and themselves as ‘custodians of change’.165 There is also enormous flexibility in the formulation of islamic law in a non-binary fashion. Conduct is not divided into only two classes, permitted or prohibited. It falls into one of five classes: obligatory, recommended, neutral, disapproved and forbidden.166 There is flexibility within the categories, further flexibility in the determination of their boundaries. And since that which is not prohibited is (more or less) permitted, then parties are free to adjust their conduct in a way which is tolerated. So husbands can grant their wives a power of divorce,167 and more generally parties can set up transactions which might be seen as shams, evasions, fictions or just plain tricks (all of the expressions are used to translate the notion of hiyal) so as to remain formally outside the range of prohibited conduct. Riba is prohibited between you and me, but if you need a loan and I have money you can sell me your watch, and agree at the same time to buy it back at a later date, for a higher price (the double sale). You get the cash you need; I have the watch as security; and the watch is only security, which you can get back by paying the agreed-upon price.168 You can get away with this in Hanafi and also in Shafi’i law; Maliki law, however, concerned with real intentions, repudiates tricks (though apparently not change of school to avoid the repudiation). As for Hanbali thinking, tricks or strategems are not even countenanced. If you are really at a loss for something to argue, there is also a floating notion of the ‘circumstances of revelation’, which would limit texts to the circumstances prevailing at the time of revelation. There is, however, as you might expect, no agreement on its scope.169
Re-opening the door of endeavour
Everybody in islam knows about the door of endeavour that has been closed, and it is a mighty metaphor which has had enormous influence.170 Of course, there never was a door, and there never was a closing (that anyone could see, or hear) but everyone can instantly seize what a closed door means. It is a silent but effective barrier, and you can never know what will be on the other side if you open it and go through. So the proponents of the closed door argue not only that God’s will has been fulfilled in existing teaching, but that the re-opening of the door would raise fundamental questions about the future direction and even identity of islam.171 Yet the controversy within islamic legal thought on this subject in the last century has been described as ‘violent’.172 Some say the door should be re-opened,173 at least for the least precise of the Koranic injunctions;174 others say it is already open,175 or even never closed.176 How can this happen, or how did it happen? A rationalist tradition has always been represented in islam; it is now bringing out both technical arguments as to how the process can occur and substantive arguments as to why it must occur. The re-opening can occur because there never was any formal process of closing; the door just swings in the wind, and can open as easily as it closed. Collective ijtihad, moreover, would be nothing other than ijma, a constantly valid source.177 That islam can remain islam, with ijtihad, would be indicated by the renewal of islamic banking, and the entire notion of islamic economics developed in shi’ite islam.178 The necessity for re-thinking of islam in modern circumstances (some even refer to ‘modernization’, though this appears to miss the mark) would be necessary and justified by the need to resist colonialization and non-islamic influence. So the internal arguments are closely related to the external arguments, and nobody today can say whether the shari’a, in the totality of its primary sources, is immutable. Given a doctrine of immutability, the argument (and it is more than a conversation) is going on.
Islams and the World
As the Mosaic revelation contributed to a notion of jewish people, distinct from their chthonic ancestors, so the revelation to Muhammad, and adherence to it, generated a community recognizable as islamic. It is a community because it recognizes a way to follow, the shari’a, and acts with sufficient commonality to be identifiable, given comparison. The identity of an islamic community, and more generally of a concept which has been described as ‘orientalism’ has been the object of great controversy, largely due to the writings of Edward Said. Said attacked the notion of a monolithic islam as being an invention of western thought, largely for purposes of establishing its own identity and superiority.179 Before Said, however, western historians were pointing out the ‘insidious fragmentation’ of islamic identity and islamic territory, and the pull of geography and local life on a widely dispersed islamic people.180 So the debate about whether there is an islam, or islams, largely depends on the information you choose to look at. If you look at the Koran, and accept a notion of binding taqlid (which would have much of the effect of western law, in terms of binding people to particular substantive provisions, here seen as perpetual), then there is an islam. If you look at the dynamic of islamic law, including the different schools, shi’ite law and the national and expatriate versions of the shari’a, you will tend to a notion of islams.181 If you lump all semitic people together, or all religious people together, islam won’t count for much; it’s just cause for (yet) another group of fundamentalists. So identities are not fixed, and to the extent they exist they are interdependent. Islamic identity, however, is particularly complex. It arrived late, had to create its own place in the world, and has relations with everybody else. Current revisionist arguments also raise major concerns about future identity. Yet it is difficult to quarrel with the general conclusion of Professor Hourani that by the end of the fourth/tenth century, there existed an ‘elaborated system of ritual, doctrine and law clearly different from those of non-Muslims’ yielding ‘an identity...the community of believers (the umma)’.182 So an identity emerges from differences; its existence depends on their perception.
The umma and its protection
Since the Prophet urged the faithful to seek knowledge everywhere,183 it is doubtful if early muslim jurists chose the path of deliberate ignorance of other forms of existing law, whether chthonic, roman, talmudic or other (now petrified). All were well known, and easy to find. So there has been an ongoing debate, with subversive undertones, about whether islamic law is really islamic or whether it is just a pastiche of everything else.184 There would be an example even here, even in religious law, of Alan Watson’s thesis that borrowing of law is the primary instrument of law’s development.185 This argument closely parallels that concerning the relation between revelation and ongoing tradition, and their relative primacy, and some of the same protagonists are involved. Thus, for some, ongoing tradition would be the real source of islamic law, regardless of revelation, and revelation could not have provided the corpus of the law, which had to come from elsewhere, through a process of islamization. The latter would represent the same kind of constructive borrowing, the same kind of ‘decanting’ that is so well known in western law.186 So the origins of islamic law would be found not in the Koran and the Sunna, but in the ‘raw material of the existing customary [chthonic] law and administrative practice’.187 Others would extend the list of contributors to roman, byzantine, persian and talmudic law, the latter contention being supported by the existence of the isra’iliyat, hadith in which the talmudic influences are discernible.188 Others admit the contact but deny the influence.189 Influence was certainly possible, and even direct incorporation, since the underlying character of chthonic, talmudic, later roman and islamic law is everywhere the same. Law is substantive, directly available to parties and adjudicators, administered in essentially open adjudicative or court structures. The procedural and judicial restrictions of early roman law, or the common law, are absent. So there is clear evidence, according to many people, that a substantial part of the substance of islamic law is the same as other laws.
What conclusion should islamic and other people draw from this? Well, it may just be the old debate about history again, and much of the islamic reaction has been simply to deny the history.190 Yet even if the history is true, and it is at least plausible, there doesn’t seem to be much of a problem for the essentials of islamic law. The question thus wouldn’t be one of originality (a western concept), but of revelation. Muhammad would never have claimed to have abolished the old Arabian law, only to have moved it along in the appropriate direction.191 So much of the old law could stay, but there were significant reforms of the status of women.192 And that which stayed, or was even brought in from elsewhere, wasn’t copied but revealed as true law. Like the old, pre-revelation jewish law, it acquired a new status through revelation, and existed thereafter not in its old garb, but as the law of God. Revelation doesn’t only trump tradition; it would also trump the process of constructive borrowing. Lawyers aren’t constructively borrowing; God is revealing.193 So there is law common to the islamic tradition and other traditions (and this is no small conclusion). In islamic law it would be, however, more clearly law.
An islamic community is therefore distinguishable by its adherence to islamic teaching, which itself is distinguishable. Since the teaching contains much (or some) of what is taught outside it, such that the boundaries of the teaching are difficult to trace precisely, it might follow that the boundaries of the islamic community are difficult to trace precisely. To the extent there are ‘statistical’ muslims,194 (something like non-practising christians, and God knows there are many of them), this is true, but islam has been more concerned with the boundaries of, and protection of, its community than have other faiths and other laws. It is not entirely clear why this is so, and the subject is highly controversial today, but if you are muslim you must pay some attention to the consequences of disloyalty, either in the form of heresy or apostasy (from the Greek apostasis, to stand off or desert).
Revelation bears a larger burden in islamic thought than it does in either judaism or christianity. There is precious little law in the christian world which has been revealed, and while all the Talmud is revelation there’s a lot of debate about what it says. Islamic law, however, is all revelation and, though it is casuistic, it speaks with a declarative or imperative voice, and not argumentative ones. So if you do anything wrong you are, more clearly than elsewhere, violating God’s instructions.195 And if you challenge them it’s even worse. So though both judaism and christianity used heresy, and killed for it, they both now live without it (though they may kill for treason, its secular equivalent, and punish sedition). Islam has not reached this stage, and may never. It’s different, and knows why it’s different, in a way that those who do not follow the way may not fully appreciate. Still, the doctrine of heresy developed out of the original conflict between sunnis, shi’ites and a third dissenting sect, the kharijites, and is not profoundly anchored in the Koran. As toleration (ikhtilaf) grew between the schools and sects, the killing for heresy declined, and it could decline again, overtaken by bridging forms of thought. In 2005 a major world meeting of muslim scholars thus announced a policy of ‘mutual recognition’ of many schools of interpretation, which would negate exaggerated claims of heresy or apostasy.196 In the same way the ‘former burning question’ as to who was to be considered an unbeliever (kafir) gave way to a tolerant solution: disbelief would attract sanction only if an essential element of islam was denied.197 Yet islamic concepts of heresy are useful to civic authority in islamic countries, and this may prolong its life (the government of Sudan killed a prominent exponent of ijtihad for heresy in the 1980s; a leading theoretician of islamic economics was killed in Iraq around the same time). Sanctioning heresy is also closely linked to the ongoing human rights debate, with and within islams.198
Apostasy is closely linked to heresy, since by leaving the faith you challenge it and may provide a model for others. Of the major, complex legal traditions, islam is the only one with an operative concept of apostasy, which appears curious in that it is also the religious and legal tradition which is attracting the most new members. Nevertheless, it is said that exit is out, and here the Koran would be, for some, terribly precise. ‘If they [the hypocrites] turn back (to enmity) then take them and kill them wherever ye find them’ (4:89). The debate goes on, however, since the concept may have been entailed by the emergency conditions of Muhammad’s struggle (the doctrine of the circumstances of revelation)199 and there is another part of the Koran which says ‘No compulsion is there in religion’ (2:256), usually taken to refer to involuntary conversion to islam, but recently explored for its application to apostasy.200 There is also, again, the human rights argument, and in its light the sanction for apostasy has been referred to, within islamic debate, as a ‘problem’.201 The sanction, moreover, would only be applied in cases of formal conversion to another religion. No religion and no religious law can effectively police, in this life, intensity of belief. Islam may have learned this from the western inquisition. Martyrs tend to win, over time.
Contrapuntal exchange, with islams
As elsewhere, western colonialism, and local opposition to it, led to adoption of the western concept of the state in islamic territories. So the political shape of islamic thought (though not the religious or the legal) is in recognizable western form, at least in general outline. Within the islamic world there is therefore a constant exchange between islamic ideas and ideas which are linked to the western concept of the state. There are islamic intellectuals and less islamic intellectuals. And in discussion with the non-islamic world, particularly the west, there is the same contrapuntal exchange, to which is now added the contribution of islamic people in western states. Relations between the traditions have been described as ‘porous’,202 in spite of the passion which has often characterized them, and this was so when islamic civilization was at its height, passing on ideas to the west,203 and remained so when the flow of ideas shifted in the other direction.204 From the western perspective the debate centres on constitutionalism, human rights and equality. From the islamic perspective it is one of recognition of God’s word, international social justice and community. There may never be a winner.
Public law has become a large part of western legal traditions, though it has been described as a ‘pious hope’ in islamic law by western observers.205 Perhaps it is best seen as a pious certainty since, given islamic belief, an unjust ruler will eventually be sanctioned, though not on this earth. The idea of a terrestrial islamic state is therefore a challenging one for islamic thinkers. It is, however, part of the renewal of islamic law, led most evidently, though not exclusively, by shi’ite scholars.206 There is as yet no model of the islamic state, however, and the debate is vigorous as to how a revealed law can be reconciled with state legislative authority and even with adjudication in state courts. Some view an islamic state as ‘conceptually impossible’, since enforcement of the shari’a as state law would repudiate the islamic and revelatory nature of God’s law.207 State enactment of shari’a codes, favoured by some ‘Islamists’, would therefore not advance islamic belief and might eventually be profoundly prejudicial to it, as was the case for redaction of European ‘customs’.208 Others look within the tradition, to the legitimation of the caliphs (literally ‘successors’) and the existence of secular regulation (kanun) and courts (mazalim) to find means of reconciling islamic substance with western-derived institutions, and even with democracy.209 Reconciliation is also facilitated by diversification within western laws, which have moved steadily away from centralized notions of sovereignty and law as command to notions of governance, collaboration and interdependence. Enacted state law has lost some of its finality, and judges whose independence is guaranteed are not correctly seen as state authorities. Islamic judicial review is one of the options available, though its mechanics, as elsewhere, are disputed.
Concern with the islamic state has been said to contribute to ‘an islamic tradition of human rights’.210 Some have gone further, to argue that the existence of the state necessarily implies the existence of human rights, as the two have often developed in parallel fashion in the west.211 As western state models have not been replicated in islamic countries, however, western models of human rights have not been directly received, though there has been a noteworthy effort to reformulate islamic principle in the language of human rights, and to justify variance. Thus there are a number of islamic declarations of human rights (never formally incorporated into state laws)212 and a vast literature, islamic and western, on reconciliation of human rights with islamic teaching.213 What is common to both sides of the debate is the primary place to be given to respect for the human person.214 The difference is in whether a formal concept of rights is the most effective instrument for doing so. Islamic lawyers challenge the effectiveness of rights doctrine, pointing out widespread and flagrant violations in countries which accept the existence of rights,215 regionalization and nationalization of what are said to be universal norms,216 and the need for ‘social arrangements that are in the common interests’.217 Western lawyers insist on individual liberty and individual equality, the need for effective court sanctions, and the need for proportionate and non-arbitrary forms of punishment. There are no bad arguments in the lot. So human rights are partially taken over by islamic declarations, but then made subject to the shari’a. They emerge as group rights, a notion itself developed in western jurisdictions,218 socialist legal doctrine,219 and chthonic and environmentalist notions of inter-generational rights.220 Islam in this context appears as a particular variant of a larger, pan-traditional way of thinking.
The human rights debate exists in more acute form with respect to the status of women, since the Koran provides that ‘Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women).’221 Yet being ‘in charge’ is not itself a legal code, so improvement in the status of women is part of the larger debate on the immutability of ijma (with its more precise rules) and the ongoing effect of the hadith ‘My people will never agree to error’.222 Ongoing improvement of the status of women is said to be inherent in the Koran, since this was its effect in relation to pre-islamic Arabian law.223 There were also differences in treatment from school to school,224 such that islamic law reform drawing on the ijma of the schools could have as its ‘primary purpose...the amelioration of the position of women’.225 Reform is also possible within existing texts, as by allowing women on marriage to contract for wider options. So within islam there is much to say about the equality of the sexes, in the same way that talmudic law is here being re-appraised.226
These debates have had islamic thinkers responding to western ideas. Western ideas have also had to respond to islamic ideas, though this has happened more in informal debate in the so-called ‘developing countries’ than in western literature. Islamic ideas of social justice have here had profound impact. Amongst impoverished people, faced with mobile capital always on the alert for lower wages in a ‘global economy’ (global for whom?), the idea of communal aid and assistance is enormously powerful.227 There are no windows of opportunity in such lives, only need. The Koran would free people to compete, but the type of competition is also set out in the Koran: ‘So vie one with another in good works’ (5: 48). The general concept of islamic social justice prevails, moreover, over collective interests, and this manifests itself particularly with respect to refugees. ‘Those who entered the city and the faith before them love those who flee unto them for refuge, and find in their breasts no need for that which hath been given them, but prefer (the fugitives) above themselves though poverty become their lot.’228 To some 15 million refugees in the world, this has more attraction than applying sanctions to airlines for the flying of undocumented aliens. It is also attractive to liberal western migration theorists229 and to western refugee advocates, so there is again some meeting of islamic and western minds. There has also been recognition in the west of the wisdom of islamic equity financing for international development—partnership rather than debt.230
Islamic tradition, however, has not exchanged ideas only with the west. Much of the inspiration for shi’ite re-thinking of the shari’a’s regulation of economic activity was to meet the ‘communist appeal to redress the “social balance”’.231 Islamic thinking could not be outflanked on the left while defending its different path against the right. There has also been (peaceful) exchange with talmudic law,232 which is appropriate given a common allegiance. There is information of great value in each tradition on the recuperative ability of revelation and the bridging of institutionalized difference.
The islamic diaspora
Islamic populations are now spread widely throughout the world, both as a result of earlier expansion of islamic civilization and as a result of contemporary patterns of migration and conversion. A dichotomy between a dar al-islam (abode of islam) and a dar al-harb (abode of war) was originally imposed, though a later and more accommodating concept of dar al-sulh (abode of peace) intervened.233 The exchange between islamic law and other laws thus often takes place beneath a constitutional umbrella of a host state, while the identification of the umma becomes less precise as host state laws displace, in variable measure, application of the shari’a. This is the case even in islamic lands, such as Turkey, where non-islamic law may have displaced in large measure the shari’a. It has been said that ‘it is difficult to have an over-all picture of the laws of Muslim countries’, and this is the case because no single circumstance dictates the importance of islamic law in a given state.234 A territory may or may not have once been under islamic authority; its population may contain a majority or a minority of muslim people (of varying historical prerogatives and political significance); the influence of chthonic or western traditions may be more or less important, and this may depend in part on highly variable colonial experiences. There is also a current process of formal revival, as in Sudan and Pakistan, or informal ‘resurgence’, as in Morocco.235 However, in states in which the shari’a is not the law of the land (as it is in Saudi Arabia, Iran, Sudan, Pakistan), two broad models are evident.
