2. Principal Concepts and Sources of Muslim Law

The history of Muslim law commences with the Koran, a collection of sayings of the Prophet Mohammed compiled several years after his death. The Koran consists principally of propositions concerning morality of an excessively general character to be precise and purposeful. For example, the Koran teaches Muslims to display compassion to the weak and poor, to honourably engage in entrepreneurship, not to offer a bribe to judges, and to avoid usury and gambling. However, it does not specify what are the legal sanctions for a violation of these behests, and the rules of behaviour concern for the most part prayer rituals, fasts, and pilgrimages. Even in those instances when the Koran touches on problems of law in the narrow sense, for example, family law, it does not contain a unified system of rules but merely offers a solution to several problems with which the Prophet Mohammed was engaged, being a judge. According to the Koran, the Prophet Mohammed always proceeded in that role from the provisions of customary law, changing it only when it proved to be inadequate or would have contradicted his political aim to replace the old Arab tribalism with a community of people linked by a belief in Allah. Thus in the customary law of Arabs, Mohammed found a rule according to which only the relatives of a deceased male had the right to inherit. Mohammed changed this rule, recognising that daughters, widows, and sisters of the deceased have certain rights of inheritance equally with male heirs. This signified a transition from a traditional patriarchal organization of the tribe to a new model in which the family was the basic cell of society.

The second source of law in significance after the Koran is the Sunna - a collection of legends (hadis) concerning offences and utterances concerning the Prophet Mohammed. A Sunna was the result of an interpretation of the Koran in the early decades after the death of the Prophet reflecting the political and religious struggle around his succession.

Legal norms contained in the Koran and Sunna are considered by Muslim legal scholars to have divine origin and in principle to be immutable, as distinct from rules of behaviour formulated on the basis of other sources of Muslim law.

During the period of rule by the Omeiads (662-750), socio­economic changes occurred in the Arab Caliphate which led to a stabilisation of feudal relations amongst the peoples who settled, including the Arabs. With the emergence of new social structures in economic and cultural life of the Caliphate the need arose to improve Muslim law, transform old legal concepts and institutions, and create new legal norms which would reflect the requirements of the developing feudal relations, protect the interests of the wealthy merchants and Muslim clergy. Simultaneously, such norms should be combined with the postulates of Islam itself and to some extent with the legal traditions of the conquered peoples. Numerous Sunnite and Shi'ite schools emerged which exerted enormous influence on the further evolution of Muslim law.

The Abbasids, who rules the Arab Caliphate from the year 750 to 1258, furthered in every possible way the intensified influence of Muslim law in the State, recognised the authority of the leading jurists- fakirs, and called many of them to the highest judicial instance. There also arose and developed in the enoimous Arab Caliphate several centres for the study of divine revelation. The School of Kufa was named for Abu Hanif by the Arab Caliphate - one of the first of its creators, and the Medina School Maliki for its founder, Ibn Malik. With time the disagreements between these schools became more significant. Nonetheless the utterance ascribed to the Prophet Mohammed was propounded: "Differences of view in my community are an indicator of the favour of Allah".

At the end of the ninth century two more legal schools emerged and to this day have great importance: the Shafi'it School, named in honour of the noted scholar Ash-Shafi, and the Hanbalit School, named for its founder, Ibn-Hanbal.

With time these four schools of law came to dominate in individual parts of the Muslim world: the Maliki and Hanifi - in the Near and Middle East (especially in Egypt, Libya, and Afghanistan) and in the valley of the Indus and in northern, western, and central Africa; the Shafi'i in eastern Africa, Malaysia, and Indonesia, and the Hanbali in Saudi Arabia. Each of these schools of law acknowledged the legality of the others.

Nonetheless, numerous viewpoints of individual legal scholars and legal schools on doctrine gave rise to the apprehension that Muslim law was declining because of an abundance of individual opinions. To avoid this risk, Ash-Shafi'i created the doctrine of the four roots - sources of Muslim law. As a result jurists received a firm general substantiation of legal evaluation. The first root as a source of Muslim law, naturally, was the Koran. The second root, the Sunna, that is, tales of the life of the Prophet so important for interpreting and elucidating the rules of the Koran. The third root was the Ijma, the consent reached by the Muslim community with regard to the duties of the true believer. And the fourth root - the Kiyas - was analogy; that is, the application of new rules to similar instances established by the Koran, Sunna, or Ijma. In the course of the further development of Islamic legal doctrine only one change was made in this scheme - a change of the idea of Ijma, which materially enhanced its practical significance: a proposal adopted once by jurists of all or even one legal school is considered to be a rule. This principle has historically something in common with the ancient Roman "communis opinio prudentium".

