Lecture 8. Muslim legal family

1. Concept and Dissemination of Muslim Law

2. Principal Concepts and Sources of Muslim Law

3. Prominent Branches of Muslim Law. Contemporary Muslim

Law

1. Concept and Dissemination of Muslim Law

Muslim law as a system of norms expressing in religious form basically the will of the religious aristocracy and to some extent sanctioning and supporting a theocratic Islamic State was formed fundamentally during the epoch of the origin of early mediaeval society in the Arab Caliphate in the seventh to tenth centuries and is based on a religion - Islam.

Islam proceeds from the fact that existing law came from Allah, who at a certain moment in history opened it to man through his Prophet Mohammed. The Law of Allah was given to mankind once and forever, and therefore society should be guided by this law and not create its own under the influence of constantly changing social conditions of life. To be sure, according to the theory of Muslim law divine revelation needs explanation and interpretation, on which Muslim jurists-faqhirs have spent centuries of scrupulous work. However, their efforts have been directed not to the creation of a new law, but merely to adapting the law given by Allah for practical use.

Inasmuch as according to Islam, Muslim law reflects the will of Allah, it encompasses all spheres of social life, and not only those which are usually relegated to the legal domain. Thus, Muslim law in the broad sense determines the prayers which Muslims must read, the fasts which they must observe, the alms which they must give, and the pilgrimages which they must perform. One can never coerce to comply with these rules. In this sense Muslim law is regarded as a single Islamic system of socio-normative regulation which includes both juridical norms and non-legal regulators, above all, religious and moral, as well as custom.

The Shari'ah is the quintessence of Islam. It consists of two parts: teleology, or the principles of faith (,akida) and law (fiqh). Fiqh, or Muslim law, is divided into two parts: the first indicates to a Muslim what should be his line of behaviour with respect to himself (mulamat); the second prescribes the obligation with respect to Allah (ibadat). Indeed, in the view of some authoritative researchers, ibadat (teleology) occupies in the Shari'ah a subordinate position with respect to mulamat (law). These two parts of the Shariat comprise the subject of legal science in the form in which it was determined and studies by various Muslim legal schools (mazkhabami). Study of the State is not part of Muslim legal science.

The principal function of the fiqh consists of preserving inextricable links between legislation of a Muslim State and its primary sources. The distinction between Muslim legal science and secular legal science is that the Muslim legal system takes the Koran as its beginning and considers law to be the fruit of divine principles and not the product of human reason and social conditions.

Although Islam is the youngest of the three world religions whose age is nearly fourteen centuries, it is widely practised. It is not only a determined ideology, a religious-ethical doctrine, but also a special culture, civilisation. Norms of Islam are intended to resolve religious and cult questions and to regulate the daily behaviour of Muslims and to form their way of life as a whole.

About a century after the death of the Prophet Mohammed (632), the Omeiad dynasty came to power of the Arab Caliphate, which conducted an aggressive policy of conquest, as a result of which Islam crossed the northern coast of Africa and penetrated into Spain. In the East it traversed the boundary of Persia and reached the Indus. In the fourteenth century a second wave of Islamic advance followed. The conquerors, known as the Sultans of the Osman, or Ottoman, Empire, destroyed the Byzantine Empire, captured Constantinople (1453), and established the dominance of Islam in southeastern Europe. Islam also achieved recognition in Asia.

After the Second World War, certain Arab countries (and often not only Arab) officially called themselves Islamic States. The 1979 Constitution of Iran also adopted the term "Islamic Republic". In the Republic India more than 10% of the population, that is, approximately 100 million people, profess Islam. The non-Chinese population of

Malaysia and Indonesia is primarily Muslim. In Africa the missionaries and traders conquered for Islam the valley of the Nile River and the territory of modern Sudan. From there Islam spread along the trade routes of the Sahara westward. As a result, the population of not only northern Nigeria but also the majority of States previously in French West Africa, are primarily Muslim. Islam also extended to the eastern coast of Africa: Somalia is almost entirely populated by Muslims, and in Tanzania and Kenya there are significant Muslim minorities. Thus, at present Muslim law to one extent or another operates in many countries, from Morocco in the northwest of Africa to Fiji in Oceania. According to various estimates from 800 million to one billion persons professing Islam live in the world; that is, one-sixth of the population of this planet. However, the spatial operation of Muslim law is not identical with the geographic boundaries of the countries with a Muslim population. Nations and ethnic groups exist which profess Islam as a religion, but without having accepted Muslim law.

The foundation of Muslim legal science is the causistic method. It has come to be called "Ilim al furu" or "masa il", the examination of cases.

At the source of all Muslim legal schools, Sunnite and Shi'ite, whose doctrines are recognised stood two schools - the Medina School and the Iraq School. These most ancient schools used customary law rooted in the territories which they controlled and adapted it to the requirements of the Islamic faith.

For historical reasons today four Sunnite (Hanifi, Maliki, Shafi'i, and Hanbali) schools of Muslim law are recognized, and three Shi'ite— Jarafite, Ismaili, and Zeidite. Each school has its own legal method and conception, and each claims to be an autonomous system of Muslim law.

Muslim law is based on indisputable postulates which impart a stability to the system. Muslim jurists condemn all this as to some extent incidental or ambiguous. In their structure the legal norms formulated by these jurists always have been based on external factors. Motives and intentions of the individual are never taken into account. All psychological elements are consciously excluded from consideration.

Law in the understanding of post-Roman and Romano-Germanic law docs not exist in the Muslim understanding of law. Theoretically, only God has legislative power. In reality, the sole source of Muslim law arc the works of legal scholars. Muslim law is a remarkable example of the law of jurists. It was created and developed by private specialists.

Legal science, and not the State plays the role of legislator: textbooks have the force of a law. When considering a case, a judge never expressly turns to the Koran or a Suni to the traditions of the Prophet. Instead he refers to an author, whose authority is generally-recognised.

Muslim law as an aggregate of determined norms was formulated during the first two centuries of the existence of Islam. Subsequent centuries have brought virtually nothing new. This stagnation is attributed to the so-called closure of the gates of human efforts - ijtihad. However, the Shi'ite schools never recognised such a "closure". Therefore, the law of the Shi'ites always was more flexible than the law professed by the Sunnite schools.

As a whole, up to the end of the nineteenth century the evolution of a Muslim legal consciousness was reflected primarily in religious- legal commentaries and collections of fatwas, which construed anew the traditional propositions and principles of the Shari'ah without ever rejecting them expressly and without changing their customary tenor. This was facilitated by the comparatively slow tempo of social development and the dominance of a religious form of social awareness.

Under such conditions Muslim law more or less was responsive to its social designation.