In the first model, islamic law is guaranteed a formal status as the law of islamic people (though often limited to certain matters). In India, which was under islamic rule for centuries prior to English colonization, islamic law thus remains the personal law applicable to the muslim minority, in matters of family law and succession. Its place was assured by legislation in 1937, which at the same time stopped the growing ascendancy of local custom over shari’a, host state legislation here reinforcing the (remaining) role of islamic law.236 Elsewhere, as in Africa, an islamic personal law may prevail in a given region, such as northern Nigeria.237 Here islamic law is often conflated with ‘native law’, and both chthonic and islamic traditions distance themselves from western sources of law.238 The same co-existence of multiple traditions is evident in south-east Asia, where islamic law of both majority and minority islamic populations co-exists with local chthonic traditions, notably adat law in Malaysia and Indonesia, and western law.239
The second model is that of most western states, which are marked by exclusivity of state sources of law, and hence deny in principle the existence of personal laws, whether chthonic, islamic or other. Western states vary amongst themselves, however, and there are important differences with respect to any principle of separation of church and state, and important differences with respect to the primacy of purely legislative sources of state law. Non-state law may therefore be recognized.240 All western states regard their private law, moreover, as in principle suppletive or dispositive, such that a large place is left for the adoption of islamic law by contractual means.241 And even in countries such as France, where the principle of secularity or laicité is of the highest constitutional order, and where the role of legislation is of (theoretically) exclusive importance, constitutional protection of religious liberty may come to protect in some measure islamic practices (and by inference islamic law, since all islamic practices are rooted in islamic law).242 In many western states, moreover, religious tribunals may function in a private manner for their adherents, and there are indications that shari’a adjudicators are increasingly active in settlement of the disputes of muslim people in these states.243 Islamic law may therefore play an important role in the lives of islamic people living in the west, whether or not it is recognized by the state.244 The role of islamic minorities in the west is of theoretical interest not only to western lawyers; there are major questions on the islamic side as to the extent to which islamic law can authorize adherence by muslims to non-islamic law.245 That they do adhere to local state law, while retaining an islamic identity, says a great deal about the contemporary status of jihad in islamic law.
Islam colonized much of the world with the same instruments the west was later to use: religious zeal, commercial vigour and military force.246 The notion of jihad is often said to be behind all of this—but the word does not mean war, only effort or striving, so there is a (traditional) doctrinal ambiguity in islamic thought about what the notion of jihad might justify. In the same way the west (even using the word ‘war’) has argued about crusades, holy wars, just wars, trade wars and even culture wars. It seems clear enough that the Koran, as later revelation, preaches conversion. ‘And there may spring from you a nation which invites to goodness’ is the most frequently cited text,247 yet it is accompanied by the equally famous ‘There is no compulsion in religion’ (2: 256). So it has been said that the interpretation of jihad as religious war ‘is wholly unauthorized by the Qur’an and can only be extracted therefrom by quoting isolated portions of different verses’.248 Still, picking and choosing in the information base of a tradition is common practice, and this is precisely what the jurists of islam were generally required to do. So religious wars were undertaken, in the name of jihad, though the practice appears to have coincided with that of islamic ascendancy, from the first/seventh to the eighth/fourteenth centuries, and to have declined as both doctrine and practice thereafter.249 Terrorism, moreover, has been recently described as ‘completely outside the law of Islam, ’250 and it is possible to think of a jihad for peace.
The extent of any aggressive form of jihad is controlled, moreover, by another well entrenched doctrine of islamic thought, which is that of a special status accorded to jews and christians (and hindus are assimilated to them), the other ‘people of the book’, sharing the same God with muslims.251 These peoples are known also as the dhimmi, whose status is derived from a fictional contract (the dhimma, for residence in return for taxes) and ‘it is right to point out the similarities with concepts both in Roman and in Jewish law’.252 So historically jews have been better off under muslim than under christian rule,253 a position which has varied only in recent centuries, and through changes in thought in the west. Today it is said that the dhimmi are ‘excluded from the specifically Muslim privileges, but on the other hand they are exempt from the specifically Muslim duties’ while (and there are here clear parallels with western public and private law treatment of aliens—Fremdenrecht, la condition des étrangers), ‘[f]or the rest, the Muslim and the dhimmi are equal in practically the whole of the law of property and of contracts and obligations’.254 The juridical notion of the dhimmi is possible, however, only because of a wider religious toleration, in the Koran and under islamic thinking, of the other major (western) religions. While there has been debate in islam as to whether Muhammad’s revelation abrogated the earlier ones, the Koran itself used the language of confirmation and toleration. ‘And unto thee have We revealed the Scripture with the truth, confirming whatever Scripture was before it...For each We have appointed a divine law and a traced out way.’255 Where islamic law became prominent in lands other than those of people of the book, its toleration of local custom (urf) also allowed continuance of local practice256 and, again, there was no compulsion in religion.
So for this variety of reasons, jihad has come to be seen today more in the literal sense of the Koran, an obligation to spread the word of the Prophet and an obligation to defend the faith against outside aggression.257 The debate within the islams is therefore on the extent of external challenge and the appropriate means of response. The latter have become more violent since the creation of the Muslim Brotherhood in the 1960s in Egypt, a time when expansion of western law and western legal technique in islamic lands was probably at its height.258 Islamic thought also makes effective use of the Leninist idea that imperialism is a necessary feature of capitalism, so the need for defence is given some air of necessity. If jihad is now a defensive war, its appropriateness (and its measures) requires some appreciation of the external challenge. This comes from the west, from the combined resources of civil and common law traditions.
1 A contraction of ‘Al Ilah’, ‘the God’. Allah would have 99 names known to humanity; a hundredth would be known, it is said, only to the camel, hence its ‘enigmatic smile!’ L. Rosen, The Justice of Islam (Oxford: OUP, 2000) at 6.
2 P. Collinet, Histoire de l’école de droit de Beyrouth (Paris: Sirey, 1923) at 54–6 (destroyed by earthquake July 16, 551); and on influence ‘most probably’ of Roman model of ‘law school’ in formation of islamic schools or madhahib (on which, later in this chapter, Of schools and schism), B. Jokisch, Islamic Imperial Law (Berlin: de Gruyter, 2007) at 575, though for vigorous debate on Roman influence, later in this chapter, The umma and its protection.
3 For a jewish monarchy in south-west Arabia, resulting from conversion to judaism of the king of Himyarites, B. Lewis, The Middle East (London: Weidenfeld & Nicolson, 1995) at 45; and for jewish people constituting ‘a significant part of the population that accepted Islam in its formative centuries’, M. Hodgson, The Venture of Islam, vol. I (Chicago: Univ. of Chicago Press, 1974) at 316, 317.
4 The people of Mecca claimed descent from Abraham through Ishmael, and tradition states that their temple, the Ka’bah (with the black cube, in Mecca), had been built by Abraham for worship of the One God; M. Pickthall, The Meaning of the Glorious Koran: an Explanatory Translation (New York: Penguin, undated) at ix.
5 For introduction of the western idea of land boundaries in Arabia, in combination with development of petroleum industry, H. Liebesny, ‘English Common Law and Islamic Law in the Middle East and South Asia: Religious Influences and Secularization’ (1985–6) 34 Clevel. St. L. Rev. 19 at 31.
6 See Rahim, Muhammadan Jurisprudence (1911) 2–16 (‘Customs and Usages of the Arabs before Islam’), particularly on family law; Schacht, Islamic Law (1964) ch. 2 (‘The Pre-Islamic Background’, acknowledging developed forms of commercial law); Fyzee, Outlines (1974) at 6 ff.; Hodgson, Venture of Islam (1974), above, at 103 ff. (‘The World before Islam’); Lewis, Middle East (1995), above, at 42 (for ‘camel nomadism’ in centuries preceding Muhammad); and for co-existence of two laws, one serving sedentary and commercial needs, the other nomadic conditions, Hallaq, Shari’a (2009) at 30.
7 F. Braudel, A History of Civilizations, trans. R. Mayne (New York: Penguin, 1993) at 41.
8 Pickthall, Meaning of Glorious Koran (undated), above, at x, xi; Stowasser, Women (1994) at 87, 122; M. Rodinson, Muhammad, trans. A. Carter (New York: New Press, 2002) at 73; for Muhammad’s subsequent wives, however, M. Ruthven, Islam in the World (London: Penguin, 1984) at 85–7.
9 On the islamic debate on abrogation see later in this chapter, Jihad, and on the earlier christian–jewish discussion (Paul advocating abrogation of talmudic law), Ch. 4, Talmudic retreat? On an ensuing Islamo-Judeo-Christian civilization, rendering an internal ‘clash of civilizations’ ‘nonsensical’, C. Bulliet, The Case for Islamo-Christian Civilization (New York: Columbia Univ. Press, 2004) at 9, 11 (to combine with Judeo-Christian).
10 ‘The Prophet did not have anything to do with its words; it was revealed to him as it is now read.’ Doi, Shari’ah (1984) at 48. Muhammad was thus ‘the final Prophet. Through him...God spoke his last message to mankind’. J. Roberts, History of the World (London: Penguin, 1995) at 317. For gradual character of the revelation as an aid to reflection and memorization, M. H. Kamali, Principles of Islamic Jurisprudence, 3rd edn (Cambridge: Islamic Texts Society, 2003) at 20.
11 A. M. de Nola, L’Islam: Storia e segreti di una civiltà (Rome: Newton & Compton, 1998) at 58; Rahim, Muhammadan Jurisprudence (1911) at 19; Rodinson, Muhammad (2002), above, at 83.
12 96: 4. Unlike Jesus, Muhammad is not reported as accomplishing miracles nor rising from the dead; the revelatory character of his words rests upon the words themselves. I. Khaldûn, The Muqaddimah (Princeton: PUP, 1967) at 73 (‘It is itself the wondrous miracle. It is its own proof.’).
13 G. R. Bunt, Virtually Islamic (Cardiff: Univ. of Wales Press, 2000) at 19–21 (Koran previously memorized, now ‘browsable’); though for structure of the Koran demonstrating its character as an ‘indivisible whole’, incapable of being followed in part only, Kamali, Islamic Jurisprudence (2003) at 18; and for presentation ‘by a non-Muslim [to] other non-Muslims’, W. Wagner, Opening the Koran (Notre Dame: Univ. of Notre Dame Press, 2008); see also C. Ernst, How to Read the Qur’an (Chapel Hill: Univ. of North Carolina Press, 2011) (for chronological ordering).
14 On religious and secular pyramids of law, see Ch. 4, The written words proliferate.
15 More precisely, the retreat of Muhammad, the Hijra, to Medina in 622 CE marks the beginning of the islamic era and the islamic calendar. It is the year (anno) of the Hijra, and subsequent years within islam are numbered from this year and designated AH. The relation of western to islamic years is not constant, however, because of differences in lengths of calendar years. For a table of parallel years, Calder, Early Muslim Jurisprudence (1993) at 12.
16 On halakhah as way, Ch. 4, Halakhah and aggadah. The word ‘islam’ means submission to divinity and ‘muslim’ is a derivation from it.
17 The expression shari’a is also sometimes limited to the Koran itself and the practice and sayings of the Prophet, or sunna; fiqh would derive from remaining, and more apparently human, sources, examined later in this chapter. The distinction shari’a/fiqh would be, however, ‘modernist’ or ‘reformist’ and of the 20th c.; Bleuchot, Droit musulman, vol. I (2000) at 18, 19 (‘to emancipate’). It is thus used by ‘secularists’ but also by ‘Islamists’ interested in the concept of an ‘islamic state’, discussed later in this chapter, Contrapuntal exchange, with islams; R. Baker, Islam without Fear (Cambridge: HUP, 2003) at 112–13 (‘contingent elaborations of fiqh’). The study of fiqh may be of the sources (or roots) of law and understanding, usul al-fiqh, or the study of its branches or substance, furu al-fiqh. For a recent comprehensive text on usul-al fiqh, written in English, Kamali, Islamic Jurisprudence (2003) contrasting, at xvii, western works ‘primarily concerned with...history’.
18 J. Wegner, ‘Islamic and Talmudic Jurisprudence: The Four Roots of Islamic Law and Their Talmudic Counterparts’ (1982) 26 Am. J. Legal Hist. 25, suggesting talmudic influence.
19 Prof. Y. B. Achour, of Tunis, oral presentation of ‘Nature, raison et révelation dans la philosophie du droit des auteurs sunnites’, 17th World Congress of Philosophy of Law (IVR), Bologna, 1995.
20 The noun hadith is derived from the verb hadatha, ‘to be new’ (as in hebrew, hadash): A. Guillaume, The Traditions of Islam (Oxford: Clarendon Press, 1924) at 10. We know what is new to us by its means of communication, here in the form of speech, later by other means of communication. The news brings the new, but it is new only to the hearer and is already part of a larger base of information, which the west knows as a tradition. So in western languages the notion of tradition has been largely captured by the process of transmission, or traditio, which inadequately reflects the (often revelatory) newness to the recipient of the information transmitted. Use of the word ‘tradition’ to translate ‘hadith’ is widespread, but properly controversial. Could western thought have been the same if someone had thought of a word indicating the ‘revelatory new’ to describe existing information and teaching, seen from the perspective of the new acquirer of it? For criticism of translation of ‘hadith’ as ‘tradition’, Hodgson, Venture of Islam (1974), above, at 64.
21 Guillaume, Traditions of Islam (1924), above; M. Maulana, A Manual of Hadith (London: Curzon Press, 1977); Doi, Shari’ah (1984) at 24, 25, 45, 49, 53, giving examples of chains of hadith (‘According to Bukhari...“Abdan related to us (saying): Hisham related to us saying: Ibn Sirin related to us from Abu Huraria from the Prophet...that he said...”’) and identifying the six canonical collections of hadith, at 52–4.
22 Though a hadith contrary to the Koran or to other traditions created problems. For reconciliation of hadith, see later in this chapter, Ijma, the hadith and revelation.
23 The criteria relate to the number of reports of the hadith, the interrupted or uninterrupted nature of transmission, the reputation of reporters, and any evident political motivation in the content of the tradition. See generally Guillaume, Traditions of Islam (1924), above, at 86, 87; G. Juynboll, The Authenticity of the Tradition Literature (Leiden: E. J. Brill, 1969) at 7; G. Juynboll, Encyclopedia of Canonical Hadith (Leiden: Brill, 2007); Doi Shari’ah (1984) at 57 (notably on ‘broken’ traditions); For Bukhari as the great ‘traditionist’ or collector of hadiths, A. Merad, La tradition musulmane (Paris: PUF, 2001) at 61. For a 7th/13th c. treatise on hadith learning, famed for preferring ‘reason over reports’ and reading ‘like a law book’, Ibn al-Salah al Shahrazuri, An Introduction to the Science of the Hadith, trans. E. Dickinson (Reading: Garnet, 2005) (listing 65 categories of hadith—sound, fair, weak, supported, uninterrupted, loose, anomalous, isolated, forged, etc.).
24 Guillaume, Traditions of Islam (1924), above, at 15–17, giving hadith in support of inscription; but for reluctance to record hadith of the Prophet for fear of confusion with the Koran, Kamali, Islamic Jurisprudence (2003) at 77.
25 Later in this chapter, Ijma, the hadith and revelation.
26 Parallel (though not identical) notions in western law are those of the communis opinio doctorum of the late middle ages, the Restatements of U.S. law and the herrschende Meinung of contemporary German law. See notably, P. Owsia, ‘Sources of Law under English, French, Islamic and Iranian Law—A Comparative Review of Legal Techniques’ (1991) 6 Arab Law Q. 33 at 41.
27 Coulson, History Islamic Law (1964) at 77; and on establishing consensus, Rahim, Muhammadan Jurisprudence (1991) 115–36; Hallaq, Shari’a (2009) at 98; Weiss, Spirit Islamic Law (1998) at 122–6; Bleuchot, Droit musulman, vol. II (2002) at 451 (for differences on parties necessary for consensus—entire community, first companions of Prophet, current jurists, etc.); Kamali, Islamic Jurisprudence (2003) at 228–9 (classical definition that of consensus of ulama or scholars of entire community; though only generally accepted ijma that of Companions of Prophet); Vikør, God and Sultan (2005) at 74 (‘distinguishing “creative” from “confirming” ijma’).
28 See, e.g., Noth, ‘Die Sharîa’ (1980) at 428 (original diversity of opinions illustrated by schools, emergence of which prevent monopolization of law); and for the schools and sunni/shi’ite distinction, later in this chapter, Of schools and schism.
29 A. Brohi, ‘Die Rechtsideen in Islam’ in May, Islamischem Rechtsdenken (1986) 13 at 22, 23; Doi, Shari’ah (1984) at 65; Coulson, History Islamic Law (1964) at 77, 78; Kamali, Islamic Jurisprudence (2003) at 240.
30 See later in this chapter, Re-opening the door of endeavour.
31 Pansier, Droit musulman (2000) at 28; Hallaq, Islamic Legal Theories (1997) at 83 ff., with refs.; Kalami, Islamic Jurisprudence (2003) at 264 ff. (with examples at 267 (from contract of sale to other contracts)); Dien, Islamic Law (2004) at 51 (as ‘human source’); Vikør, God and Sultan (2005) at 54 (‘main instrument’ of formulation of legal rules).
32 Coulson, Islamic Jurisprudence (1969) at 6, notably on role of Shafi’i; N. Hurvitz, The Formation of Hanbalism (London: RoutledgeCurzon, 2002) at 103, 104 (on Hanbali opposition); for Shafi’i limiting both ijma and qiyas to interpretive devices as opposed to sources, J. Lowry, Early Islamic Legal Theory (Leiden: Brill, 2007), notably at 62, 319–20, 365, though acknowledging at 12 that ‘four sources’ interpretation ‘ubiquitous’. For disagreement in islamic community, however, on use of more affirmative forms of reason, see later in this chapter, Islamic texts and islamic reason: the role of ijtihad. and Re-opening the door of endeavour.
33 For examples, J. Makdisi, ‘Legal Logic and Equity in Islamic Law’ (1985) 33 Am. J. Comp. Law 63 at 63–5 (describing resulting image of islamic judiciary, diplomatically, as ‘truly mistaken’). Much of the blame for this may be laid upon Max Weber; see his Economy and Society (New York: Bedminster, 1968), vol. III at 976 (‘Kadi-justice knows no rational “rules of decision”...whatever’); a statement seen as ‘burlesque’, in Hallaq, Shari’a (2009) at 373.
34 And for ‘ironic’ character of criticism of ‘qadi justice’, given historical use of equity and jury verdict in Anglo-American law, F. Vogel, Islamic Law and Legal System (Leiden: Brill, 2000) at 29.