Of the four roots as sources, the agreed opinion of jurists-faqhirs is of greatest importance because ultimately it determines the use of analogy, and without it, which just rule of a law may be derived from the Koran or Sunna. The emergence of these sources of Muslim law was on the legal plane conditioned by the fact that the Koran was not a full digest of legal norms, whereas the Sunna, on the contrary, was an enormous multiplicity (many thousands) of hadises often in contradiction with one another and in which simple Muslims and even judges could not find their way by themselves.

After all Islamic legal schools accepted the classical doctrine concerning the roots as sources of Muslim law, the creative activity of Muslim jurists diminished. The previous daily practice of deciding doubtful questions in a relatively free form while adhering to the spirit of the Koran was now considered to be incorrect; one should confine oneself to explanation and interpretation of the books according to Muslim law esteemed in the individual Islamic law schools. Thus, Muslim legal thought gradually began to become dogmatic, and that in all likelihood facilitated the development of certain branches of law outside the Shari'ah.

It was acknowledged without reservation that the Caliph as the head of State was competent to transfer administrative conflicts for consideration to judges specialising in these branches and to specify to them the rules which they must use. In addition, administrative violations and land conflicts were, for political considerations, considered in special courts where there were not, as in the ordinary courts, grandiose procedures for obtaining evidence, chiefly witness. Thus, although it was theoretically considered that Muslim law regulates the entire and full life of the person, its practical significance was in essence confined to the sphere of private law.

The immutability of the dogmas of the Islamic faith and actual immobility of Muslim legal science inspired courts to resort to many devices. The Koran, for example, did not permit loans with interest, prohibiting usury. To get around this prohibition, a system of "double sale" was invented: the borrower "sold" a particular object to a creditor, who at once "resold" to the borrower at a price increased by the stipulated loan interest and paid the loan only upon the expiry of the period. Such "legal artifices" enabled Muslim courts not to violate established customs and at the same time adhere to the provisions of the Shari'ah.

Before the beginning of the nineteenth century the socio-economic position of the peoples of the Muslim world changed rather slowly, and the Shari'ah, despite the immutability of its provisions, fully met those requirements. However, with the fall of the Osman Empire in the Near East the political influence of west European States intensified. Muslim leaders were aware after contact with the outside world that in order to withstand political and economic competition with the European States the modernization of the State and legal systems were essential.

Naturally, all proposals concerning reform in the Muslim State and law were contrary to traditional Islamic doctrine, according to which divine prescriptions were immutable and should not be embodied in a legislative framework. Nonetheless, the process of legislative reforms had begun, and in the sphere of relations which previously were regulated only by Muslim law normative sources of European origin intruded. This process, which commenced in the mid-nineteenth century, touched upon above all the sphere in which conflict with traditional Muslim law was not so acute: trade law and procedure, and maritime law. However, the authorities of the Osman Empire went still farther. The so-called Majalla, a law containing 1850 articles, was adopted (1869-76). This was an attempt to create a Digest of Muslim legal norms in the domain of the law of ownership and obligations on the basis of conclusions of the Hanifi school. Family and inheritance law were not codified.

The need for such a step was conditioned by the fact that secular courts had only just received the competence to consider disputes concerning ownership and obligations and could hardly rely on mediaeval digests of laws. The novelty was that for the first time the rules of the Shari'ah were set out in the form of paragraphs in European style and were introduced into operation with the sanction of the State.

The Majalla was applied in Turkey until the mid-1920s and in a number of Arab countries until the 1950s. At present it does not operate virtually anywhere but continues to be considered to be one of the most authoritative sources of Muslim law.