35 On qualifications for appointment and appointment process, A. Falaturi and R. May, ‘Gerichtsverfahren und Richter im traditionellen islamischen Recht’ in May, Islamischem Rechtsdenken (1986) 47 at 55, 56, 63, 64; Milliot and Blanc, Droit musulman (1987) at 537; Schacht, Islamic Law (1964) at 188, 189; Hallaq, Origins Islamic Law (2005), notably at 80–3 (delegation of appointment power to chief justice, ‘considerable independence’ of judiciary in Islam); H. Sadegihi, ‘The Position and the Functions of Judges in Islamic Law’ in H. Scholler and S. Tellenbach (eds.), Position und Aufgaben des Richters nach westlichem and nach islamischem Rectht (Munich: Mohr Siebeck 2007) 47 at 47 (independence since power of judge from God); J. Goldenziel, ‘Veiled Political Questions’ (2013) 61 Am. J. Comp. Law 1 (judicial independence absent strong legislatures and political parties, at 2 ‘a life of their own’); and for earlier independence of shari’a courts, decline under advent of state structures, S. H. Nasr, The Heart of Islam (San Francisco: HarperSanFrancisco, 2004) at 254. Accord R. W. Bulliet, The Case for Islamo-Christian Civilization (New York: Columbia Univ. Press, 2004) at 66–8 (ulama historically ‘held their own’, Napoleonic occupation of Egypt broke dynamic tension between tyranny and sharia, provided ‘vision of what a true tyrant might accomplish using modern European methods’); M. Masud, R. Peters and D. Powers, ‘Qadis and their Courts’ in M. Masud, R. Peters and D. Powers, Dispensing Justice in Islam (Leiden: Brill, 2006) 1 at 14 (nullity of any ruler’s command to follow particular school of law or madhhab). For a corpus of judicial ethics structuring the qadi’s function, M. Surty, ‘The Ethical Code and Organised Procedure of Early Islamic Law Courts, with Reference to al-Khassaf’s Abad al-Qadi’ in M. Haleem, A. Sherif and K. Daniels, Criminal Justice in Islam (London: Tauris, 2003) 149, notably at 152 (prohibition of ‘special’ banquets), 155 (qadi ‘well paid’). The qadi’s role, however, has reduced the space for arbitration within the tradition; G. Sayen, ‘Arbitration, Conciliation and the Islamic Legal Tradition in Saudi Arabia’ (2003) 24 U. Pa. J. Int’l. Econ. L. 905.
36 Falaturi and May, ‘Gerichtsverfahren’ (1986), above, 47 at 50. For notion of ‘law-finding’ in continental legal history, notably in Germany, G. Strauss, Law, Resistance and the State (Princeton: PUP, 1986) at 48.
37 Noth, ‘Die Sharîa’ (1980) at 431; and for the procedure, involving invitations by the qadi to argue or present proof, Milliot and Blanc, Droit musulman (1987) at 559–61.
38 Cammack, ‘Islamic Law in Indonesia’s New Order’ (1989) at 73; though for role of qadi primarily ‘to return people to negotiating permissible relations among themselves’, L. Rosen, The Justice of Islam (Oxford: OUP, 2000) at 53, 58, 283, a view qualified as ‘brilliant fallacy’ in H. Gerber, Islamic Law and Culture 1600–1840 (Leiden: Brill, 1999) at 12, 13, 117 (conditioned by qadi living for long periods in same community in Morocco, not case elsewhere, where islamic law applied as such); and see also D. Powers, Law, Society and Culture in the Maghrib, 1300–1500 (Cambridge: CUP, 2002) at 19, 20, 24, 50–2 (‘reasoned justification of judicial decisions’ belying Weberian notion of kadijustiz, though initial attempts of mediation); Bleuchot, Droit musulman, vol. II (2002) at 635 (qadi’s initial obligation of mediation).
39 Falaturi and May, ‘Gerichtsverfahren’ (1986), above, at 73. Islamic justice, however, is in principle ‘absolutely free’ with ‘no fees and no costs’; I. al Faruqi and L. al Faruqi, The Cultural Atlas of Islam (New York: Macmillan/Collier, 1986) at 269. For emergence of profession of advocate only in 19th c., Lewis, Middle East (1995), above, at 188, and for rarety of counsel in Ottoman empire in 11th/17th c., C. Mallat, ‘From Islamic to Middle Eastern Law’ (2003/04) 51/52 Am. J. Comp. Law 699/209 at 211; yet for counsel in criminal proceedings, A. Sherif, ‘Generalities on Criminal Procedure under Islamic Shari’a’ in Haleem et al., Criminal Justice (2003), above, 3 at 7 (‘routinely allowed’), and for possibility of remuneration for mufti’s opinion, A. Guenther, ‘Hanafi Fiqh in Mughal India’ in R. Eaton (ed.), India’s Islamic Traditions 711–1750 (Oxford: OUP, 2003) 209 at 219.
40 Lewis, Middle East (1995), above, at 124; Pearl and Menski, Muslim Family Law (1998) at 18; and for admissibility of contemporary scientific evidence, electronic records, S. Haneef, ‘Modern Means of Proof: Legal Basis for its Accommodation in Islamic Law’ (2006) 20 Arab. L. Q. 334.
41 Though qadi’s minute book, maintained by a scribe, recorded evidence, actual judgment, often any fatwa received; C. Imber, Ebu’s-su’d [:] The Islamic Legal Tradition (Edinburgh: Edinburgh Univ. Press, 1997) at 52, 53 (‘highly formulaic’); M. Masud, R. Peters and D. Powers, ‘Qadis and their Courts’ (2006), above, at 21 (mahdar written record of claims or pleadings, testimony). Civilian-style (skeletal) reporting of cases and reasons for judgment now occurs in some islamic countries, at least with respect to decisions of courts understood as secular; I. Edge, ‘Comparative Commercial Law of Egypt and the Arabian Gulf’ (1985–6) 34 Clevel. St. L. Rev. 129 at 140 (French reporting model; Egyptian decisions most influential and best reported; law firms build own collections of reports).
42 Milliot and Blanc, Droit musulman (1987) at 562 (all decisions can be revised by deciding judge, or by another judge); for Muhammad’s instructions to judge that ‘you should not feel prevented by your first judgment from retracting’, Khaldûn, Muqaddimah (1967), above, at 173. For absence of strict concept of res judicata in talmudic law, see Ch. 4, Applying divine law.
43 Liebesny, ‘English Common Law and Islamic Law’ (1985–6), above, at 20; Anderson, Law Reform (1976) at 13; Coulson, History Islamic Law (1964) at 163; Falaturi and May, ‘Gerichtsverfahren’ (1986), above, at 90, 91; Khadduri, Islamic Concept of Justice (1984) at 146. Cf., for appeal to the caliph through a single magistrate or radd in muslim Spain, Milliot and Blanc, Droit musulman (1987) at 547.
44 Falaturi and May, ‘Gerichtsverfahren’ (1986), above, at 88; Weiss, ‘Theory of Ijtihad’ (1978) at 206.
45 For this talmudic notion, Ch. 4, Halakhah and aggadah; and for idea of muslim person reaching truth ‘within the sacred forms and injunctions of the Law’, often associated with sufi teaching within islam, S. Nasr, ‘Islam’ in A. Sharma, Our Religions (San Francisco: HarperSanFrancisco, 1993) 425 at 465, 477.
46 Hallaq, Authority Islamic Law (2001) at 190 ff.; W. Hallaq, ‘From Fatwas to Furu’ (1994); and for the mufti as ‘link between legal thought and practice’, J. Tucker, In the House of the Law (Berkeley: Univ. of California Press, 1998) at 20. On the particular importance of fatwahs in shi’ite tradition (e.g., that pronounced against author Salman Rushdie), later in this chapter, Of schools and schism; and on general role of mufti, Schacht, Origins of Muhammadan Jurisprudence (1964) at 73–5; M. Masud, B. Messick and D. Powers (eds.), Islamic Legal Interpretation: Muftis and their Fatwas (Cambridge: HUP, 1996), notably B. Messick, ‘Media Muftis: Radio Fatwahs in Yemen’ at 310 (mufti opinions broadcast daily to national listening audience). There is now a government fatwah call centre in the United Arab Emirates, staffed by 48 muftis working in shifts and receiving more than 1000 toll-free calls daily from around the world in Arabic, English and Urdu: see http://www.awqaf.ae. Yet for a hierarchically higher function of a ‘scholar-jurist’ charged with ‘discovering the generalities of the law’ and writing (though muftis also write), N. Calder, Islamic Jurisprudence in the Classical Era, ed. C. Imber (Cambridge: CUP, 2010) at 92, 160.
47 S. Haider (ed.), Islamic Concept of Human Rights (Lahore: The Book House, 1978) at 69; Noth, ‘Die Sharîa’ (1980) at 419; Weiss, Spirit Islamic Law (1998) at 15, 16.
48 A. Brohi, ‘Die Rechtsideen’, (1986), above, at 27; Calder, Early Muslim Jurisprudence (1993) at 164 (‘reputation and...status [gained]...informally as a result of personality and public perception’); Hallaq, Islamic Legal Theories (1997) at 117–23, 144–7 (notably on overlapping roles of the mujtahid, the person learned in law, and the mufti, the mujtahid of good character whose legal opinions are accepted as a matter of public office); Weiss, Spirit Islamic Law (1998) at 128, 133, 134. On informal, but written, ranking of muftis, presumably after their death, Hallaq, Authority Islamic Law (2001) at 17 (7th and lowest category those incapable of ‘differentiating right from left’); Kamali, Islamic Jurisprudence (2003) at 491 (7th category cannot distinguish ‘the lean and the fat, right and left’ but simply collect what found, ‘like the one who gathers wood in the dark of the night’).
49 Coulson, History Islamic Law (1964) at 52.
50 See later in this chapter, Subtle change (for relations with secular authority generally); Contrapuntal exchange, with islams (for relations with state structures).
51 Cf., however, Braudel, History of Civilizations (1993), above, at 100 (‘like all societies, Islam has its plutocrats, few in number but all the more powerful for that...the privileged defend their own interests’; S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 253–5 (on remarkable levels of spending by particular arab leaders). On the dramatic decline in governmental expenditure on palaces, services, stables and special secretariats in Iran following fall of the Shah, J.-P. Digard, ‘Shi-isme et Etat en Iran’ in O. Carré (ed.), L’Islam et l’Etat en Iran (Paris: PUF, 1982) 4 at 84; and on corruption in islamic states, as elsewhere, often a matter of ‘putting one’s family first’, Ruthven, Islam in World (1984), above, at 178, 179; and extending to state judiciaries, I. Assegar, ‘Legends of the Fall’ in T. Lindsey and H. Dick (eds.), Corruption in Asia (Sydney: Federation Press, 2002) 127, at 130–45 (Indonesian courts rejecting enquiries into own alleged corruption) (KKN: ‘korupsi, kolusi, nepotism’); G. Bell, ‘Indonesia’ in E. Black and G. Bell, Law and Legal Institutions of Asia (Cambridge: CUP, 2011) 262 at 294 (the ‘legal mafia’). On doctrinal corruption, however, which some see in notion of immutable texts, of apparently human origin, see the discussion of ijtihad, later in this chapter, Re-opening the door of endeavour.
52 For Koran therefore as ‘amending code’ only, H. Khan, Islamic Law of Inheritance (London: Platininum, 1999) (not abrogating all pre-islamic law).
53 M. Khadduri, ‘Marriage in Islamic Law: The Modernist Viewpoints’ (1978) 26 Am. J. Comp. Law 213 at 213, 214; D. El Alami and D. Hinchcliffe, Islamic Marriage Divorce Laws of the Arab World (The Hague: Kluwer, 1996) (with texts of contemporary national laws); Cammack, ‘Islamic Law in Indonesia’s New Order’ (1989) at 59; Milliot and Blanc, Droit musulman (1987) at 298, 299.
54 Amin, Islamic Law (1989) at 75; S. Haeri, Law of Desire: Temporary marriage in Shi’i Iran (Syracuse: Syracuse Univ. Press, 1989); J. Nasir, The Islamic Law of Personal Status, 3rd edn (The Hague: Kluwer, 2002) at 59–61. The notion of temporary marriage is defended as preferable to informal sexual relations, though the argument has not prevailed in orthodox islam, nor generally before North American courts; S. Ghori, ‘The application of religious law in North American courts: a case study of mut’a marriages’ (2008) 10 J. Isl. L. & Cult. 29. On shi’ite tradition see later in this chapter, Of schools and schism.
55 Amin, Islamic Law (1989) at 81, citing North Yemen, Pakistan, Bangladesh; and for fuller discussion, indicating such arranged marriages may give rise to criminal liability by state law, L. Carroll, ‘Marriage–Guardianship and Minor’s Marriage at Islamic Law’ (1987) 7 Islamic and Comp. Law Q. 279.
56 Coulson, History Islamic Law (1964) at 14. The views of Muhammad himself on women and marriage are now being raised frequently. There are some large questions lurking behind this about sources of law, and the role of women in them. See later in this chapter, The individual in the shari’a, and Contrapuntal exchange, with islams.
57 Khadduri, ‘Marriage in Islamic Law’ (1978), above, at 214 ff.
58 Nasir, Status of Women (2009) at 26–8; S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 166–9; Stowasser, Women (1994) at 121; A. Souaiaia, Contesting Justice: Women, Islam, Law, and Society (Albany: SUNY Press, 2008) at 51 appealing directly to Koran.
59 For Tunisia, see art. 18 of the 1956 Tunisian Personal Status Law (‘Polygamy is prohibited’) in El Alami and Hinchcliffe, Islamic Marriage Divorce Laws (1996), above, at 242, 239 (‘humanly impossible to treat two wives with absolute equity and equality; on this basis it is forbidden for a man to take more than one wife’); and for this conclusion from a strict reading of the Koran, 4:3 (‘if you fear not being fair, then one’) and 4:129 (‘You will not be able to be fair among women, even if you so wish’); Mallat, ‘Islamic to Middle Eastern Law’, above, at 269. Other jurisdictions have created conditions, such as approval by a court and/or any prior spouse. The extent of polygamy is difficult to establish. In south Asia during 19th c. it would have constituted no more than 2% of marriages. A. Serajuddin, Shari’a Law and Society (Karachi: OUP, 2001) at 178–9.
60 Hinchcliffe, Marriage Divorce Laws (1996) at 26, 27.
61 On its modalities, Schacht, Islamic Law (1964) at 163, 164; Milliot and Blanc, Droit musulman (1987) at 350 ff.; and for its ‘accommodation’ in western law, Y. Meron, ‘L’accommodation de la répudiation musulmane’ RIDC 1995. 921; for common origins of talmudic and islamic repudiation in Deut. 24: 1, S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 178, 179.
62 Coulson, History Islamic Law (1964) at 14; Hallaq, Shari’a (2009) at 32; J. Tucker, Women, Family, and Gender in Islamic Law (Cambridge: CUP, 2008) at 101 (husband obliged to support during idda but himself free to re-marry).
63 Nasir, Status of Women (2009) at 134 ff.; Amin, Islamic Law (1989) at 79.
64 Coulson, History Islamic Law (1964) at 13; J. Brown, Muhammad (Oxford: OUP, 2011) at 77 (with christian criticism since 8th c.).
65 Amin, Islamic Law (1989) at 75; and for widespread practice of adoption inconsistent with law, Milliot and Blanc, Droit musulman (1987) at 415–17.
66 Khan, Islamic Law of Inheritance (1999), above, at 35; A. Souaiaia, Contesting Justice (1989), above, ch. 4 on inheritance (with islamic texts and deviations from their interpretation); and generally N. Coulson, Succession in the Muslim Family (Cambridge: CUP, 1971); J. Makdisi, ‘Fixed Shares in Intestate Distribution: A Comparative Analysis of Islamic and American Law’  Brigham Young. L. Rev. 267; Milliot and Blanc, Droit musulman (1987) at 475 ff., notably at 480 for testaments; and cf. D. Powers, Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance (Berkeley: Univ. of California Press, 1986), law given by Muhammad different from that subsequently developed, notably in giving greater latitude for testamentary succession; and for wife’s sharing in inheritance as historically ‘unprecedented’ in Arabia, along with recognition that women ‘full legal persons’, Hallaq, Shari’a (2009) at 32.
67 R. Debs and F. Ziadeh, ‘Der Begriff des Eigentums im islamischen Recht’ in May, Islamischem Rechtsdenken (1986) at 93; Mallat, Renewal Islamic Law (1993) at 114; Rahim, Muhammadan Jurisprudence (1911) at 12 (individual ownership prevailng even in pre-islamic Arabia, though usually limited to movables), 261–79 (for substance of property law); and on debate between the schools on private versus collective ownership, Khadduri, Islamic Concept of Justice (1984) at 138 (view favouring private ownership prevailing); though for relatively small amount of land privately held, until 19th c., N. S. Hopkins, ‘Land Tenure’ in J. Esposito (ed.), The Oxford Encyclopedia of the Modern Islamic World, vol. II (New York: OUP, 1995) 446; and for transition from communal to private property through consensual partition, Pansier, Droit musulman (2000) 49–54.
68 For the waqf, A. Qadir, Wakf (Delhi: Global Vision, 2004), notably at 3 on (questionable) influence of piae causae of byzantine law; P. Hennigan, The Birth of a Legal Institution (Leiden: Brill, 2004), notably at 52–70 for pre-islamic parallels (roman, byzantine, jewish, persian, though ‘distinctly islamic’ institution); Rahim, Muhammadan Jurisprudence (1911) at 303–10; and on relations, and there appear to have been relations, between the waqf and the trust, see Ch. 7, The practice of multiple laws.
69 M.-F. Renoux Zagamé, Les origines theologiques du concept moderne de la propriété (Geneva: Droz, 1987), notably at 155, 191, 193 (tracing divine concession of world to human beings).
70 Khan, Islam and Human Rights (1989), above at 49, citing 2: 108, 3: 190; Mallat, Renewal Islamic Law (1993) at 114: S. Sait and H. Lim, Land, Law and Islam (London: Zed, 2006) at 8, 10, 15 (on corresponding need for equitable distribution of land, resistance to monopolies, large holdings, though wide variations amongst 57 majority Muslim countries).
71 Khan, Islam and Human Rights (1989), above, at 49, 56; S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 218–31; and see Mallat, Renewal Islamic Law (1993) at 114 on moral values of wealth-sharing, and 117 on religion alone, not science, being capable of creating ‘a new perception of...interests and a concept of profit and loss which goes beyond...the mere commercial or material context’; Hallaq, Shari’a (2009) at 231 (‘to be wealthy is potentially a moral liability that requires dispensation’).
72 On zakat and taxes, Y. Al Qardawi, Fiqh az-Zakat (London: Dar Al Taqwa, 1999) at xxi (need to make new forms of wealth ‘zakatable’), 623 ff. (zakat for fixed purposes, religiously inspired, taxes for multiple objectives), 693 ( most countries no system for collection and distribution); and for criticism; S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 229, 230 (‘marginalisation de la zakat’); C. Tripp, Islam and the Moral Economy (Cambridge: CUP, 2006) at 125–6 (zakat no more than 2% GDP of Pakistan, ‘no measurable impact’ in Iran); K. Steiner, ‘“Unpacking” a global norm in a local context’, in J. Gillespie and P. Nicholson, Law and Development and the Global Discourse of Legal Transplants (Cambridge: CUP, 2012) 356 (who to collect, receive in Malaysia).
73 6: 142 (‘and be not prodigal. Lo! Allah loveth not the prodigals’), and for ‘compassionate consideration’ of islamic texts towards animals, prohibition of hunting wild animals for sport, though noting violations, R. Foltz, Animals in Islamic Tradition and Muslim Cultures (Oxford: Oneworld, 2006) at 20, 27, though at 41 ‘Need for a New Jurisprudence’; L. Kemmerer, Animals and World Religions (New York: OUP, 2012) at 259 (islamic requirements of halal butchering often not observed).
74 Amin, Islamic Law (1989) at 73, citing also provisions on necessary purity of water, and concluding, at 74, that islamic world has ‘fallen far behind the industrialized countries in this field’; cf. for islamic foundations of environmental protection, S. Haneef, ‘Principles of Environmental Law in Islam’ (2002) 17 Arab Law Q. 241 (human person as delegate of God, accountable for natural state of world); O. A. Llewellyn, ‘The Basis for a Discipline of Islamic Environmental Law’ in R. Foltz, F. Denny and A. Baharuddin, Islam and Ecology (Cambridge: HUP, 2003) 185, notably at 198 (all property held in trust by human beings, prohibition of waste).
75 B. Zysow, ‘The Problem of Offer and Acceptance: A Study of Implied-in-Fact Contracts in Islamic Law and the Common Law’ (1985–6) 34 Clevel. St. L. Rev. 47 at 76; and see F. Vogel, ‘Contract Law of Islam and the Arab Middle East’ in International Association of Legal Science (K. Zweigert and U. Drobnig, eds.), International Encyclopedia of Comparative Law, vol. VII, Part 1, ch. 7 (Tübingen: Mohr Siebeck, 2008) at 10 (‘root conception’ ‘a consensual, present transfer or conveyance of property for a price’); cf. Schacht, Islamic Law (1964) at 145 (on conclusion of contracts of gift with no counter-value or consideration, in Hanafi law); on mistake, J. Makdisi, ‘An Objective Approach to Contractual Mistake in Islamic Law’ (1985) 3 Boston U. Int. L. J. 325.
76 Chehata, ‘Islamic Law’ (1974) 138 at 139, 140 (notion of mutality preferred to any notion of autonomy of individual will); Zysow, ‘Problem of Offer and Acceptance’ (1985–6), above, at 76; yet for contracts of gift, where liberal intention may replace mutuality, Schacht, Islamic Law (1964) at 145, 157, 158.
77 N. Ray, Arab Islamic Banking and the Renewal of Islamic Law (London: Graham & Trotman, 1995); I. Shihata, ‘Some observations on the question of Riba and the challenges facing “Islamic Banking”’ in C. von Bar (ed.), Islamic Law and its Reception by the Courts in the West (Cologne: Carl Heymanns, 1999) 177 at 183; M. Lewis and L. M. Algaoud, Islamic Banking (Cheltenham: Edward Elgar, 2001) at 29. On the ongoing, laborious, process of elimination of interest in Pakistan, following 1991 decision of Federal Shariat Court, C. Mallat, Introduction to Middle Eastern Law (Oxford: OUP, 2007) 339–43; M. Lau, The Role of Islam in the Legal System of Pakistan (Leiden: Martinus Nijhoff, 2006) at 162–5 (long delays for appeals, no data on pending appeals, difficulty knowing whether a law in force).
78 For the absence of the Roman concept of legal personality, ‘at the heart of Western capitalism’, and Islamic law being therefore ‘not conducive to development’, D. Lal, Unintended consequences (Cambridge: MIT Press, 1998) at 63; similarly T. Kuran, The Long Divergence: How Islamic Law held back the Middle East (Princeton: PUP, 2011); and for judicial refusal to accept the corporate fiction, Mallat, Introduction Middle Eastern Law (2007), above, at 329–32; N. Saleh, ‘Arab International Corporations: The Impact of the Shari’a’ (1993) 8 Arab Law Q. 179 at 181 (‘sacrosanct principle of liability under Islam’, not uncommon for company officers to be imprisoned for corporate debts). Where state law has adopted the corporate form, there may thus be ‘individualisation’ of it; T. Koraytem, ‘The Islamic Nature of the Saudi Regulations for Companies’ (2000) 15 Arab Law Q. 63 at 66–7; though for what would be contributing structural reasons for absence of corporation, T. Kuran, ‘The Absence of the Corporation in Islamic Law: Origins and Persistence’ (2005) 53 Am. J. Comp. Law 785 (fear of corporate loyalties, role of both partnerships and waqf, latter, at 799, ‘stunningly successful’).
79 S. Mankabady, ‘Insurance and Islamic Law’ (1989) 4 Arab Law Q. 199. This would be the view even where an ‘insurable interest’ would exist in western law; but for emergence of Islamic takaful as agreement among participants to jointly guarantee themselves against loss, H. Thanasegaran, ‘Growth of Islamic Insurance (Takaful) in Malaysia: A Model for the Region?’  Sing. J.L.S. 143, including, at 147, re-takaful (Munich Re participating).
80 For the discovery of ‘Islamic economics’ (in shi’ite tradition), Mallat, Renewal Islamic Law (1993) at 113 ff., notably at 121 (a ‘doctrine, not a science’, showing ‘way to follow’ and not explaining how economic events occur). For reluctance towards trading in futures and options, M. H. Kamali, Islamic Commercial Law (Cambridge: Islamic Texts, 2000)(though author favourable); and for greater stability of islamic finance as opposed to western debt contracts with ensuing moral hazard and need for ‘lender of last resort’, Z. Iqbal and A. Mirakhor, An Introduction to Islamic Finance (Singapore: John Wiley, 2007) at 19; H. Askari et al, Globalization and Islamic Finance (Singapore: John Wiley, 2010), notably at vii (for fragility of opaque, debt-based finance), 119 (Keynes opposed to interest). For possible western reform with an Islamic ring, in light of recent financial problems, The Economist, May 16, 2009, at 13 (‘Banks should be forced to fund themselves with a lot more equity and other risk capital—possibly using bonds that automatically convert to equity when trouble strikes’); and for the absence of a general principle of freedom of contract (though measure of freedom within certain types of contract), Schacht, Islamic Law (1964) at 145; Vogel, ‘Contract Law of Islam’ (2008), above, at 17 (‘climate inhospitable’).
81 On the following see in particular, Ray, Arab Islamic Banking (1995), above, at 37 ff.; and indicating, at 80, 81, differences within islamic tradition on contemporary banking practices); and more generally, A. Saeed, Islamic Banking and Interest (Leiden: Brill, 1996) (arguing for new ijtihad in islamic banking practices); F. Vogel and S. Hayes, III, Islamic Law and Finance (The Hague: Kluwer, 1998) (also for renewal of islamic commercial techniques); H. Alqabid, Les banques islamiques (Paris: Economica, 1990); M. El-Gamal, Islamic Finance (New York: CUP, 2006) (on need to redefine Islamic finance in terms of religious and social goals rather than mechanics of operation); S. Aldeeb, Musulmans face aux droits de l’homme (1994) at 245–8 (criticizing islamic system as yielding higher rates of return than western system; mudarabah representing type of partnership developed in west to avoid prohibition of usury). For surveillance of adherence to islamic requirements, B. Malkawi, ‘Shari’ah Board in the Governance Structure of Islamic Financial Institutions’ (2013) 61 Am. J. Comp. Law 539 (board of islamic experts within each institution).
82 Lewis and Algaoud, Islamic Banking (2001), above, at 40–5. This is the contract used when clients deposit money with a bank. They receive no interest (clients of western banks increasingly recognize the phenomenon), yet are entitled to a share in the bank’s profits. Depositors, it has been found, can live with this. For western reasoning similar to the islamic and approved by Aquinas, which drew a ‘crucial moral difference between loan and societas [partnership]’ resting on the sharing of risk, A. Jonsen and S. Toulmin, The Abuse of Casuistry (Berkeley: Univ. of California Press, 1988) ch. 9 (‘Profit: The Case of Usury’), notably at 185 ff. Western thought began to tolerate interest as an exception to the general prohibition of usury, specifically where a debtor had caused damage through failure to repay in time, preventing re-use of the monies loaned. Roman law allowed this, providing for payment of the difference between the two positions (quod inter est) of the creditor. The exception became generalized from the 15th c., when a theory of interest arose from the exception, justifying interest not merely at the end of the loan but from its creation; J. Noonan, The Scholastic Analysis of Usury (Cambridge: HUP, 1957); J. Oldham, English Common Law in the Age of Mansfield (Chapel Hill: Univ. of North Carolina Press, 2004) at 165–9 (on vacillating English legislation 1571–623, fear of ‘driving capital abroad’).
83 J. M. Hobson, The Eastern Origins of Western Civilisation (Cambridge: CUP, 2004) at 119–20.
84 Neither the bond nor the mortgage can require interest on monies provided, so both may involve ownership of property being vested in the ‘lender’ or their nominee, which is then leased to the ‘borrower’ in return for rent. For U.K. examples, http://www.mortgagesplease.co.uk/islamic-mortgage/; and for the growth in sukuk issuance from circa $1bn in 2002 to nearly $50bn in 2007, The Economist, Sept. 6, 2008 at 83, also at 82 for shari’a-compliant investors avoiding ‘highly leveraged conventional banks’; and for increasing range of U.S. firms developing Islamic finance practices, V. Jaksic, ‘Laws firms building their Islamic finance practice’ Nat. L. J. April 14, 2008 at 5.
86 The Economist, Apr. 4, 1992 at 49; and see The Economist, Aug. 6, 1994 at 17 (of Islam Survey) (‘new left...should now be looking to Islam with an interested gleam in its eye’); though for Islamic banking as simply ‘recognisable part of the landscape of advanced capitalism’, C. Tripp, Islam and Moral Economy (2006), above, at 149.
87 These include theft, banditry, drunkenness, unlawful fornication; see generally Peters, Crime and Punishment (2005) 53 ff.; Vikør, God and Sultan (2005) at 282 (hudud as ‘God’ limits’); Hallaq, Shari’a (2009) 311 ff.
88 See notably Amin, Islamic Law (1989) at 52–5; Doi, Shari’ah (1984) at ii (‘no legal system deriving its sustenance only from human intelligence can cure our society of the evils of criminality and exploitation’); and generally D. Forte, ‘Islamic Law and the Crime of Theft: An Introduction’ (1985–86) Clevel. St. L. Rev. 47 (concluding that ‘there are limits to our subjecting the rationality of the Islamic law of theft to a modern, systematic analysis’ (at 53), a view not consistently defended even within islam; also comparing islamic law to western infliction of death penalty for theft until 18th c. and (at 50) to Chinese practice of ‘slow slicing’, though on the latter see Ch. 9, Limiting fa).
89 Mallat, Renewal Islamic Law (1993) at 116; cf., for the cutting off of hands in pre-islamic, arab law, Rahim, Muhammadan Jurisprudence (1911) at 7.
90 Khan, Islam and Human Rights (1989), above, at 74; M. S. Al-Ashmawy, l’islamisme contre l’islam (Paris: La Découverte, 1987) at 99 (citing hadith urging clemency in case of doubt); Imber, Islamic Legal Tradition (1997), above, at 213–15, for further restrictions, notably need for multiple eyewitnesses; Peters, Crime and Punishment (2005) 15, 54 (exclusion of circumstantial evidence, difficulty of convictions); M. Rohe, Das Islamische Recht (C. H. Beck: Munich, 2009) at 127 (solutions casuistic, also need for certain value of goods stolen). In the Malaysian province of Kelantan, there are 15 legislative exceptions (including return of the property prior to punishment) and the punishment applies only to Muslims over 18 and non-Muslims who elect its application; A. Harding, ‘The Keris, The Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia’ (2002) 6 Singapore J. Int. & Comp. L. 154 at 174. In recent legislative implementation of shari’a in Aceh in Indonesia there is no mention of sanction of amputation; H. Siregar, ‘Islamic Law in a National Legal System’ (2008) 3 Asian J. Comp. L, article 4, at 13. For procedural guarantees (no crime without law, presumption of innocence, proof beyond reasonable doubt, etc.), Haleem et al., Criminal Justice (2003), above.
91 Khan, Islam and Human Rights (1989), above, at 75.
92 On such technical models in talmudic law, see Ch. 4, The divine law applied, and The style of the text.
93 For the notion of complex traditions, D. Armstrong, ‘The Nature of Tradition’ in D. Armstrong, The Nature of Mind and Other Essays (Ithaca: Cornell Univ. Press, 1981) 89 at 90, 102, 103 and the discussion in Ch. 10, Complex traditions.
94 From the 3rd/9th to the 6th/12th centuries.
95 Coulson, History Islamic Law (1964) at 83.
96 Ibid.; Brohi, ‘Die Rechtsideen’ (1986), above, at 19; Hallaq, ‘Logic of Legal Reasoning’ (1985–6) at 81 (islamic law ‘all-encompassing’). For flexibility of sanctions, however, depending on type of conduct involved, see later in this chapter, Subtle change.
97 See G. Makdisi, ‘Guilds of Law’ (1985–86) at 7.
98 Ibid., at 6, 7 (law preferred as middle road between philosophical speculation and ‘exaggerated fideism’); Malek, Tradition et révolution (1993) at 46; M. Fakhry, A History of Islamic Philosophy, 2nd edn (New York: Columbia Univ. Press, 1983), notably at 203, 204 (spirit of theological enquiry inspired by Greek philosophy ‘not completely snuffed out’, jurists thereafter unable to continue ‘pure’ form of early jurists and exegetes); Weiss, Spirit Islamic Law (1998) at 25–30 (kalam eventually seen as ‘handmaiden to jurisprudence’; relying on aristotelian, deductive logic, though distinguishing between its own theological reflection and ‘falsafa’, from Greek philosophia); Nasr, Heart of Islam (2004), above, at 81 (teaching of kalam still prohibited in religious universities in Saudi Arabia); and for Hanbal’s instruction ‘Do not sit with people of kalam’, Dien, Islamic Law (2004) at 23.
99 See earlier in this chapter, Qadi justice and mufti learning.
100 R. Arnaldez, ‘La loi musulmane’ (1993) at 85; and for ‘exquisite level of detail’ by 4th/10th c., Hallaq, Shari’a (2009) at 76.
101 For a 4th issue, the effect of non-islamic law on its formulation, see later in this chapter, Contrapuntal exchange, with islams.
102 See generally Schacht, Origins of Muhammadan Jurisprudence (1950), notably at 138 ff.; Pearl and Menski, Muslim Family Law (1998) at 9 (qualifying Schacht’s view as ‘heretical’); Calder, Early Muslim Jurisprudence (1993), notably at 198, 199 (theory of Schacht ‘both flexible and convincing’ though reservations as to historical periods and influence of ‘normative and virtuoso patterning’); and for the range of opinions the essays collected in W. Hallaq (ed.), The Formation of Islamic Law (Aldershot: Ashgate, 2004).
103 Coulson, History Islamic Law (1964) at 56, 61 (Sunna still a form of compromise between independent human reason (ra’y) and literal reading of many hadith; hadith became subject to criteria of validity, reason in form of ijma legitimated); and on the process of selecting legitimate hadith, and proof of falsity of many of them, Guillaume, Traditions of Islam (1924), above; Juynboll, Authenticity of Tradition Literature (1969), above, notably at 100 (all muslim theologians agree forgeries took place) and ch. 8 (on forgeries for political reasons, to legitimate succession to Muhammad); G. Juynboll, Muslim tradition (Cambridge: CUP, 1983), notably at 9, 10 (hadith literature not ‘standardized’ until end of 1st/7th c.); A. Walker, The Caliphate (New York: Barnes & Noble, 1966) at 12, 46; Doi, Shari’ah (1984) at 54–7 (Bukhari accepted 7, 397 hadith of some 600, 000 reported); Kamali, Islamic Jurisprudence (2003) at 87 (‘fabricated hadith’).
104 Coulson, History Islamic Law (1964) at 77; and on the struggle between ‘the people of hadith’ and the ‘legists’, I. Lapidus, A History of Islamic Societies, 2nd edn (Cambridge: CUP, 2002) at 85–6.
105 Coulson, History Islamic Law (1964) at 85.
106 Owsia, ‘Sources of Law’ (1991), above, at 40; al Faruqi and al Faruqi, Cultural Atlas (1986), above, at 276 (‘createdness’ argument already dealt with in islam and rejected in 3rd/9th c.); Hallaq, Islamic Legal Theories (1997) at 76; and for denial of historical approach generally in islam, Pearl and Menski, Muslim Family Law (1998) at 13.
107 R. Charles, Le droit musulman (Paris: PUF, 1965) at 8.
108 Coulson, History Islamic Law (1964) at 57; Walker, Caliphate (1966), above, at 12; Burton, Introduction to Hadith (1994), above, at 179 (Koran itself used by Shafi’i to declare Sunna independent of it); and for the talmudic relations, see Ch. 4, Talmud and Torah.
109 Coulson, History Islamic Law (1964) at 58; A. A. An-Na’im, ‘Problems of Universal Cultural Legitimacy for Human Rights’ in A. A. An-Na’im and F. Deng, Human Rights in Africa (Washington: Brookings Institution, 1990) 331 at 358; Doi, Shari’ah (1984) at 54.