In regions directly controlled by colonial powers the development of Muslim law proceeded along a different path. There as before it was considered that disputes between Muslims must be settled on the basis of norms of Muslim law. However, in British India, for example, a decision was rendered by judges who were by birth or education British, and the last instance in disputes were judges of the Privy Council in London. Thus, with time Muslim law borrowed much from the Common law, such that one could even speak of "Anglo-Mohammedan Law". This was conditioned by the fact that every time when judges considered the rules of the Shari'ah to be incomplete, ambiguous, or obsolete or to not correspond to "equity, equality, and pure conscience", they turned to more familiar principles and conceptions of the English Common law.

In French Algeria the religious courts retained the competence to consider cases from the sphere of family and inheritance law, but even there under the influence of appellate courts made up of French judges the pure Muslim law of the Maliki School gradually was transformed into the law of Algerian Muslims. More or less the same happened in Morocco and Tunisia.

In 1876 a civil code began to operate in Egypt, drawn up along the Romanist, in particular the French, model. During that same period Egypt embraced the general features of the French Trade Code. Thus emerged the branch of trade law, previously unknown in Muslim law. Initially only the so-called mixed courts which examined suits between Egyptians and subjects of other countries were guided by these codes. In 1883, after insignificant editing, these codes virtually identical to the initial variants came to be used for the settlement of disputes between Egyptians. And in other States, except for Jordan, Kuweit, and certain other countries of the Arabian Peninsula, civil codes of the Romano- Germanic model were enacted.

Those codes, if one does not consider certain inclusions and fragmentary legal concepts, had little in common with the norms of ownership and obligations on which the Hanifi School of Muslim law insisted. However, the codes did not touch questions either of family law nor of personal status in the broad sense.

Later in the twentieth century the reforms dealt with family and inheritance law. In 1917 the Osman Law on the family was adopted under one of the last Sultans. Egypt and Sudan, then a joint Anglo- Egyptian dominion, followed this example, issuing similar laws in the 1920-30s. After the Second World War, laws regulating inheritance and family relations were enacted or proposed virtually in all Arab States. Jordan adopted such a law in 1976, Syria in 1953, Tunisia in 1956, Morocco in 1958, and Iraq in 1959.

These laws provided for several innovations: first, wives were given certain rights to divorce; second, the possibilities were limited for parents and guardians to manage minors; third, polygamy was restricted and the conditions for unilateral divorce by a man from his wife were determined. None of the said countries considered that these reforms required a renunciation of the Shari'ah as the foundation of family law and replacement thereof by something entirely new. Only Turkey considered it essential to take such a decisive step: the Swiss Civil Code, borrowed in 1926, led to a sharp break with traditional Muslim concepts of family and inheritance law, but it was accepted by the population with great difficulty and then materially amended by legislation and judicial practice.

In order to justify legislative innovations in the eyes of Muslim true believers it was essential to prove that the new sources of law were harmonious with the principles of the Shari'ah. Gradually a way out was found which came down to the fact that procedural norms had changed (this was within the competence of the legislator) while preserving the old material norms. Thus, in Egypt marriage of minors, authorised by the Koran, was not prohibited, but in accordance with a new procedural law courts could render a decision with regard to family matters only if the marriage was registered, and a marriage was registered only upon the parties attaining the determined age.

Another principle had even greater practical significance: if the views of Muslim legal schools diverged, the legislator, proceeding from formal law, was competent to prescribe to judges which view to take. Thanks to this, even in the Majalla the legislator often had not chosen the view predominant among proponents of the Hanifi School and sometimes preferred the view of the minority. The 1917 Osman law on the family went further in this respect since it sometimes took-the view predominant in other legal schools. Gradually in order to substantiate of the legislative act it was sufficient to refer to the respective opinion of a particular jurist-faqhir known from the history of Muslim law. It was enough to take one prescription from one author, a second from another, and the conclusion from yet a third.

The intrusion of sources of law of the European type set in motion an irreversible process that touched all Islamic countries where Muslim law had previously been dominant with all the distinctiveness of its sources. The legal systems of these countries underwent material changes in the sense that the significance, sphere of operation, and weight of Muslim law was reduced, and law itself, by its external form in any event, also accepted something from European codifications. However, both these trends should not be exaggerated, especially in light of the wave of the activisation of Islam which during the last quarter of the twentieth century characterises the political life of young Muslim States. This activisation was accompanied by the requirements to repudiate western legal models and fully restore all norms and principles of Muslim law.