110 Hallaq, ‘From Fatwas to Furu’ (1994); for sunna pre-existing Shafi’i, Dien Islamic Law (2004) at 38 and for notion of sunna as even pre-existing the Prophet, Hallaq, Islamic Legal Theories (1997) at 3, 11; for development of islamic law of succession in ‘continuous manner’ from time of the Prophet, though with shifts of direction, D. Power, Studies in Qur’an and Hadith (Berkeley: Univ. of California Press, 1986), notably at 8; and for further challenge to accuracy of historical work of J. Schacht, M. Al Azami, On Schacht’s Origins of Muhammadan Jurisprudence (Riyadh: King Saud University, 1985); Y. Dutton, The Origins of Islamic Law (Richmond: Curzon, 1999), notably 157ff. (direct reliance by Malik on Koran and sunna or practice of prophet, continuously transmitted, as opposed to hadith or sayings appreciated later); A. Ahmad, Structural Interrelations of Theory and Practice in Islamic Law (Leiden: Brill, 2006) at 38, 40 (Schacht thesis continues ‘to entice scholars...to...premature conclusions’); H. Motzki, The Origins of Islamic Jurisprudence, trans. M. Katz (Leiden: Brill, 2002) at xi, xii (Schacht’s conclusions ‘no longer tenable’ since reliable isnads not available to him point to earlier sources). For Schacht as representative of ‘orientalist project of modern times’ and now ‘growing tendency to accept that various traditions may reflect a genuine past’, J. Lassner, Jews, Christians and the Abode of Islam: Modern Scholarship, Medieval Realities (Chicago: Univ. of Chicago Press, 2012) at 45-6.
111 Cited in B. Johansen, ‘Casuistry: Between Legal Concept and Social Praxis’ (1995) 2 Isl. L. & Soc. 135 at 141–2 (square brackets by Johansen); and for casuistic nature of islamic texts and reasoning, see Chehata, Islamic Law (1974) at 138.
112 Arnaldez, La loi musulmane (1993) at 87; Fakhry, History of Islamic Philosophy (1983), above, notably at xix (for Greek inspiration of speculative theology or kalam opposed by jurists); Weiss, Spirit Islamic Law (1998) at 67, 68 (outlining opposition even to analogical reasoning, seen as leading to more general rules and categories allowing subsequent deduction or subsumption, this an objectionable ‘expression of human initiative’); and for extensive bibliography comparing western and islamic rationalities, Makdisi, ‘Legal Logic and Equity’ (1985), above, at 67.
113 Hallaq, ‘Logic of Legal Reasoning’ (1985–6) at 80.
114 On the process, Pearl and Menski, Muslim Family Law (1998) at 14, 15 (with summary of conflicting views); Fyzee, Outlines (1974) at 98; F. Rahman, Islamic Methodology in History (Karachi: Central Institute of Islamic Research, 1965) (door never formally closed; later writers looked back and determined had been closed); Weiss, ‘Theory of ijtihad’ (1978) at 208 (more ‘accident of history than a requirement of theory...doctors reached an immutable consensus of opinion that further ijtihad was unnecessary’); Malek, Tradition et révolution (1993) at 48; J. Thompson and R. Reischauer, Modernization of the Arab World (Princeton: D. Von Nostrand, 1966) at 40, 41.
115 For the importance of loss of the Mediterranean and resulting insulation, Braudel, History of Civilizations, (1993), above, at 84, 85; and for effect of loss of Baghdad to Tartars in 13th c., Coulson, History Islamic Law (1964) at 81. Internal reasons cannot be discounted, however, since the Mediterranean, and Europe, were not then providing much stimulation, and the fall of Baghdad came late in the process. On importance of ‘internal causes’ and notion that the material sources of divine will had been fully explored, Coulson, History Islamic Law (1964) at 81. Closing the door not only prevented in large measure development of new law, but also prevented the exercise of ijtihad to deconstruct the old, and is therefore closely related to development of the doctrine of heresy; see later in this chapter, The umma and its protection. On decline of islamic science, T. Huff, The rise of early modern science: Islam, China, and the West (Cambridge: CUP, 1993) at 48; S. Ziauddin, ‘Islam and Science’ (lecture to Royal Society Dec. 12, 2006, https://royalsociety.org/events/2006/islam-science/ (on closure as effect of colonialism).
116 K. El Fadl, ‘The Islamic Legal Tradition’ (2012) at 305.
117 See Ch. 1, Tradition as Information: The Conceptual Bran-Tub.
118 J. Makdisi, ‘Formal Rationality in Islamic Law and Common Law’ (1985–6), notably at 109.
119 See later in this chapter, Subtle change.
120 Weiss, ‘Theory of Ijtihad’ (1978) at 207; Hallaq Authority Islamic Law (2001) at ix (taqlid as ‘reasoned and highly calculated insistence on abiding by a particular authoritative legal doctrine’), a description with a familiar ring, and 86, 87, on varieties of it.
121 The word haqq is used in ways compatible both with a western concept of right and a western concept of obligation, in much the same way that ius was used in roman law; Geertz, Local Knowledge (1983) at 188, 189; and on the ambiguous concept of jus in roman law, see Ch. 5, The centrality of the person and the growth of rights.
122 Khan, Islam and Human Rights (1989), above, at 49; Mallat, Renewal Islamic Law (1993) at 124; and 35: 39 (‘He it is who hath made you regents in the earth’), 95: 5 (‘Surely we created man of the best stature’). On the human person as delegate of God in the civil law tradition, see Ch. 5, The centrality of the person and the growth of rights.
123 Doi, Shari’ah (1984) at 9.
125 On the definitional problem in western law, P. Westen, ‘The Empty Idea of Equality’ (1982) 95 Harv. L. Rev. 537 (recalling aristotelian counsel to treat like things alike, unlike things unalike; no criteria for identifying like and unlike; if criteria found, concept of equality superfluous); M. Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell Univ. Press, 1990) at 20 (‘when does treating people differently emphasize their differences and stigmatize or hinder them on that basis? and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?’).
126 Nasr, Heart of Islam (2004), above, at 246 (‘Muslims, like Christians, also believe in the resurrection of the body and not only in the immortality of the soul’).
128 Geertz, Local Knowledge (1993) at 189; and see M. ’Abd al-Rahim, Human Rights and the World’s Major Religions (W. H. Brackney, ed.), vol. 3, The Islamic Tradition (Westport: Praeger, 2005) at 16 (‘Islam’s world view does not concede the often stipulated dichotomy of the material and the spiritual...’); S. H. Nasr, ‘Islam, the Contemporary Islamic World, and the Environmental Crisis’ in Foltz et al., Islam and Ecology (2003), above, 85 at 96 (‘Nature is sacred’ though ‘divinity belongs to God alone’; ‘Nature is not there only for our use’); and for islamic view of time correspondingly as ‘not simply linear’, Nasr, Heart of Islam (2004), above, at 18.
129 Khan, Islam and Human Rights (1989), above, at 47.
130 For islamic science, Huff, Rise of early modern science (1993), above, arguing for the importance of law and forms of corporate organization in promoting or dampening scientific endeavours; and for history in islam, Mallat, Renewal Islamic Law (1993) at 2 (‘relative irrelevance of the historiographic tradition’, leaving much room for western historical research); for the irrelevance of historical enquiry, see above, Ijma, the hadith and revelation; though for 14th-c. islamic world history, Khaldûn, Muqaddimah (1967), above.
131 See, e.g., A. ’Al-Azmah, Islams and Modernities (London: Verso, 1993).
132 G. Makdisi, ‘Guilds of Law’ (1985–6) at 6; C. Melchert, The Formation of the Sunni Schools of Law (Leiden: Brill, 1997), notably on process of ‘traditionalization’ (turning to hadith); M. H. Kahn, The Schools of Islamic Jurisprudence (New Delhi: Kitab Bhavan, 1991); and more generally, Coulson, History Islamic Law (1964) at 36–53, 71–3; and for the process of diffusion of the schools, Hallaq, Origins Islamic Law (2005) ch. 7, notably at 172 (through appointment to bench, establishing teaching circle, perceived merits of teaching).
133 F. J. Ziadeh, ‘Law: Sunni Schools of Law’ in J. Esposito (ed.), The Oxford Encyclopedia of the Modern Islamic World, vol. II (New York: OUP, 1995) 456 at 457.
134 A further literalist school, the Zahiri, which denounced even analogical reasoning, became extinct, though its teaching is still known and discoverable, a sub-tradition in suspended animation. See Coulson, History Islamic Law (1964) at 71, 73; Vikør, God and Sultan (2005) 114 (also on others which ‘did not make it’). A further school or movement, running across traditional Sunni schools, today advocates a return to original sources and the models of the first generations of pious companions, and hence a literal interpretation of sources.
135 On the (nuanced) role of madrasas in institutionalization of madhahib, D. Ephrat, ‘Madhhab and Madrasa in Eleventh-Century Baghdad’ in P. Bearman et al., The Islamic School of Law (Cambridge: HUP, 2005) at 77; and on legal education in madrasas, Hallaq, Shari’a (2009) ch. 3, notably at 136 (‘the farther the students sat from the professor, the less advanced they were deemed to be’) and 139 (professor questioning student on difficult points).
136 S. A. Jackson, Islamic Law and the State (Leiden: Brill, 1996) at 72.
137 Such at least is the islamic teaching. Legislation in given states may claim exclusive application, and may incorporate the law of a single school.
138 Coulson, History Islamic Law (1964) at 96, 79 (the Koran prohibited inequality in exchange of 6 basic commodities, including gold and silver, and the question is how far the prohibition can be extended, by analogy; the Hanafi school extends it to all fungible commodities sold by weight or measure; other schools limit it to various forms of food).
139 The Hanafi school accepts the notion of istihsan, sometimes referred to as juristic preference, which allows choice between competing sources of law. It has often been seen as a form of equity, in law, though the analogy with equity has been challenged. See J. Makdisi, ‘Legal Logic and Equity’ (1985), above. The Malaki school accepts the notion of istislah, or deciding according to the ‘public interest’, a horse potentially as unruly as that of ‘public policy’. On both concepts, Pearl and Menski, Muslim Family Law (1998) at 15; Doi, Shari’ah (1984) at 81, 82; Hallaq, Islamic Legal Theories (1997) at 107–13. Hanbalis prefer the texts of hadith even over ijma and qiyas. Hurvitz, Formation of Hanbalism (2002), above, at 103 ff.
141 See generally Coulson, History Islamic Law (1964) at 86–9, 102 (doctrine originating, explicitly, in late 3rd/9th c., alleviating earlier polemical and intolerant attitudes); Noth, ‘Die Scharīa’ (1980) at 420 (differences more end point of an initially common way than expression of irreconcilable difference); Doi, Shari’ah (1984) at 85, 86 (no differences ‘as far as the basic principles of Islam are concerned’); Gerber, Islamic Law (1999), above, at 73–7 (also on ikhtilaf within schools of law, so ‘devotion’ to founders ‘considerably relaxed’).
142 There is, of course, an easy, textual answer, that consensus is required only for the source of law which is ijma, while difference between schools also results from differences in the hadith which they recognized. More generally, however, there is a notion of a wider consensus, that of all islam (or all judaism) which both tolerates and envelops difference.
143 Thompson and Reischauer, Modernization (1966), above, at 40; Coulson, History Islamic Law (1964) at 182, 183 (citing acceptance of the doctrine by state courts in India, in case where a party unable to marry by Shafi’i personal law declared conversion to Hanafi school and marriage held valid); A. M. di Nola, L’Islam: storia e segreti di una civiltà (Rome: Newton & Compton, 1998) at 96.
144 Noth, ‘Die Schari’a’ (1980) at 429; Coulson, History Islamic Law (1964) at 182–93; and for takhayyur (‘eclecticism’) as element of flexibility in south Asia, Serajuddin, Shari’a Law and Society, above, at 6 ff. (‘searching for precedents...which would conform most to the needs of modern life’); and used in formulation of Egyptian Civil Code, G. Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932–1949) (Leiden: Brill, 2007) at 75-89 (islamic and western sources, using ‘functional’ test).
145 See, on the entire question, Hourani, History of Arab Peoples (1991) at 61, 158, 181 ff.; Lewis, Middle East (1995), above, at 62–7; Walker, Caliphate (1966), above, at 55 (‘legitimists’); Tabataba’i, Introduction to Shi’i Law (1984) ch. 1; Digard, ‘Shi-isme et Etat en Iran’ (1982), above; Coulson, History Islamic Law (1964) ch. 8; Afchar, ‘Muslim Conception of Law’ (1975) at 93–6.
146 On the further sub-traditions of shi’ism, Pearl and Menski, Muslim Family Law (1998) at 17; Coulson, History Islamic Law (1964) at 106; Vikør, God and Sultan (2005) at 121 ff.; and for the four canonical collections of hadith recognized by shi’ites, as descending from the Prophet and the imams, Tabataba’i, Introduction to Shi’i Law (1984) at 5 (constituting equivalent of the six canonical collections in the sunni world).
147 Digard, ‘Shi-isme et Etat en Iran’ (1982), above, at 70, on the need to ‘combler la vide’, and 71 on the great power of shi’ite imams; Doi, Shari’ah (1984) at 80 (on presumed ‘infallible’ character of imams); Tabataba’i, Introduction to Shi’i Law (1984) at 6–11 (on ongoing use of ‘reason’ as source of law, even ‘pure reason’) and Foreword (unnumbered) on ‘long continuous tradition of innovation’; Coulson, History Islamic Law (1964) at 106; and for computerization of islamic doctrine at University of Qom in Iran, Die Zeit, Sept. 23, 1994 at 17.
148 Tabataba’i, Introduction to Shi’i Law (1984) at 29 (‘Rational argument is accepted on the basis of aristotelian deduction, which brings certainty according to the principles of that logical system’) (emphasis added), and 31, 33 and 40 on opposition to deductive methods in shi’ite law by those more loyal to hadith, consensus and analogy (sunni teaching within shi’ism); Weiss, ‘Theory of ljtihad’ (1978) at 211 (on ‘greater capacity of the human intellect to derive legal knowledge’).
149 Digard, ‘Shi-isme et Etat en Iran’ (1982), above, at 71.
150 Tabataba’i, Introduction to Shi’i Law (1984) at 46, on al-Shaykh, 4th/11th-c. author of ‘first notable work of comparative law among Shi’is’ and 43 on ‘mixture’ of shi’ite expositions of law; and for shi’ite differences with sunni law, Coulson, Islamic Jurisprudence (1969) at 31 (shi’ite temporary marriage, sunni law preserving customary law preference for male agnates in succession); M. Amir-Moezzi and C. Jambet, Qu’est-ce que le shî’isme? (Paris: Fayard, 2004) at 101–2 (adding more restrictive shi’ite conditions of divorce or talaq).
151 Thompson and Reischauer, Modernization (1966), above, at 40 (change possible amongst all schools mentioned, including shi’ite); cf. Fyzee, Outlines (1974) at 78, 79 (change possible to ‘any other sunnite school’). Change across the orthodox/unorthodox border, however, would be inevitably less frequent than change occurring even with respect to particular transactions among the sunni schools.
152 On the process of reconciliation, C. Lombardi, State Law as Islamic Law in Modern Egypt (Leiden: Brill, 2006), on Egyptian Supreme Constitutional Court’s interpretation of art. 2 of Egyptian Constitution (shari’a ‘the chief source of legislation’), notably at 174 ff. (no adherence to any one theory, concepts drawn from competing theories, space for ‘liberal interpretation’).
153 David and Brierley, Major Legal Systems (1985) at 473 ff.; for the process up to 1976, Anderson, Law Reform (1976); and for 16th c. attempts at harmonization, Imber, Islamic Legal Tradition (1997), above, at 40–51, 95 (reformulating Ottoman land tenure and tax in Hanafi terms). In the Ottoman empire, canun grew into full-scale codification by mid-19th c.; C. Mallat, Introduction to Middle Eastern Law (Oxford: OUP, 2007) at 121; and for its continuance as ‘unbroken’ though codification less intense than in continental Europe, Rohe, Islamische Recht, at 183-4. For attempts to create ‘compromise’ legislation, Coulson, History Islamic Law (1964) at 153; and for the interdependence of state and islamic law, K. Bälz, ‘Die “Islamisierung” des Rechts in Ägypten und Libyen: Islamische Rechtsetzung im Nationalstaat’, RabelsZ 1998. 437; O. Arabi, Studies in Modern Islamic Law and Jurisprudence (The Hague: Kluwer, 2001), notably at 18–19 (shari’a as ‘living reality’ and ‘positive law of the state’), 200 (‘new ijtihad’ and ‘reconstruction’ of shari’a as state law). State legislation may not prevent, however, ongoing resort to sources of fiqh, as in Indonesia; E. Nurlaelawati, Modernization, Tradition and Identity (Amsterdam: Amsterdam Univ. Press, 2010), notably at 17, 221; M. B. Hooker, Indonesian Syariah (Singapore: ISEAS, 2008) at 5 (fiqh ‘selected out’ by legislature, but continued in schools, fatwas, with ‘independent existence’).
154 For the French process, in the language of Professor Carbonnier, see Ch. 5, Positive law and positive science; and for the acute character of the problem in relation to hindu law, see Ch. 8, Hindu law in India (process of ‘expropriation’ of hindu law).
155 See earlier in this chapter, Substantive shari’a.
156 On the limited notion of stare decisis in islamic law, see earlier in this chapter, Qadi justice and mufti learning.
157 M. Alliot, ‘Über die Arten des “Rechts-Transfers”’ in W. Fikentscher et al (eds.), Entstehung und Wandel rechtlicher Traditionen (Freiburg: Karl Alber, 1980) 161 at 166; Bleuchot, Droit musulman, vol. II (2002) at 459–60 (in Africa even displacing sanction of cutting off of hands for theft).
158 On the conflation of practice and tradition, to the prejudice of the normative content of the tradition, see Ch. 1, Tradition as Information: The Conceptual Bran-Tub and, in the context of chthonic law, Ch. 3, Law and the cosmos.
159 See the discussion on relations between islamic and other traditions, later in this chapter, The islamic diaspora; and on place of urf and adat (from the Malay to return to) in islamic thinking; A. B. Shabana, Custom in Islamic Law and Legal Theory (New York: Palgrave, 2010), notably at 167–8 (customs not antithetical to Koran, which preserved many of them); Anderson, Law Reform (1976) at 11 (reliance on commercial traditions even violating islamic prohibition of riba; prevalence of chthonic traditions in many islamic jurisdictions of Africa); Milliot and Blanc, Droit musulman (1987) at 140 (on custom in north Africa); M. Kemper and M. Reinkowski, Rechtspluralismus in der Islamischen Welt (New York: Walter de Gruyter, 2005), notably for Russia, central Asia, and noting at 1–2 phenomenon of redaction of adat by islamic writers, yielding ‘adat books’. In Afghanistan, 90% of population uses tribal ‘codes of honour’ (e.g., the Pushtunwali), learned islamic law being too little known and official legislation being simply ignored. There is thus water sharing in ‘ways totally alien’ to the Constitution, and no divorce. F. Gailani, ‘Human Rights in Afghanistan’ in E. Cotran and M. Yamani, The Rule of Law in the Middle East and the Islamic World (London: Tauris, 2000) 144 at 147–8.
160 Though on the contribution of formal measures of abrogation, in general 19th-c. movement, W. Clarence-Smith, Islam and the Abolition of Slavery (London: Hurst, 2006) 100–3, though, at 128, process assisted by ‘downgrading’ of slavery from ‘neutral’ to ‘disapproved’ level of conduct (on these categories, see later in this chapter, Subtle change.
161 Noth, ‘Die Schara’ (1980) at 428.
162 See, for various techniques of ijma, M. Shabbir and K. Ephroz, ‘Does Muslim Law In India Need To Be Reconsidered’ in Gupta, Personal Laws (Delhi: Commercial Law Pub’s, 1983) at 43 (can only look back and say ijma exists); Doi, Shari’ah (1984) at 67; Thompson and Reischauer, Modernization (1966), above, at 39; and on limiting effect of al-Shafi’i’s teaching on ijma, Coulson, History Islamic Law (1964) at 80 (as infallible effect of existing ijma spread, use of individual reasoning or ijtihad slowly contracted).
163 Johansen, ‘Casuistry’ (1995), above, at 154, 155 (legal concepts not of universal and uniform legal consequences, but vary according to geography, fields of law; analogy with quaestiones disputatae of civil law (the Bartolisti tradition, here in islam); graded transitions from the central core of one concept to that of another, allowing accommodation of high degree of social differentiation); Hallaq, Authority Islamic Law (2001) at 165 ff. (diversity of opinion and indeterminacy as factors of change); and for application of such flexibility in family law, Tucker, House of the Law (1998), above, at 182.
164 See earlier in this chapter, Of schools and schism.
165 M. Q. Zaman, Ulama in Contemporary Islam [:] Custodians of Change (Princeton: PUP, 2002) at 32 (when convinced no way but to change, ulama ‘could “discover” resources within the juristic tradition to legitimize the required change’), 97 (‘discursive tradition...associated with educational and judicial institutions’); M. Siddiqui, ‘Clarity or Confusion—Classical Fiqh and the Issue of Logic’ in J. Nielsen and L. Christoffersen, Shari’a as Discourse (Farnham: Ashgate, 2010) 17 at 19 (purpose of islamic texts not to formulate ‘body of concise rules but to open the debate’; and for al-Shafi’s view of tentative nature of reasoning of islamic scholars, T. Ramadan, Western Muslims and the Future of Islam (Oxford: OUP, 2004) at 51 (‘our opinion is right though it may turn out to be wrong...we consider the opinion of our opponents to be wrong though it may turn out to be right’). For parallels with the common law as ‘practised framework of practical reasoning’ within courts and teaching institutions, and absence of fixed or binding rules, Ch. 7, Changing thought.
166 Kamali, Islamic Jurisprudence (2003) at 44–6 (classes or values derived from language used in Koran); Doi, Shari’ah (1984) at 59, with consequent range of sanctions; Coulson, History Islamic Law (1964) at 83 (extending law far into morality, leaving little beyond); Weiss, Spirit Islamic Law (1998) at 18–22; Dien, Islamic Law (2004) at 96–8 (range of injunctions as inverted parabolic curve); Hallaq, Shari’a (2009) at 84–6 (all categories seen as law even in absence of sanction, even categorization as neutral implying choice and commitment).
167 See earlier in this chapter, Substantive shari’a.
168 David and Brierley, Major Legal Systems (1985) at 469; Coulson, History Islamic Law (1964) at 140, 141; and on controversy within islamic thinking over hiyal, Khadduri, Islamic Concept of Justice (1984) at 152, 153.
169 Arnaldez, ‘La loi musulmane’ (1993) at 86, and see later in this chapter, Jihad, with respect to its application.
170 See earlier in this chapter, Islamic texts and islamic reason: the role of ijtihad.
171 See Noth, ‘Die Scharîa’ (1980) at 430 (who to point direction of shari’a, without force of taqlid?).
172 Coulson, History Islamic Law (1964) at 203; and see, for history of efforts to revive ijtihad, extending back to 17th c., Brown, Rethinking tradition (1996) at 22 ff., 43 ff. (on scripturalists, who would free interpretation of the Koran from hadiths) and 109 (contemporary ‘revivalists’ who would preserve sacred character of hadith while subjecting them to contemporary scrutiny).
173 Brohi, ‘Die Rechtsideen’ (1986), above, 13 at 23; M. Arkoun, Pour une critique de la raison islamique (Paris: Maisonneuve & Larose, 1984), notably at 38; and for major authors taking this position in Egypt and India, Coulson, History Islamic Law (1964) at 203; Shabbir and Ephroz, ‘Muslim Law In India’ (1983), above at 42, citing M. Iqbal; Hallaq, Islamic Legal Theories (1997) ch. 6 (‘Crises of Modernity: Toward a New Theory of Law’), distinguishing between islamic religious utilitarians and islamic religious liberals; T. Ramadan, Radical Reform (Oxford: OUP, 2009) at 316 (need for ‘rigorous specialization’ in all fields, as well as knowledge of classic texts).
174 Doi, Shari’ah (1984) at 38, 39 (thus acceptable for notions of war, peace, jihad, booty, relations with non-muslims; inacceptable for detailed injunctions in field of crime).
175 Arnaldez, ‘La loi musulmane’ (1993) at 89 (opened in 19th c.); Nasir, Islamic Law of Personal Status (2002), above, at 14; S. Belaïd, Islam et droit, 2nd edn (Tunis: Centre de Publication Universitaire, 2000) on necessary ‘re-reading’ of Koran in matters legal, since so few initial texts.
176 Hallaq, Authority Islamic Law (2001) at 62; W. Hallaq, ‘Was the Gate of Ijtihad Closed?’ (1984) 16 Int. J. Middle East St. 3, repr. in Edge, Islamic Law and Legal Theory (1996) at 287; Gerber, Islamic Law (1999) at 2, 8, 72, 117 (islamic law throughout well structured, possessed flexibility, ijtihad found in fatwas); Kamali, Islamic Jurisprudence (2003) at 768–9 (ijtihad only generic description of ijma, qiyas, other forms of reasoning), 493 (historical view that ijtihad no longer necessary ‘ill-conceived and untenable’); and for a Bangladesh judicial decision refusing to admit closing of the door (and rejecting Privy Council decision having so affirmed), Rahman v. Begum (1995) 15 BLD 34. I am grateful to Prof. Werner Menski for this reference. For the door never having closed in Sh’ite tradition, earlier in this chapter, Of schools and schisms; and for ijtihad which would be ‘alive and well’ in Saudi Arabia, in spite of restrictive, Hanbali view of sources, Vogel, Islamic Law and Legal System (2000), above, at 83; though for ijtihad in Saudi Arabia resulting from influence of 18th and 19th c. Wahhabism (return to pristine origins of Islam, corresponding rebirth of ijtihad), K. El Fadl, The Great Theft (San Francisco: HarperSanFranciso, 2005) at 71.
177 Shabbir and Ephroz, ‘Muslim Law in India’ (1983), above, at 42, citing M. Iqbal.
178 See earlier in this chapter, Substantive shari’a.
179 E. Said, Orientalism (New York: Vintage, 1979); and for consequences in determination of refugee claims, Susan M. Akram, ‘Orientalism Revisited in Asylum and Refugee Claims’ (2000) 12 Int. J. Refugee L. 7, notably at 8, 18–19 (neo-Orientalism ‘promoted’ by ‘more recent movements such as modern feminists and human rights promoters, including universalists and cultural relativists’, resulting in superficial caricatures of ‘Islamic law’ by advocates, ‘dooming the asylum claim itself’, silencing voice of refugee).
180 Braudel, History of Civilizations (1993), above, at 95, 96, and 76, 77 (‘Muslim thought is intimately linked with that of...volatile cabals...was both one and many, universal and regionally diverse’); Lewis, Middle East (1995), above, at 73 (great radical movements in islamic empire all movements within islam and not against it); and for criticism of Said as having himself ‘dichotomized’ Europe and Orient, treating colonial discourse as unitary, ‘undifferentiated across geographic space and over time’, N. Peabody, Hindu kingship and polity in precolonial India (Cambridge: CUP, 2003) at 9, with refs.
181 The Internet may reinforce both the islamic community or umma, given the increase in flow of islamic information, and its internal diversity, given the visibility of diverse opinion. Bunt, Virtually Islamic (2000), above, at 6, 9, 11–12 (‘Cyber Islamic Environments’, ‘voiced Islam’, ‘digital Umma’), 38–9 (‘Muslim diversity online’); and see G. Bunt, iMuslims (Chapel Hill: Univ. of North Carolina Press, 2009) at 131 (‘The Islamic Blogosphere’).
182 Hourani, History of Arab Peoples (1991) at 47, 57. Individual islamic identity would flow from islamic identity of father in case of mixed marriage between islamic man and non-islamic woman; islamic women cannot marry outside the religion; Weiss, Spirit Islamic Law (1998) at 151; Y. Friedmann, Tolerance and Coercion in Islam (Cambridge: CUP, 2003) at 161 ff. (‘Interfaith marriages’). Yet the identity appears simply presumptive, with no obligation of affiliation on the part of the child, born in a ‘natural state’; see Ch. 2, Tradition, races and states. Barack Obama, with christian upbringing, is thus not regarded as an apostate.
183 See earlier in this chapter, Ijma and Change.
184 An echo of this debate occurs with respect to the islamic religion as a whole, some pointing out overlap of scripture with judaism and christianity, others calling for their abrogation by the Koran. The debate has important consequences for the status of non-islamic people in islamic law. See later in this chapter, Jihad.
185 A. Watson, Legal Transplants, 2nd edn (Athens: Univ. of Georgia Press, 1993).
186 See earlier in this chapter, Subtle change, and Ch. 5, Positive law and positive science. The process would have been greatly facilitated in the islamic world, as in Europe, by insistence on conversion to local language. Greek was the language of early arab administration, but was replaced by Arabic in 100/700 when Greek officials were told that their ‘present employment had been withdrawn by God’; Braudel, History of Civilizations (1993), above, at 72.
187 Anderson, Law Reform (1976) at 8; Schacht, Origins of Muhammadan Jurisprudence (1950); Calder, Early Muslim Jurisprudence (1993); Coulson, History Islamic Law (1964) at 39; B. Tibi, ‘The European Tradition of Human Rights and the Culture of Islam’ in An-Na’im and Deng, Human Rights in Africa (1990), above, 104 at 126; Hallaq, Origins Islamic Law (2005) at 25, 33 (e.g., pre-islamic practice of bartering unripe dates still on tree against picked, dried dates, an early futures practice).
188 See generally Arnaldez, ‘La loi musulmane’ (1993) at 83; Hallaq, Islamic Legal Theories (1997) at 113; Pearl and Menski, Muslim Family Law (1998) at 7, 8, 493 (on debate on whether waqf has pre-islamic roots); Hennigan, Birth of Legal Institution (2004), above, at 52–70 (waqf imperfectly preceded in roman, byzantine, jewish, persian law). On possible roman influence, compare J. Schacht, ‘Foreign Elements in Ancient Islamic Law’ (1950) 32 J. Comp. Law & Int. Law 9, and S. Fitzgerald, ‘The Alleged Debt of Islamic to Roman Law’ (1951) 67 LQR 81, both reproduced in Edge, Islamic Law and Legal Theory (1996) at 3, 13; and P. Crone, Roman, provincial and Islamic Law (Cambridge: CUP, 1987) (also on Greek, other oriental influence, though, at 2, islamic tradition ‘armed to the teeth against imputations of foreign influence’); Jokisch, Islamic Imperial Law (2007), above, notably at 3, 5, 51 (early Islamic imperial state borrowing massively from Greek version of Justinian’s Digest in ‘high level reception’); though for vigorous critique of ‘Orientalist’ discussion of ‘debts’ and ‘borrowing’, as based on ‘ninth-rate arguments’, W. Hallaq, ‘The Quest for Origins or Doctrine? Islamic Legal Studies as Colonialist Discourse’ (2002–3) 2 UCLA J. Isl. & N. East. L. 1, notably at 5. For possible talmudic influence, J. Wegner, ‘Islamic and Talmudic Jurisprudence: The Four Roots of Islamic Law and their Talmudic Counterparts’ (1982) 26 Am. J. Legal Hist. 25; A. Geiger, Judaism and Islam (New York: KTAV, 1970), notably at 64–70 (though ‘few borrowings’ of moral and legal rules); on the isra’iliyyat, Juynboll, Authenticity of Tradition Literature (1969), above, at 14; Stowasser, Women (1994) at 22, 23 (influence of isra’iliyyat declining in importance with rise of islamic legal science, though continuing to be influential with respect to Koranic women figures); and on the hadith, ‘Narrate from the Israelites and there is no harm’, Doi, Shari’ah (1984) at 28, 29.
189 Brohi, ‘Die Rechtsideen’ (1986), above, at 18, giving examples of parallel texts between Old Testament and Koran, with comment by Falaturi, at 27 on controversial character of the subject; and see Calder, Early Muslim Jurisprudence (1993) at 209–14, notably at 213 (‘media were not funnels, permitting the integral passage of a particular item from insular culture to insular culture...no question of an integral system being transferred, of books or texts of codes being specifically translated for this purpose’).
190 Falatur, comment on Brohi, ‘Die Rechtsideen’ (1986), above, at 27; David and Brierley, Major Legal Systems (1985) at 463.
191 Guillaume, Traditions of Islam (1924), above, at 11 (Prophet ‘careful to depart as little as possible from the path of his forefathers’, appears even as restorer of ancient faith); Schacht, Islamic Law (1964) at 11 (aim ‘not to create a new system of law’); Anderson, Law Reform (1976) at 10, contrasting accommodating sunni view with more radical shi’ite position on creation of distinct islamic texts.
192 Schacht, Islamic Law (1964) at 13; Pearl and Menski, Muslim Family Law (1998) at 4, 5 (succession opened to women, dower payable to wife, talaq controlled by waiting period, polygamy limited to four wives, with obligation of equal treatment); Lapidus, History Islamic Societies (2002), above, at 25 (Koran introducing ‘new freedom and dignity to individual family members’); Fyzee, Outlines (1974) at 6 (noting view of Sir James Colville that position of islamic wife superior to that of English wife until early 20th c.); earlier in this chapter, Substantive shari’a.
193 E. Klingsmüller, ‘Entstehung und Wandel rechtlicher Traditionen im islamischen Recht’ in Fikentscher, Entstehung und Wandel (1980), above, 375 at 376 on older law becoming ‘religiös sanktioniert’.
194 Cammack, ‘Islamic Law in Indonesia’s New Order’ (1989) at 54, referring to Indonesian population.
195 Coulson, History Islamic Law (1964) at 80 (‘Once formed the ijma was infallible; to contradict it was heresy, and the possibility of its repeal by a similar ijma of a later generation, though admitted in theory, was thus highly unlikely in practice’); D. Arzt, ‘The Treatment of Religious Dissidents under Classical and Contemporary Islamic Law’ in J. Witte, Jr. and J. van der Vyver, Religious Human Rights in Global Perspective (The Hague: Martinus Nijhoff, 1996) at 387; Doi, Shari’ah (1984) at 39 (ruler failing to apply Koran is ‘rebel’, since ‘violates a human right or overlooks a principle of justice and equality’) (on islamic notions of human rights, see later in this chapter, Contrapuntal exchange, with islams).
196 The Economist, July 30, 2005, 41 (‘Coming together: The men of learning against the men of violence’).
197 Schacht, Islamic Law (1964) at 131; and for a (relatively) tolerant position towards ‘rebels’ against political authority, those who act according to at least a possible ‘interpretation’ of islamic law, K. A. El Fadl, Rebellion and Violence in Islamic Law (Cambridge: CUP, 2001), notably at 32, 61 (for distinction from bandits), 237 (‘adhering to an interpretation’), 327 (though loyalty of jurists to legal and not political order).
198 See later in this chapter, Contrapuntal exchange, with islams.
199 D. Little, ‘The Western Tradition’ in D. Little, J. Kelsey and A. Sachedina, Human Rights and the Conflicts of Culture (Columbia: Univ. of South Carolina Press, 1988) at 30, and on the larger doctrine, Arnaldez, ‘La loi musulmane’ (1993) at 86. The defection of the ‘hypocrites’ has been seen as the chief cause of loss of muslim life in the battle of Uhud, shortly after the Prophet’s arrival in Medina. For apostasy originally seen as form of treason, and therefore initially political in nature, Nasr, Heart of Islam (2004), above, at 50 (also treated as ‘law on the books’ yet ‘hardly ever applied’).
200 A. Sachedina, ‘Freedom of Conscience and Religion in the Qur’an’ in Little, Kelsey and Sachedina, Human Rights and Conficts of Culture (1988), above, 53, notably at 66, 67 and 86 (‘much concurrence regarding the underlying commitment of Islam and the West in respect to religious liberty’); S. A. Rahman, Punishment of Apostasy in Islam, 2nd edn (Lahore: Institute of Islamic Culture, 1978) at 25 (also arguing, at 9, 10, that no mention in Koran of punishment ‘in this world’ for apostasy and, at 154, that not punishable unless combined with ‘socio-political’ subversion); Belaïd, Islam et droit (2000), above, at 353, 354. Cf., for texts of Sunna authorizing death, S. Zwemer, The Law of Apostasy in Islam (London: Marshall Brothers, 1925).
201 Amin, Islamic Law (1989) at 57; and for vigour of islamic debate, Bleuchot, Droit musulman, vol. II (2002) at 713–14 (‘God is not a fanatic’, islamic past a ‘collective prison’); G. M. Hussein, ‘Basic Guarantees in the Islamic Criminal Justice System’ in Haleem et al., Criminal Justice (2003), above, 35 at 42 (punishment, ‘in this life, is death’); A Saeed and H. Saeed, Freedom of Religion, Apostasy and Islam (Aldershot: Ashgate, 2004), notably at 88 ff. (‘vast majority’ of ulama today following ‘pre-modern position’ yet position today challenged and restricted); Friedmann, Tolerance and Coercion (2003), above, notably at 199 (Koran would have relegated punishment to hereafter, ‘established law’ gives opportunity to repent); A. An-Na’im, Islam and the Secular State (Cambridge: HUP, 2008) at 119 (Koran contemplating apostate’s continuing residence). For Egypt’s grand mufti, Ali Gomaa, opining in 2007 in favour of freedom of choice, with sanction only in hereafter, The Economist, July 26, 2008 at 30; and for requirement only of repentance (tawba) for potential apostates, M. Adil, ‘Law of Apostasy and Freedom of Religion in Malaysia’ (2007) 2 Asian J. Comp. L., art. 6; yet for Malaysian Supreme Court approval of gov’t refusal to remove ‘Islam’ from personal identification card, B. Dawson and S. Thiru, ‘The Lina Joy Case...’ (2007) 16 Commonw. L. 54.
202 Horowitz, ‘Qur’an and Common Law’ (1994) at 244.
203 For islamic contributions to western law see Ch. 7, Of judges and judging, and The practice of multiple laws; for islamic contributions to western science, earlier in this chapter, Islamic texts and islamic reason: the role of ijtihad; and for drinking of the ‘black liquid’ of coffee (qahwa), Lewis, Middle East (1995), above, at 162, 163.
204 On islamic fundamentalist views of science as both western and evil, refusing to recognize the major contribution of islamic science to western thought, A. Mayer, ‘The Dilemmas of Islamic Identity’ in L. Rouner (ed.), Human Rights and the World’s Religions (Notre Dame: Univ. of Notre Dame Press, 1988) 94 at 104. Here the contemporary western self masks the distant islamic one, from an islamic perspective. In the same way, the contemporary western view of islamic law, as religious law, tends to mask the role of religion in the creation of western law. Yet for recent revival of islamic science, The Economist, January 26, 2013, at 54–5 (Jordan with particle accelerator).
205 David and Brierley, Major Legal Systems (1985) at 474; on the notion of ‘de facto’ rulers, Coulson, History Islamic Law (1964) at 82, 83; and for resistance to the idea of secular constitutions on the ground of ‘no other constitution than the Koran’, S. Belaïd, ‘Les constitutions dans le Tiers-Monde’ in M. Troper and L. Jaume, 1789 et l’invention de la constitution (Paris: LGDJ, 1994) 100 at 104 (outlining options of no constitution, constitution subject to ‘Proclamation’ of religious priority (as in Iran) or incorporation of islamic tradition into constitution (as in Egypt, Syria and many others)).
206 See generally Digard, ‘Shi-isme et Etat en Iran’ (1982), above, at 64 (2 traditions within shi’ism, one opposing, one supporting secular power, thus monarchists and anti-monarchists, constitutionalists and revolutionaries, democrats and Khomeyniists); Mallat, Renewal Islamic Law (1993), notably Pt. One ‘Islamic law and the constitution’; M. Hermassi, ‘De la théorie de l’Etat en Islam’ in G. Conac and A. Amor, Islam et droits de l’homme (Paris: Economica, 1994) at 28; Walker, Caliphate (1966), above, notably at 47 (‘unrestricted power in the hands of the ruler’, possible inheritance from persian monarchy); and on the notion of national identity competing with that of muslim identity, Malek, Tradition et révolution (1993) at 49, 50 (nation most rational of modes of being for a people).
207 See A. A. An-Na’im, Islam and the Secular State (2008) at 2 (‘logical contradiction’ of shari’a as state law), 29 (enactments political will of ruling elite, not normative system of islam as such).
208 Ch. 5, Law’s expansion. For the debate over the place of the shari’a, in selected countries, J. Otto (ed.), Sharia Incorporated (Leiden: Univ. of Leiden Press, 2010); R. Hefner, Shari’a Politics (Bloomington: Univ. of Indiana Press, 2011).
209 On the process of reconciliation and notions of kanun, mazalim, earlier in this chapter, Subtle change; K. A. El Fadl, ‘Islam and the Challenge of Democratic Commitment’ (2003–4) 27 Fordham Int’l. L. J. 5, notably at 71 (democracy appropriate for islam since ‘denies the State the pretence of divinity’); and for detail of law of caliphate, E. Tynan, Institutions du droit public musulman (Beirut: CEDROMA/Université Saint-Joseph, 1999), notably at 129 for election of 1st caliph, designation by prior caliph thereafter, 817 ff. on shi’ite doctrine of caliph’s designation from family and descendants of Muhammad. The notion of shura or consultation, in the Koran itself, is often invoked as a democratic element; A. Afsaruddin, ‘The “Islamic State”: Genealogy, Facts and Myths’ (2006) 48 J. Church & State 153, at 160 (‘collective decision-making’); K. A. El Fadl, ‘The Centrality of Shari’ah to Government and Constitutionalism in Islam’ in R. Grote and T. J. Röder, Constitutionalism in Islamic Countries (New York: OUP, 2012) 35 at 49 (‘ideal of participatory government’).
210 Tibi, ‘European Tradition of Human Rights and Culture of Islam’ (1990), above, at 112; ’Abd al-Rahim, Islamic Tradition (2005).
211 A. Mayer, Islam and Human Rights, 2nd edn (Boulder: Westview, 1995) at 10. The argument cannot be understood in formal terms, since English law, e.g., has not been sympathetic to the concept of rights; see Ch. 7, Right reason. Within a common law tradition there are therefore arguments as to how best one can bring about respect for human values, a debate which in general terms is similar to the one carried on between western human rights advocates and islamic lawyers.
212 For islamic human rights instruments, ’Abd al-Rahim, Islamic Tradition (2005) at 158 ff. (Cairo, Islamic Declarations, Arab Charter); S. Aldeeb, Musulmans face aux droits de l’homme (1994).
213 See A. Sachedina, Islam and the Challenge of Human Rights (New York: OUP, 2009), seeking (at 16) grounding of human rights and religious notions of human dignity in ‘theological-ethical foundations’; A. Emon et al (eds.), Islamic Law and International Human Rights Law (Oxford: OUP, 2012); S. Aldeeb, Musulmans face aux droits de l’homme (1994); A. A. An-Na’im, ‘Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives’ (1990) 3 Harv. Hum. Rts. J. 13 (notably on need for cross-cultural approach and working with islamic sources, rather than imposition of western concept); Conac and Amor, Islam et droits de l’homme (1994), above, (notably at 5 on search for ‘points de convergence et...zones de rupture’ in order to ‘dépasser la polémique’); Haider (ed.), Islamic Concept of Human Rights (1978), above; Khan, Islam and Human Rights, (1989), above; Little, Kelsey and Sachedina, Human Rights and Conflicts of Culture (1988), above; Rouner, Human Rights and World’s Religions (1988), above, (Pt. Two; Islam); ’Abd al-Rahim, Islamic Tradition (2005) at 11, 25 (emphasis within tradition rather on duty; child’s rights ‘correspondingly seen as duties or obligations of parents’); M. A. Baderin, International Human Rights and Islamic Law (Oxford: OUP, 2003), notably at 6 (need to establish concept of international human rights ‘from within the themes of Islamic law’, use of islamic concept of maslahah (welfare) and European concept of margin appreciation as conciliatory devices).
214 On the common doctrinal base for this idea see earlier in this chapter, The individual in the shari’a.
215 R. Hassan, ‘Rights of Women Within Islamic Communities’ in Witte, and van der Vyver, Religious Human Rights in Global Perspective (1996), above, 361 at 361–3, with refs. The best example, uncited, would be a number of latin American countries, where classic rights doctrine is standard fare in law schools. The islamic argument also echoes recent criticism by advocates of talmudic tradition in the U.S.A. See Ch. 4, The individual in the Talmud.
216 Aldeeb, Musulmans face aux droits de l’homme (1994) at 23 (stating position of islamic jurists).
217 Doi, Shari’ah (1984) at 8.
218 See, e.g., W. Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), notably ch. 3 (‘Individual Rights and Collective Rights’), with extensive bibliography.
219 See, e.g., art. 5 of the Fundamentals of Civil Legislation of the former Soviet Union: ‘Civil rights shall be protected by law, except as they are exercised in contradiction to their purpose in socialist society in the period of building communism’ in V. Grebenikov (ed.), Rights of Soviet Citizens: (Moscow: Progress, 1987) at 34, 35.
220 On the parallels, B. Weiss, ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 Am. J. Int. Law 198, at 205, and on inter-generational rights and obligations, see Ch. 3, Law and the cosmos, and Change and the Natural World.
221 4: 34; and for current exegesis of the text, B. Stowasser, ‘Gender Issues and Contemporary Quran Interpretation’ in Y. Haddad and J. Esposito (eds.), Islam, Gender, and Social Change (New York: OUP, 1998) at 30.
222 Thus for challenge to recent rulings in Saudi Arabia relating to women (wearing brassieres, high heels, driving of automobiles) as requiring extensive analysis of islamic authority, K. A. El Fadl, Speaking in God’s Name [:] Islamic Law, Authority and Women (Oxford: Oneworld, 2001), notably at 178, 180 (rulings criticized for failure to disclose legal methodology, selectivity of evidence).
223 See earlier in this chapter, Substantive shari’a; Mayer, ‘Dilemmas of Islamic Identity’ (1988), above, at 110; Pearl and Menski, Muslim Family Law (1998) at 4; Falaturi and May, ‘Gerichtsverfahren’ (1986), above, at 64 (on differing opinions on women as qadi, de facto refusal); Hassan, ‘Rights of Women’ (1996), above, at 361 (Koran interpreted in terms of equality of men and women, each protector of other). More generally, J. O’Connor, ‘Rereading, reconceiving and reconstructing traditions: feminist research in religion’ (1989) 17 Women’s St. 101 at 117; A. Souaiaia, Contesting Justice (2008), above, at 124 (contesting interpretations ‘empowered and supplanted by tradition’); N. R. Keddie, ‘The Rights of Women in Contemporary Islam’ in Rouner, Human Rights and World’s Religions (1988), above, at 76 (and notably at 92 with respect to ‘more profound study than before of the Qur’an and of Islamic laws and traditions so as to find better Islamic bases for an egalitarian position’); S. Iqbal, Woman and Islamic Law (Delhi: Adam, 1997); Nasir, Status of Women (2009); Stowasser, Women (1994) (notably Pt. One for Koranic attitudes to women in sacred history prior to Muhammmad: women of Noah, Lot, Abraham; women in lives of Moses; Bilqis, Queen of Sheeba; Mary); M. Afkhami, Faith and Freedom (Syracuse: Syracuse Univ. Press, 1995), notably Pt. One (‘Women, Islam and Patriarchy’); N. Othman, ‘Grounding Human Rights Arguments in Non-Western Culture: Shari’a and the Citizenship Rights of Women in a Modern Islamic State’ in J. Bauer and D. A. Bell, The East Asian Challenge for Human Rights (Cambridge: CUP, 1999) 169, notably at 177 ff. for debate in Malaysia; M. Qureshi, Status of Women in Islam (New Delhi: Reference, 2003), notably at ix (islam first religion in world to grant ‘respectable status to women, at par with men’, though rights distinguished following ‘sexual, biological and social realities’). For amelioration of status of women in arab countries, R. A. Beck-Peccoz, La modernizzazione del diritto di famiglia nei paesi arabi (Milan: Giuffrè, 1990) at 84–152 (‘Le riforme’); and for efforts of reform, in Egypt and Palestine, L. Welchman (ed.), Women’s Rights and Islamic Family Law (London: Zed, 2004), notably at 3 for ‘state patriarchy’; in Tunisia, Egypt, Pakistan and South Africa, C. Jones-Pauly and A. Tuqan, Women under Islam (London: I. B. Tauris, 2011). For social reality of women’s lives, beyond the texts, A. Sonbol (ed.), Women, the Family and Divorce Laws in Islamic History (Syracuse: Syracuse Univ. Press, 1996), notably at 5 (‘clear differences between the written word and actual practices’); A. Sonbol, ‘Women in Shari’ah Courts: A Historical and Methodological Discussion’ (2003) 27 Fordham Int’l. L. J. 225, notably 246 ff. (major involvement of islamic women in ‘premodern’ Ottoman society, restrictions by state labour and other laws); T. S. Dahl, The Muslim Family (Oslo: Scandinavian Univ. Press, 1997) (on women in poor quarter of Cairo, as ‘minor tradition’ contrasted with ‘major tradition’ of paramount code of islam); Tucker, House of Law (1998), above, notably at 182 for practice of muftis, which ‘softened the male/female dichotomy in marriage’; Tucker, Women, Family and Gender (2008), above, notably at 34 (women as ‘agents within the legal tradition’), 223 (women ‘waged law’, state law impoverishing ‘vastness of the legal tradition’, reducing law’s flexibility on gender issues). For Pakistan experience, N. Shah, Women, the Koran and International Human Rights Law (Leiden: Martinus Nijhoff, 2006); and for intense debate in Iran, Z. Mir-Hosseini, Islam and Gender (London: I. B. Tauris, 2000), notably at xvi, 6, 7 (‘indigenous feminism’, ‘Islamic feminists’, ‘Islam and feminism are not incompatible’); and for women’s mosques, imams of Hui Muslims in China, New York Times, Oct. 10, 2012.
224 Pearl and Menski, Muslim Family Law (1998) at 8 (Kufa/Maliki qadis said more tolerant than Medina/Hanafi ones).
225 Coulson, History Islamic Law (1964) at 190.
227 See J. Goytisolo, ‘Out of Stagnation: Parallels between old Spain and Islam today’ TLS, Feb. 3, 1995, at 3 (‘Islam confers on those excluded from the benefit of the new ecumenical dogma of the West (ultraliberalism, monetarism, untrammelled trade, the planet as Global Shopping Centre) a consciousness to identify with...[an] Islamist system...more tolerable than the oppressive regimes by which they are now governed’); Armstrong, Islam (2000), above, at 6 (‘social justice...the crucial virtue of Islam...characterized by practical compassion’); and for ‘global mobility’ at top rank of stratifying factors between first world and second world of ‘locally tied’, Z. Bauman, Globalization [:] The Human Consequences (New York: Columbia Univ. Press, 1998) at 87, 88.
228 59: 9; and see Khan, Islam and Human Rights (1989), above, at 83 (‘Islam does not contemplate any restriction on freedom of movement and residence, whether within a State or beyonds its borders’); International Law Association London Conference (2000) Committee on Islamic Law and International Law, L’asile et les réfugiés dans la tradition musulmane (London, 2000) at 18 (duty of refuge), 29 (though islamic states not consistently islamic in their practice).
229 See, e.g., J. Carens, ‘Aliens and Citizens: The Case for Open Borders’ (1987) 49 Rev. of Politics 251, repr. in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford: OUP, 1995) at 331.
230 See earlier in this chapter, Substantive shari’a. Again, the philosophy of islam has met with approval by The Economist; see Aug. 6, 1994, at 17, 18 (possibility of more relaxed 21st c. between the two ‘cousins’ if westerners ‘reopen their minds’ to sense of ‘belonging together’, such that west ‘may have a better chance of solving its own problems’).
231 Mallat, Renewal Islamic Law (1993) at 9, 11.
232 J. Neusner and T. Sonn, Comparing Religions through Law (London: Routledge, 1999), on sources of law, institutions, personnel, concepts, and notably at vii (Judaism and Islam ‘stand side by side’ in ‘fundamental convictions about God and the social order’); G. Libson, Jewish and Islamic Law (Cambridge: HUP, 2003), notably at 174, 182 (fruit of comparative studies ‘quite meagre’, though custom served as ‘bridge’ between the two and between each and ‘reality’); Y. Meron, ‘La rencontre contemporaine entre le droit juif et le droit musulman’ RIDC 1984. 59 and historically S. D. Goitein, ‘The Interplay of Jewish and Islamic Laws’ in B. Jackson (ed.), Jewish Law in Legal History and the Modern World (Leiden: Brill, 1980) at 61.
233 Nasr, Heart of Islam (2004), above, at 163; El Fadl, The Great Theft (2005), above, at 227 (dar al-suhl from 10th c.).
234 David and Brierley, Major Legal Systems (1985) at 479; and for particularity, as elsewhere, of islamic law in India, Canada, Germany, Rohe, Islamische Recht (2009) at 275 ff.; in England, R. Griffith-Jones, Islam and English Law (Cambridge: CUP, 2013), notably on proposal of Archbishop of Canterbury for ‘transformative accommodation’; and for text of proposal, with comments, R. Ahdar and N. Aroney, Shari’a in the West (Oxford: OUP, 2010).
235 For formal codification in Sudan, A. Layish and G. Warburg, The Reinstatement of Islamic Law in Sudan under Numayri (Leiden: Brill, 2002) at xiii, 94; and for financial reform in Pakistan, earlier in this chapter, Substantive shari’a; for Morocco, O. Azziman, La traditionalisation du droit: tradition juridique islamique et droit privé marocain (Rome: Centro de studi e ricerche di diritto comparato e straniero, 1993) at 10 ff.
236 See Gupta, Personal Laws (1983), above; Pearl and Menski, Muslim Family Law (1998) at 33, 36–8; Fyzee, Outlines (1974) at 58, 65 (noting ‘amphibious communities’ between islamic and hindu law). Under the Mughal emperors of India, islamic law of the Hanafi school was the law of the land (hindu law being reduced to exceptional and personal application). The British did not recognize the ongoing primacy of islamic law, and reduced it to the status of a personal law, while introducing European notions of legal sources and jurisdiction (in 1853) of British courts. See Liebesny, ‘English Common Law and Islamic Law’ (1985–6), above, at 20. The muslims began their expansion into Pakistan and India as early as the 8th c.; by the late 17th c. Mughal control extended throughout both countries. ‘Muslim adventurism was at first of the smash-and-grab variety’; systematic conquest not attempted until late 12th c.: first enduring Muslim state, the Sultanate of Delhi, not founded until 1206; F. Fernández-Armesto, Millennium (London: Bantam, 1995) at 105.
237 Anderson, Law Reform (1976) at 6; A. Oba, ‘The Sharia Court of Appeal in North Nigeria: The Continuing Crises of Jurisdiction’ (2004) 52 Am. J. Comp. Law 859 (jurisdiction over islamic personal law; also by consent other matters).
238 Ibid., notably at xi, 2, 3 (example of wills being drawn according to ‘Muhammadan customary law’); N. Rouland, Anthropologie juridique (Paris: PUF, 1988) at 347, 348 (on creation of ‘droit coutumier islamisé, ’ facilitated by links of Maliki school with chthonic, pre-islamic arabian and bedouin law); R. Sacco, M. Gaudagni, R. Aluffi Beck-Peccoz and L. Castellani, Il diritto africano (Turin: UTET, 1995) at 106, 112 (relation between chthonic and islamic law key to legal reality in Africa). Islamic law was itself treated as ‘customary’ by colonial authority, but for reaction see A. A. Oba, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’ (2002) 51 I.C.L.Q. 817; and for a similar phenomenon of conflation of islamic law and adat law in south-east Asia, M. Hooker, A Concise Legal History of South-East Asia (Oxford: Clarendon Press, 1978) at 112, 113; Z. bin Zakaria, ‘The Legal System of Malaysia’ in ASEAN Law Association, ASEAN Legal Systems (Singapore: Butterworths, 1995) 77 at 84 (muslim law of marriage and divorce adopted in different types of adat law in Malaysia); Ruthven, Islam in World (1984), above, at 265 (expansion of islam due in large measure to assimilation of many local deities to Allah).
239 Hooker, Islamic Law in South-east Asia (1984); M. B. Hooker, ‘The Law Texts of Muslim South-East Asia’ in M. B. Hooker (ed.), Laws of South-East Asia, vol. I, The Pre-Modern Texts (Singapore: Butterworths, 1986) at 347; Horowitz, ‘Qur’an and Common Law’ (1994); R. Lukito, Legal Pluralism in Indonesia (New York: Routledge, 2013); T. Lindsey (ed.), Indonesia [:] Law and Society, 2nd edn (Annandale: Federation Press, 2008), Part II (‘Adat and Law in a Plural Society’); R. M. Feener and M. Cammack (eds.), Islamic Law in Contemporary Indonesia (Cambridge: HUP, 2007); Special Issue ‘Islamic Law in South-east Asia’ (2002) 4 Aust. J. Asian L. (No. 3); Siregar, ‘Islamic Law in a National Legal System’ (2008), above, notably at 3 (in Indonesia ‘long and continuing associations between various legal traditions’).
240 As has occurred with respect to chthonic land claims in Australia and Canada, and in some measure with respect to chthonic family law; see Ch. 3, On ways of life. There is greater resistance, however, to recognition of religious law. For ongoing, and representative, refusal to recognize islamic divorce of persons domiciled in England, L. Collins (gen. ed.), Dicey, Morris and Collins on the Conflict of Laws, 15th edn (London: Sweet & Maxwell, 2012) vol. II at 1008.
241 M. Rohe, ‘Der Islam und deutsches Zivilrecht’ in H.-G. Ebert and T. Hanstein (eds.), Beiträge zum Islamischen Recht II (Frankfurt: Peter Lang, 2003) 35, notably at 60 (German law leaving much space for ‘private’ ordering, though ‘parallel legal orders’ new phenomenon); M. Rohe, ‘Rechtliche Perspektiven eines deutschen und europäischen Islam’ RabelsZ 2000. 256.
242 See, for reconciling such apparently conflicting objectives, in a multivalent manner, C. E., Nov. 27, 1989, Gaz. Pal., Dec. 8–9, 1989 at 21 (prefects may prohibit wearing of religious apparel, notably hijab, though only in cases of risk to public order); C. E., Nov. 27, 1996, J. C. P. 1997. II. 22808 (wearing of hijab in itself licit, exclusion from school possible only in case of disturbance). On Mar. 15, 2004, however, legislation was adopted in France which would prohibit ‘ostensible’ religious symbols in schools; Law No. 2004–228, J.O. Mar. 17, 2004, becoming art. L 141–5-1 of the Code of Education. The European Court of Human Rights decided in 2009 that the law could be explained by requirements of protecting rights and freedoms of others and public order and that expulsion of students wearing islamic headscarves and sikh turbans was proportionate to the goal pursued, given the possibility of correspondence courses; Singh et al. v. France  ECHR 27561/08. For increasing litigation on the question of religious apparel in some 25 jurisdictions, D. McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart, 2006).
243 In the U.K., Pearl and Menski, Muslim Family Law (1998) at 77–80; S. Shah-Kazemi, Untying the Knot (London: Nuffield Foundation, 2001), notably at 9–11 on the work of the Muslim Law (Shariah) Council; S. Bano, ‘Muslim family justice and human rights: the experience of British Muslim Women’ (2007) 2 J. Comp. L. 38 (criticizing ‘binary opposition’ between multiculturalism and feminism, challenging ‘perceived inherent marginality of Muslim women’ in dispute resolution); in the U.S.A., A. Quraishi and N. Syeed-Miller, ‘No Altars: a survey of Islamic family law in the United States’ in L. Welchman (ed.), Women’s Rights & Islamic Family Law (London: Zed, 2004) 177 at 182 (comparing costs of court litigation), 215 (U.S. court referring case to imams, then homologating result); M. Grossman, ‘Is This Arbitration? Religious Tribunals, Judicial Review, and Due Process’ (2007) 107 Col. L. Rev. 169 (though judicial review limited on religious grounds); L. Bambach, ‘The Enforceability of Arbitration Decisions Made by Muslim Religious Tribunals: Examining the Beth Din Precedent’ (2010) 25 J. Law and Rel. 379 (beth din both useful model and precedent); and for creation of shari’a councils in Quebec (said to be a ‘North-American first’), The Gazette, Feb. 20, 1994 at A-3, though arbitration in Quebec is precluded generally in family matters. Legislation was enacted in Ontario in 2006, however, which would deny effect to formal arbitrations in family matters where the law applied was other than Canadian; see An Act to amend the Arbitration Act, 1991, S. O. 2006, ch. 1; and for background, M. Boyd, Dispute Resolution in Family Law (Toronto: Queen’s Printer, 2004), accessible at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd; and critique, N. Bakht, ‘Were Muslim Barbarians Really Knocking On the Gates of Ontario?...’ (2008) 40 Ottawa L. Rev. 67 (no consideration for religious women; no bar to religious arbitration conforming to (flexible) provincial law); S. Razack, Casting Out (Toronto: Univ. of Toronto Press, 2008) at 148 (‘neo-liberal management of...populations scripted as pre-modern and requiring...surveillance’, ‘feminism can be easily annexed to the project of empire’); A. Macklin, ‘Multiculturalism meets privatisation: the case of faith-based arbitration’ (2013) 9 Int. J. Law in Context 1 (religious arbitration only a variant of underlying problem of authorised private ordering).
244 See generally von Bar, Islamic Law and its Reception (1999), above; S. Poulter, English Law and Ethnic Minority Customs (London: Butterworths, 1986); Pearl and Menski, Muslim Family Law (1998), ch. 3 (‘Muslim Law in Britain’, arguing for an ‘English shari’a’, ‘angrezi shariat’); for the muslim debate in U.K. on whether to press for formal recognition of islamic law, D. Pearl, ‘Islamic Family Law and Anglo-American Public Policy’ (1985–6) 34 Clevel. St. L. Rev. 113 at 126; and more generally, S. Aldeeb, ‘Conflits entre droit religieux et droit étatique chez les musulmans dans les pays musulmans et en Europe’ RIDC 1997. 813; Quraishi and Syeed-Miller, ‘No altars in U.S.’ (2004), above, for sources of islamic family law in U.S.A., practice outside and within U.S. courts; and for U.S. federal control of state efforts to exclude consideration of islamic law, and foreign law in general, S. Symeonides, ‘Choice of Law in the American Courts in 2010’ (2011) 59 Am. J. Comp. Law 303, at 320 ff. For islamic recognition of western personal laws in islamic jurisdictions, see later in this chapter, Jihad.
245 See generally A. March, Islam and Liberal Citizenship (New York: OUP, 2009) chs 5, 6 (residence in, loyalty to, non-Muslim state); K. A. El Fadl, ‘Islamic Law and Muslim Minorities’ (1994) 1 Isl. L. & Soc. 141, notably at 165–75, on the differences (again) between islamic schools (Hanafi school more territorial, others more personal), 178 (‘practical compromises were inevitable, and Muslim jurists may have realized that any attempt to control or regulate behaviour was bound to be ignored by muslim minorities living in different historical situations’); H. P. Glenn, On Common Laws (Oxford: OUP, 2005) at 134 ff.; Ramadan, Western Muslims, above, at 95–6 on obligation to obey local law as part of implied aman or agreement of entry and safe conduct; Pearl and Menski, Muslim Family Law (1998) at 2–65 (notably on more flexible views of Hanafi and Shafi’i schools, though no ‘uniform juristic guidance available’ in islamic law); and see, for resolution by courts in arabic countries of questions of personal status of muslims who are nationals of foreign countries through application of islamic law and not through application of foreign national law, R. A. Beck-Peccoz, ‘Cittadinanza e appartenenza religiosa nel diritto internazionale privato. Il caso dei paesi arabi’ (1993) 9 Teoria politica 97.
246 Though there is much debate on primary motives and on most effective means. For ‘a universalism implicit in Muhammad’s teaching and actions’, Hourani, History of Arab Peoples (1991) at 22; and for use of force followed by rapid adherence of conquered peoples, Lewis, The Middle East (1995), above, at 55, 57 (‘true wonder’ of arabization and islamization of conquered peoples); cf. Doi, Shari’ah (1984) at 444 (Jihad ‘never been fought for mere territorial gain and colonialism’ though ‘to spread what they considered to be the truth wherever they were invited by the rulers or oppressed people of distant lands’); F. Donner, Muhammad and the Believers (Cambridge: HUP, 2010) at 107 (archaeological evidence now suggesting ‘gradual process of social and cultural transformation’, little evidence of violence); H. Kennedy, The Arab Conquests (London: Weidenfeld & Nicholson, 2007) at 6 (military conquests, but ‘often a more peaceful process’).
247 3: 103; and on notion of ‘missionary Jihad’, Doi, Shari’ah (1984) at 437; Maulana, Manual of Hadith (1977), above, at 253; T. W. Arnold, The Preaching of Islam (Lahore: Ashraf, 4th repr. 1979).
248 Arnold, Preaching of Islam (1979), above, at 451; and see Khadduri, War and Peace (1955) at 56 (jihad ‘not necessarily’ war and fighting); R. Firestone, Jihad (New York: OUP, 1999), rejecting linear evolution towards militant jihad, gathering together ‘nonmilitant verses’ of Koran, and others, at 69 ff. For hadith on jihad, Maulana, Manual of Hadith (1977), above, ch. 19;
249 M. Khadduri, The Islamic Concept of Justice (Baltimore: Johns Hopkins Press, 1984) at 165–9 (notion of religious war formulated by Shafi’i in late 2nd/8th c., after initial period of tranquility, notion of defensive jihad dominating from 8th/14th c.); M. Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955) at 58 (jihad as notion of just war); and for jihad activities, Noth, ‘Die Scharîa’ (1980) at 435, and more recently in shi’ite history, Digard, ‘Shi-isme et Etat en Iran’ (1982), above, at 71. Cf., for Muslim expansion due simply to desire for plunder and a unifying activity, Armstrong, Islam (2000), above, at 27–30.
250 H. A. Haleem, O. Ramsbotham, S. Risaluddin and B. Wicker, The Crescent and the Cross (London/New York: Macmillan/St. Martin’s, 1998) at 97, citing the Koran 35:17, ‘no soul shall bear another’s burden’.
251 Pearl and Menski, Muslim Family Law (1998) at 7 (notably on hindu assimilation, this being possible, presumably, because of hindu religious texts and hindu tolerance of multiple, single gods, as to which see Ch. 8, Time and Brahman); Khadduri, War and Peace (1955) at 175 ff.; Y. Friedmann, Tolerance and Coercion in Islam (2003), above, at 85, 159.
252 Pearl and Menski, Muslim Family Law (1998) at 7; and see S. Herman, ‘Legacy and Legend: The Continuity of Roman and English Regulation of the Jews’ (1992) 66 Tulane L. Rev. 1781.
253 See M. R. Cohen, Under Crescent and Cross (Princeton: PUP, 1994); Rouland, Pierré-Caps and Poumarède, Droit des minorities (1996), above, at 65 (arab conquest of Spain in 711 as liberation). Islamic recognition of non-islamic personal laws within islamic jurisdictions has been described as ‘unique in all the legal systems history has known’; al Faruqi and al Faruqi, Cultural Atlas (1986), above, at 268; and for the dhimmi as regulatory compromise between majority and minority groups, inadequately seized by a binary of tolerance or intolerance, A. Emon, Religious Pluralism and Islamic Law (Oxford: OUP, 2012), notably at 4, 5. For western refusal to recognize religious personal laws, see earlier in this chapter, The islamic diaspora.
254 Schacht, Islamic Law (1964) at 132, 143; A. Awang, The Status of the Dhimmi in Islamic Law (Kuala Lumpur: International Book, 1994) at 167–8; cf., criticizing inequality of treatment on human rights grounds, with no discussion of western treatment of aliens, Mayer, ‘Dilemmas of Islamic Identity’ (1988), above, 94 at 143.
255 5: 48, and for non-abrogation, F. Rahman, Major Themes of the Qur’an (Chicago: Bibliotheca Islama, 1980) at 167, 170 (citing also the ‘unheeded’ invitation of 3: 64 ‘O People of the Scripture! Come to an agreement between us and you...’); Brohi, ‘Die Rechtsideen’ (1986), above, at 17, 18 (giving examples of parallel language in Old Testament, Koran); Hourani, History of Arab Peoples (1991) at 21 (jews, christians, zoroastrians, muslims ‘in the early centuries...remained more open to each other than they were later to be’). Muhammad would have recognized only in Medina that jews and christians were likely not to follow him, and there recognized them as communities. F. Rahman, Major Themes of the Qur’an (1980), above, at 163–5; Hourani, History of Arab Peoples (1991) at 18; Kamali, Islamic Jurisprudence (2003) at 306–12 (abrogation only in case of inconsistency). For abrogation, however, Arnaldez, ‘La loi musulmane’ (1993) at 83, 84 (though earlier revelations right for the time and God not in error); and further references in Graf and Falaturi, ‘Brauch/Sitte und Recht in der traditionellen islamischen Jurisprudenz’ (1986), above, at 32; Friedmann, Tolerance and Coercion (2003), above, ch. 4 (‘Apostasy’). The debate is perhaps best seen not in binary terms of abrogation or not, but in terms of the extent of abrogation, and for whom. Proponents of radical abrogation, however, have the jewish-christian teaching to overcome (Paul’s advocacy of abrogation not followed, and understandably, by jews; see earlier in this chapter, Ch. 4, Talmudic retreat?), as well as the special status conferred on other followers of the Book. A doctrine of non-abrogation also provides a means of conciliation with later prophets, such as that of the islamic Ahmadiyya movement, with some 10m adherents following prophet Ahmad of the late 19th c., and pursuing a persuasive but not aggressive evangelism.
256 See earlier in this chapter, Subtle change; Alliot, ‘Rechts-Transfers’ (1980), above, at 166.
257 See R. Peters (trans. and annot.), Jihad in Classical and Modern Islam, 2nd edn (Princeton: Markus Wiener, 2005), notably at 180–3 on return to classical view by Egyptian Jama’a Islamiyya; R. Bonney, Jihad (London: PalgraveMacmillan, 2004), notably at 400 (no legitimate offensive jihad), 418 (jihad for justice); M. Bonner, Jihad in Islamic History (Princeton: PUP, 2006) at 160–1 (late 19th c. shift to defensive jihad, default position of peace); Doi, Shari’ah (1984) at 437; Little, Kelsey and Sachedina, Human Rights and Conficts of Culture (1988), above, at 84.
258 On re-islamization as an effort towards re-equilibrium, Graf and Falaturi, ‘Brauch/Sitte und Recht’ (1986), above, at 45; N. R. Keddie, An Islamic Response to Imperialism (Berkeley: Univ. of California Press, 1968); R. Patel, Islamisation of Laws in Pakistan? (Karachi: Paiza, 1986); Siregar, ‘Islamic Law in National Legal System’ (2008), above, notably at 5 on codification of Islamic law as means of ‘implementing’; M. Salah, ‘La mondialisation vue de l’Islam’ (2003) 47 Arch. philos. dr. 27, notably at 37–8 (umma consistent with larger solidarity, based on negotiated (not imposed) agreements); and on the ‘anti-islamic tradition’ in the west, A. Hussain, Western Conflict with Islam: Survey of the Anti-Islamic Tradition (Leicester: Volcano, 1990), notably at 66 (impossible to understand anti-western feeling in muslim world without understanding anti-islamic tradition in west); N. Daniel, Islam and the West (Oxford: Oneworld, 1997), notably at 156, 157 (Christians inconsistent in advocating use of force against Islam while condemning it for its theoretic approval of force; cutting themselves off from Islamic society while ‘despising’ Muslims for ‘refusal to dispute’); for ‘modernisation’ and ‘decimation’ of law in islamic jurisdictions as a main cause of of islamic alienation, law being ‘the defining characteristic’ of muslim societies, W. Hallaq, ‘“Muslim Rage” and Islamic Law’ (2003) 54 Hastings L. J. 1705, notably at 1714, 1715; and for ‘modernism’ as one of ‘most fanatical, dogmatic, and extremist ideologies that history has ever seen...completely intolerant toward any Weltanschauing that opposes it [such as] that of the Native Americans, whose whole world was forcibly crushed by it’, Nasr, Heart of Islam (2004), above, at 109.